Free Public Schools

CHAPTER 31. Exceptional Children

Subchapter I. Definitions

§ 3101. Definitions.

The following words, terms and phrases, when used in this chapter shall have the meanings ascribed to them except when the context clearly indicates a different meaning:

(1) “Child” means a person of 3 years of age, or an earlier age if otherwise provided in this title, until the receipt of a regular high school diploma or the end of the school year in which the person attains the age of 22, whichever occurs first.

(2) “Child with a disability” means a child who because of mental, physical, emotional, developmental, speech or learning disability problems, as defined by the Department of Education rules and regulations approved by the State Board of Education, requires special education and related services in order to develop that person’s own capabilities. A child with a disability is eligible for services beginning on the child’s third birthday, or earlier if otherwise provided in this title.

(3) “Disruptive child” means a child who continually exhibits behavior that does not meet minimal standards of conduct established by the school authorities and that are required in the school and classrooms; whose behavior is in defiance of school personnel, disrupts the school instructional program and is antagonistic to other students and the purpose of the school.

(4) “Exceptional child” means a child with a disability or a gifted and talented child, as defined herein.

(5) “Free appropriate public education” means special education that is specially designed instruction including classroom instruction, instruction in physical education, home instruction and instruction in hospitals and institutions, and related services as defined by Department of Education rules and regulations approved by the State Board of Education and as may be required to assist a child with a disability to benefit from an education that:

a. Is provided at public expense, under public supervision and direction and without charge in the public school system;

b. Meets the standards of the Department of Education as set forth in this title or in the rules and regulations of the Department as approved by the State Board;

c. Includes elementary, secondary or vocational education in the State;

d. Is individualized to meet the unique needs of the child with a disability;

e. Provides significant learning to the child with a disability; and

f. Confers meaningful benefit on the child with a disability that is gauged to the child with a disability’s potential.

No court, administrative tribunal, school district, or school shall use a definition of “free appropriate public education” that states or implies that the term encompasses a lesser educational program than enumerated in this definition. Courts, administrative, tribunals, and schools may use a definition of “free appropriate public education” that states or implies that the term encompasses a more enhanced educational program than described in this definition, if consistent with a decision of the United States Third Circuit Court of Appeals or the United States Supreme Court.

The related services to be provided shall be based upon a program for each child as approved by the Department; provided, that the State Board may review any objection to the Department’s decision. Funds for such services are to be paid from the Educational Contingency Fund of the Department of Education.

(6) “Gifted or talented child” means a child in the chronological age group 4 through the end of the school year in which the child attains the age of 21 or until receipt of a regular high school diploma, whichever occurs first, who by virtue of certain outstanding abilities is capable of a high performance in an identified field. Such an individual, identified by professionally qualified persons, may require differentiated educational programs or services beyond those normally provided by the regular school program in order to realize that individual’s full contribution to self and society. A child capable of high performance as herein defined includes one with demonstrated achievement and/or potential ability in any of the following areas, singularly or in combination:

a. General intellectual ability;

b. Specific academic aptitude;

c. Creative or productive thinking;

d. Leadership ability;

e. Visual and performing arts ability;

f. Psychomotor ability.

(7) “Parent” means a biological or natural parent of a child with a disability, or, as appropriate, a stepparent, guardian, educational surrogate parent, appointed educational representative, relative caregiver or custodian. The identity and authority of a person qualifying as a parent is subject to modification by Family Court or Court of Chancery order. Subject to § 3132 of this title, if a child with a disability has reached that child’s own eighteenth birthday, and no guardian of the person has been appointed, all rights and entitlements accorded to parents by this chapter shall be deemed accorded directly to the child with a disability.

(8) [Repealed.]

48 Del. Laws, c. 194, §  2;  14 Del. C. 1953, §  3101;  49 Del. Laws, c. 410, §  251 Del. Laws, c. 287, §  255 Del. Laws, c. 198, §  257 Del. Laws, c. 237, §  260 Del. Laws, c. 571, §  461 Del. Laws, c. 190, §§  4, 762 Del. Laws, c. 411, §  163 Del. Laws, c. 410, §  164 Del. Laws, c. 63, §  265 Del. Laws, c. 381, §  268 Del. Laws, c. 84, §§  214, 21568 Del. Laws, c. 126, §§  10, 1170 Del. Laws, c. 186, §  171 Del. Laws, c. 180, §  14577 Del. Laws, c. 301, §  177 Del. Laws, c. 424, §§  2-780 Del. Laws, c. 252, § 183 Del. Laws, c. 39, §§ 1, 283 Del. Laws, c. 357, § 1