(Guest post by Susan Katzen, Esq. – Law Office of Susan Katzen)
An estimated 50 million students attend public elementary and secondary schools in America, and an increasing number of students, parents, and visitors are bringing suit in tort against schools for injuries or damages. These suits include students injured in classrooms and scholastic sporting events, at recess, on playgrounds and field trips, or on the bus traveling to or from school. Injuries can range from broken bones to concussions and traumatic brain injuries.
If the plaintiff is a student with a disability who is entitled to special education or was injured by another student with a disability, the attorney must be aware of the laws governing special education that create rights, the violation of which can lead to tort claims.
Individuals with Disabilities Education Act (IDEA): Under this federal law, public schools must serve the educational needs of students with disabilities who are ages 3 to 22. IDEA requires schools to provide special education services to eligible students as developed in a student’s Individualized Education Program (IEP). The law provides very specific requirements to guarantee a free appropriate public education for students with disabilities in the least restrictive environment.
The IEP, created by a team typically consisting of teachers, evaluators, service providers, administrators, and parents and guardians, designs instruction and available services (at no cost to parents) that are necessary for the eligible student to gain access to the general curriculum. Services include academic instruction, physical, speech and occupational therapy, counseling, social services, parent training, home programs, residential schooling, extended school hours, and summer programs. An IEP should address the need for one-to-one assistance, supervision of certain medical needs, and training of school staff regarding a child’s accommodations.
IDEA requires every state to issue regulations that guide the implementation of the federal law within the state. At a minimum, state regulations must provide all of the protections contained in IDEA. Some states have additional requirements that go beyond the federal law.
Section 504 of the Rehabilitation Act (Section 504): Another important piece of federal legislation, Section 504 prohibits discrimination by local school districts that receive federal funds and requires them to provide appropriate education to qualified children with disabilities. Under this law, disability is defined more expansively than under IDEA. (More students qualify for services under a Section 504 Plan than under an IEP.) Disability is defined as a physical or mental impairment that substantially limits one or more major life activities, including chronic conditions such as asthma, allergies, diabetes, and learning difficulties. A child under a 504 Plan may be entitled to wheelchair ramps for accessibility, a modified desk and chair, assistive technology, and extra time and more frequent breaks.
Americans with Disabilities Act: Additionally, Title II of the Americans with Disabilities Act of 1990 prohibits discrimination based on disability by state and local governments, including local school districts. Furthermore, the ADA Amendments Act of 2008 expands the definition of disability, with the legislative intent focusing on the obligation of covered entities.
State Bullying and Anti-Bullying Statutes: Bullying and anti-bullying statutes also create rights for students and responsibilities of schools to protect students with disabilities. Children with disabilities are far more vulnerable to bullying in a school setting than typically developing children are. In these circumstances, the plaintiff’s attorney needs to evaluate whether the school adhered to state-mandated anti-bullying policy to effectively address the underlying behavioral issue that caused bullying and harmed the vulnerable student with special needs.
Here are some relevant examples of tort claims involving students and special education:
– A student who is prone to wander off the school premises is assigned one-to-one supervision at recess and lunch break under the IEP. Despite urgings from the parents, the school fails to hire a paraprofessional to provide supervision. The student leaves the school grounds unattended and is hit by a vehicle.
– Parents request an evaluation of their child for eligibility for special education services. The school unlawfully denies the parents’ request, and the child does not receive appropriate services for his learning disabilities and behavioral challenges. The child sustains serious injuries when an unqualified classroom teacher inappropriately restrains him.
– A rare genetic disease causes overheating in a student with a Section 504 Plan that requires frequent breaks in an air-conditioned study hall on days when the indoor temperature exceeds a certain agreed-upon threshold. The school neglects to fix the air-conditioning, and the student suffers heat stroke that results in complications.
In establishing the basic elements of a tort claim (duty, breach, injury, causation) arising in a school setting and that involves a student who has, or who should have, an IEP or a Section 504 Plan, the personal injury attorney must understand the relevance of special education law to the case.
Collaborating with a knowledgeable special education attorney or an educational advocate or disability resource expert in developing the case can play a critical role in the success of the case on behalf of the client.