Abstract
The public education of students with disabilities in the United States is governed by federal policies that promote school improvement, protect students from discrimination, and provide those who need it with special education and related services to meet their individual needs. This article explains the legal aspects of teaching students with disabilities in the context of music education. Topics address promoting student achievement through the Every Student Succeeds Act, protecting individual access to the music curriculum under Section 504 and the Americans with Disabilities Act, and providing music instruction to special education students under the Individuals with Disabilities Education Act. Guidelines are provided for making music instruction for students with disabilities both legally correct and educationally meaningful.
This article presents an overview of the laws affecting music educators of students with disabilities and those they teach. Eve’s speech impairment really gets in her way. While her first-grade classmates wave their hands in the air excitedly, Eve looks down at her shoes and does everything she can to avoid her teacher’s questions. She knows what will happen if she gets called on. She’ll say the words wrong, and someone will ask, “What did you say?” She’s become so shy and self-conscious that she doesn’t interact with her classmates. She’s not doing well in school and only participates in music class, where she loves to sing and receives compliments on her voice. Her parents requested that Eve be evaluated for special education, and they are relieved that she is eligible to receive specially designed instruction to help her learn.
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Children with disabilities, like Eve, are part of the rich diversity of students in today’s schools. Just as their classmates without disabilities, these students are held to high academic standards and expected to receive a well-rounded education that includes the arts and music. Frequently, though, students with disabilities need personalized supports and accommodations to access learning, and sometimes they need individually designed special education to be successful. To help them learn appropriately, public education in the United States is governed by federal policies that protect students with disabilities from discrimination and provide those who need it with special education and related services to meet their unusual learning needs.
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Many educators are unfamiliar with the legal aspects of teaching students with disabilities. This lack of knowledge can be a problem, especially when confusion causes teachers to unintentionally violate their students’ rights and fail to meet their own professional responsibilities. 2 To address the need for more information, this discussion explains the legal aspects of teaching music students with disabilities. The general protections and entitlements guaranteed to these students are explained first, followed by discussion of what these laws mean for music educators and the steps they can take to ensure that students with disabilities have equal opportunities to learn. Although federal, state, and local policies govern the education of students with disabilities, federal legislation forms the foundation for this discussion. Federal laws set out the basic, minimum requirements for schools to follow, and although states can require more, they can never require less than federal mandates.
Legal Foundations
Four important pieces of federal legislation form the foundation for educating students with disabilities. Two of these statutes are education laws that authorize federal spending to improve outcomes for public school students: the Every Student Succeeds Act, referred to as ESSA, and the Individuals with Disabilities Education Act, known as the IDEA. The other two federal statutes are civil rights laws that apply to both students and adults with disabilities in and outside of school: Section 504 of the Rehabilitation Act of 1973, commonly called Section 504, and the Americans with Disabilities Act, known as the ADA. Each piece of legislation is designed to extend equal opportunity to students with disabilities.
Education Laws
The Every Student Succeeds Act, 3 which replaced the No Child Left Behind Act as the most recent reauthorization of the Elementary and Secondary Education Act of 1965, is the primary general federal education law providing funds to support K–12 public education. ESSA represents a federal commitment to help states improve outcomes in low-performing schools for all students, regardless of race, ethnicity, disability, English proficiency, or income. 4 Because students with disabilities have the right to be educated in public schools, ESSA requires states to report on their academic achievement as it does for students in other subgroups, such as racial and ethnic minorities and children living in poverty, many of whom traditionally struggle in school.
The Individuals with Disabilities Education Act 5 is the primary law governing special education. The IDEA authorizes federal funds to support a free appropriate public education (FAPE) in the least restrictive environment (LRE) for each eligible student with a disability. The IDEA, originally authorized as the Education for All Handicapped Children Act in 1975, began as a remedy for excluding millions of children from public schools based solely on their disabilities. According to recent data, 6.5 million students with disabilities ranging from age three through twenty-one receive special education services. These students make up 13 percent of the total public school enrollment in the United States. Ninety-five percent of special education students age six years and older spend some portion of the day in general education settings, and more than 60 percent are taught most of the time in general education classrooms, including music classes. 6 The IDEA is designed around an Individualized Education Program (IEP) with goals and evaluation measures to ensure that each student benefits appropriately from special education.
The U.S. Department of Education oversees the implementation of ESSA and the IDEA to ensure that states are driving toward positive learning outcomes for both general and special education students. The Department’s Office of Civil Rights, however, provides oversight for Section 504 and the ADA.
