2 Sources of Law

2 Sources of Law aetrahan Fri, 03/03/2023 - 10:16

2.1 Federal Laws & Regulations

2.1 Federal Laws & Regulations aetrahan Fri, 03/03/2023 - 10:16

Two federal laws and their accompanying regulations guarantee students with disabilities the right to a Free and Appropriate Public Education (“FAPE”). The first of these federal laws is called the Individuals with Disabilities Education Improvement Act (“IDEA”).1  The IDEA ensures that qualifying students with disabilities receive FAPE in the form of “special education and related services” in accordance with the numerous substantive requirements, procedural protections, and heightened disciplinary safeguards contained within its statutory and regulatory framework.2  The IDEA imposes obligations on the State Education Agency (“SEA”) and on each Local Education Agency (“LEA”) directly responsible for providing public education. In Louisiana, the Louisiana Department of Education (“LDE”) is the SEA responsible for providing oversight and assistance to LEAs to ensure compliance with special education laws and regulations. The LEA is legally responsible for ensuring FAPE is delivered to each special education student and can either be a school district or, for most but not all charter schools, the charter management organization.

Each student found eligible for special education under the IDEA has an Individualized Education Program (“IEP”) developed by an IEP team consisting of the student’s parent(s) or legal guardian(s), teachers, service providers, administrators, and others knowledgeable about the child’s needs. The IEP documents the special instruction and services that must be provided as part of the student’s right to FAPE. The IDEA also establishes dispute-resolution mechanisms parents and advocates can use to resolve disagreements over eligibility, discipline, placement, services, and accommodations.

The second federal law protecting students with disabilities is Section 504 of the Rehabilitation Act (“Section 504”).3  Section 504 prohibits educational programs that receive federal financial assistance from discriminating against students with disabilities and requires schools to provide FAPE to each qualified student with a disability regardless of the nature or severity of the disability. Under Section 504 regulations, FAPE includes regular or special education and related services designed to meet the individual educational needs of a child with a disability as adequately as the needs of nondisabled students are met.4  Services and accommodations provided to students with a disability under Section 504 are generally documented in what is officially called an Individual Accommodations Plan (“IAP”) in Louisiana but is more commonly referred to as a “504 plan.” Eligibility criteria under Section 504 are much broader than those under the IDEA, allowing many students with disabilities who are not eligible for an IEP to qualify for a 504 plan. While many of the same services and modifications are available under either framework, the regulations, procedural protections, and dispute-resolution mechanisms available under Section 504 are generally less robust than those available under the IDEA.5  Together, the IDEA and Section 504 ensure that every student with a disability receives FAPE.6

  • 120 U.S.C. § 1412, et seq.
  • 2Id.; 34 C.F.R. § 300.1, et seq.
  • 329 U.S.C. § 794; 45 C.F.R. § 84.1, et seq.
  • 445 C.F.R. § 300.84.33(b).
  • 5For a more detailed explanation of the differences between Section 504 and the IDEA, see La. Dep’t of Educ., Louisiana Believes: Section 504 Overview and the Individual Accommodations Plan (2016).
  • 6Title II of the Americans with Disabilities Act also offers protections to people with disabilities that are applicable to public school settings but are focused on preventing discrimination rather than the provision of FAPE.

2.2 State Laws & Regulations

2.2 State Laws & Regulations aetrahan Fri, 03/03/2023 - 10:20

Title 17 of the Louisiana Revised Statutes contains the Education of Students with Exceptionalities Act, which is the state counterpart to the IDEA.1  The bulk of the special education rights and procedures specific to Louisiana, however, are found in various policy bulletins promulgated by the Louisiana Board of Elementary and Secondary Education (“BESE”).2  Among the most important are:

  • Bulletin 1706 – Regulations for Implementation of the Children with Exceptionalities Act, which contains general special education regulations.3
  • Bulletin 1508 – Pupil Appraisal Handbook, which contains regulations specific to eligibility and evaluation for special education.4
  • Bulletin 1530 – Louisiana’s IEP Handbook for Students with Exceptionalities, which contains regulations regarding the development and implementation of IEPs and related services.5
  • 1La. R.S. 17:1941, et seq.
  • 2For the current set of all BESE Bulletins, see Policies/Bulletins, La. Bd. of Elementary & Secondary Educ.
  • 3This bulletin is available here.
  • 4This bulletin is available here.
  • 5This bulletin is available here.

2.3 Guidance & Local Policies

2.3 Guidance & Local Policies aetrahan Fri, 03/03/2023 - 10:21

At least once per year, LEAs must provide parents of students with disabilities with a copy of a booklet published by the LDE entitled Special Education Processes & Procedural Safeguards.1  As a summary of Louisiana’s special education regulations in language designed to be understood by parents and other lay people, this document can also be a useful resource for advocates. The LDE website also contains additional guidance that may be helpful to parents and advocates.2  Beyond available LDE resources, educational advocates should become familiar with the policies and procedures of the individual school and charter organization or school district that the student for whom they are advocating attends. While federal and state laws and regulations provide a floor for rights and protections, local policies sometimes provide greater protections and generally include more specific details on the LEA’s procedures to implement statutory and regulatory requirements. Local policies and procedures are usually contained in parent and student handbooks or codes of conduct available on the school, school district, or charter organization website. Local handbooks should also contain details on local grievance procedures for resolving disputes related to 504 plans.

