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Disabled Education

Disabled Education: A Critical Analysis of the Individuals with Disabilities Education Act

Ruth Colker
Copyright Date: 2013
Published by: NYU Press
Pages: 293
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  • Book Info
    Disabled Education
    Book Description:

    For the first time, this book tells the stories of the families who set key precedents for children with special needs. It also gives a novel and in-depth description of the political and legislative process of the landmark Individuals with Disabilities Education Act. In so doing, Colker offers an unprecedented historical account of this law, while also offering a timely critique and suggestions for reform. - Julie K. Waterstone, Southwestern Law School Enacted in 1975, the Individuals with Disabilities Education Act (IDEA) provides all children with the right to a free and appropriate public education. On the face of it, the IDEA is a shining example of law's democratizing impulse. But is that really the case? In Disabled Education, Ruth Colker digs deep beneath the IDEA's surface and reveals that the IDEA contains flaws that were evident at the time of its enactment that limit its effectiveness for poor and minority children. Through an examination of the evolution of the IDEA, the experiences of children who fought for their education in court, and social science literature on the meaning of learning disability, Colker reveals the IDEA's shortcomings, but also suggests ways in which resources might be allocated more evenly along class lines.Ruth Colkeris Distinguished University Professor and Heck-Faust Memorial Chair in Constitutional Law at the Ohio State University's Moritz College of Law. Previous books includeAmerican Law in the Age of Hypercapitalism(NYU Press 1998) andThe Disability Pendulum: The First Decade of the Americans with Disabilities Act(NYU Press 2005).

    eISBN: 978-0-8147-0800-2
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. List of Abbreviations
    (pp. ix-x)
  4. Acknowledgments
    (pp. xi-xii)
  5. 1 Introduction
    (pp. 1-16)

    During the first few years of his life, my son, Sam, missed every developmental milestone. He walked awkwardly, had little speech, and was socially withdrawn. Shortly before his third birthday, his pediatrician diagnosed him as disabled. As a white middle-class mother who is also a legal expert in the field of special education, I have been able to devote enormous amounts of time and money to advocate for Sam since that time. Several years ago, I sued my local school district to attain the services Sam needs in order to have access to oral instruction. At age fifteen, he is...

  6. 2 The Education for All Handicapped Children Act: Historical Evolution
    (pp. 17-44)

    The history of disability exclusion is as old as the history of education. And, until the mid-1970s, attempts by parents to challenge these exclusions were largely unsuccessful. One of the earliest reported cases is from the state of Massachusetts. A young boy was excluded from school in Cambridge in 1885 because he was “too weak-minded to derive profit from instruction” and was deemed “troublesome” to other children because he made “unusual noises,” pinched others, and was “unable to take ordinary, decent, physical care of himself.”¹ A court upheld the school committee’s conduct, in excluding this child from instruction, as coming...

  7. 3 Amy Rowley
    (pp. 45-64)

    Amy Rowley’s story is well known in special education circles. Amy began kindergarten in a suburban school district near Westchester County, New York, in 1977. Despite the fact that she was deaf, and spoke fluent sign language, her school district refused to offer her a sign language interpreter.¹ Although both the district court and the court of appeals concluded she was entitled to an interpreter, the U.S. Supreme Court reversed their decisions, concluding that her education was “adequate” because she was performing “better than the average child” and “advancing easily from grade to grade” without an interpreter.² As a result...

  8. 4 Michael Panico
    (pp. 65-80)

    Michael Panico began kindergarten in the fall of 1975 at the Memorial School in Burlington, Massachusetts, shortly after Congress adopted the EAHCA.¹ After three years of Michael’s foundering in school and not receiving an educational plan that was likely to help him make adequate progress, his parents decided to send him to private school and seek reimbursement from the school district for their educational expenses. Although they eventually reached a favorable settlement with the school district, Michael’s case reflects the sloppy way in which many school districts implemented the EAHCA in the early days of enforcement.

    The case also shows...

  9. 5 Post-1975 Amendments
    (pp. 81-108)

    Chapter 2 revealed that Congress disregarded predictions that the EAHCA would disproportionately fail to serve the needs of poor and minority children. Then, the U.S. Supreme Court decision inRowleyset a very low bar for the kinds of services that a school district must offer any student—saying that mere advancement from grade to grade was sufficient evidence of progress, irrespective of the child’s cognitive aptitude. And the fortunate parents, like the Panicos, who were successful in taking their cases all the way to the Supreme Court faced enormous expenses that few parents could afford.

    During the 1990s, as...

