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- ©Professor Richard Peterson
- Pepperdine University School of Law
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- In 1885 plaintiff was excluded from school “because he was too weak-minded to
derive profit from instruction … I
appears from the statements of teachers who observed him, and
from certificates of physicians, that he is so weak in mind as not to
derive any marked benefit from instruction, and, further, that he is
troublesome to other children making unusual noises, pinching others,
etc. He is also found unable to
take ordinary, decent, physical care of himself…”
- In reaching its decision, the Court made reference to another case where
a student was discharged from school due to willful acts of neglect,
carelessness of posture in his seat, and recitation, tricks of
playfulness, inattention to study and the regulations of the school in
minor matters and then said, “The only difference between the acts of
disorder in that case and in this is that in this they resulted from
incapacity and mental weakness of the plaintiff … In there general
effect upon the school, they were alike…”
- Holding: “Whether certain acts of disorder so seriously interfere with
the school that one who persists in them, either voluntarily or by
reason of imbecility, should not be permitted to continue in the school,
is a question which the statute makes their [School Committee] duty to
answer…”
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- Merritt Beattie, 13 years of age on March 27, 1918,…has been a crippled
and defective child since his
birth, being afflicted with a form a paralysis which affects his whole
physical and nervous make-up. He
has not the normal use and control of his voice, hands, feet and body.
By reason of said paralysis his vocal cords are afflicted. He is slow and hesitating in speech,
and has a peculiarly high, rasping, and disturbing tone of voice,
accompanied with uncontrollable facial contortions, making it difficult
for him to make himself understood.
He also has an uncontrollable flow of saliva, which drools from
his mouth onto his clothing and books, causing him to present an unclean
appearance. He has a nervous and
excitable nature. It is claimed, on the part of the school board, that
his physical condition and ailment produces a depressing and nauseating
effect upon the teachers and school children; that by reason of his
physical condition he takes up an undue portion of the teacher’s time
and attention, distracts the attention of the other pupils, and
interferes generally with the discipline and progress of the school…” (Emphasis added)
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- 1869 English Psychologist Francis Galton published “Hereditary Genius.”
- Led to view “the incompetent, the ailing, and the desponding” as a
threat to society.
- 1883 Galton introduced the term Eugenics to describe ideas and proposed
practices of racist superiority and sterilization.
- 1890’s The superintendent of a Kansas home for the feeble minded
castrated 58 children before public revulsion forced him to stop.
- 1904 The Carnegie Institution of Washington established a biological
experiment at Cold Spring Harbor, New York with American Eugenicist
Charles Davenport as its first director in United States and Germany.
- By 1914 Eugenics was taught in the U.S. at Harvard, Columbia, Cornell,
Brown, Wisconsin, Northwestern, Clark and other universities.
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- “We have seen more than once that the public welfare may call upon the
best citizens for their lives. It would be strange if it could not call
upon those who already sap the strength of the State for these lesser
sacrifices, often not felt to be such by those concerned, in order to
prevent our being swamped with incompetence. It is better for all the
world, if instead of waiting to execute degenerate offspring for crime,
or to let them starve for their imbecility, society can prevent those
who are manifestly unfit from continuing their kind. The principle that
sustains compulsory vaccination is broad enough to cover cutting the
Fallopian tubes … Three generations of imbeciles are enough.”
- Justice Oliver Wendell Holmes
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- “It must be made clear to anyone suffering from an incurable disease
that the useless dissipation of costly medications drawn from the public
store cannot be justified.
Parents who have seen the difficult life of a crippled or
feeble-minded child must be convinced that, though they may have a moral
obligation to care for the unfortunate creature, the broader public
should not be obligated…to assume the enormous costs that long term
institutionalism might entail.”
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- 1942-U.S. Psychiatrist Foster Kennedy wrote an editorial for the Journal
of the American Psychiatric Association advocating the killing of
“retarded” children, the “utterly unfit,” to relieve them of their
agony.
- Debate with Leo Kanner
- Euthanasia movement interrupted by U.S. entrance into World War II.
