Create a newsletter for school staff that highlights three current trends in special education laws


Create a newsletter for school staff that highlights three current trends in special education laws or litigation relating to students with ASD. Use the following questions to guide newsletter topics:How do these three legal trends affect students with ASD, their families, and the effective practices of their educators?How did each legal trend come about and why?How can educators stay current with current legal trends in special education?Use a minimum of three outside scholarly sources.Prepare this assignment according to the APA guidelines found in the APA Style Guide, located in the Student Success Center. An abstract is not required.You are required to submit this assignment to LopesWrite. ead “Your Child’s Rights: Individualized Education Program (IEP): Summary, Process and Practical Tips,” from the Autism Speaks website.URL:


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Chapter5: Who is Protected
courts have traditionally applied different levels of scrutiny, depending on the type of
case involved. Two major factors are at issue in deciding what level of scrutiny to apply.
One is whether the person claiming a denial of equal protection is a member of a class
of individuals who are or should be entitled to special consideration. The other is the
importance of the right at issue.Classification of Individuals With DisabilitiesThe
following opinion excerpt demonstrates the level of scrutiny that is to be applied to
individuals who are intellectually disabled. The decision did not involve the educa-tional
setting, but it is instructive in evaluating potential constitutional claims involv-ing
individuals with disabilities. The case involved a city council’s denial of a special-use
permit to operate a group home in a residential neighborhood. The applicant for the
permit wanted to operate a group home for 13 men and women with intellectual disabilities. They would have had constant staff supervision. The reason for the city’s
denial included negative attitudes and fears of nearby property owners, concern that
residents would be harassed by junior high students from a nearby school, the location
of the home on a flood plain, and concern that a group home would result in crowded
conditions. In deciding what level of scrutiny to apply in evaluating whether the denial
was constitutional, the Supreme Court examined the classification of the group affected.
It should be noted that the term mentally retarded is no longer the preferred term;
intellectual disability is generally used instead and is now required in federal law. This
decision, however, was made before that change.CITY OF CLEBURNE V. CLEBURNE
LIVING CENTER473 U.S. 432 (1985)Justice White delivered the opinion of the
Court.The Equal Protection Clause of the Fourteenth Amendment commands that no
State shall “deny to any person within its jurisdiction the equal protection of the laws,”
which is essen-tially a direction that all persons similarly situ-ated should be treated
alike. Section 5 of the Amendment empowers Congress to enforce this mandate, but
absent controlling congres-sional direction, the courts have themselves devised
standards for determining the validity of state legislation or other official action that is
challenged as denying equal protection. The general rule is that legislation is presumed
to be valid and will be sustained if the classifi-cation drawn by the statute is rationally
related to a legitimate state interest. . . .When social or economic legislation is at issue,
the Equal Protection Clause allows the states wide latitude, and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic
pro-cesses.The general rule gives way, however, when a statute classifies by race,
Publications, Inc. origin. These factors are so seldom relevant to the achievement of
any legitimate state inter-est that laws grounded in such considerations are deemed to
reflect prejudice and antipathy— a view that those in the burdened class are not as
worthy or deserving as others. For these reasons and because such discrimination is
unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny and will be sustained only if they are suit-ably tailored to serve a compelling state
interest. Similar oversight by the courts is due when state laws impinge on personal
rights protected by the Constitution. Legislative clas-sification based on gender also
calls for a heightened standard of review. . . .A gender classification fails unless it is
sub-stantially related to a sufficiently important governmental interest. Because
illegitimacy is beyond the individual’s control and bears “no relation to the individual’s
ability to partici-pate in and contribute to society,” official dis-criminations resting on that
characteristic are also subject to somewhat heightened review. Restrictions “will survive
equal protection scru-tiny to the extent they are substantially related to a legitimate state
interest.”We have declined, however, to extend heightened review to differential
treatment based on age. The lesson is that where indi-viduals in the group affected by a
law have distinguishing characteristics relevant to the interest the state has the authority
to imple-ment, the courts have been very reluctant to closely scrutinize legislative
choices as to whether, how and to what extent those inter-ests should be pursued. In
such cases, the Equal Protection Clause requires only a ratio-nal means to serve a
legitimate end.Against this background, we conclude for several reasons that the Court
of Appeals erred in holding mental retardation a quasi-suspect classification calling for a
more exacting stan-dard of judicial review than is normally accorded economic and
social legislation. First, it is undeniable, and it is not argued otherwise here, that those
who are mentally retarded have a reduced ability to cope with and func-tion in the
everyday world. Nor are they all cut from the same patterns:as the testimony in this
record indicates, they range from those whose disability is not immediately evident to
those who must be constantly cared for. They are thus different, immutably so, in
relevant respect, and the states’ interest in deal-ing with and providing for them is
plainly a legitimate one. How this large and diversified group is to be treated under the
law is a difficult and often a technical matter, very much a task for legislators guided by
qualified profes-sionals and not by the perhaps ill informed opinions of the judiciary.
