Special education is the instruction that is specially designed to meet the needs of a child with a disability.

Is My Child Eligible for Special Education?

A child with any of the following disabilities may be eligible for special education under the Individuals with Disabilities Act (IDEA):

  • Mental retardation
  • A hearing impairment or deafness
  • A speech or language impairment
  • A visual impairment, including blindness
  • Emotional disturbance
  • An orthopedic impairment
  • Autism
  • Traumatic brain injury
  • Other health impairment
  • A specific learning disability
  • Combination deaf-blindness or multiple disabilities

What Rights Do My Child and I Have to Special Education?

IDEA gives families of disabled students the right to:

  • Have their child tested to determine eligibility for special education
  • Inspect and review their child’s school records
  • Work with teachers and administrators to create an Individualized Education Program (IEP)
  • Attend an annual review meeting of the IEP
  • Have their disputes with the school district resolved through an impartial administrative and legal process

Students with disabilities are protected by laws such as the Americans with Disabilities Act (ADA). The ADA also protects students in college and graduate school. Furthermore, your state may have enacted more laws protecting the educational rights of disabled children. Each state has its own laws protecting these rights.

Can a School District or School be Sued?

Depending on the facts of a particular case, the appropriate party to sue will be determined. Any responsible entity or individual may be sued for a child’s injuries so long as there are grounds for a legal claim. Here are some examples of individuals who have been sued in connection with a child’s injuries:

  • Principals;
  • Teachers;
  • Coaches;
  • School bus drivers; and
  • Guidance counselors.

Additionally, the school itself may be vicariously liable for the actions of its employees. Pursuant to vicarious liability laws, one individual or entity may be held liable for the actions of another individual. When claiming vicarious liability, there is a separate and more complex process.

As a governmental entity, a public school may be able to claim limited governmental immunity. This immunity varies from state to state. The immunity granted to government entities, including public schools, protects them from claims that arise from situations resulting from the nature of their work.

Whether a school or school district will be granted immunity depends on the facts of the case. If the facts show negligence or willful misconduct, for example, that may be enough to defeat an immunity claim.

When Must You File Your Initial Complaint?

Before filing a lawsuit, an individual will usually need to exhaust all administrative complaints with the school and school district. Several policies pertaining to discipline, safety, bullying, and other issues are developed at the school district level, which is one of the main reasons for this process.

Depending on the school district, the deadline for filing an administrative complaint varies. Therefore, an individual needs to determine the deadline of their school district as soon as possible following an incident.

Once a complaint is made, an investigation will typically follow. Many administrative complaints can be resolved without filing a lawsuit. An individual may be required to file a formal lawsuit against the responsible parties if this is not possible.

Public schools are generally sued over issues such as:

  • Failure to comply with disability laws;
  • The improper application of discipline; and
  • Failing to protect a child against bullying by another student.

Can You Sue Regarding Special Education and Students with Disabilities?

Students who require special education and students with disabilities have certain rights in relation to schools. The Individuals with Disabilities Education Act (IDEA) provides that children who qualify and have a disability are entitled to free and appropriate education.

Children must be evaluated by public schools to determine if they meet this requirement. Children who do meet the requirements are entitled to receive specialized services and instructions from their school. A complaint may be filed if the school fails to comply with IDEA.

For Disabled Students, Do the Rules of Discipline Differ?

Students with disabilities are generally treated the same way as any other student when faced with minor disciplinary measures, such as time-outs, detentions, and short-term suspensions (less than 10 days). However, disabled students are offered more protection in cases of long-term suspension or expulsion.

How Are Students in Special Education Treated Differently in Expulsion Cases?

Students with special education are offered greater protection under the Individuals With Disabilities Education Act (IDEA) in order to keep them in school. Some of the protective measures provided by IDEA are:

  • The student’s Individualized Education Plan (IEP) must address any behavioral problems that may affect the student’s education and also include alternative ways to deal with these problems aside from the standard disciplinary measures of suspension and expulsion.
  • The school must also prepare a Functional Behavioral Assessment (FBA) that evaluates when the student’s behavior problems are most likely to occur, what environment the behavior is likely to occur in, and why the behavior occurs. The school must then prepare a behavioral intervention plan that addresses the behavior problems and implements ways of dealing with them.
  • Prior to suspending or expelling a student with a disability, the school must first hold an IEP meeting.
  • Even if a student with a disability is expelled or suspended from a school, he still has access to free and appropriate public education.

Are There Any Exceptions to This Protection?

There are three situations in which the school can impose a change in placement (long-term suspension or expulsion) without parental consent:

  • A student brings a weapon to school or uses, sells, or solicits illegal drugs at school or during school activities
  • Their behavior was not caused or related to their disability, which must be determined by the IEP team
  • The district requests a due process hearing and proves with substantial evidence that the student is a danger to themselves or others

What If a Disabled Student Is Not in Special Education?

Even a student who has not yet been found eligible for special education might qualify for special protection if the school knew of the student’s disability before the incident occurred.

What Should I Do If My Child’s Rights to Special Education Have Been Violated?

If you think your child’s rights to special education have been violated, you might want to speak to a government lawyer. A lawyer can explain the law to you and ensure that your child’s educational needs are met.

It may be difficult to sue a school or school district given the limited circumstances in which it can be done. Additionally, most government entities enjoy governmental immunity. If necessary, an attorney can review your case, determine whether you have any claims, and represent you in court. In most school districts, there are attorneys on staff to defend them if a lawsuit is filed.

The best way to protect your child’s rights while in school is to have an attorney by your side.
LegalMatch is the best way to find a qualified and experienced government attorney for your child’s special education issues. If you believe your child’s rights to special education have been violated, don’t try to go to battle with the school district by yourself. Hire a top-rated government lawyer today.