Legislation

Special Education and the Law: Click Here to Listen

Synopsis: Dr. Yell is the Fred and Francis Lester Palmetto Chair of the Teacher Education and Special Education departments at University of South Carolina. During the summer of 2019, Dr. Yell was the keynote speaker at the National Consortium for Physical Education for Individuals with Disabilities. In addition, Dr. Yell has published 124 journal articles, 4 textbooks, 26 book chapters, and has conducted numerous workshops on various aspects of special education law, classroom management, and progress monitoring. His textbook, Special Education and the Law, is in its 5th edition. This podcast episode discusses how IDEA came to incorporate specific language related to physical education, how one can help advocate for APE within the IEP process, and specific court cases that have dealt with special education law and physical education.

Individuals with Disabilities Education Act (IDEA)

• Federal Register (August 2006): Assistance to States in Interpreting IDEA - Pages 46541, 46583 concern physical education

• Electronic Code of Federal Regulations for IDEA

Fitness and Athletic Equity Act for Students with Disabilities

Section 504 of the Rehabilitation Act

• Parent and Educator Resource Guide to 504 in Public Elementary and Secondary Schools

Section 1983 of Title 42 of the U.S. Code, part of the Civil Rights Act of 1871

• New York Times Article

U.S. Department of Education's OSEP Response Letter - Addressing Issues of Substituting or Replacing P.E. services with Related Services

U.S. Department of Education's Office for Civil Rights - Extracurricular Athletics

U.S Department of Education "Dear Colleague" Guidance Letter: Students with Disabilities in Extracurricular Activities

U.S Department of Education Fact Sheet: Students with Disabilities in Extracurricular Activities

U.S Department of Education's Guidance Letter Explains Standard-based academics and goals

Policy Letter from the Office of Civil Rights Regarding Students Ages 16 -21 years

Policy Letter from the Office of Civil Rights Regarding Physical Education for Preschoolers with Disabilities

Policy Letter from the Office of Civil Rights Indicating that No Other Subject Area May Substitute for Physical Education

Policy Letter from the Office of Civil Rights "Dear Colleague Letter": Children Residing in Nursing Homes (Home and Hospital)

Policy Letter from the Office of Special Education Programs (2007): Factors impacting placement decisions

Policy Letter for Clarification Related to APE (April 7, 2022)

Board of Education of the Hendrick Hudson School District V. Rowley, 1982

• The first time the Supreme Court interpreted the Free Appropriate Public Education (FAPE) mandate

• The Rowley Two-Part Test

1. Has the State complied with the procedures set forth in the law?

2. Is the resulting IEP reasonably calculated to enable the student to receive educational benefit?

Diaz-Fonseca V. Puerto Rico, 1^st Circuit., 6/16/2006

• The parents of a child with Spina Bifida brought an action against a school district under Section 504, the IDEA, Title II of the Americans with Disabilities Act, and state law alleging that their child needed adapted physical education in the form of swimming classes but the school would not provide it, thus failing to provide a FAPE

• The court found the school had violated the IDEA and awarded tuition reimbursement, psych services, and transportation costs for 3 years of private school.

Kirby v Cabell (2006)

• U.S. district court judge in West Virginia ruled that a student's IEP did not provide FAPE, largely because of inadequate PLAAFP statements.

• The IEP must be developed based on the PLAAFP and without a clear identification of the student's present levels, the IEP cannot set measurable goals, evaluate the child's progress, and determine which educational (and related) services are needed.

Independent School District No 281 v. Minnesota Department of Education, 743 N.W.2d 315 (2008)

• A Minnesota school district violated the IDEA when district officials unilaterally cancelled APE swimming class for 37 high school students with disabilities. The Minnesota Court of Appeals concluded the parents did not receive prior written notice of the change to the students' IEPs. The Court affirmed an order by the state education department that required the district to provide compensatory education services.

Hemet (CA) Unified School District (OCR, 7-2-2009)

• A California school district established a general rule that excluded students with disabilities taking an adapted physical education program from a water safety swimming course. This was done for safety concerns.

• The school district was found to have violated Section 504 and Title II of the American with Disabilities Act.

Marshall Joint School District no. 2 V. Circuit District, 7^th Circuit 8/2/2010

• The IEP team of a child with a genetic disorder had made the decision that an adapted physical education teacher could modify the regular PE class. A physician believed otherwise.

• A physician cannot prescribe adapted physical education, the child’s IEP team (included an adapted physical education teacher) makes the eligibility decision. The team must consider the physicians opinion, it does not have to defer to it

Piazza v Florida Union School District (2011)

• The U.S. District Court for the Southern District of New York allowed the parents to proceed with allegations that the school district failed to implement the student's APE program.

Merrill Delamerced v. School District of Troy, NY, NY SCt, 4/12/13

• A young boy with Asperger syndrome suffered a broken leg after being hit with a ball in physical education class. Parents brought a Section 504 action asserting that their child should have been in an adapted physical education class and a personal injury suit (negligence) asserting that their child was injured because of poor supervision.

• The key issue the court addressed concerned the evaluation and placement.

• The court determined the boy’s gross motor skills had been properly evaluated under Section 504.

• The school’s evaluation and programming were appropriate, thus complied with Section 504.

