|
 How
to Find Legal Information in Special Education
ERIC EC Digest #E651, Bernadette Knoblauch, December 2003
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Everyone
involved in special education—school administrators, classroom
teachers, other special education professionals, psychologists,
parents, and attorneys—needs to be familiar with the legal
requirements and responsibilities for educating children with
disabilities and the liabilities if those responsibilities are
not fulfilled.
Numerous statutes and regulations affect special education. Of
primary interest are the Individuals with Disabilities Education
Act (IDEA) (P.L. 105-17), state education laws, Section 504 of
the Rehabilitation Act of 1973 (P.L. 93-112), and the Americans
with Disabilities Act (ADA) (P.L. 101-336). Also of interest are
various court cases that affect the education of students who
need special education services.
This digest is a general guide to finding and using legal
information. Legal information includes the laws themselves as
well as sources that describe and explain the law, such as legal
journals and law reviews.
Statutes, Regulations, and Decisions
Congress and the state legislatures write statutes (laws) that
mandate the provision of special education. These laws are
implemented through regulations or guidelines issued by agencies
such as the federal and state Departments of Education. Laws and
regulations are interpreted by the courts, which apply the
principles of the law to settle disputes. Although the courts do
not write laws, their decisions may result in judicially created
principles known as case law.
How Federal Laws Are Named
In finding legal information, it is helpful to understand the
naming conventions for laws. When legislation is passed by the
Congress and signed into law by the President, it is assigned a
number. For example, the Individuals with Disabilities Education
Act Amendments of 1997 are assigned the number P.L. 105-17. The
"P.L." stands for Public Law, the "105" indicates the session of
Congress during which the law was passed, and the "17" indicates
that it was the 17th law enacted during that session. So, P.L.
105-17 represents the 17th law that Congress passed and the
President signed during the 105th session of Congress.
Limited copies of new laws become available to officials and the
public through Congress or from the US Government Printing
Office. To obtain a copy of the law, you may contact your
congressional representative or senator. You may also purchase a
copy from the Superintendent of Documents at the Government
Printing Office. However, the full text of the law can be found
through other sources, including the United States Code (USC).
The US Code contains a consolidation of the laws of the United
States arranged according to subject matter. In the US Code, P.L.
105-17 (IDEA) is cited as 20 USC § 1401 (30). The "20" is the
title number. Title 20 contains education statutes. The letters
following the title number (USC) refer to the United States
Code. The "1401" is the section number (§ is the symbol for
section) referring to "Definitions." In the USC, the text of the
IDEA begins at § 1400 and ends at § 1485. The "(30)" refers to a
subsection on transition services.
Federal regulations, the guidelines for implementing the law,
also follow certain naming conventions. Regulations are
developed by the Executive agency responsible for implementing
the law, in this case, the U.S. Department of Education. They
are published by the US Government Printing Office in the
Federal Register and the Code of Federal Regulations (CFR). P.L.
105-17 is cited as 34 CFR § 300 (sections 300.1-300.756 cover
the IDEA regulations). So, for example, in 34 CFR § 300.504
(a)(1), the "34" is the title number, denoting the subject
(education). "CFR" stands for the Code of Federal Regulations.
"§ 300.504" refers to the section on procedural safeguards
notice and the "(a)(1)" refers to a subsection of general
information indicating that "a copy of the procedural safeguards
available to the parents of a child with a disability must be
given to the parents, at a minimum— (1) Upon initial referral
for evaluation."
Federal laws are often amended, and the name of a law may be
changed in the amendment process as well. For example, P.L.
105-17, the Individuals with Disabilities Education Act, is the
most recent version of special education legislation that was
enacted in 1975. Through amendments, the Education for All
Handicapped Children Act of 1975 eventually became the
Individuals with Disabilities Education Act (IDEA), which has
also been amended several times. So it is important to locate
the most recent version of the law.
How to Find Court Cases
Descriptions of court cases are published in volumes according
to the level of court (supreme, appellate, or district) at which
the case was decided (for federal courts) or by geographical
regions and levels of courts (for state courts). These volumes,
called reporters, are available at all law libraries.
Cases are referenced to the Federal Reporter or the Federal
Supplement, both published by the West Publishing Company. For
example, Oberti v. Clementon 995 F.2nd 1204 (3rd Cir. 1993)
would be found in the Federal Reporter, Second Series (F.2nd),
volume 995, page 1204. The case was decided by the Third Circuit
Court of Appeals in 1993. The case of Doe v. Arlington County,
41 F.Supp. 599 (ED.Va. 1999) is reported in the Federal
Supplement, volume 41, page 599. The case was decided by a
district court in Virginia in 1999 (Rothstein, 1995).
Courts of appeals (appellate courts) almost always publish their
decisions. The decisions of the highest appellate court, the
U.S. Supreme Court, can be found in the United States Reports.
For example, Brown v. Board of Education of Topeka, Kansas, 349
U.S. 294 (1955), indicates that the case, decided in 1955, is
reported in volume 349 of the United States Reports on page 294.
