Your Child’s Educational Rights In New Jersey

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If you have a special needs child, you should be familiar with the federal laws and state regulations that outline the educational rights that your child is entitled to. For example, from the age of 3 to 21, a child with special needs enrolled in a public school is often entitled to special services or accommodations.

The main federal law in this area is the Individuals with Disabilities Education Act (IDEA). Under the IDEA, public schools must offer children who qualify a free appropriate education in the least restrictive environment. Usually, that means “main-streaming” or putting the child in a regular classroom. To qualify, your child’s education must be negatively affected by one of the following special needs:

* Hearing, speech or visual impairment;
* Brain injury or mental impairment;
* Serious emotional issues;
* Autism;
* Serious health issues; or
* An identifiable learning disability.

The IDEA states that your child has the right to be evaluated to find out if his or her special need qualifies. The evaluation will include your child’s current functioning level. This level is determined by looking at the child’s grades, test scores, reports and even teacher observations. It will also show how the special need negatively affects your child’s education. Should you disagree with the evaluation, you have the right to get an Independent Educational Evaluation, which is performed by someone outside of the school district. This evaluation is often paid for by the school district.

Other rights granted under the IDEA include your right to see your child’s school records and test results, as well as to meet with the school’s administration in order to create an “Individualized Education Program” for your child’s specific needs. Each child’s program is developed by a team that includes you, the child’s teacher, an agency representative and sometimes even the child. If you agree on your child’s program, that means you have agreed to the special services that your child specifically needs, the goals that your child is expected to meet during the school year, and methods that will be used to evaluate your child’s progress. Once a program is agreed upon, under the IDEA your child must be placed in the “least restrictive” educational environment. After your child is placed in a school that you and the school district agree upon, you will receive progress reports. Expect your child to be re-evaluated once every three years.

Should you disagree with your child’s proposed program, you have a few options: you can request a review by the state’s educational agency or request the services of a mediator, who is an unbiased person. If you choose the review and the agency comes back with a decision with which you disagree, you can appeal to either state or federal court. If you chose to meet with a mediator, she will meet with you and the school district’s representative. The mediator will listen to both sides and suggest an agreement that she thinks would make everyone happy. If you still disagree, you have a right to an impartial due process hearing, where both sides will tell their story to a hearing officer. Then, based on the IDEA regulations, the hearing officer will decide the appropriate program for your child. Be aware that your school district must give you a written copy of the rules that outline the above procedure.

Another important federal statute is Section 504 of the Rehabilitation Act of 1973. Under this civil rights statute, all public and private programs that receive federal financial assistance are prohibited from discriminating against students with disabilities. Under Section 504, a child is considered disabled if she has an impairment that substantially limits a major life activity, such as learning or social development. Usually, children that are disabled under this statute are less disabled than those protected under the IDEA. These programs must provide your child with reasonable accommodations, like untimed testing or a front-row seat. This statute also requires schools to ensure that students with disabilities receive a free, appropriate public education.

Section 504 provides that “no otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” If an organization that receives federal funds violates Section 504 intentionally or with deliberate indifference, it may be liable for compensatory damages. An organization that receives federal funds violates Section 504 if it denies a qualified individual with a disability a reasonable accommodation that the individual needs in order to enjoy meaningful access to the benefits of public services. In the context of public school education, a school district is liable for damages for violating Section 504 if it fails to provide your child with a reasonable accommodation that he or she needs to enjoy meaningful access to the benefits of a public education, and did so intentionally or with deliberate indifference.

IDEA and the Rehabilitation Act are both federal anti-discrimination statutes that provide causes of action for children with disabilities.  While the IDEA focuses on the provision of appropriate public education to disabled children, the Rehabilitation Act of 1973 more broadly addresses the provision of state services to disabled individuals. The remedies available under IDEA are limited and do not include compensatory damages. The remedies available under Rehabilitation Act are broader and include compensatory damages.

The Americans with Disabilities Act (ADA) is another federal statue that may assist you with your child’s education. It safeguards a disabled child’s access to education, programs and services and prevents discrimination. It also requires all non-religious educational institutions to meet with your child if she has psychiatric problems.

Armed with the laws designed to protect special needs children, you will be able to advocate on their behalf and ensure that their rights are not violated. Be sure to check with the State of New Jersey Department of Education, Office of Special Education to see what rights and protections New Jersey law provides to students with a disability. In that regard, N.J.Administrative Code Title 6A, Chapter 14, Special Education, provides  that the purpose of the state education law is, among other things, to:

  • Ensure that the obligation to make a free, appropriate public education available to each eligible student begins no later than the student’s third birthday and that an individualized education program is in effect for the student by that date;
  • Ensure that a free, appropriate public education is available to any student with a disability who needs special education and related services, even though the student is advancing from grade to grade;
  • Ensure that the services and placement needed by each student with a disability to receive a free, appropriate public education are based on the student’s unique needs and not on the student’s disability … .

(Adopted, in part, from an article on the Special Needs Answers website.)