The Legislative and Litigation History of Special Education Edwin W. Martin Reed Martin Donna L. Terman

Elaborate and discuss these statements in a detailed form.

Between the mid 1960s and 1975, state legislatures, the federal courts, and the U.S. Congress spelled out strong educational rights for children with disabilities. Forty-five state legislatures passed laws mandating, encouraging, and/or funding special educa- tion programs. Federal courts, interpreting the equal protection and due process guar- antees of the Fourteenth Amendment to the U.S. Constitution, ruled that schools could not discriminate on the basis of disability and that parents had due process rights related to their children’s schooling.

Congress, in legislation now retitled the Individuals with Disabilities Education Act (IDEA), laid out detailed procedural protections regarding eligibility for special edu- cational services, parental rights, individualized education programs (IEPs), the requirement that children be served in the least restrictive environment, and the need to provide related (noneducational) services. Decisions on instructional matters such as curricula and the elements of the IEP remain the province of local and state authorities.

Advocates for students with disabilities have continually sought separate (categorical) funding for special education services. Current movements toward block grants rather than categorical programs and toward greater inclusion of special education students in general education classrooms raise concerns in some quarters about whether stu- dents with disabilities will continue to have full access to the special services they need.

While the cost of special services may be an unexpressed criterion in many decisions made by school districts, nowhere does the IDEA explicitly allow cost to be considered. Where a service is necessary for an individual child, cost considerations would not allow a school district to escape its obligations to the child. However, in instances where more than one appropriate configuration of services is available to meet a child’s needs, the school district may be allowed to consider the cost of different alternatives.

The legal requirement that public schools serve all children with dis-abilities is a recent one. Prior to the 1970s, millions of children withdisabilities were either refused enrollment or inadequately served by public schools.1 After securing some initial government support for special

The Future of Children SPECIAL EDUCATION FOR STUDENTS WITH DISABILITIES Vol. 6 • No. 1 – Spring 1996

Edwin W. Martin, Ph.D., is president emer- itus at the National Center for Disability Services, Albertson, NY.

Reed Martin, J.D., is a partner in the Houston, Texas law f i rm of Martin and Bishop, which specializes in rep- resenting persons with disabilities.

Donna L. Terman, J.D., is the issue editor of this journal issue, and is a policy analyst/editor at the Center for the Future of Children.

26 THE FUTURE OF CHILDREN – SPRING 1996

education efforts, advocates shifted to an emphasis on educational rights, an orientation strongly influenced by the civil rights movement.

Although it is widely assumed that a federal statute (Public Law 94–142, now named the Individuals with Disabilities Education Act, or IDEA), cre- ated educational rights for children with disabilities, in fact some of these rights were first established in state statutes (although not implemented) and also grew out of federal court cases based on the U.S. Constitution. The congressional bills which became Public Law 94–142 in 1975 were original- ly introduced in 1971, and their consideration by Congress had an impact on the nation, fueling the interest in state legislation and in litigation. In the context of the times, state law, federal law, and the federal and state courts provided a series of reinforcing actions.

The educational rights of students with disabilities are also ensured by two other federal laws: Section 504 of the Rehabilitation Act (Amendments of 1973) and the 1990 Americans with Disabilities Act (ADA).

Historical Background Persons with physical and mental disabilities have been the target of discrimination across cultures for thousands of years. On virtually every continent there are records of isola- tion, exclusion, and even destruction of per- sons with disabilities.2 Governmental treat- ment of persons with disabilities, beginning with their placement in institutions and mov- ing slowly into the educational system and the workplace, is a relatively recent pattern.

Through most of the history of public schools in America, services to children with disabilities were minimal and were provided at the discretion of local school districts. Until the mid-1970s, laws in most states allowed school districts to refuse to enroll any student they considered “uneducable,” a term generally defined by local school administrators. Some children with disabili- ties were admitted to public schools but were placed in regular education, with no special services. Others were served in special pro- grams in public schools, though the services provided to them were often inadequate.3 Only after Public Law 94–142 became effec- tive in 1978 and, in several states, after fed- eral and state court cases, did “education for all” policies become a fact.

Evolving Federal and State Roles Early Federal Efforts Prior to the 1950s, few federal laws author- ized direct education benefits to persons

with disabilities. There were acts in the early and mid-1800s making grants to the states for “asylums for the deaf and the dumb”4 and to promote education of the blind.5 But after these early efforts, the federal govern- ment had extremely limited involvement in public schools. The first major federal efforts in the modern era to improve public elementary and secondary schools came in 1958 and 1965, and neither includ- ed provisions for education of children with disabilities.

The National Defense Education Act When the Soviet Union launched Sputnik in the 1950s, the perceived threat inspired Congress to pass the National Defense Education Act of 1958 (NDEA),6 which pro- vided grants to improve science and math teaching in the earlier grades. The NDEA opened the door for federal involvement in elementary and secondary education. Four days after signing the NDEA, President Dwight Eisenhower signed a small act (Public Law 85–926) providing financial sup- port to colleges and universities for training leadership personnel in teaching children with mental retardation.7 In 1963 Congress expanded Public Law 85–926 to include grants to train college teachers and researchers in a broader array of disabilities.8

The Elementary and Secondary Education Act The Elementary and Secondary Education Act (ESEA) of 19659 was the first major fed- eral effort to subsidize direct services to selected

27The Legislative and Litigation History of Special Education

populations in public elementary and sec- ondary schools, and it remains the primary vehicle for federal support of public schools today. While the original ESEA did not pro- vide for direct grants on behalf of children with disabilities, in the second year of that Congress, Public Law 89–313 provided that children in state-operated or state-supported schools “for the handicapped” could be counted for entitlement purposes, and spe- cial Title 1 funds could be used to benefit this relatively small population of children in state schools.

Consolidation of Federal Leadership and Categorical Funding In the 1960s, advocates for children with dis- abilities wanted (1) a single entity that would coordinate federal educational efforts for children with disabilities; (2) increased cate- gorical funding, that is, funding for the exclusive purpose of educating students with disabilities; and (3) an enforceable entitle- ment, which was eventually obtained through the courts.

Experience with federal and state educa- tion agencies convinced advocates that chil- dren with disabilities were shortchanged by agencies that were enforcing broader federal mandates. They lobbied for a special admin- istrative unit at the highest level, a bureau, in the U.S. Office of Education. Congress in 1966 mandated a Bureau for the Education of the Handicapped (BEH) under Title VI of the ESEA, which also provided grants to states to initiate, expand, or improve pro- grams for educating children with disabili- ties.10 This program, popularly known as Title VI, had a legislative title that made it the first “education of the handicapped act.”

Increased federal funding to assist state and local service programs was harder to achieve. During the Johnson and Nixon administrations, the concept of using feder- al aid to stimulate local and state program- ming in special education was accepted, as was the concept of federally supported resources for the states, for example, trained teachers, research, and model programs. From 1967 through 1975, when Public Law 94–142 was passed, the BEH stimulated a number of federal programs aimed at spe- cific priority populations, for example, early

childhood education, education of children who were deaf/blind or multiply handi- capped, and model programs for children with specific learning disabilities.