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Michigan Legal Aid

Special Education Rights

 

All children have the right to receive appropriate education services.  “Special education” programs provide students who need extra academic help the resources and services needed to reach their potential. 

In the past, parents did not like special education classes, because students who could not speak English were put in “special ed” without proper testing or evaluation.  In the 1970’s, Congress passed laws to make sure that all children who need special services are tested and receive individualized educational plans so that they receive services that are appropriate.  Congress also gave parents the right to participate in planning their child’s educational plan.  Currently, students can receive a wide variety services from extra tutoring to special and individualized instruction. 

Should Your Child Be Receiving Special Education Services?

Your child may be tested for special education if…

        • S/he is having academic difficulties
        • S/he has experienced a sudden drop in grades
        • A teacher expresses concerns to you about your child’s academic progress
        • S/he is having increasing behavior problems
        • S/he is not able to focus or sit still
        • S/he is depressed, angry, or moody
        • S/he is doing well in some classes but failing others

What is the Basic Process for Receiving Special Education Services?

    • A parent OR teacher may request an evaluation of the student’s need for special services or classes.

Remember!  If parents do not want their child to be tested for special education classes, parents can say NO!

    • If the parent agrees with the evaluation, the school MUST evaluate the student.  A team of teachers, specialists, and psychologists will determine whether the student will receive special education services.
    • After requesting an evaluation, the team must meet within thirty (30) school days to discuss its findings.  This meeting is called an “Individual Educational Planning Team.”  Parents should be a member of the educational planning team to determine what is best for their child.
    • This planning meeting should be attended by:
        • You (the parent or guardian)
        • Your child’s teacher
        • A Special Education Teacher
        • Someone who did the testing, and can talk about the results of the test
        • The Student (if s/he is old enough)
        • The Principal (or other school official)
        • An advocate (lawyer, friend, relative, religious adviser)
    • At the planning meeting, the school officials and the parents will develop a plan for individualized instruction for the student.  The plan is a written report that describes what programs and services that will be provided, such as special classes, extra tutoring, or other services.  This written report is a contract between the parents and the teachers that includes educational goals for the student.

For example, if the parent and teacher planning team decide that a student needs extra reading help, they might plan for the student to receive two hours of extra reading help every day.  The student’s goal might be to improve a reading level in the next year.

IMPORTANT!

Under federal law, students should be not taken out of regular classes unless the type or severity of the disability does not allow the student to participate.  (For example, a student with a learning disability may improve if he spends only one hour a day in special reading classes. Another student who is autistic might need to spend all of her time in special education classes.)

    • Signing the Educational Plan
      • If the parents and student do not agree with the educational plan, the parents DO NOT have to sign the educational plan.
      • Parents have the right to accept the educational plan completely or only accept parts of the plan.  If the parents and students agree with the education plan, the school must provide the services to the student.  The parents must agree completely with the contract.  [moved sentence]
      • Parents should feel free to take their time making the decision.  Parents have thirty days after signing the plan to meet with the school officials to change the plan.
      • Parents should receive a signed copy of their child’s education plan.
    • Schools officials should re-evaluate the appropriateness of the educational plan for the student at least every THREE YEARS.  If parents want their child re-evaluated because their educational plan is no longer appropriate, they can ask the school officials for a change in the plan.

What Happens If You Disagree With The Educational Plan?

    • If the parents do not agree with the educational plan, the parents may disagree with the educational plan. 
    • After the parent signs a form disagreeing with the educational plan, the school will organize a hearing between the parents and the school officials.  The Michigan Department of Education will send the parents a list of possible hearing officers.  These hearing officers have a special background in education and training in resolving disputes. 
    • The hearing officer will listen to the parents and school officials and make a decision concerning the appropriate educational plan for the student. If you still disagree, you have other options.

What If the School Determines That Your Student Is Not Eligible for Special Education?

    • Sometimes the school officials determine that your child does not qualify for special services, but you think that your child needs help.  You have the right to request an independent evaluation of your child’s academic problems.  A counselor or educational specialist who is not associated with the school will interview your child to determine if your child needs services.  The school is legally required to pay for this independent evaluation.
    • After the independent evaluation, the whole educational planning process begins again with a new educational planning team.

What If My Student Has Both A  Disability and Discipline Problems?

    • Sometimes a student who is in special education classes breaks a school rule.  The rules for suspension and discipline are different for students who have disabilities. 
    • A Special Education student has a legal right to stay in their classroom until there are certain meetings and hearings required by law.  Normally, a student without a disability could be suspended from school until the hearing is held
    • For special education students, the school and the parents will hold a hearing to determine if the student’s disability was the caused of the discipline problem.  (For instance, if a student got in trouble for hitting other kids, the student with disabilities might not understand what behavior is appropriate.  As a result, your student should not be suspended from school.) 
    • If the school shows that your child is a danger to other students, they could place her in an alternative school that specifically educates children with disabilities.  However, this change should only take place in extreme circumstances.

Don’t Forget Your Rights as a Parent

    • Schools must ensure that parents are involved in the special education process by:
        • Communicating with the parents in the native language (for example in Spanish, if the family speaks Spanish at home)
        • Communicating with parents early enough so they have an opportunity to come the meeting
        • Scheduling the meeting at a mutually agreed on time and place
        • Notifying the parents about the purpose of the meeting 
    • Schools MUST arrange a translator for you if you cannot speak English for Special Education Meetings.
    • At any time during the special education process, you have the right to contact an attorney about your rights.  Some attorneys specialize in special education law and can help you through the process.

If You Need Legal Advice or Representation:

A small number of free legal aid offices handle special education matters. To find programs that serve your area, visit the home page of this site, www.michiganlegalaid.org.

If you wish to call a private attorney for representation, you can either look under "attorneys" in the yellow pages, or contact the Michigan State Bar Lawyer Referral Service at (800) 968- 0738.

Finally you can contact the following agencies in Michigan for advice:

Student Advocacy Center (734) 222-5443

Michigan Protection and Advocacy 1-800-288-5923

Michigan Department of Education Student Ombudsman 1-888-323-4231

This article appears courtesy of Farmworker Legal Services