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- Learning disabilities------Did not exist until 1963
- Mental Retardation------IQ cut off was 85 14th %tile
- Emotionally Disturbed------Not allowed in public schools
- Behavior Disordered-------Expelled
- Physical Disabilities-------Not often in public schools
- Blind & Vision Impaired--------Institutionalized
- Deaf and Hearing Impaired--------Institutionalized
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- 1954 Brown v. Board of Education 347 U.S. 483, 74 S.Ct. 686
- 1970 Education for the Handicapped Act
(EHA)
- 1971 P.A.R.C. v. Pennsylvania 334 F.Supp. 1257 (E.D. Pa. 1971)
- 1972 Mills v. Board of Education 348 F.Supp. 866 (D.D.C. 1972 )
- 1973 Rehabilitation Act of 1973 (Section 504) 29 U.S.C. § 794
- 1974 Interim Funding Bill Preliminary to Enacting the EAHCA
- 1975 Education for All Handicapped Children Act (EAHCA) 20 U.S.C. §§1400
et. seq. [effective 1977] a.k.a. Public Law 94-142
- 1977 Regulations implementing the EAHCA 34 C.F.R. §§300 et. seq.
- 1986 Handicapped Children’s Protection Act of 1986 [HCPA] 20 U.S.C. §
1415 (i)(3)
- 1986 Education of the Handicapped Act Amendments of 1986 20 U.S.C. §§
1471 et seq. and 1419 et seq.
- 1990 Individuals with Disabilities Education Act (IDEA) [EAHCA amended
to change name of Act to IDEA.]
- 1997 Major Amendment to IDEA
- 1999 Final Regulations to implement 97 amendments to IDEA issued
- 2004 Re-Authorization of IDEA.
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- “To separate them from others of similar age and qualifications solely
because of their race generates a feeling of inferiority as to their
status in the community that may affect their hearts and minds in a way
unlikely ever to be undone.” (At page 494
- “Segregation of white and colored children in public schools has a
detrimental effect upon the colored children. The impact is greater when
it has the sanction of the law; for the policy of separating the races
is usually interpreted as denoting the inferiority of the negro group. A
sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law,
therefore has a tendency to [retard] the educational and mental
development of negro children and to deprive them of some of the
benefits they would receive in a racially integrated school system.” (At
page 494)
- “We conclude in the field of public education the doctrine of “separate
but equal” has no place. Separate
educational facilities are inherently unequal…”
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- “To separate them from others of similar age and qualifications solely
because of their disability generates a feeling of inferiority as to
their status in the community that may affect their hearts and minds in
a way unlikely ever to be undone.” (At page 494
- “Segregation of disabled and typical children in public schools has a
detrimental effect upon the disabled children. The impact is greater
when it has the sanction of the law; for the policy of separating disabled
and typical children is usually interpreted as denoting the inferiority
of the disabled group. A sense of inferiority affects the motivation of
a child to learn. Segregation
with the sanction of law, therefore has a tendency to [retard] the
educational and mental development of disabled children and to deprive
them of some of the benefits they would receive in a typical and
disabled integrated school system.” (At page 494)
- “We conclude in the field of public education the doctrine of “separate
but equal” has no place. Separate
educational facilities are inherently unequal…”
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- IDEA 20 U.S.C. §§ 1400 et. seq. and Regulations Title 34, C.F.R. Part
300 et.seq.
- Rehabilitation Act of 1973 (Section 504) and Regulations 29 U.S.C. §794
- Americans with Disabilities Act [ADA] 1990 and Regulations
- California Education Code, §§ 56000 et. seq. and Regulations, Title 5,
C.C.R. Section 3000 et.seq.
- Case Law
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- AB 1836: Deaf Children’s Bill of Rights, 1994 (Chapter 1126)
- California Education Code, Section 56000.5 amended
- California Education Code, Section 56001 amended
- California Education Code, Section 56026.2 amended (Language Mode
Defined)
- California Education Code, Section 56345 amended
- California Assembly Concurrent Resolution No. 55: Relative to the
Provision of Programs for Pupils with Low Incidence Disabilities
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- Deaf Students Education Services, Policy Guidance, 1992, 19 IDELR 463A
- Letter to Seiler, 11-19-93 (Hearing Aids and Assistive Technology)
- OSEP Memorandum 94-15, 20 IDELR 1181 (Placement, LRE)
- Letter to Anonymous, 2-16-94, 21 IDELR 67
- Letter to Anonymous, 10-29-93, 20 IDELR 1168
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- Part A: General Provisions, Definitions and Other Issues
- Congressional Findings and Purpose
- Definitions of terms used in the statute
- Part B: Assistance for Education of All Children with Disabilities
- Funding, state plans, evaluations, eligibility, due process,
discipline and other areas relating direct services.
