TO SCHOOL THROUGH THE COURTS

The key American law, Individuals with Disabilities Education Act, has influenced the school lives of many children with special needs in the US. Máiríde Woods follows its progress from the original IDEA.

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Hehir and Gamm describe the Individuals with Disabilities Education Act of 1975 as coming out of a long history of exclusion and segregation of disabled children. Many legal cases and political lobbying by parents led to a body of court decisions favouring children with disabilities which eventually ‘paved the way for the establishment of a federal right to education based on the constitutional principles of equal protection and procedural due process, guaranteed in the Bill of Rights and the Fourteenth Amendment.’ This was the IDEA.

It was the Brown judgement in the 1950s which turned the tide against exclusion—a judgement not about disability but about race. In a key phrase, the US Supreme Court decision stated that ‘separate educational facilities were inherently unequal.’ In the following twenty years public schools went through the sometimes painful process of racial desegregation and some states set up boards to oversee the education of those with disabilities—much in the way special schools were set up in Ireland.

In 1969 in the state of Utah another seminal judgement was made. Two children described as ‘trainable’ had been excluded from school. In upholding their right to a public education Judge Wilkens made the following judgement based on the 1954 Brown case (1969 Wolf):

‘Today it is doubtful if any child may reasonably be expected to succeed in life if he is denied the right and opportunity of an education… Segregation even though perhaps well-intentioned, under the apparent sanction of law and state authority, has a tendency to retard the educational, emotional and mental development of the children. The setting aside of these children in a special class affects the plaintiff parents in that…. they have been told that their children are not the same as other children in the State of Utah.’

The Wilkens decision paved the way for the best known case of the 1970s, Penn. Association for Retarded Children v Pennsylvania. The consent decree in this case ‘firmly established not only the right of individuals with disabilities to receive an education but also the legal concept of least restrictive environment.’ (LRE) Under Section 504 of the Rehabilitation Act (1973), the US Department of Health Education and Housing issued regulations, one of which required that a child with a disability be placed in the regular educational environment ‘unless it is demonstrated that the education of the person in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily.’ Many states opened their schools to children with disabilities around this period and some federal funding was supplied.

In 1975, after Congressional hearings, an act (Education of All Handicapped Children Act, EAHCA) was passed which guaranteed all children with disabilities equal access to free and appropriate public education (sometimes abbreviated to FAPE). It made clear and comprehensive provision for children with disabilities.

  1. Parents are entitled to a free independent assessment of the existence and extent of their child’s ‘handicap’. This is usually undertaken by a University Centre not tied to education of health providers.
  2. This assessment entitles the child to services ‘to meet his/her unique needs’.
  3. An individualised education plan (IEP) is drawn up by parents (occasionally the child) and specialists.
  4. An appropriate educational setting is chosen from the continuum of placements public school districts are obliged to have available. These range from the highly to the minimally restrictive. Mainstreaming is the preferred option, as long as it does not adversely affect the disabled student, other students, or is not inefficient.

Most court judgements have favoured a mainstreaming option. In the Oberti and Holland cases in 1993, the courts leaned heavily on expert testimony which suggested that disabled children need interaction with non-disabled peers to develop certain social and communicative skills. Serious disruptive or violent behaviour has been the only reason the courts have ordered segregated placements.

In the case of Timothy W v Rochester (1989), IDEA mandated an education for all children regardless of the severity of the disability. This legislation has also given such children a right to an extended school year (ESY). Cost considerations are factored in when determining the ‘least restrictive environment’. The 1983 amendments to EAHCA also set up the Office of Special Education to implement regulations.

Later amendments required states to streamline their special education systems in order to receive federal support. A 1997 amendment reaffirmed the rights-based structure of IDEA, while requiring increased accountability for results. This may prevent the placement of students in special classes in order to artificially raise normal results and avoid accountability for low achievement. Another 1997 amendment made the primary focus of the IEP the student’s participation in the general curriculum. This must be subject to annual review, as should the special education programmes themselves. State finance systems should not favour any particular type of placement.

One of the criticisms of the legislative route is the individual focus of such actions. However in 1998 the first class action (Corey H. v City of Chicago) was adjudicated; it dealt with the rights of all current and future children with disabilities in Chicago. It found that children with disabilities in ‘the Chicago public school have been and continue to be segregated into separate and unequal educational environments contrary to established federal law….’

Hehir and Gamm examined research since the passing of the EAHCA. They found that one in eleven children were categorised as disabled, and that one-quarter of the educational budget went to special education; that the number of institutionalised children with developmental disabilities had fallen dramatically (90,000 in 1970, 3,500 in 1995). Between 1993 and 1997 the number of students with mental retardation in separate schools decreased by 38%. More students with disabilities are also going to college (up from 2,6% to 8.8% between 1978 and 1991). Innovative projects has been funded through IDEA.

Although individual court rulings were important, more significant was the pervasive influence of such decisions on school boards. Many cases are settled without going to court because school boards realise beforehand what they will be required to provide.

After twenty years of research on the implementation of IDEA, Hehir saw the following six general principles emerging:

  1. Appropriate integration leads to more positive outcomes in most cases.
  2. Early intervention for reading and behaviour problems is effective in preventing later special education referrals
  3. Access to vocational educational helps disabled students succeed.
  4. Traditional teaching needs to be modified for disabled students.
  5. Counselling and support from a caring adult in the school system is often critical at high school level.
  6. Adjust the setting rather than move student from setting to setting.

Many programmes are now concentrating on preventing children from dropping out of school. One of the contentious issues to emerge from the implementation of IDEA is the fact that children from minorities are over-represented in special classes, despite the fact that regulations under IDEA were designed to be ethnically neutral. Some over-representation is to be expected, because of the well-documented links between poverty, race and disability. Also disabled students from urban backgrounds are more likely to attend special schools. This has led to a lot of discussion over what is appropriate culturally and educationally and how much time children should spend in a totally integrated setting, as against special programmes. The most critical question is the outcome for students designated disabled—how much do they benefit from the education they receive? It does seem that children with disabilities have a much richer range of options open to them that they had in the past. However it is important to resist dogmatism, and to keep as a pre-eminent value the best interests of the child. Mainstreaming is usually the best option but not always.

As Brahm Norwich said: ‘Special education is pre-eminently an area of policy where multiple values are in tension, and the balance has constantly to be negotiated between those of inclusion and an effective education for the individual child.’

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