Since Supreme Court cases are reported in several publications,
the same case may be followed by the notations 75 S. Ct. 753, 99
L. Ed 1083. This means that the same case also appears in volume
75 of the Supreme Court Reporter on page 753 and in volume 99 of
the Lawyers Edition on page 1083. The most recent cases decided
by the Supreme Court appear in a loose-leaf volume called United
States Law Week, cited, for example, as Irving Independent
School District v. Tatro, 52 U.S. L.W. 5151 (July 5, 1984).
The National Reporter System of the West Publishing Company, in
addition to reporting the federal cases noted above, also
reports cases from state courts. Most reported state appellate
court decisions appear in the following volumes: Atlantic
Reporter (A.), North Eastern Reporter (N.E.), North Western
Reporter (N.W.), Pacific Reporter (P.), South Eastern Reporter
(S.E.), South Western Reporter (S.W.), or Southern Reporter
(So.). Cases from New York, including some trial court
decisions, are available in West's New York Supplement (N.Y.S.);
cases from California are contained in the California Reporter
(Ca. Rptr.). Many of these same cases also appear in respective
regional reporters—the North Eastern Reporter and the Pacific
Reporter.
In addition to reading cases, counselors and educators
interested in a particular topic might go to one of the standard
legal encyclopedias to gain an overview of the topic. The best
known of these encyclopedias are Corpus Juris Secundum (C.J.S.)
and American Jurisprudence 2d (Am. Jur 2d). School
administrators, classroom teachers, psychologists, social
workers, parents, attorneys, other special education
professionals-anyone who wants to know more about legal
research-may consult with a law librarian, and/or read one of
the standard guides on the subject, for example, Jacobstein and
Merskey, Fundamentals of Legal Research (5th ed. 1990).
Where to Find Legal Resources
Legal information can be found at law libraries, law schools,
county bar associations, publishers of legal information, or
online via the Internet.
Every county has a courthouse with a law library, and many areas
have a bar association. Every law school has a library, and most
colleges and universities have legal collections. In each of
these places a librarian can help you find cases of interest.
Perhaps the most convenient way to find legal information is
through the Internet. Sites such as The Law and Special
Education at the University of South Carolina
provide updates regarding
legal developments in special education and include links to the
laws, United States Code, decisions from the US Courts of
Appeals, Supreme Court Decisions, other search engines, Thomas
Legislative Information (from the Library of Congress), plus
other sources of material that address legal aspects of special
education. Other sites offer articles, cases, newsletters,
products, seminars, and other resources about special education
law and advocacy for children with disabilities.
Summary
To learn about the law, study the statutes, regulations, and
case law. If you have a question about a legal issue, read the
statute about the issue, read the regulation that discusses the
issue, then re-read both the statute and the regulation. Next
review the cases that interpreted the issue, reading the earlier
interpretations first. If the case was appealed, read the
decision that was appealed and reversed, or appealed and
affirmed. When you read the earlier law, you can see how the law
has evolved.
As you read the statute and the regulations, you will develop
your own interpretation of the law and the impact it is likely
to have on you.
Resources
Individuals with Disabilities Education Law Report (IDELR), LRP
Publications, Horsham, PA.
Rothstein, L. F. (1995). Special education law (2nd ed.). White
Plains, NY: Longman Publishers.
Special Education Report, Capitol Publications Inc., PO Box
1453, Alexandria, VA 22313-2053.
The Special Educator (TSE), LRP Publications, Horsham, PA.
West's Education Law Reporter, West Publishing Co., 610 Opperman
Drive, PO Box 64526, St. Paul, MN 55164-0526.
Wright, Peter W. D. and Wright, Pamela Darr. (2002). Wrightslaw:
Special Education Law. Harbor House Law Press, Hartfield, VA.
Yell, Mitchell L. (1998). The law and special education. Upper
Saddle River, NJ: Merrill/Prentice Hall.
The following Internet sites offer articles, cases,
newsletters, and resources about special education law and
advocacy for children with disabilities.
Edlaw, www.edlaw.net.
SpecialEdLaw,
http://www.specialedlaw.net/index.mv.
Wrightslaw,
http://www.wrightslaw.com/ articles, cases, newsletters, and
resources about special education law and advocacy for children
with disabilities.
ISER,
www.iser.com, is a directory
of special needs resources for parents of kids with special
needs -- both private and public. It includes Advocates,
Attorneys, Psychologists, therapists, special needs schools and
programs, tutors, specialized caregivers, and more. It also has
a database of articles regarding special needs remediation and
advice for families of kids with special needs.
ERIC Digests are in the public domain and may be freely
reproduced and disseminated, but please acknowledge your source.
This digest was prepared with funding from the Institute of
Education Sciences (IES), U.S. Department of Education, under
Contract No. ED-99-CO-0026. The opinions expressed in this
publication do not necessarily reflect the positions or policies
of IES or the Department of Education.
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