- Part C: Infants and Toddlers with Disabilities
- Findings and policy
- Definition of at risk infant or toddler-individual under 3 years of
age who would be at risk of experiencing a substantial developmental
delay if early intervention services were not provided.
- Requires a comprehensive child find system and individual family
service plan (IFSP) similar to IEP’s in Part B.
- Part D: National Activities to Improve Education of Children with
Disabilities
- Focuses on need to improve special education programs, preparing
personnel, disseminating information, supporting research, and
applying research findings to education.
- Two subparts. First is “State Program Improvement Grants for Children
with Disabilities. Second is “Coordinated Research, Personnel
Preparation, Technical Assistance, Support, and Dissemination of
Information.
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- Students not qualifying for special education services under the IDEA
may be eligible for special services and program modifications under
this anti-discrimination statute.
- Eligibility not based on categorical analysis of disabilities. 504
protections available to students
who can be regarded in a functional sense as “handicapped,”---those
students who have a physical or mental impairment which substantially
limits a major life activity (such as learning), has a record of such
impairment, or is regarded as having such an impairment. 34 C.F.R. Section 104.3(j)
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- “Disability is a natural part of the human experience and in no way
diminishes the right of individuals to participate in or contribute to
society. Improving educational
results for children with disabilities is an essential element of our
national policy of ensuring equality of opportunity, full participation,
independent living, and economic self-sufficiency for individuals with
disabilities.” 20 U.S.C.
§1400(c)(1).
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- “Before the enactment of the Education for All Handicapped Children Act
of 1975 (Public Law 94 142) the special education needs of children were
not being fully met; more than one-half of the children with
disabilities in the United States did not receive appropriate
educational services that would enable such children to have full
equality of opportunity;
- 42
U.S.C. §1400 (c)(2)(A)(B)
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- “Since the enactment and implementation of the Education for All
Handicapped Children Act of 1975 , this Act has been successful in
ensuring children with disabilities and the families of such children
access to a free appropriate public education and in improving
educational results for children with disabilities..” 42 U.S.C. §1400
(c)(3)
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- “However, the implementation of this Act has been impeded by low
expectations, and an insufficient focus on applying replicable research
on proven methods of teaching and learning for children with
disabilities.”
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- “Over 20 years of research and experience has demonstrated that the
education of children with disabilities can be made more effective by:
- Having high expectations for such children and ensuring their access in
the general curriculum to the maximum extent possible;
- Strengthening the role of parents and ensuring that families of such
children have meaningful opportunities to participate in the education
of their children at school and at home;
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- Coordinating this Act with other local, educational service agency,
State, and Federal school improvement efforts to ensure that such
children benefit from such efforts and that special education can
become a service for such children rather than a place whey they are
sent;
- Providing appropriate special education and related services and aids
and supports in the regular classroom to such children when
appropriate;
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- Supporting high-quality, intensive professional development for all
personnel who work with such children in order to ensure that they have
the skills and knowledge necessary to enable them:
- to meet the developmental goals and, to the maximum extent possible,
those challenging expectations that have been established for all
children, and;
- to be prepared to lead productive, independent, adult lives, to the
maximum extent possible;”
- 20 U.S.C.
§1400(5)(A)(B)(C)(D)(E)
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- “…to ensure that all children with disabilities have available to them a
free appropriate public education that emphasizes special education and related
services designed to meet their unique needs and prepare them for employment
and independent living.”
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- “…Special education and related services that
- (A) have been provided at public expense,
- (B) meet the standards of the State educational agency;
- (C) Include appropriate preschool, elementary, or secondary school
education in the State involved; and
- (D) are provided in conformity with the individualized education
program..”
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- “Specially designed instruction, at no cost to the parents, to meet the
unique needs of a child with a disability, including
- Instruction conducted in the classroom, in the home, in hospitals and institutions,
and in other settings; and
- Instruction in physical education.”
