Legal Challenges in Educating Traumatic Brain Injured Students

Abstract

Students with a disability that adversely affects educational performance have a right to certain special education services through their public schools. The vast majority of traumatic brain injured (TBI) students would presumably have not been in special education prior to the trauma causing their injury. Their entitlement to special services, their parents' role in securing those services, and the school district's perception of them as disabled will all be new and very sudden. In this writer's experience, the parents of a TBI student are much less likely to be able to advocate effectively for their youngster's special educational needs than the parents of a child born with disabilities who have learned over time how to work with the educational system. In fact, both parents and regular school personnel may be resistant to special educational services.

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References

1 29 U.S.C. 794, 34 CFR 104. (Note: U.S.C. contains federal statutes in the U.S. Code and CFR contains federal regulations in the Code of Federal Regulations.)

2 Smith v. Robinson, 468 U.S. 992 (1984)

3 Public Law 99-372, 20 U.S.C. 1415(f)

4 See 34 CFR 104.3(j)

5 20 U.S.C. 1401 et seq., 34 CFR 300.1 et seq.

6 20 U.S.C. 412(2)(C), 34 CFR 300.128 and .200, 34 CFR 300.530-.543, 20 U.S.C. 1414(a)(5), 34 CFR 300.343, 34 CFR 300.340-.349, 20 U.S.C. 1401(19), and 34 CFR 300.346

7 Board of Education v. Rowley, 458 U.S. 176 (1982)

8 20 U.S.C. 1412(2)(B), 34 CFR 300.122. The only exception is if state law forbids the use of state funds for services to youth beyond the age of 18.

9 20 U.S.C. 1401(17), 34 CFR 300.13(a)

10.

10 20 U.S.C. 1412(5)(B), 34 CFR 300.551(b)(1)

11.

11 Garland I.S.D. v. Wilks, 657 F.Supp. 1163 (N.D. Tex 1987)

12.

12 20 U.S.C. 1413(a)(4)(B), 34 CFR 300.302

13.

13 S-1 v. Turlington, 635 F.2d 342 (5th Cir. 1981)

14.

14 Ibid.

15.

15 20 U.S.C. 1401(17), 34 CFR 300.13