Congress, the Courts and Education Law


Education law is forever evolving, but every once in a while, Congress or the courts make a significant change to the playing field in the school context. Here, Perry Zirkel, professor of education and law, offers five of these significant legal developments to affect the educational community over the past decade.


In 2006, based on Congressional amendments two years earlier, IDEA regulations required states to choose among three options in identifying specific learning disabilities, one of which was Response to Intervention (RTI). Since then, a vast majority of states have permitted school districts to use RTI, while 13 other states have made the RTI process mandatory. 


Starting in 2008, the IDEA regulations were revised to extend the authority of parents who wish to revoke the child's Individualized Educational Program, or IEP, offered to their child. If the parents of a child on an IEP give written notice to the school revoking their consent for services, the school has no recourse but to exit the child from special education. Additionally, in cases where both parents have legal authority for their child’s education, the Office of Special Education Programs says that school districts must accept either parent’s revocation of consent.


In the past 20 years, autism has accounted for not only a significant increase in the percentage of special education enrollments, but also a disproportionately high rate of special education litigation. More often than not, methodology and tuition reimbursement have been the driving forces of autism-related lawsuits during that time. At heart are the procedural and substantive standards for FAPE (Free Appropriate Public Education) under IDEA and the relationship of FAPE to Section 504 of the Rehabilitation Act. 


In the past five years, two Supreme Court decisions have tilted the legal playing field in favor of school districts. In Schaffer v. Weast, the court held that parents have the burden of proof when challenging IEPs. And in Arlington Central School District Board of Education v. Murphy, the court ruled that parents who succeeded in court were not entitled to recoup expert witness fees from the school district.


In 2008, Congress extended eligibility standards under the Americans with Disabilities Act (ADA) and its sister statute, Section 504 of the Rehabilitation Act. The amendments significantly expanded the meaning of “substantial limitation” and “major life activity,” which are essential elements of the definition of “disability” under the ADA and Section 504, resulting in not only more eligible students but also more difficulty for schools to ascertain and fulfill their obligations under the civil rights laws.