Civil Rights Laws
Section 504 of the Rehabilitation Act (1973) 7 and the Americans with Disabilities Act 8 are not limited to education, nor do they provide funding. Instead, as civil rights laws, they protect children and adults from disability-based discrimination in public and private settings. Section 504 applies to organizations that receive government funding for any purpose (e.g., schools that receive ESSA and IDEA funds as well as smaller grants to build new playgrounds, purchase instruments, or fund library materials). The ADA extends the protections of Section 504 by prohibiting discrimination and promoting access to additional activities including private schools, services, and commercial businesses serving the general public. Both laws began as remedies against long-standing discrimination suffered by people with disabilities in housing, employment, education, public services, and transportation. 9 In K–12 schools, Section 504 applies to two groups of students with disabilities: those who receive special education under the IDEA and an additional 1.5 percent of students nationally who are ineligible for special education but need accommodations so they can access learning as adequately as their classmates without disabilities. These “Section 504 only” students are typically provided with “504 plans” identifying the specific accommodations they need and their teachers need to provide. 10
What These Laws Mean
The foundation provided by ESSA, IDEA, Section 504, and the ADA supports equitable opportunities in schools for people with disabilities. Each law does so in different yet complementary ways.
ESSA: Improving Learning
The purpose of ESSA is to provide all public school students with significant opportunities to receive an equitable and high-quality education and close educational achievement gaps. Unlike the IDEA, Section 504, and ADA, which focus on individuals with disabilities, ESSA considers students with disabilities collectively as members of a traditionally low-achieving subgroup. A major goal of ESSA is to help states prepare students to be “college and career ready” with annual testing in designated grades for all students except those with the most significant cognitive disabilities. That means no more than 1 percent of all students—or about 10 percent of students with disabilities—are allowed to take alternate assessments. ESSA requires that states detail how they will help schools and districts reduce bullying and harassment. States must report suspensions, expulsions, and harassment claims by schools as part of the statewide school report card system required under ESSA. ESSA also provides supplemental funding that districts can use to build programs that reduce bullying and harassment through Title IV, Part A of the law. Each of these concerns disproportionately affects the educational rights of students with disabilities. 11
Section 504 and the ADA
Discrimination that violates Section 504 and ADA may occur when students with disabilities are excluded from school activities and classes or receive inferior treatment compared to their non-disabled classmates. 12 The term disability is defined broadly under Section 504 and the ADA. For a student to be eligible to receive accommodations, a school-based team must first determine the student has a cognitive or physical impairment that substantially limits one or more major life activities—including but not limited to learning—making it difficult or impossible to do something that others without limitations can do.
Accommodations are not the same as interventions for academics or behavior, but they can help individual students access learning and show what they know and can do. Typical accommodations include changes in the classroom setting such as providing preferential seating to reduce distractions, adjusting the pace of instruction, increasing the time to complete tasks—depending, of course, on the student’s individual 504 plan.
Music teachers can make accommodations in various ways so students can work around the effect of their disability. A student with limited hand use, for example, might benefit from using modified instruments or using traditional instruments in unconventional ways. 13 A music student who struggles with self-control might need clear rules and expectations, regular routines, or alternative activities to access learning.
Essentially, accommodations help students compensate for the effects of their disabilities and participate in the life of their schools and classrooms. In protecting students’ rights to educational equality, there are similarities between Section 504, the ADA, and the IDEA, but there are also significant differences.
IDEA: Appropriate Education
As with ESSA, the IDEA is now focused on student outcomes. The IDEA specifically ensures that eligible students with disabilities receive a FAPE designed to meet their individual needs and prepare them for further education, employment, and independent living. Eligibility under IDEA is narrow and linked to a set of 13 classifications (e.g., Specific Learning Disabilities and Autism) for spending purposes. Not only must a student’s disability fall into one of these categories; he or she must also need special education—or what the law calls “specially designed instruction”—to qualify for this high standard of support.
Specially designed instruction required by the IDEA goes far beyond modest accommodations for access under Section 504 and the ADA by requiring teachers to adapt their teaching approaches. Specially designed instruction is intended for students with disabilities who need specific, intensive, and explicit instruction to meet their goals within the context of the same general curriculum available to all students. The IDEA is now aligned with ESSA in defining the arts and music as part of a well-rounded education, and music teachers are expected to help provide specially designed instruction to students with IEPs. 14
The IDEA provides a framework of principles for educating students with disabilities that lead to FAPE. 15 These include the principles of zero reject and child find, nondiscriminatory evaluation, an individualized education program, the least restrictive environment, and procedural safeguards that include parent involvement. Each of these principles is briefly described in the following along with implications for music educators. Figure 1 illustrates how each guiding principle represents an important step toward providing FAPE to special education students.
The Guiding Principles of the IDEA
The first two principles require school officials to identify, locate, and evaluate any students suspected of having a disability who might need special education and related services. These were the principles at work when Eve’s parents, in the opening vignette, requested an evaluation to determine her eligibility for services.