Heightened scrutiny inevitably involves substantive judgments about legislative
decisions, and we doubt that the predi-cate for such judicial oversight is present where
the classification deals with men-tal retardation.Second, the distinctive legislative
response, both national and state, to the plight of those who are mentally retarded
demonstrates not only that they have unique problems, but also that the lawmakers
have been addressing their difficulties in a manner that belies a continu-ing antipathy or
prejudice and a correspond-ing need for more intrusive oversight by the judiciary. . .
.Such legislation thus singling out the retarded for special treatment reflects the real and
undeniable differences between the FOR THE USE OF GRAND CANYON
Copyright © 2014 by SAGE Publications, Inc. 74 SPECIAL EDUCATION LAWretarded
and others. That a civilized and decent society expects and approves such leg-islation
indicates that governmental consider-ation of those differences in the vast majority of
situations is not only legitimate but desir-able. . . . Especially given the wide variation in
the abilities and needs of the retarded them-selves, governmental bodies must have a
cer-tain amount of flexibility and freedom from judicial oversight in shaping and limiting
their remedial efforts.Third, the legislative response, which could hardly have occurred
and survived without public support, negates any claim that the mentally retarded are
politically powerless in the sense that they have no ability to attract the attention of
lawmakers. Any minority can be said to be powerless to assert direct control over the
legislature, but if that were a criterion for higher level scrutiny by the courts, much
economic and social legislation would now be suspect.Fourth, if the large and
amorphous class of the mentally retarded were deemed quasi-suspect for the reasons
given by the Court of Appeals, it would be difficult to find a princi-pled way to distinguish
a variety of other groups who have perhaps immutable disabili-ties setting them off from
others, who cannot themselves mandate the desired legislative responses, and who can
claim some degree of prejudice from at least part of the public at large. One need
mention in this respect only the aging, the disabled, the mentally ill, and the infirm. We
are reluctant to set out on that course, and we decline to do so.Doubtless, there have
been and there will continue to be instances of discrimination against the retarded that
are in fact invidious, and that are properly subject to judicial correc-tion under
constitutional norms. But the appropriate method of reaching such instances is not to
create a new quasi-suspect classifica-tion and subject all governmental action based on
that classification to more searching evaluation. Rather, we should look to the likelihood that governmental action premised on a particular classification is valid as a
general matter, not merely to the specifics of the case before us. Because mental
retardation is a characteristic that the government may legiti-mately take into account in
a wide range of decisions, and because both state and federal governments have
recently committed them-selves to assisting the retarded, we will not presume that any
given legislative action, even one that disadvantages retarded individuals, is rooted in
considerations that the Constitution will not tolerate.Our refusal to recognize the
retarded as a quasi-suspect class does not leave them entirely unprotected from
invidious discrimination. To withstand equal protection review, legislation that
distinguishes between the mentally retarded and others must be rationally related to a
legitimate governmental purpose.The Cleburne case demonstrates that individuals with
intellectual disabilities specifically, and individuals with disabilities generally, will not be
given any height-ened level of scrutiny, because they are neither a suspect nor a quasisuspect class. It is important to note, however, that the Supreme Court emphasized that
irrational prejudice could not be the basis for unequal treatment. This standard will be
impor-tant in assessing the exclusion of students with HIV, because it is well
Publications, Inc. Who Is Protected 75that the fear of being infected with HIV through
the types of casual contacts that occur in the education setting is irrational.Subsequent
to the Cleburne decision, Congress enacted the Americans with Disabilities Act (ADA)
in 1990. The preamble states that “historically, society has tended to isolate and
segregate individuals with disabilities; . . . [and] individuals who have experienced
discrimination on the basis of disability have often had no legal recourse to redress such
discrimination; . . . [and] individuals with disabilities are a discrete and insular minority . .
. subjected to a history of purposeful unequal treat-ment, and relegated to a position of
political powerlessness in our society, based on characteristics that are beyond the
control of such individuals. . . .”1 It would appear that Congress was setting the stage
for possible future cases that might address dis-ability under a constitutional challenge
to provide a basis to overrule the Cleburne decision. Since 1990, however, the Supreme
Court has not addressed a case where this issue was raised. Thus, it is not clear
whether the Court would change its analysis. Given the comprehensive statutory
coverage, however, it is less necessary to bring a case under the Constitution’s equal
protection and due process clauses.Heightened Scrutiny for EducationThe Cleburne
case examined the classification of individuals with disabilities and con-cluded that their
status does not give them any special protection. As the following case excerpt
demonstrates, however, special education cases will be examined with a high level of
scrutiny, not because students with disabilities are involved, but because education is
considered to be a right entitled to “special constitutional sensitivity.” The case involved
whether undocumented alien students residing in the United States were entitled to
public education.PLYLER V. DOE457 U.S. 202 (1982)Public education is not a “right”
granted to individuals by the Constitution. But neither is it merely some governmental
“benefit” indis-tinguishable from other forms of social welfare legislation. Both the
importance of education in maintaining our basic institutions, and the lasting impact of
its deprivation on the life of the child, mark the distinction. . . .We have recognized “the
public schools as a most vital civic institution for the preservation of the democratic
system of government,” and as the primary vehicle for transmitting “the values on which