• The court allowed the claim that the physical education teachers had failed to properly supervise to go forward.

Springfield Local Schools OH SEA, 12/19/2014

• Parents of a child with an IEP filed a state complaint, alleging that the school district had failed to implement his IEP and had not delivered the appropriate amount of adapted physical education services.

• The court found the school had failed to implement the student’s IEP because the document called for the adapted physical education teacher to fill out a daily progress log, which was not done.

• The adapted physical education teacher was not aware of the IEP requirement.

Worthington City Schools, OH, SEA 3/19/2015

• The parents of a child in special education filed a state complaint alleging that his IEP team failed to appropriately consider all necessary information about their child’s medical needs when conducting and considering an adapted physical education assessment, thereby improperly concluding that the child did not need adapted physical education.

• The parents had submitted the report of the child’s physical therapist, which concluded he did need adapted physical education.

• The court ruled the district did not violate the IDEA.

• “As part of an initial evaluation (and as part of any reevaluation under this part, the IEP team must review existing evaluation data on the student, including evaluations and information provided by the parents of the student.”

• The district did consider all information, including the physical therapy's report which was included in the adapted physical education assessment data.

Robbinsdale ISD #281, MN Educational Agency, 7/29/2016

• The Robbinsdale School District violated the IDEA when it stopped provided swimming instruction for 70 special education students with adapted IEP goals and services in swimming.

• The decision was made without convening the IEP team or providing prior written notice.

Endrew F. V. Douglas County School District, 2017

• Endrew F. v. Douglas County School District: Questions and Answers on U.S Supreme Count Case Decision

• The Tenth Circuit's Educational Benefit Standard: “The educational benefit mandated by the IDEA must merely be more than de minimis”.

• On December 22, 2015, the parents appealed to the U.S. Supreme Court presenting the question: What is the level of educational benefit school districts must confer on children with disabilities to provide them with the free appropriate public education guaranteed by the Individuals with Disabilities Education Act?

• The High Court rejected the “merely more than de minimis” standard, vacating the decision and remanding the case back to the 10^th Circuit to apply the new standard.

• “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances."

• Two Key Principles of the Case

1. Progress: Students’ IEPs must be reasonably calculated to enable them to make academic & functional progress appropriate in light of their circumstances.

2. Individualization: Special must be specially designed to meet students’ unique academic & functional needs.

Estate of Isis Esquivel v. Brownsville ISD, SD TX, 9-11-2018

• The parents of a 20-year-old student with multiple disabilities filed a lawsuit under Section 504, ADA, and Section 1983 against the Brownsville ISD, alleging that it failed to provide accommodations their daughter needed to participate in an adapted physical education aquatics program.

• The district operated the “Adapted Physical Education Program at the Aquatics Center.”

• •Isis Esquivel was receiving adapted physical education in the program. Her 504 plan called for accommodations including a nose clip, full body support, and one-to-one supervision.

• •The physical education personnel decided not to implement these accommodations because the nose clip “frequently popped off” and the life jacket was “cheap”.

• Isis Esquivel was in the pool, without the accommodations or supervision. She was found in distress, was transported to the Valley Baptist Medical Center. She later died.

• A video of the pool was “corrupted” and did not show the incident.

• According to the court, Districts that operate swimming programs can't allow their employees to substitute their own judgment about a student's need for safety accommodations. Because an employee's disregard of those accommodations can result in serious injury or death, the district must ensure that all program employees know about the student's accommodations and provide them faithfully.

• The court also ruled that the Brownsville ISD will need to defend allegations that it discriminated against the 20-year-old when it failed to provide needed accommodations.

R.S. V. Woods Charter School Company Middle District of NC, 3/4/2019

• Parents of a child with an IEP filed an action against the Board of Directors of the Woods Charter School, alleging that the school district had failed to provide a FAPE, thus violated the IDEA.

• R.S.’s IEP called for an adapted physical education program. However, his physical education teacher, who was not a certified adapted physical education specialist, only provided a regular physical education program with some modifications, “whenever R.S. had trouble”.

• The physical education teacher eventually consulted with the adapted physical education teacher, but he failed to implement her recommendations because R.S. stopped coming to class.

• The question before the court was if the regular physical education class was comparable to the adapted physical education class.

• The court found that the regular physical education class “manifestly did not provide the (adapted physical education) service as required by R.S.’s IEP”.

Menifee Union School District v Parent on Behalf of Student, State of California: OAH Case No. 2018041172

• Parent of child did not consent to the formal testing (triennial) of her child.

• Parent of child did not consent to the implementation of the Individualized Education Program using the data results from the formal testing.

• Court held that Menifee Union School District was entitled to conduct the triennial assessment proposed in the assessment plan without parental consent.

• The court decision also held that Menifee offered student a Free and Appropriate Public Education in the Individualized Education Program without parental consent.

• The Adapted physical education teacher used the Curriculum, Assessment, Resources, and Evaluation-Revised test (CARE-R2) and the Functional Motor Assessment (FMA).

• Menifee carefully documented its good faith effort to obtain parental consent.

• Menifee met its burden establishing Student's condition and development warranted new triennial assessments. The triennial assessments are needed to provide important educational information to the IEP team. Menifee shall be entitled to conduct those assessments without parental consent.