Practice Note:  The child must by reason of his disability requires special education

This is an area of growing contention between advocates and school districts.  For a long time schools have denied eligibility when a child did not meet the numerical requirements for a learning disability.  Now they have begun refusing eligibility even where a child might meet the necessary discrepancy between intellectual level and achievement.  Schools argue that the child must “require” special education and will often deny special education services where a child receives a passing grade.  This is growing problem for children with SLD, ADHD, or emotional disabilities.

It is important for advocates to hold the line on this issue.  It is important to argue that “education” includes more than academic performance.  It also includes social, emotional and behavioral progress.  A child may need special education even if the child is successful academically, where the child has social, emotional or behavioral issues. 

Furthermore, academic success is not only a question of advancing from grade to grade or “doing as well as the others in the class.”  Failing grades are not necessary to qualify.  34 C.F.R. § 300.121 (e) Schools are regularly advancing students, who cannot read appropriately or perform essential math skills.  It is important to insist that student progress be measured using nationally normed evaluations and not subjective teacher measures.

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