our society rests.” . . .[H]istoric “perceptions of the public schools as inculcating
fundamental values necessary to the maintenance of a democratic political sys-tem
have been confirmed by the observations of social scientists.” In addition, education
provides the basic tools by which individuals might lead economically productive lives to
Publications, Inc. 76 SPECIAL EDUCATION LAWbenefit of us all. In sum, education
has a fundamental role in maintaining the fabric of our society. We cannot ignore the
significant social costs borne by our Nation when select groups are denied the means to
absorb the values and skills upon which our social order rests. In addition to the pivotal
role of educa-tion in sustaining our political and cultural heritage, denial of education to
some iso-lated group of children poses an affront to one of the goals of the Equal
Protection Clause: the abolition of governmental barri-ers presenting unreasonable
obstacles to advancement on the basis of individual merit. Paradoxically, by depriving
the children of any disfavored group of an education, we foreclose the means by which
that group might raise the level of esteem in which it is held by the majority. But more
directly, “edu-cation prepares individuals to be self-reliant and self-sufficient participants
in society.” Illiteracy is an enduring disability. The inability to read and write will
handicap the individual deprived of a basic education each and every day of his life. The
inestimable toll of that deprivation on the social, economic, intellec-tual, and
psychological well-being of the individual achievement make it most difficult to reconcile
the cost or the principle of a sta-tus based denial of basic education with the framework
of equality embodied in the Equal Protection Clause. . . .In these days, it is doubtful that
any child may reasonably be expected to succeed in life if he is denied the opportunity
of an educa-tion. Such an opportunity, where the state has undertaken to provide it, is a
right which must be made available to all on equal terms. . . .If the State is to deny a
discrete group of innocent children the free public education that it offers to other
children residing within its borders, that denial must be justified by a showing that it
furthers some substantial state interest. No such showing was made here.As the
preceding two opinions demonstrate, it would seem that constitutionally based cases
involving unequal treatment in the education system are going to incorpo-rate a
“heightened equal protection” test, which will probably result in a very close examination
of the state’s treatment of students with disabilities. The judicial opinion in the PARC
(Pennsylvania Association for Retarded Children [PARC] v. Pennsylvania) case, issued
before either Plyler or Cleburne, similarly indicated that exclusion of stu-dents with
intellectual disabilities is unlikely to be rationally based.2Inasmuch as a constitutionally
based challenge to unequal treatment or denial of education without due process is
likely to succeed for students with disabilities, why then are all special education cases
not brought alleging constitutional violations? The two major reasons that more are not
constitutionally based are that constitu-tional cases are cumbersome and complex to
litigate, and that the Smith v. Robinson3 decision established that most special
education claims must be brought under the Individuals with Disabilities Education Act
(IDEA). In that case, the Supreme Court also concluded in that “Where the [IDEA] is
available to a handicapped child . . . [it] is the exclusive avenue through which the child
and his parents or guardian can pur-sue their [equal protection claim].”4 In most cases,
the IDEA will provide an adequate basis for redress.FOR THE USE OF GRAND
STRICTLY PROHIBITED. Copyright © 2014 by SAGE Publications, Inc. Who Is
Protected 77Cases Under the IDEAWhat Is a Disability?As noted in Chapter 4, the
IDEA defines children with disabilities as thosehaving mental retardation [now
intellectual disability], a hearing impairment (including deafness), a speech or language
impairment, a visual impairment (including blindness), a serious emotional disturbance
(referred to in this part as “emotional disturbance”), an orthopedic impairment, autism,
traumatic brain injury, another health impairment, a spe-cific learning disability, deafblindness, or multiple disabilities, and who, by reason thereof, needs special education
and related services.5Chapter 4 mentioned briefly some of the problems of labeling.
This section will focus on some of the issues that arise under the definition of child with
a disability under the IDEA. More detailed information about eligibility under the IDEA is
pro-vided in Chapter 6.One of the key provisions in the child with a disability definition is
that the child must require special education services as a result of the disability. A
student who needs only related services that are not special education services is not
covered under the IDEA.For example, a student who is able to participate fully in the
regular classroom but who has a mobility impairment and needs assistance in moving
from class to class may not be protected by the IDEA. Similarly, a student with spina
bifida who is mentally and physically able to participate in the regular academic program
but who requires inter-mittent catheterization is likely not disabled within the IDEA.
Failure to provide needed services to these students, however, is probably a violation of
Section 504 and the Americans with Disabilities Act requirements to provide reasonable
accommodation.One of the more unusual early cases involving a disability and related
services was Espino v. Besteiro.6 In that case, the boy had a condition preventing the
regulation of his body temperature. Although his condition was unusual, the student was
covered under the IDEA, and, as a result, the court held that the school was required to
air-condition the entire classroom in order to meet the least restrictive environment
(LRE) require-ments under the IDEA. The court reasoned that providing air-conditioning
would give the student maximum classroom interaction with his classmates. This case
would prob-ably have required the same accommodation had it applied Section 504 or
the ADA.Another interesting decision involved a 13-year-old intellectually gifted girl who
had anorexia nervosa. The court concluded that this physical condition resulted from
underlying emotional disturbance and that she was classified as emotionally disturbed
and disabled within the IDEA.7Age Eligib …
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