The education of children with special needs was not always required by law in the United States. However, a few parent groups from the 70’s filed lawsuits, which claimed that their children were being denied a fair education. The outcomes of Pennsylvania Association for Retarded Children (P.A.R.C) v. Commonwealth of Pennsylvania and Mills v Board of Education of the District of Columbia led the way to the laws that govern our educational system today. Before 1972, Pennsylvania state law allowed schools to deny education to any student who was not functioning at a 5-year-old level by 1st grade. In the Mills case, the courts said that children with emotional disorders cannot be denied school and lack of funds is not an appropriate reason to deny services. During the trial, an exchange took place between the judge and representatives of the District of Columbia; the judge said, "if sufficient funds are not available to finance all of the services and programs that are needed and desirable in the system then the available funds must be expended equitably in such a manner that no child is entirely excluded from a publicly supported education consistent with his needs and ability to benefit therefrom." Specifically, the outcomes of those lawsuits made it clear that not providing children with special needs a proper education violated their 5th (due process) and 14th (equal protection under the law) constitutional amendments (Lieberman, Houston Wilson, 2010).
Following the P.A.R.C and Mills decisions, the government passed the Rehabilitation Act of 1973 (Public Law 93-112) and the Education for All Handicapped Children Act of 1975 (Public Law 94-142). Public Law 94-142 has gone through a series or reauthorizations and is now known as the Individuals with Disabilities Education Improvement act of 2004 (PL 108-446)…IDEA. PL 93-112 also includes section 504, which is important because it says that a disabled person should not be discriminated against or denied opportunity equal to that afforded to nondisabled individuals in any programs or activities that accept federal funding (Lieberman, Houston-Wilson, 2009). This declaration of law was extremely important because all schools receive money from the federal government, which essentially “equaled the educational playing field” for people with disabilities.
Similarly, the Education for All handicapped Children Act of 1975 guaranteed that special education students would have a right to education and established a process by which State and local agencies would be held accountable for providing education to children with disabilities (Wrightslaw, Pete Wright). Special education is defined as specially designed instruction used to meet the unique needs of the learner. Instruction can take place in an array of environments, including schools, homes and hospital, institution, and other settings. Most significant, however, this law established that instruction in physical education must occur and that if necessary it may be adapted (Lieberman, Houston-Wilson, 2009). IDEA defines physical education as the development of (a) physical and motor fitness, (b) fundamental motor skills and patterns and (c) skills in aquatics, dance, sports and individual and group games. Physical education was the only curricular area specifically identified in the law- Section 300.39 (a) (1), a distinction which holds to this day (Lieberman Houston-Wilson 2009). As a result, physical education is considered a direct service, which is a service that must be provided to all students with disabilities. Related services on the other hand, are provided to students only to allow them to benefit from their educational experiences; examples include occupational therapy, speech therapy and physical therapy (Sillman-French, Candler, French & Hamilton, 2007). While both physical therapy and occupational therapy can supplement a physical education program, these services can never supplant or replace a physical education program (Sillman-French et al. 2007).
A recent interpretation of PL 108-446 addresses the fundamental question (i.e., whether a student with a disability, for whom physical education is included on his or her IEP, is entitled to physical education even if physical education is not available to his or her same-aged typically developing peers) was addressed in the Office of Special Education Programs’ (OSEP) response to Dr. Garth Tymeson dated July 31, 2013. The letter to Dr. Tymeson states:
The Part B regulations, at 34 CFR 300.108 address the requirements of school districts to provide
physical education services to students with disabilities. Section 300.108a requires schools to provide
to all children receiving free appropriate education, unless the school does not provide physical
education to children without disabilities in the same grades. That exception, however only relieves
schools of the 34 CFR 300.108(a) requirement to provide general physical education to all students
with disabilities regardless the unique needs of any given student and regardless of any student’s IEP.
Section 300.108(a) does not relieve school of the duty to provide physical education to those
students who have unique needs requiring physical education and have IEP’s setting out physical
education as part of that student’s special education and related services.
Under 34 CFR 300.108 (c), “[i]f specially designed physical education is prescribed in a child’s IEP, the
public agency responsible for the education of that child must provide the services directly or make
arrangements for those services to be provided through other public or private programs.” Thus,
under Part B, “if physical education is specially designed to meet the unique needs of a child with a
disability and is set out in that child’s IEP, those services must be provided whether or not they are
provided to other children in the agency.” Analysis of Comments and Changes of the final Part B
regulations, 71 Fed. Reg. 46540, 46583 (August 14, 2006). Furthermore, the requirements of Part B
of the IDEA regarding IEP’s for children with disabilities apply to preschool-aged children.
Based on section 607 (e) of IDEA, we are informing you that our response is provided as informal
guidance and is not legally binding, but represents an interpretation by the U.S. Department of
Education of the IDEA in the context of the specific facts presented.
Subsequent language in letters from OSEP to Dr. Luke Kelly and Dr. Garth Tymeson dated July 31, 2013 and October 23, 2013, specifically states that the same interpretation applies to pre-school children and students with disabilities ages 16-21.