  10. 6 Brian Schaffer
    (pp. 109-124)

    The next two chapters tell the story of Brian Schaffer and Joseph Murphy. Neither child came from a low-income family; their cases help reveal how difficult it is for any child to prevail under the IDEA. Their cases were brought after Congress amended the IDEA in 1997, and again in 2004, in various ways that were supposed to benefit students with disabilities. Yet, as with Amy Rowley (chapter 3) and Michael Panico (chapter 4), these stories reveal a cumbersome legal process that rarely produces success even for children with highly involved parents and qualified legal counsel.

    Brian Schaffer’s case is...

  11. 7 Joseph Murphy
    (pp. 125-136)

    This is the story of a child who foundered in school, despite receiving special education services, for about ten years before his parents gave up on the public school system and sent him to a private school. Joseph’s parents tried to make economical choices—initially proceeding without a lawyer and going along with the school district’s recommended program. It eventually became clear to Joseph’s parents, through the assistance of Marilyn Arons, who acted as both an educational consultant and a lay advocate, that the school district was misclassifying Joseph’s disability and providing him with inappropriate services. With Arons’s dogged assistance...

  12. 8 Ohio
    (pp. 137-152)

    U.S. Supreme Court cases tell only a small part of the story of what it means for parents to challenge IEPs through the hearing officer system. Few parents and their children make it to that level of the litigation process. The IDEA creates cumbersome administrative procedures that parents must navigate before they can even file a complaint. This chapter and the following four report hearing officer results from the early stages of the litigation process. They will demonstrate the difficulties that parents have in using that process and how unlikely they are to succeed, especially if they do not have...

  13. 9 Florida
    (pp. 153-168)

    As one of the nation’s largest states, and a state with a diverse population, Florida was an important jurisdiction in which to examine due process hearings. Florida also has an unusually small number of due process decisions, suggesting perhaps that it has a pro-child educational system in which numerous due process decisions are unnecessary. The results from Florida’s due process hearings suggest otherwise.

    Before looking at the overall results from Florida, it will be helpful to examine two stories—that of a boy whom I will call Johnny and that of Derek Hughes. Johnny’s case reflects the lack of assistance...

  14. 10 New Jersey
    (pp. 169-182)

    New Jersey is an important state to investigate because it assigns the burden of proof to the school district in IDEA cases unless the parent is seeking “emergent relief.”¹ One might expect that parents would fare better in New Jersey than in other states because of the assignment of the burden of proof to the school district. The empirical results suggest otherwise. Before proceeding with the empirical data, it is helpful to examine the story of one child—E.R.—to give a human face to the difficulties of proceeding with any kind of petition in New Jersey.

    E.R. was a...

  15. 11 California
    (pp. 183-206)

    California is an important state to investigate for many reasons. First, it probably has the most sophisticated system of hearing officer decisions in the United States. The decisions are word-searchable in a database. The hearing officers clearly receive significant training in writing opinions because all of the opinions follow a similar structure and contain the same boilerplate language about the legal rules that apply to IDEA matters. Second, California has a comparatively high rate of litigation so it is a rich source of hearing officer decisions.¹ Third, California has a lot of students for whom English is the second language....

  16. 12 District of Columbia
    (pp. 207-216)

    The District of Columbia is the home of the litigation that demonstrated the relationship between race, poverty, and inadequate services for students with disabilities in the 1960s and 1970s. Yet its educational system, including its assistance for students with disabilities, remains a complete mess.

    In 1967, Judge Skelly Wright found that the District of Columbia school system unconstitutionally used “ability” tracking as a way to relegate African American and poor students to inferior schools and classrooms.¹ The “special academic” track was for students who had “emotionally disturbed behavior, an IQ of 75 or below, and substandard performance on achievement tests.”²...

  17. 13 The Learning Disability Mess
    (pp. 217-238)

    When Congress adopted the Education for All Handicapped Children Act¹ (EAHCA) in 1975, mandating the education of all children with disabilities, a key supporter of the bill noted that “[n]o one really knows what a learning disability is.”² Because of this lack of understanding of the term “learning disability,” Congress used a provisional definition of the term and instructed the Commissioner of Education to further study the term and devise a more refined definition as well as a diagnosis.³ Almost forty years later, that definition⁴ remains in federal special education law under the Individuals with Disabilities Education Act (IDEA)⁵—the...

  18. 14 A New Beginning
    (pp. 239-246)

    It has been very difficult to use legal sources to tell the story of poor and minority children within the special education system because their experiences are, with rare exceptions, invisible. This book’s accounts of cases that reached the U.S. Supreme Court were typically stories of white middle-class children who also languished while their cases were winding their way through the judicial system. The experiences of poor and minority children were hidden in the pages of hearing officer opinions that did not explicitly state their race or class background and identified the children with anonymous labels like “E.R.” or “Student”...

  19. Notes
    (pp. 247-276)
  20. Index
    (pp. 277-280)
  21. About the Author
    (pp. 281-281)