Special Education Law
Part Two — Finding Law and Resources
This is Part Two of two blog posts on special education law. In Part One we explained that researchers must search both state and federal law to understand parental rights and school district obligations. In Part Two we will examine the specifics of finding federal and Washington State statutes and regulations and will highlight tricks for finding controlling and persuasive precedent.
The primary federal special education statute, the Individuals with Disabilities Education Act (IDEA), is found at 20 U.S.C. § 1400 to 1482. 20 U.S.C. § 1400(d)(1) notes some of the key purposes of the statute:
(A) to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living;
(B) to ensure that the rights of children with disabilities and parents of such children are protected; and
(C) to assist States, localities, educational service agencies, and Federal agencies to provide for the education of all children with disabilities.
Congress gives states funding in exchange for compliance with federal regulations. The statutory right to a free appropriate public education (FAPE) is further defined in 20 U.S.C. §1414 which requires states to ensure that FAPE is provided through an individualized education program (IEP) that is created by the teachers, parents, and other education professionals on the child’s IEP team.
20 U.S.C. § 1412(a)(5) requires a student’s education to occur in the “least restrictive environment” such that:
to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
This is commonly referred to as IDEA’s inclusion mandate and directs districts to mainstream kids with IEPs in regular education classrooms in their neighborhood school when possible.
Washington’s special education law implements the federal law in our state’s schools. It is found in RCW 28A.155. Additional key sections include RCW 28A.160.030 (authorizing individual transport and room and board) and RCW 28A.150.390 (special education appropriations).The purpose of Washington’s special education statute is “to ensure that all children with disabilities as defined in RCW 28A.155.020 shall have the opportunity for an appropriate education at public expense as guaranteed to them by the Constitution of this state and applicable federal laws.” RCW 28A.155.080 gives parents the right to appeal the denial of special education services. In 2013 the Legislature added RCW 28A.155.210 which requires school districts to craft IEPs that notify parents of the procedures for and use of any restraints or isolation strategies for control of behavior.
Washington’s Office of Superintendent of Public Instruction (OSPI) website provides a version of the state implementing regulations (Washington Administrative Code or WAC) that is annotated with the corresponding federal regulations. The federal special education regulations (Code of Federal Regulations or CFR) can be found under the Law and Policy link at the U.S. Department of Education’s IDEA website. In addition to regulations, federal policy letters and policy documents can be useful persuasive authority in administrative hearings. These can be searched at the IDEA Policy Letters and Policy Support Documents website. Another extremely helpful research tool from OSPI are the due process hearing decisions back to 2012, which are searchable by topic.
The OSPI Special Education Dispute Resolution website lists alternatives available to parents for resolving disagreements with school districts. One such alternative is the Due Process Hearing. Steps to filing a due process hearing request and other frequently asked questions about the due process hearing process can be found at the Request a Due Process Hearing page. Due process hearing decisions can be searched by year or topic back to 2011. State regulations regarding hearings can be found at WAC 392–172A-05080 and following. If appealed, most due process hearing decisions are heard in federal court, but are sometimes addressed in state courts (WAC 392–172A-05115).
Exhaustion of administrative remedies is typically required before filing a civil action. But this is not always the case. For example, in Dowler v. Clover Park School Dist. №400, 172 Wn. 2d 471, 258 P.3d 676 (2011), the Washington Supreme Court held that a tort and discrimination class action lawsuit brought under state law was not subject to the requirement of exhaustion of administrative remedies found in the special education federal and state statutes and regulations. Former Justice Philip Talmadge represented the plaintiffs in oral argument.
Most special education caselaw is federal rather than state. In Washington, Ninth Circuit cases are controlling precedent. Recent cases include D. D. by and through Ingram v. Los Angeles Unified School District, 18 F.4th 1043 (9th Cir. 2021) (student’s ADA claim subject to IDEA exhaustion of administrative remedies); S.C. by K.G. v. Lincoln County School District, 16 F.4th 587 (9th Cir. 2021) (stay put order was warranted during administrative process for student with Prader-Willi Syndrome attending specialized program) and, Bellflower Unified School District v. Lua, 832 Fed.Appx. 493 (9th Cir. 2020) (school district denied student with disability a free appropriate public education under IDEA). The Ninth Circuit cases can be searched for free using Google Scholar.
Special education law is complicated enough that parents should consider seeking assistance if they are in a conflict with their school district. OSPI offers a neutral Special Education Parent Liaison to provide guidance to parents on resolving disagreements. The Office of Administrative Hearings maintains a list of attorneys who specialize in special education. Families also often get assistance from non-attorney special education advocates who work within disability rights organizations and groups. Northwest Justice Project has a special education legal clinic for families who are financially eligible.
Washington LawHelp has several publications and videos specific to special education, including Rights of Special Education Students: Discipline and a Special Education and the Pandemic video series. Following are some additional resources, both in our collection and online, to assist you with your special education law research:
The Complete IEP Guide: How to Advocate for Your Special Ed Child by Lawrence M. Siegel, KF4209.3 .S57 2020
Wrightslaw: Special Education Law by Peter W.D. Wright and Pamela Darr Wright, KF4210 .W75 2007
The Law of Special Education by Margaret C. Jasper, KF4210.A75 J37 2004
Education Law: First Amendment, Due Process, & Discrimination by Ronna Greff Schneider (ask our librarians about Westlaw access to this title)
Special Education Law Bulletin (ask our librarians about Westlaw access to this title)
Education Cases database (ask our librarians about Westlaw access to this database)
ERIC (Education Resources Information Center) database
Congressional Research Service Report Laws Affecting Students with Disabilities: Preschool Through Postsecondary Education
U.S. Department of Education Office of Special Education and Rehabilitative Services
U.S. Department of Education Individuals with Disabilities Education Act website
Washington Office of the Superintendent of Public Instruction Special Education website
TeamChild’s Know Your Rights: Education website
Disability Rights Washington Special Education Resources website
