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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

The Evolution of Federal Law Through Litigation, 1975 to Present

Federal Statutes

This spate of new state laws and federal court decisions created major new responsibilities, which the states and local school districts were not prepared to meet. Congressional hearings in 1975 revealed that millions of children with disabilities were still being shut out of American schools: 3.5 million children with disabilities in the country were not receiving an education appropriate to their needs, while almost one million more were receiving no education at all.20 By 1971–72, despite the fact that every school district in the United States had some kind of ongoing special education program, seven states were still educating fewer than 20% of their known children with disabilities, and 19 states, fewer than a third. Only 17 states had even reached the halfway figure.16

Once state laws and federal court decisions made clear the states' responsibility for providing a free, appropriate, public education to all children, regardless of disability, states joined advocates in seeking the passage of federal legislation to provide consistency, federal leadership, and federal subsidy of the costs of special education.

Congress's response to this national problem took two approaches: nondiscrimination (through the Rehabilitation Act) and an educational grant program (through the Education for All Handicapped Children Act).

Nondiscrimination—The Rehabilitation Act

In 1973, Public Law 93-112, the Rehabilitation Act, at Section 504, provided that any recipient of federal financial assistance (including state and local educational agencies) must end discrimination in the offering of its services to persons with disabilities. Section 504 of the Rehabilitation Act, however, included no funding and no monitoring, and so was virtually ignored by local and state educational agencies for 20 years. Although parents had the right to bring suit under Section 504 as early as 1973, most preferred to pursue the administrative remedies available under Public Law 94-142.

In 1990, Congress passed the Americans with Disabilities Act (ADA),21 which expanded the rights of people with disabilities by outlawing discriminatory practices in employment, public accommodations, transportation, and telecommunications. Because Section 504 and the ADA offer more remedies to parents than does the IDEA,22 these laws have been the main vehicles for litigation in special education during the past few years.

Educational Grant Program—The Education for All Handicapped Children Act

Congress used the second approach, an educational grant program, in 1975 in Public Law 94-142, the Education for All Handicapped Children Act. This act required that all students with disabilities receive a free, appropriate public education and provided a funding mechanism to help with the excess costs of offering such programs.

The title of the act was changed by amendments in 1983 and again in 199023 when it was renamed the Individuals with Disabilities Education Act. Throughout this article, this act is referred to as the IDEA. With the creation of the Department of Education in 1980, the Bureau for the Education of the Handicapped was replaced by the Office of Special Education Programs (OSEP). OSEP, the Rehabilitation Services Administration (RSA), and the National Institute for Handicapped Research (now entitled the National Institute for Disability and Rehabilitation Research) were combined into one Office of Special Education and Rehabilitative Services (OSERS), headed by an assistant secretary of education. Despite periodic amendments and changes in title, the critical elements of the statute discussed remained highly consistent.

Public Law 94-142 was prescriptive of certain procedures: to receive funds, the state departments of education and local school districts had to put in place a system of "child find" to locate all students with disabilities; perform evaluations to determine the effect of the disability on educational performance; conduct annual meetings which produced an individualized education program (IEP) for each student with disabilities; and ensure that the plan was carried out in the least restrictive environment. Decisions about curricula, the elements of the IEP, and other instructional matters were left to local and state authorities. Only the broad protections of the law were federally prescribed.

 

  • Passage and Funding. Signed into law in 1975 by President Gerald Ford, the Education for All Handicapped Children Act (Public Law 94-142) took effect on October 1, 1977. Although the legislation passed by an overwhelming majority (there were only 14 votes against it in the House and Senate combined16), Public Law 94-142 was not without its critics. President Ford felt the bill would be too expensive, would interfere with state responsibility, and would upset the balance of relationships between parents and local schools.24

It is important to understand that states are not required to participate in the IDEA. In the case of Smith v. Robinson,25 the Supreme Court explained that the IDEA is "a comprehensive scheme set up by Congress to aid the states in complying with their Constitutional obligations to provide public education for children with disabilities," not a legislatively created mandate to serve children.

The IDEA authorizes funding in accordance with a formula, a key variable of which is the average per pupil expenditure (APPE) for non-disabled students. The act authorized Congress to appropriate a sum equal to 5% of APPE in 1977, 10% in 1978, 20% in 1979, and 40% by 1980. Though the act authorized funding according to this formula, the actual dollars must come through the appropriations process. In the case of Public Law 94-142, appropriations have never approached the authorization level. The amounts requested by the President and appropriated by Congress peaked at 12% of APPE under President Jimmy Carter, declining to 8% in the Reagan years, and remain at 10% or less today. The dollars appropriated increased from approximately $250 million in the first year of funding to more than $2 billion in 1995, as inflation had an impact, the number of children served increased, and costs per pupil rose.