In 2023, Michigan special education and disability law became the focus of a U.S. Supreme Court case involving a deaf Michigan child, which reversed a federal Sixth Circuit Court of Appeals decision.
In Perez v. Sturgis Public Schools,1 the nation’s highest court unanimously held that a federal law containing an “exhaustion of administrative remedies” requirement does not apply to federal claims where the only remedy sought is money damages. Additionally, this is true even if the claim can be categorized as one for the denial of a child’s right to a free appropriate public education.
This decision in Perez means that, among other things, parents can pursue damages claims under the Americans with Disabilities Act without having to first go through a special education administrative due process hearing.
Children with special needs who qualify for special education services at schools are protected by a variety of federal and state laws. These laws include, but are not limited to, the Individuals with Disabilities Education Act (IDEA) and the Michigan Administrative Rules for Special Education (MARSE).2
Parents of children with special needs act as the primary enforcement mechanism for these laws by bringing actions against school districts, interlocals, and educational service agencies. Unfortunately, there is a shortage of attorneys who can represent the families of the 14% of Michigan students who qualify for special education and related services3 should they need legal counsel.
This article offers general information to Michigan attorneys on the basics of the laws protecting children with special needs.
INDIVIDUALIZED EDUCATION PLANS
Generally, Michigan schools are charged with providing an individualized education plan (IEP) for children with special needs. Generally speaking, an IEP is a multi-page document detailing plans for the child’s education such as placement and services that the child will receive. The child’s unique needs are supposed to be considered when educators and parents devise the IEP.
Federal and state laws generally require IEPs be written in a manner “appropriate” for the child’s needs and conferring “meaningful” educational benefit to the child in the “least restrictive environment.”4 But what constitutes a “meaningful” benefit, what is appropriate for the child, and what is meant by “least restrictive environment”? These concepts are subject to debate and litigated in nearly every case pertaining to IEPs since laws don’t define these words.
Special education laws do not provide for allocation of the very best possible services. Only an appropriate IEP designed to confer meaningful educational benefit does. However, what happens in many cases is that parents and schools often disagree about what’s appropriate for the child — parents generally want more or better services for their children than schools are able or willing to provide. Most schools do not withhold services or qualified staff just to be contrarian. These deficiencies occur primarily because of limited resources, lack of staff, and lack of training.
RESOLVING DISPUTES
Several mechanisms can be used to help schools and parents resolve differences over IEPs. They include complaint investigations, mediation, and due process hearings.
Complaint Investigation
In a complaint investigation, a Michigan Department of Education (MDE) employee gathers information from the person who filed the complaint — typically the parents — and from school staff. Based on that information, the MDE tries to establish what happened (or didn’t happen but should have) during the IEP process.
Once the investigation is complete, the MDE issues its decision. If it finds that any laws were violated, corrective action is ordered. Parents do not pay for an MDE complaint investigation, and while they can hire an attorney to represent them, it is not required.5
Mediation
Mediation, not surprisingly, works much like it does in other areas of law. If the state assigns a mediator to resolve the dispute, there is no cost to the parents.6 However, if the parties decide to hire a private mediator, there is a cost associated with that person’s time.
Statistically, a high percentage of special education mediations result in settlement,7 making it a worthwhile tool for resolving disputes.
Due Process Hearing Requests
A special education due process hearing request involves an independent hearing officer assigned by the MDE. That officer conducts an administrative hearing and issues a decision on whether the child’s substantive or procedural due process rights have been violated. Parents do not pay to use the due process hearing system.8
Parents can hire private counsel familiar with state and/or federal special education laws to represent them at the hearing; however, they foot the bill for representation. If the parents prevail, the federal IDEA law allows them to seek reimbursement from the school district for attorney fees and costs because special education due process cases are seen as civil rights matters.9
Federal and state laws provide that families can have a decision within 45 days of their request for hearing being submitted to the MDE.10 Typically, decisions are handed down in a few months because a hearing usually requires coordinating the schedules of two attorneys and the hearing officer, and an average hearing lasts three to five days. After the hearing officer renders a decision, either party may appeal to state or federal court.11
The Michigan Department of Education has extensive information about the process on its website.12
HOT TOPICS IN SPECIAL EDUCATION LAW
There are many reasons schools and parents reach an impasse about what constitutes an appropriate IEP for a child. The following are the most common areas of dispute.
Autism Spectrum Disorders
Savvy parents of children with autism spectrum disorders want schools to utilize a type of therapy that has been proven scientifically to enable a high number of children with autism to eventually be placed in mainstreams classroom.13 However, this therapy — usually called applied behavior analysis, applied verbal behavior therapy, or discreet trial training — is expensive to implement because it requires one-on-one assistance for the child by a registered behavior technician and a board-certified behavior analyst.
Ordinarily, schools don’t have the funds or training to provide this level of one-on-one therapy. As such, even though it has been known for decades that this peer-reviewed, scientifically based method of instruction really works, schools don’t offer this option to parents, creating a recipe for impasse.
Behavioral Problems
If a child has behaviors that impede his learning or the learning of others, the school needs to conduct a functional behavioral assessment (FBA) that uses a data-intensive review and analysis to determine what precedes the behavior, what the behavior is, and what the consequences are.
After the FBA takes place, a behavior intervention plan (BIP) is incorporated into the child’s IEP. A well-designed BIP helps teachers appropriately and consistently extinguish behaviors that interfere with student learning and replaces them with appropriate behaviors.
For example, a child with an autism spectrum disorder, when given a particularly challenging assignment, might engage in extreme or intrusive behavior as an avoidance tactic because the teacher stops what she was doing to comfort him. Though the teacher’s reaction might be natural, it can reinforce the child’s habit of engaging in extreme or intrusive behavior to avoid doing challenging classwork.
An FBA and BIP would be warranted to address this situation.
Dyslexia
Dyslexia is a common developmental disability that requires specialized instruction. Children with dyslexia learn to read differently from their peers and often require unique methods and more intensive assistance than most schools are able and willing to provide. There is controversy about reading approaches for dyslexic students. Information about studies on effective instruction for these students can be found at the U.S. Department of Education What Works Clearinghouse.14
Suspension and Expulsion
Removing a special needs child from school for misbehavior is different than it is for a regular education child. A student with a disability may be suspended for up to 10 consecutive school days for misconduct.15 The school does not have to provide educational services during the first 10 days of suspension in a school year, and students may be suspended for up to 10 consecutive school days for each separate incident.16 However, when the number of days of suspension in a school year reaches 11, the school must provide educational services to the student and convene an IEP team meeting within 10 business days of the 11th day of suspension to develop a plan for assessing the student’s behavior and reviewing and/or revising the existing behavior plan.17
A student with a disability may be expelled. However, before expulsion can occur, the school must notify the parents on the day the decision is made, provide the parents with a notice of rights, convene an IEP team meeting within 10 school days of the decision to expel the student, and conduct a manifestation determination18 where a committee looks at whether the behavior was caused by the child’s disability. Behavior caused by a disability cannot legally serve as a basis for expulsion.19 If the behavior was not caused by the child’s disability, the child may be expelled but educational services still must be provided so he or she can continue to make educational progress. Parents who disagree with the school’s decision can request an expedited due process hearing.
Finally, a child who has not yet been identified by the school as having a disability but is suspended for more than 10 days or expelled can invoke the protections of the federal IDEA law if the school knew or should have known that the child had a disability but failed to evaluate the child and provide appropriate educational services.20
CONCLUSION
Though it is an oversimplification of this fascinating area of law, the purpose of this article is to provide attorneys with easily accessible and useful information as a primer on special education legal rights and responsibilities.