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Journal Issue: Special Education for Students with Disabilities Volume 6 Number 1 Spring 1996

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

Litigation Determining Constitutional Rights to Education, 1971–1973

In the span of a few years (1971 through 1973), the federal courts made it clear that schools owed students the equal protection of the law without discrimination on the basis of disability, just as the Supreme Court had ruled in Brown v. Board of Education17 in regard to race. The due process clause of the Fourteenth Amendment was interpreted to give parents specific rights to prior notice, to discuss changes in a child's education plan before they occurred, and to appeal decisions made by school districts. Two critical cases laying out these rights were Pennsylvania Association for Retarded Children (PARC) v. Commonwealth of Pennsylvania18 and Mills v. Board of Education.19

The seminal 1971 case of Pennsylvania Association for Retarded Children (PARC) v. Commonwealth of Pennsylvania contested a state law that specifically allowed public schools to deny services to children "who have not attained a mental age of five years" at the time they would ordinarily enroll in first grade. Under a consent decree, the state agreed to provide full access to a free public education to children with mental retardation up to age 21. That case also established the standard of appropriateness—that is, that each child be offered an education appropriate to his or her learning capacities—and established a clear preference for the least restrictive placement for each child.

In the following year, in Mills v. Board of Education, seven children between the ages of 8 and 16 with a variety of mental and behavioral disabilities brought suit against the District of Columbia public schools, which had refused to enroll some students and expelled others, solely on the basis of their disability. The school district admitted that an estimated 12,340 children with disabilities within the district's boundaries would not be served during the 1971–72 school year because of budget constraints. The U.S. District Court ruled that school districts were constitutionally prohibited from deciding that they had inadequate resources to serve children with disabilities because the equal protection clause of the Fourteenth Amendment would not allow the burden of insufficient funding to fall more heavily on children with disabilities than on other children.

The ruling in Mills was pivotal and far-reaching. Children with disabilities had an equal right to public education offered in a form that was meaningful for them, and when the school considered a change in their status (including suspension, expulsion, reassignment, or transfers out of regular public school classes), the children were entitled to full procedural protections, including notice of proposed changes, access to school records, a right to be heard and to be represented by legal counsel at hearings to determine changes in individual programs, and regularly scheduled status reviews. All of these protections were eventually incorporated into Public Law 94-142 by Congress. The PARC and Mills cases caused a flurry of litigation. By 1973, more than 30 federal court decisions had upheld the principles of PARC and Mills.20