Home                      Contact     

Note: I will be updating these pages and adding new content.  - Dave Thompson, Nov 2, 2005

Special Education 1976 - 1998
What happened? The Courts.

Good discussion of Special Education history: 


CRS Report 95-669 A

The Individuals with Disabilities Education Act: Congressional Intent

Nancy Lee Jones (1995)

pdf file - click here
(11 pages, 493k file size
opens in new window)

(Thanks Sarah!)

 

The Shaffer Decision
See especially the Ginsburg dissent:
 [Dissent 1]

US Supreme Court 
Nov. 14, 2005

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 Text of Ford statement

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 Note: You can find this and other U.S. Supreme Court decisions at the Legal Information Institute website.

 Text of Rowley decision

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


"The high hopes which many blacks had felt just a few years earlier when the Supreme Court had ruled on Brown* were dissipating in the face of the relentless resistance posed in many Deep South states, and a strategy which seemed to demand that if blacks were going to challenge the existing status quo, then they were going to have to do it school by school, child by child, lawsuit by lawsuit." David Halberstam, The Children, Random House, 1998, Page 26
*U. S. Supreme Court decision: Brown v. Board of Education of Topeka, 1954 (347 U.S. 483)

==============================

Brown v. BOE

Brown v. BOE (1954) was the landmark U.S. Supreme Court decision that held:

"Segregation of white and Negro children in the public schools of a State solely on the basis of race ... denies to Negro children the equal protection of the laws guaranteed by the Fourteenth Amendment ..."

"Where a State has undertaken to provide an opportunity for an education in its public schools, such an opportunity is a right which must be made available to all on equal terms."
Return to Top of Page

 

What happened after Brown?

Initially nothing. Schools across the country didn't rush to follow the Court's directive. It took years of effort, protests, and loss of life before the Civil Rights movement achieved some measure of success in this and other important matters regarding non-discrimination and equal rights. Years.

More than 150 subsequent U.S. Supreme Court decisions reference Brown.
Return to Top of Page

 

Fourteenth Amendment to the United States Constitution

 Section 1. "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the  equal protection of the laws." [emphasis supplied]

It says  all persons. The Fourteenth Amendment does not discriminate against persons of color, it does not mention and thereby exclude handicapping conditions, it does not reference IQ, autism, visual impairments, speech impairments. It does not reference age. It says:  all persons.

While respecting the right of the Court to interpret and rule on the meaning of Constitutional language, I think that - as parents - we can assert that our children should be protected by the Fourteenth Amendment provisions regarding due process, equal protection, and the explicit prohibition against abridging our children's privileges and immunities.

Of course - again as parents of disabled children - we might find the reality just as different as did African-American school age children and their parents in the 58 years between Plessy v. Ferguson (1896) and Brown (1954). In Plessy the Court said:

".. we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances [163 U.S. 551] is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures." (1896 - Plessy v. Ferguson, 163 U.S. 537)
Return to Top of Page

 

 Whence Special Education?

Special Education came about as primarily a  federal funding measure (PL 94-142, the Education for All Handicapped Children Act of 1975 or EAHCA) signed into law by then President Gerald R. Ford with these words:

I have approved S. 6, the Education for All Handicapped Children Act of 1975. Unfortunately, this bill promises more than the Federal Government can deliver, and its good intentions could be thwarted by the many unwise provisions it contains.  Everyone can agree with the objective stated in the title of this bill -- educating all handicapped children in our Nation.  The key question is whether the bill will really accomplish that objective. Even the strongest supporters of this measure know as well as I that they are falsely raising the expectations of the groups affected by claiming authorization levels which are excessive and unrealistic...

Can you begin to see why special education fails the test of a noble idea supported with willful and true intent? When  Brown came down, did the Court say that schools should be de-segregated if funding was available?

