Frequently I am asked what someone’s state law says about special education. Another variation is people say, “OK, I understand that is the law in [New Jersey or Texas or California], but what about in my state?” Hopefully this blog post will clear up this misunderstanding.
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One tip before I go farther: Don’t look on your State’s Education Department website or school district website for these laws. The laws are not likely to be there for 2 reasons: (1) They don’t want parents to know the laws; and (2) the laws or policies they have there may actually be wrong.
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Special education law is federal law, not state law. There are 3 main federal laws that apply to special education and they apply to all 50 States and U.S. Territories. Those laws are:
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- Individuals with Disabilities Education Act (IDEA)
- Americans with Disabilities Act (ADA)
- Section 504 of the Rehabilitation Act of 1973 (504)
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There may be state regulations that implement these federal laws, but those state regulations may not conflict with their federal counterparts. Those federal laws only leave some minor details to states. For example, under federal IDEA law a child with a disability is eligible for special education from the age of 3 until graduation from high school or age 21, whichever is sooner. Where state regulation may clarify this is when a student turns 21 for purposes of that law; in other words, does eligibility end on the child’s 21st birthday? Or during the school year that the child turns 21? Or at the end of the school year (including ESY) after the child turns 21 and before the start of the new school year in the Fall? Each state may have a different variation of what constitutes age “21”.
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Those minor variations left to states are few. For the most part, the federal laws answer all of the key questions. And if a state tries to enact or apply a law that reduces or changes the protections of the federal law, the state is acting illegally. This is because of part of the U.S. Constitution known as the Supremacy Clause. That clause says:
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Federal law “shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” U.S. Constitution, Article VI, Clause 2.
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The U.S. Supreme Court explained this clause. The Court held that if there is a conflict between a federal law and state law, the federal law prevails. See Cipollone v. Liggett Group, Inc., 505 US 504, 516 (1992) (“Thus, since our decision in McCulloch v. Maryland, 4 Wheat. 316, 427 (1819), it has been settled that state law that conflicts with federal law is “without effect.” Maryland v. Louisiana, 451 U. S. 725, 746 (1981).”)
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What does that mean exactly? Several courts have explained this concept in special education cases:
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“Under the doctrine of federal preemption, which is rooted in the Supremacy Clause of the Constitution of the United States, state laws are invalid if they ‘interfere with, or are contrary to, federal law.’” R.B. v. Mastery Charter School, 532 Fed. Appx. 136, Op. at 12 (3rd Cir. 2013) citing Fellner v. Tri-Union Seafoods, L.L.C., 539 F.3d 237, 242 (3rd Cir. 2008) (quoting Hillsborough Cnty. v. Automated Med. Labs., 471 U.S. 707, 712 (1985)). In R.B., Mastery Charter School unilaterally disenrolled R.B. for violation of Pennsylvania’s version of truancy law. R.B. is a student with a disability who had an IEP and was entitled to ‘stay put’ protection under federal IDEA law. “Under the preemption doctrine, the stay-put provision prevails.” Id.; see Doe ex rel. Gonzalez v. Maher, 793 F.2d 1470, 1485-86 (9th Cir. 1986) (holding that the stay-put provision of the Education for All Handicapped Children’s Act (“EHA”) preempted state law allowing the indefinite suspension or expulsion of a disabled student during administrative proceedings); E.Z.-L. ex rel. R.L. v. NYC Dep’t of Educ., 763 F. Supp. 2d 584, 599 (S.D.N.Y. 2011) (holding that the stay-put provision preempted state law regarding unjust enrichment).
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To simplify this: special education law is federal law. Don’t look to your State’s law to find an answer.
To learn more about the federal laws that control special education, consider purchasing our book SchoolKidsLawyer’s Step-By-Step Guide to Special Education Law where we cover all of the key topics.