Historically, the policy of providing FAPE to all students, including students with severe developmental disorders and other handicaps, reflects a relatively new philosophy in public education. Before 1975 and the passage of Public Law 94-142, the law which eventually became IDEA, schools in most states were not required to provide education services to any student which the school determined to be “uneducable”, a broad and highly subjective term which was applied by local school boards or by school administrators (Martin, Martin, & Terman, 1996, p. 127).
During this time, students with physical or developmental handicaps were routinely discriminated against by school administrators and were denied access to education services in public schools, just as African Americans and other minorities were prevented from attending classes with white students and were required to attend classes in segregated school systems.
Because of this common legacy of segregation and discrimination, the development of special education policy in the United States and the integration of special education students into the general student population is perhaps best understood if it is viewed through the lens of the Civil Rights movement and not necessarily as an education issue. The racial desegregation of public schools began with Brown v. Board of Education (U. S. Supreme Court, 1954), in which the U.
S. Supreme Court ruled that it was unconstitutional to segregate public schools on the basis of race. In Brown, the Supreme Court found that separate schools were inherently unequal and were therefore unable to provide the same level of educational services to African American children and other minorities. If the United States was going to provide a free and equal education for all of its children, it would have to stop separating children according to race.
Although Brown did not specifically address the civil rights or educational rights of children with disabilities, the Supreme Court’s ruling in the case provided a rationale for the argument that children with special needs also had a right to receive free and appropriate education services in public schools. If children were not to be segregated according to race, then it could also be argued that children should not be segregated according to disability.
This is the argument that was presented by the Council for Exceptional Children in an article published in their journal in 1955, one year after Brown (Daugherty, 2001, p. 2). However, while the racial integration of America’s public schools occurred fairly quickly through court ordered busing and other changes, the acceptance of disabled students proceeded at a much slower pace and is, to some extent, still unfolding. The racial and segregationist implications of special education were first recognized Diana v. State Board of Education (1970) (MacMillan, Hendrick, & Watkins, 1988).
In Diana, lawyers representing Spanish-speaking Mexican American students argued that their clients were being inaccurately labeled as mentally retarded based on the results of IQ tests which were being administered in English. The attorneys argued that the district’s English-only testing policy had created an overrepresentation of Spanish-speaking students in special education classes. Diana was actually settled out of court. However, Diana, established that “linguistic, cultural, socioeconomic and other background differences are not considered handicapping conditions” (Garcia & Ortiz, 1988).
As a result of Diana, schools were forced to be more diligent in determining whether the educational problems of children who had limited English language proficiency were the result of a learning disability or other handicapping condition or were the result of the child’s inability to speak English. The influence of Diana may be seen in IDEA procedural requirements for student testing, parental involvement in special education decisions, and LRE placement (MacMillan, Hendrick, Watkins, 1988).
Under IDEA, schools must assessments and other evaluation materials that are written or verbally communicated in the child’s native language and that are not racially or culturally discriminatory (108th Congress, 2004, p. 118, stat. 2678 [b]). IQ tests and other assessments must be administered “in the language and form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally” (108th Congress, 2004, p. 118, stat. 270 [a][ii]).
Although linguistic differences and the overrepresentation of students with limited English proficiency continues to be a problem for schools with high enrollments of students who are learning English as a second language, the changes brought by Diana did help to reduce the number of Hispanic students who were incorrectly labeled as mentally retarded. Between 1969 and 1977, after Diana and the requirement that Spanish speaking students would be tested in Spanish, Hispanic enrollment in special education classes in California dropped from 28. 2% to 22. 6% (MacMillan, et al., (1988). PARC v. Commonwealth of Pennsylvania (1971)
In 1971, lawyers representing a group of 14 developmentally delayed children who lived in Pennsylvania argued that their clients had been unfairly prevented from enrolling a public school, a violation of the children’s due process rights that were guaranteed by the 14th Amendment. Pennsylvania Association for Retarded Children (PARC) v. Commonwealth of Pennsylvania (United States District Court for the Eastern District of Pennsylvania, 1971) became the type of landmark cases for special education students that Brown v. Board of Education was to minority students and racial integration.
PARC was decided in a district court and was therefore not officially binding beyond the Pennsylvania and the jurisdiction of the court that made the ruling. However, as has often been the case in school law in general and special education law in particular, the effects of the district court’s ruling could be felt far beyond the official jurisdiction of the court. PARC established a legal precedence for equal access to schools for developmentally delayed students.
In the case of PARC, the effects of the legal precedence were felt almost immediately. Mills v. Board of Education (1972). Less than one year after PARC, the United States District Court in Washington, D. C. ruled that schools had an obligation to provide appropriate educational services for disabled students. In Mills v. Board of Education of the District of Columbia, the court ruled, “No child shall be excluded regardless of degree of disability or impairment” (United States District Court, 1972, p. 12).
Perhaps more significantly for school budgets, Mills also established that schools were required to provide appropriate educational services to the handicapped regardless of the financial burden that providing such services might place on the school district, thus creating the philosophy that would eventually lead to the problem of the unfunded mandates that have characterized IDEA and special education policy in the United States.
After Mills, many schools found themselves facing difficult budget choices. Schools could either pay for the additional staff and resources that would be required to teach their special education students (or, in some cases, required for individual students who had specific special education needs), or they could risk paying even more if they were sued by a parent and lost.
PARC and Mills were not law in the same sense the IDEA was law, yet the court rulings had the same effect and were just as binding as any legislative action that might have been taken. In fact, much of the language for the procedural guidelines for due process that were eventually described in IDEA originally appeared in the court’s ruling in Mills.
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