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- Purpose of the IDEA is “…to ensure that all children with disabilities
have available to them a free appropriate public education…” 20
U.S.C.§1400(d)(1)(A)
- “The language of the Act could not be more unequivocal. The statute is
permeated with the words ‘all handicapped children’ whenever it refers
to the target population. It never speaks of any exceptions for severely
handicapped children…” Timothy W. v. Rochester School District
875 F.2d 954 (1st Circuit 1989)
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- Identification and Referral
- Child Find
- Screening
- Determination of Etiology
- Vision Screening
- Assessment of Unique Needs
- Purposes and Procedures
- Persons Conducting
- Areas
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- Primary language and preferred mode of communication
- Etiology
- Age of onset and age of diagnosis
- Type and severity of hearing loss
- Potential for use of residual hearing
- Auditory skills
- Visual skills
- Effectiveness of amplification
- Family history, including home language and cultural factors, and
hearing status of family members
- Educational history
- Health and developmental history
- Multi-disabling conditions
- Attitude of student
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- Audiological
- Communication/Language Skills
- Manual Communication
- Spoken Communication
- Written Language
- Telecommunication Skills
- Pre-Academic Skills
- Academic Skills
- Motor Skills
- Psychological
- Career/Vocational
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- Observations
- Parent interviews
- Medical and audiological history
- Gathering of educational information
- Play assessment
- Developmental scales
- Norm-referenced tests
- Criterion-referenced tests
- Performance-based assessments
- Career/vocational interests/skills inventories
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- “In so far as a State is required to provide a handicapped child with a
‘free public education,’ we hold that it satisfies this requirement by
providing personalized instruction with sufficient support services to
permit the child to benefit educationally from that instruction.”
- Board of Education v. Rowley
458 U.S. 176, 203
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- Schools are not required to provide education and services to children
with disabilities allowing them to achieve their full potential
(academically) commensurate with the opportunity provided to other
children, although the benefit must be meaningful.
- “…the basic floor of opportunity
provided by the act consists of access to specialized instruction and related
services which are individually designed to provide educational benefit
to the handicapped child.” (emphasis added)
- Caution: Rowley involved a child who was doing well academically and
socially.
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- present levels of educational performance
- measurable annual goals, including benchmarks or short-term objectives
- special education and related services and supplementary aids and
services
- program modifications or supports for school personnel
- participate with non-disabled children
- transition services
- progress toward the annual goals
- 20 U.S.C.1414(d)(1)(A)
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- Parents
- Regular Education Teacher
- Special Education Teacher
- Local educational agency (Qualified, Knowledgeable-General Curriculum
and Resources)
- Individual who can interpret the instructional implications of
evaluation
- Other individuals (knowledge or special expertise)
- Child (When appropriate)
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- Strengths of the child
- Concerns of parents
- Initial or most recent evaluation
- Special factors
- Behavior
- Limited English proficiency
- Blind or visually impaired-Braille
- Communication needs (and in the case of a child who is deaf or hard of
hearing, consider the child's language and communication needs,
opportunities for direct communications with peers and professional
personnel in the child's language and communication mode, academic
level, and full range of needs, including opportunities for direct
instruction in the child's language and communication mode)
- Assistive Technology Devices and Services
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- Services
- Sign language interpreting
- Oral or cued speech transilteration
- Note-taking
- Real time captioning
- Materials and Equipment
- Assistive listening device
- Closed captioned television
- Telecommunication device
- Amplified telephone
- Captioned videos
- Specialized curriculum
- Accommodations in Educational Environment
- Acoustically appropriate classroom
- Preferential seating
- Lighting
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- “To the maximum extent appropriate, children with disabilities,
including children in public or private institutions or other care
facilities, [should be] educated
with children who are not disabled, and that special classes, separate
schooling, or other removal of children with disabilities from the
regular educational environment [should occur] only when the nature or
severity of the disability is such that education in regular classes
with the use of supplementary aids and services cannot be achieved
satisfactorily…” (emphasis added) 20 U.S.C. 1412(a)(5)(A); 34 C.F.R.
Section 300.551
- Full Continuum of Services 34 C.F.R. Section 300.552
- Deaf Students Education Services, Policy Guidance, 1992, 19 IDELR 463A
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- “…The secretary is concerned that the least restrictive environment
provisions of the IDEA and Section 504 are being interpreted,
incorrectly, to require placement of some children who are deaf in
programs that may not meet the individual student’s educational needs.
