B“Best interests of the child.” This is a standard fa- miliar to many attorneys. It’s used in the application of a number of different laws, including paternity actions, child custody, visitation rights, support payments, placement and parental rights terminations, the provision of day care as part of child welfare services, school placement for short-term fos- ter care, and on and on. Employment of this standard demonstrates the state’s con- cern for the most vulnerable members of society. Decisions made in the child’s best interests often trump whatever rights may be held by adults, and rightly so. However, one area where this standard has not been adopted is the provision of special education services. The result is often an obvious and natural tension between parents or caregivers of children with special needs and
school districts. How this tension is managed can affect the
receipt of adequate special education services for the child.
This article examines the basis for that tension and discusses
ways to effectively and productively address the tension while
establishing a special education program for an individual
public school child.
The Federal Effort to Provide Special Education
The historical journey of special education, although relatively recent, is complex and fraught with obstacles. Today,
the primary law governing the provision of special education
is the Individuals with Disabilities Education Act (IDEA), 20
U. S.C. § 1400 et seq.
The first incarnation of this law, the Education of the Handicapped Act (EHA), was passed in 1970. In 1975, Congress
amended the EHA, renaming it the Education for all Handicapped Children Act of 1975 (EHCA), but these amendments
still fell short of improving much for children in need of
special education. Describing the situation at the time of the
1975 amendments, the Supreme Court stated, “[T]he majority
of disabled children in America were either totally excluded
from schools or sitting idly in regular classrooms awaiting
the time when they were old enough to drop out.” 1
Advocating for Special
by Elizabeth Polay, Diane Wiscarson,
and James Gayton