Did the U.S. Congress and federal agencies such DOE and DOJ leave it up to individual parents, one-by-one, school-by-school, to fight to attain the rights specified by the ruling? Special Education parents are frequently told by attorneys and "advocates" that we need to read this law, read that law, become an expert on this, an expert on that. On the other hand, has the federal government (and state governments) directed those individuals (and families) seeking civil rights enforcement to become experts on U.S. Statutes and various CFR's (Code of Federal Regulations) to attain their rights? And did Vice President Gore say earlier this year (1998) that the federal govnerment has budgeted over $600 million for civil rights enforcement?

And has the U.S. Congress and have the States and has DOE or DOJ taken the stance that each individual can attain their civil rights if they - the individual - has $5,000 or $30,000 or $200,000 to retain legal representation and fight the issues one-by-one against the States and their unlimited, repeat unlimited, financial power to litigate?
Return to Top of Page

 

It Gets Worse

It didn't take the schools long to bring a case to the U.S. Supreme Court that gutted EAHC. Enter Board of Education, Hendrick Hudson Central School District v Rowley, 458 U.S. 176, 1982.

Consider some of the language of Rowley:

"The Act's [EAHCA] language contains no express substantive standard prescribing the level of education to be accorded handicapped children."

Parent's translation: We'll let your handicapped child into public schools, but that's the end of our [schools, federal government] commitment to you or your child.

And just to be sure that this message was clear, the Court continues in Rowley with:

"The Act's intent was more to open the door of public education to handicapped children by means of specialized educational services than to guarantee any particular substantive level of education once inside."

Then the Court delivers the coup de grāce with:

"In suits brought under the Act's judicial review provisions, a court must first determine whether the State has complied with the statutory procedures, and must then determine whether the individualized program developed through such procedures is reasonably calculated to enable the child to receive educational benefits. If these requirements are met, the State has complied with the obligations imposed by Congress, and the courts can require no more." [emphasis supplied]

Parents translation: If the schools fill out the paperwork properly and claim that folding towels or wiping tables in the teacher's lounge or picking up trash outside regular education classrooms is an educational benefit, then the school is in compliance with the Law of the Land.

And finally, as parents, we have one of the early documented cases of the system talking down to parents when the Court says:

"Entrusting a child's education to state and local agencies does not leave the child without protection. As demonstrated by this case, parents and guardians will not lack ardor in seeking to ensure that handicapped children receive all of the benefits to which they are entitled by the Act." [emphasis supplied]

Ardor? Ardor? Indeed. And we can put a price on our "ardor".
Return to Top of Page

 

Parent's Ardor

  $32,943.97, the amount of attorney's fees for a due process hearing for the parent/child wherein they sought reimbursement under the law from the school district; ended up in the Fifth Circuit Court of Appeals. The attorney fees were set at $8340.49, not to mention that "The district court granted the motion and awarded the District $2322.05" in costs which the appeals court affirmed. (Jason D.W. v. Houston ISD, September 21, 1998, IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT)

Best I can tell, this didn't even include the attorney fees for the federal court actions. Indeed, I've heard of one advocacy group computing their costs in fees to take a case to federal court (they lost) in excess of $200,000.

Now there's your procedural safeguards at work. The schools put a mountain of financial burden in the path of the parent's ardor.

And just to make certain that parents get the message of the ways things are, the Fifth Circuit opines in FLOUR BLUFF ISD v. KATHERINE M. , 1996:

We are mindful, however, of our appropriate role in this regard. Congress left the choice of educational policies and methods where it properly belongs -- in the hands of state and local school officials.

Really? And what of public schools in the United States in the 58 years between Plessy (1896) and Brown (1954). Were the interests of minority children and their parents served by the "educational policies and methods" left in the unfettered "hands of state and local school officials"?

And some us know that the "hands" spoken of can sometimes be taken literally as we see their imprints on the skin of our disabled children returning from public schools.


Return to Top of Page

Dave Thompson - December 2, 1998 (Last edit: November 2, 2005)