Meeting the unique communication and related needs of a student who is
deaf is a fundamental part of providing a free appropriate public
education (FAPE) to the child. Any setting, including a regular
classroom, that prevents a child who is deaf from receiving an
appropriate education that meets his or her needs, including
communication needs, is not the LRE for that individual child…”
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- Right to notice of procedural safeguards
34 C.F.R. Section 300.504
- Informed Consent 34 C.F.R.
Section 300.500
- Rights relative to records (examine, confidentiality, accuracy
- Right to receive “Prior Written Notice” 34 C.F.R. 300.503
- Right to file a Complaint 34 C.F.R. Section 300.662
- Right to disagree “Due Process” 34 C.F.R. Section 300.507
- “Stay Put” 34 C.F.R. Section 300.514
- Meaningful participation
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- One of the purposes of the IDEA is to ensure that the rights of children
with disabilities and parents of such children are protected. 20 U.S.C.
Section 1400 (d)(1)(A)
- “Each local educational agency or State educational agency shall ensure
that the parents of each child with a disability are members of any
group that makes decisions on the educational placement of their child.”
20 U.S.C. Section 1414 (f)
- “The parents of a child with a disability are expected to be equal
participants along with school personnel, in developing, reviewing, and
revising the IEP for their child. This is an active role…” 34 C.F.R.,
Appendix A, Question 5.
- “It is essential that hard-of-hearing and deaf children have an
education in which their parents and, where appropriate, hard-of-hearing
and deaf people are involved in determining the extent, content, and
purpose of programs.” California Education Code, Section 56000.5(5)
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- Collaboration
- “Every negotiation is a mixed motive exchange- The desire to collaborate
versus the risk of being exploited” Professor Randy Lowry, Director,
Straus Institute for Dispute Resolution, Pepperdine University School of
Law
- Knowledge, Skills, Relationships
- Changing the Paradigm
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- Special Education law, Wrightslaw (wrightslaw.com)
- From Emotions to Advocacy, Wrightslaw (wrightslaw.com)
- A Mind at a Time, Mel Levine, M.D. Simon and Shuster, 2002
- Writing Measurable Goals and Objectives, Bateman and Herr, IEP
Resources, 2003
- Why Johnny Doesn’t Behave, Twenty Tips and Measurable BIP’s, Bateman and
Golly, IEP Resources, 2003
- The Child with Special Needs, Encouraging Intellectual and Emotional
Growth, Greenspan and Wider, Perseus Books, 1998
- Educating Children with Autism, National Research Council, 2001
- The Complete IEP Guide, Lawrence Siegel, Nolo Press, 2001
- Severe Behavior Problems, A Functional Communication Training Approach,
Durand, Guilford Press, 1990
- Early Intervention Dictionary, A Multidisciplinary Guide to Terminology
2nd Edition, Coleman, Woodbine House, 1999
- Special Educators Complete Guide to 109 Diagnostic Tests, Pierangelo and
Giuliani, The Center for Applied Research in Education, 1998
- Teaching Kids with Learning Difficulties in the Regular Classroom,
Winebrenner, Free Spirit Publishing, 1996
- Difficult Conversations, Douglas Stone, Bruce Patton, Sheila Heen,
Penguin Books, 2000
- Getting To Yes, Roger Fisher and William Ury, Penguin Books, 1981
- Getting Past No, William Ury, Bantam Books, 1993
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- The Council of Parent Attorneys and Advocates http://www.copaa.net/
- IDEA: http://www4.law.cornell.edu/uscode/20/ch33.html
- California Education Code: http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=edc&codebody=&hits=20
- California Protection and Advocacy:
http://www.pai-ca.org/
- Council for Exceptional Children:
http://www.cec.sped.org/
- Educational Resource Information Center (ERIC): http://www.eric.ed.gov/
- National Dissemination Center for Children with Disabilities: http://www.nichcy.org/
- National Network for Child Care: http://www.nncc.org/about.html
- IMPACT: http://www.deafkids.org/
- US Department of Education, Office of Special Education and
Rehabilitative Services: http://www.ed.gov/about/offices/list/osers/index.html?src=mr
- Adaptive Technology Resource Center:
http://www.utoronto.ca/atrc/
- Wrightslaw: Wrightslaw.com
- The Listen Up Web: http://www.listen-up.org/index.html
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Notes
