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Special Education Law, Second Edition
Nikki L. Murdick , Barbara C. Gartin, and Terry Crabtree
With IDEA 2004 and its accompanying regulations as its foundation, this readable book provides the most up-to-date and accurate information on the laws impacting the field of special education today. This comprehensive book enables students and professors to examine current legislation from a historical perspective, and provides the reader with an opportunity to understand the evolving nature of special education legislation and how it is interpreted by case law.
The second edition of Special Education Law has expanded its utility by adding additional content, including:
PART I The Bases for Special Education
Chapter 1 Historical Overview of Special Education
Chapter 2 A New Foundation for Special Education Services
PART II Six Basic Principles of Special Education Legislation
Chapter 3 Free Appropriate Public Education
Chapter 4 Nondiscriminatory Evaluation
Chapter 5 Program Development
Chapter 6 Least Restrictive Environment
Chapter 7 Procedural Due Process
Chapter 8 Parental Participation
PART III Remedies
Chapter 9 Enforcement
Chapter 10 Discipline Issues
Chapter 11 Mediation and Impartial Due Process Hearing
Chapter 12 Ethics and the Special Education Professional
As we were preparing this text, it became clear to us that you, our readers, might appreciate the reasoning for our choice of organization, specific cases, and so forth. This information would provide a background as to why we focused on certain aspects of the law or cited cases that you may not consider relevant.
From a historical perspective the Individuals with Disabilities Education Act (IDEA) was a response, in part, to issues raised by advocacy groups and court decisions. IDEA is, in fact, rooted in the social and philosophic fabric of the nation's ideals of equality. These ideals have led the nation to review possible injustices and loss of personal rights through litigation at the state and national level. The results of this litigation are catalogued and known as "case law." This information provides a historical, and often relevant, body of knowledge that is cited as "precedent" or "stare decisis" when issues are addressed through litigation or legislation at a later date. The study of law is, in part, the study of history.
Therefore, as we prepared this text we cited and discussed cases that were brought before the courts at all levels to illustrate the points being examined in each chapter. Lower court decisions have a limited effect and only officially influence the state, district, or the specific federal circuit in which they are heard (see Appendix A). But as judge Crabtree says: "What is law? I prefer to think of it as based on prior cases as applied to the facts. The law is what a court states it is at a given time."
Until a case is heard at the highest tier (the Supreme Court), the decision at the lower levels(district or circuit) provides the legal mandate for that issue in that specific area of the nation. Such decisions are used by attorneys, advocates, and legislators as a convenient compilation of information concerning a particular issue. It is important to note here that any opinions that are unpublished may be used for educational purposes only. They have no influence or effect on future court decisions, and they cannot be used as supporting citations.
When we discuss issues in the text, we also use other forms of supporting information to assist in clarifying our viewpoint on the topic (see Appendix B). For instance, the United States Code is cited with accompanying federal regulations whenever we discuss the specific section of IDEA that has resulted in controversy. Along with the legislation and litigation, where available, we have used Office of Special Education Programs (OSEP), Office of Special Education and Rehabilitation Services (OSERS), and letters and memos to the various State Education Agencies (SEA) to provide you with the interpretation of IDEA and its regulations concerning an issue as it has been communicated to the states. Although these letters and memos are not considered law, they are given deference by the various courts when preparing an opinion.
Of course, the selection of cases was a personal decision by the authors. We selected pertinent cases that we thought you, as readers, would find interesting as well as informative. Cases were also chosen that have been recognized as historical underpinnings for IDEA. In the chapter on future issues, we selected cases that we saw as harbingers of issues that might become more controversial. Although our philosophical preferences are exhibited throughout the text, we guarded against reinterpretation of the legal opinions. The briefings at the end of the chapters were provided to acquaint our readers with the methods used to examine disputed points of law. We urge you to review additional cases using that methodology, thereby obtaining first-hand knowledge of the reasoning of the court.
As you are reading this text, we hope you will remember that IDEA is the result of a reaffirmation of the beliefs of our society that all citizens should be provided an education. Beliefs enacted into legislation usually result in controversy. Legislative controversy is resolved by the judicial system. The results of judicial review occurring across the country is what we hope to provide you in this text.
We would like to thank our families who tolerated our preoccupation with this project, supported us with food and encouragement as needed, carried on with the responsibilities of life while we wrote, and read and reread numerous rewrites of this project. Our especial thanks and love are extended, therefore, to Mike Reynierse, Tammy Rhomberg, Lynn Craft, and Jason and Kelly Murdick, Ed and Meredith Gartin, and Diane Crabtree.
Our thanks also go to the following reviewers for their comments on the manuscript: Dan Fennerty, Central Washington University; Kristine Jolivette, University of Kentucky; Amy Claxton Kallam, Fort Hays State University (KS); and Aida Michlowski, Silver Lake College (WI).
Last, but not least, we would like to thank Wayne Spohr, special education representative, for his encouragement to submit this manuscript to Prentice Hall. And our sincere thanks to Ann Davis, executive editor at Merrill Prentice Hall, who provided us with support and encouragement to not only write, but complete, this book.