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Journal Issue: Children with Disabilities Volume 22 Number 1 Spring 2012

Disability and the Education System
Laudan Aron Pamela Loprest

History and Legal Context

The nation's current approach to educating children with disabilities is the product of dramatic shifts in disability law and public policy over the past four decades. Before the 1970s no major federal laws specifically protected the civil or constitutional rights of Americans with disabilities. Public policies were generally directed at veterans with disabilities returning home from two world wars. The civil rights movement of the 1960s led to a major shift in the "disability rights movement" from one primarily focused on social and therapeutic services to one focused on political and civil rights.3

A critical turning point came with the passage of the Rehabilitation Act of 1973—especially Section 504 of the act, which banned recipients of federal funds from discriminating against people with disabilities. For the first time, a federal law stated that excluding or segregating an individual with a disability constituted discrimination. It also challenged the assumption that disadvantages faced by people with disabilities, such as low educational attainment or unemployment, were the inevitable result of limitations stemming from the disability itself rather than from societal barriers or prejudices. Because almost all public schools receive federal funds, Section 504 also applied to them. The law entitles children to a public education comparable to that provided to children who do not have disabilities, with disability broadly defined to include any person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such an impairment.4

While Section 504 helped establish greater access to an education by removing intentional and unintentional barriers, a more proactive law protecting the educational rights of children with disabilities came two years later with the passage in 1975 of the Individuals with Disabilities Education Act (IDEA).5 IDEA established the right of children with disabilities to attend public schools, to receive services designed to meet their needs free of charge, and, to the greatest extent possible, to receive instruction in regular education classrooms alongside nondisabled children. These core substantive rights at the heart of IDEA are embodied in the phrase "a free, appropriate, public education in the least restrictive environment." Part B of IDEA authorizes federal grants to states to cover some of the costs of special education services for preschool and school-aged children aged three to twenty-one.

Unlike Section 504, IDEA does not cover all children with disabilities. The law has a two-pronged eligibility standard—children must have at least one of a list of specific impairments, and they must need special education and related services by reason of such impairments (note that this definition is primarily a medical or diagnostic one, with some functional criteria added). The specific impairments and disabilities listed in the law are mental retardation (also known as intellectual disabilities); hearing impairments, including deafness; speech or language impairments; visual impairments, including blindness; serious emotional disturbance; orthopedic impairments; autism; traumatic brain injury; other health impairments; specific learning disabilities; deaf-blindness; and multiple disabilities requiring special education and related services. Children aged three through nine who experience "developmental delays" in their physical, cognitive, communication, social or emotional, or adaptive development are also eligible for special education and related services.

In 1986 Part C of IDEA was established as a federal grant program focused on younger children (birth through age two) with disabilities. Its goals are to enhance the development of infants and toddlers with disabilities; reduce educational costs by minimizing the future need for special education; maximize the likelihood of independent living in adulthood; and enhance families' capacity to meet their children's needs. Part C provides states with federal grants to develop and administer a comprehensive statewide system of early-intervention services for any child under age three who has a disability or significant delay in development.

As a relatively young program, IDEA continues to evolve. Amendments to the law in 1997 focused on improving students' access to the general education classroom and curriculum, developing more accurate and appropriate assessments of academic achievement, implementing better disciplinary procedures and alternative placement options, and bolstering transition services and supports for students aging out of special education. The most recent amendments, enacted in 2004, were designed to promote better accountability for results, enhance parent involvement, encourage the use of proven practices and materials, and reduce administrative burdens for teachers, states, and local school districts.

The development of the nation's special education system has come in the midst of major and ongoing attempts to reform the general public education system. Significant influences include the standards-based reform movement, which led to and was then accelerated by the federal No Child Left Behind law of 2002; the school choice and public charter school movement; and the growing need for "alternative" schools and programs for students who for a variety of reasons are not succeeding in regular public schools.6