Zero Reject and Child Find
The principle of zero reject establishes the right for students with disabilities, ages three years to twenty-one years, to receive FAPE regardless of how severe their needs are. This means no student can be excluded from instruction because of a disability. The child find component further requires school districts to be proactive in identifying children in the community who might be eligible for services. This principle also establishes that “students with disabilities must have equal access to all aspects of the curriculum including music education programs.” 16
Nondiscriminatory Evaluation
This principle requires a team of qualified professionals to evaluate whether a student has a disability and needs special education. Parents must have the opportunity to provide meaningful input and review any decisions about their child. Assessments generated in the evaluation process are important because they form the basis for planning a student’s annual goals and services. For example, Eve’s evaluation identified three areas for her planning team to address: 17
Her limited interactions with adults and other students were further delaying her development of age-appropriate social skills.
Her shyness was limiting the effects of past speech-language services.
Her impairment did not limit her participation in music class, where she performed well and was praised for her singing voice. Her parents reported that music was her favorite activity.
A fair and thorough evaluation provides essential data about a student’s strengths and learning needs. Although music teachers are not qualified to conduct evaluations for special education, they can seek answers to disability-related questions from trained professionals in their school district. 18
Individualized Education Program
This principle requires all aspects of a student’s special education to be directed by an IEP, which is a written commitment that the school will provide what the student needs to receive an appropriate education. Parents are full and equal partners with school personnel in developing an IEP specially designed to benefit their child. 19 The IEP describes the student’s strengths and weaknesses and how the disability affects his or her performance in school. It also includes measurable annual goals and lists the services and supports provided by the school district.
Schools are required to communicate the contents of an IEP to every teacher, including the music teacher, who works with that student. 20 In some schools, special educators use IEP summary tools to communicate essential information and strategies to use in helping the student be more successful. Learning from a special education colleague how to use data from an IEP can help music teachers provide the specially designed instruction the student needs to participate happily and successfully. Nothing in the IDEA prevents music teachers from participating in IEP meetings and contributing relevant data to a student’s case manager about his or her strengths and challenges. As team members, music teachers can advocate for students and address challenges that occur in the music classroom. 21
Too often, music is ignored in developing an IEP, but Eve’s team, which included her music teacher, built on her musical strengths in addressing her speech impairment and developing her social skills. When her IEP was finalized, it reflected efforts to increase Eve’s opportunities to participate in extracurricular musical activities and for her classroom teacher to be trained with the aid of the music specialist in ways to integrate music into Eve’s assignments. If it were available, another possibility for the team would be to recommend consideration of music therapy as a related service that could be integrated with her more traditional speech/language pathology services. 22
Least Restrictive Environment
The LRE principle requires schools to educate students with and without disabilities together to the maximum extent appropriate. The IDEA does not require inclusion but assumes the LRE to be a placement in which a particular student can be taught appropriately within or closest to the general education classroom. 23 Decisions about placement must be based on an individual student’s needs, not on the label of the student’s disability or what the school has done for similar students. 24 In Eve’s IEP, the LRE was listed as general education classes (including music class) where, in addition to intensive speech/language services, she could practice age-appropriate social skills. Music teachers can advocate for appropriate placement by collaborating with special education colleagues to adjust schedules, class arrangements, and support needs so a student can engage with classmates successfully in music activities. 25
Procedural Safeguards
The IDEA contains an array of requirements and procedures to ensure schools follow the correct steps in designing and delivering FAPE. Central to these safeguards is involving parents, teachers, administrators, and other professionals in making special education decisions. As members of the school community, music teachers can voice concerns and contribute suggestions to improve the learning of all their students as well as those with disabilities. 26
Free Appropriate Public Education
FAPE—the goal of the IDEA—“is a specially designed program that meets the individual needs of students and allows them to receive educational benefit.” 27 The IDEA assumes that FAPE will be achieved when schools follow the right steps by identifying students who potentially need special education, assessing their needs fairly, designing an IEP collaboratively, teaching all students in the LRE that supports their learning appropriately, and ensuring the school follows proper procedures along the way. 28
The Law and Music Educators
Music educators informed about the legal aspects of educating students with disabilities can lead the profession toward best practices in serving the needs of all learners. Thanks in good measure to the effective advocacy of the National Association for Music Education (NAfME) in promoting music as “an integral and core component of a comprehensive and balanced education accessible to all students,” music and the arts are now considered essential to a well-rounded education. 29 Students with disabilities have been underserved in arts education, and protected time is important to these students who are often scheduled for additional academic instruction in lieu of music classes. 30 Knowing what the law requires can enhance the instruction of music educators. It can also enhance learning for music students with disabilities, who “may also be more appropriately included in music classrooms and ensembles when they are taught by music educators who are aware of these issues and their relevance to music.” 31
Music educators might use the following approaches in teaching students with disabilities in ways that are legally correct and educationally useful:
Advocate for Everyone
Understanding laws that govern the education of students with disabilities is important because justice has not been blind to their exceptional learning needs or the corresponding need for teachers to provide them with additional supports. With regard to music educators, “advocating for students, regardless of their abilities, so all have access to a high-quality music education can make a huge difference, both for individuals and for the class as a whole.” 36