2.4 Charter Schools

2.4 Charter Schools aetrahan Fri, 03/03/2023 - 10:23

2.4.1 Basic Principles

2.4.1 Basic Principles aetrahan Fri, 03/03/2023 - 10:23

A charter school is a public school that operates under an independent contract, or “charter,” with an authorizing agency such as the local school district or the state board of education. The charter provides the school with operational autonomy over its curriculum, staff, and budget. It also holds the school accountable to certain academic, financial, and operational standards set by an authorizer via a performance contract. If a charter school does not meet these standards, the authorizer can revoke the contract and close the school.

While some states allow for-profit charter schools, all Louisiana charters are publicly funded and run by non-profit groups called Charter Management Organizations (“CMOs”). Each CMO has its own independent, governing non-profit board. All charters in Louisiana must be authorized by either the Louisiana Board of Elementary and Secondary Education (“BESE”) or the local school district. Louisiana has several different types of charter schools depending on the authorizing entity and the structure of the relationship between the CMO and the charter authorizer. The entity directly responsible for providing special education services may differ depending on the type of charter school.   

2.4.2 The New Orleans Charter School System

2.4.2 The New Orleans Charter School System aetrahan Fri, 03/03/2023 - 10:23

While there are a growing number of charter schools throughout Louisiana, New Orleans is unique in that it is the only all-charter school district in the country. Before Hurricane Katrina hit New Orleans in 2005, the New Orleans public school system followed the traditional neighborhood-school model in which most students were assigned to neighborhood schools based on their residence. However, in the aftermath of Hurricane Katrina, both the Orleans Parish School Board and BESE began converting traditional, neighborhood-based schools into public charter schools. Practically speaking, this means that the Orleans Parish School Board (now referred to as “NOLA Public Schools”) does not actually operate any schools; it simply acts in a broad monitoring and supervisory role over the charter schools that it authorizes.

In the 2021-2022 school year, there were 83 schools operating within NOLA Public Schools.1  Within this all-charter system, 76 of these schools were authorized by NOLA Public Schools and the other 7 were authorized either by BESE or by the State Legislature. The vast majority of all these schools operate as their own independent, local educational agency (“LEA”).2  A charter school that operates as an LEA is directly accountable to the state and federal governments for carrying out district-level responsibilities, including those related to the provision of special education.

A charter school that is its own LEA must serve any student—regardless of the student’s disability or needs—who walks in the door. As such, small, independent charter schools with limited staff and resources must nevertheless provide the full range of substantive and procedural rights and services afforded to students with disabilities. In a traditional school system, the district can pool resources and capitalize on economies of scale; the typical result is more specialized services, placements, and resources available to meet the individualized needs of students of disabilities. In contrast, a stand-alone charter school likely lacks specialized teachers and programming for students with significant or unique needs, and these services are very expensive to contract out to provide to just a small number of children. As a result, charter schools often struggle to satisfy their legal responsibilities, and students with disabilities may be denied their substantive and procedural rights.3

  • 1For a breakdown of the New Orleans school system, see New Orleans Public Schools 2022-2023 Governance Chart, NOLA Public Schools.
  • 2Note that five of the NOLA-Public-Schools-authorized schools act under the NOLA Public Schools LEA. See id.
  • 3For more information on the issues related to special education in the New Orleans charter schools, see generally P.B. v. Pastorek, No. 2:10-cv-04049 (E.D. La. 2011).

2.4.3 Practical Tips

2.4.3 Practical Tips aetrahan Fri, 03/03/2023 - 10:26

Students are entitled to the same substantive rights and procedural protections under both the IDEA and Section 504 regardless of whether they attend a charter school or a traditional public school. All charter schools, like traditional public schools, must follow state and federal laws regarding special education.1  Charter schools must also follow state school discipline law. However, each charter school, like each traditional school district, is responsible for creating its own discipline policies and procedures that are compliant with state law. 

When representing a student in an education matter, it is important to determine as a threshold issue whether the student attends a charter school or traditional public school. This will have a direct impact on who the LEA—the legally responsible entity (i.e., the entity that would be named in any complaint)—is.2  If the student attends a traditional public school, the LEA is the school district. However, if the student attends a charter school, then the charter school (or rather the CMO that runs the charter) is most likely the LEA. 

Sometimes determining who the LEA is requires determining the type of charter school and its exact contractual relationship with its authorizer. In Type I and Type III charter schools, which are authorized by the local school district, the authorizing school district may remain the LEA for special education purposes. However, this can look differently depending on the exact terms of the charter contract. Some charters may opt to provide the special education services themselves, some may opt to let the district provide the services, and some may take a mixed approach with the charter providing some special education services and the district providing others. For example, the authorizing school district may be responsible for special education evaluations and related services such as speech therapy or occupational therapy, while the charter school is responsible for providing special education instruction through the employment of special education teachers.3  Legally this can get complicated, and may require interacting with both the charter school (and its legal counsel) and the authorizing school district (and its legal counsel) and may possibly have to file a complaint against both parties when resorting to formal dispute resolution

  • 1One notable area of difference, however, is that Louisiana laws and regulations exempt charter schools from certification requirements for teachers of special education students. See La. R.S. 17:3996; La. Bulletin 1706 §§ 156(C), 905 (defining Highly Qualified Special Education Teacher).
  • 2Local Education Agency is defined in La. R.S. 17:1942 and in section 905 of Louisiana Bulletin 1706.
  • 3It may be necessary to request the charter contract through a Public Records Request to determine the exact nature of the relationship.