I became a special education attorney right out of law school. Like most attorneys in our small field, my decision was personal. I remember my family’s frustration with my brother’s education. He is a year younger than I and has been diagnosed with cerebral palsy (CP), a group of neurological disorders that affect movement. CP, like many disabilities, exists on a broad spectrum. Some individuals are able to move with relative ease; others are virtually paralyzed and require constant supervision for their whole lives. Fortunately, my brother is more the former. At one point, I recall my mother arguing with the school principal about my brother being placed in a room by himself with only a television. He must have been in the second or third grade, and apparently, this had been going on for more than a month with no notification to my parents. The principal told my mom the school did not have the ability to support my brother, and the room with a television was all they could do. This was illegal, but it kept happening.
Every year, my parents would fight with the school for everything, whether it was speech services, accessibility, field trips, or just having him attend class with typical peers. The school district never made it easy and was rarely, if ever, helpful. We still talk about the experience. This was in the 1980s and 1990s, and the issues my family went through then are the same ones that the families I represent go through now. Although there is and was a robust set of federal and state laws requiring schools to provide an appropriate education to all children with disabilities, getting that education can be grueling for families.
The Evolution of Special Education Law
Special education law has come a long way since its inception, from the exclusion of students with disabilities from public schools to the implementation of various federal and state laws that aim to provide equal opportunities for all students.
Prior to the 1950s, children with disabilities were often excluded from public schools and were either institutionalized or educated at home. This really began to change as a result of Brown v. Board of Education, 347 U.S. 483 (1954), the landmark Supreme Court case in 1954 that held segregation in education was unconstitutional. Although not specifically dealing with the education of disabled children, the case paved the way for the Civil Rights Act of 1964, which prohibited discrimination on the basis of race, color, religion, sex, or national origin in all aspects of public life, including education.
Then two cases brought dramatic change for special education students: Pennsylvania Association for Retarded Children [PARC] v. Commonwealth of Pennsylvania, 334 F. Supp. 1257 (E.D. Pa. 1971), and Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 (D.D.C. 1972).
PARC dealt with the exclusion of children with an intellectual disability from public schools. In the subsequent settlement, it was agreed that educational placement decisions must include a process of parental participation and a means to resolve disputes. Mills involved the practice of suspending, expelling, and excluding children with disabilities from the District of Columbia public schools.
Following the PARC and Mills cases, Congress began investigating the education of children with disabilities. The investigation found that millions of children with disabilities were not receiving an education.
This investigation laid the foundation for the first special education law, the Education for All Handicapped Children Act (EAHCA) of 1975. The law mandated that all children with disabilities receive a free appropriate public education (FAPE). The EAHCA required that schools provide individualized education programs (IEPs) for students with disabilities, with a focus on inclusion and integration into regular classrooms whenever possible. This was a major turning point in special education law, as it established the legal right of children with disabilities to receive equal education opportunities.
In 1990, the EAHCA was renamed the Individuals with Disabilities Education Act (IDEA) and was revised to further strengthen the rights of students with disabilities. The IDEA expanded the definition of disabilities to include conditions such as autism and traumatic brain injury and required schools to provide related services, such as counseling and speech therapy. The law also established a due process system for resolving disputes between parents and schools and mandated that students with disabilities be educated in the least restrictive environment (LRE) possible.
The IDEA has undergone several revisions, most recently in 2004, which added several new provisions. These include the requirement for schools to provide early intervention services for infants and toddlers with disabilities and a focus on ensuring that students with disabilities are prepared for post-secondary education and employment. The law also emphasizes the importance of using evidence-based practices and interventions to support the academic and social-emotional needs of students with disabilities.
In addition to federal laws, individual states have also enacted their own special education laws to provide further protections for students with disabilities. For example, my state, California, passed AB 1369 in 2015, requiring schools to provide dyslexia screening and intervention services for students who are struggling with reading.
Despite the progress that has been made in special education law, there are still challenges that need to be addressed. On the federal level, the underfunding of special education is significant. Under the IDEA, Congress promised states that the federal government would provide 40 percent of the cost of special education services. To date, only about 14 percent is being covered, seriously prohibiting states from providing much-needed programs and services to children. On the state level, many parents still face difficulties in accessing services for their children and challenging school district decisions when they disagree with them.