FORT HAYS STATE UNIVERSITY

A RIGHT TO LEARN: ORIGINS OF THE EDUCATION FOR ALL HANDICAPPED CHILDREN ACT AND ITS RELATIONSHIP TO KANSAS LAW

HISTORY 379

BY MICHAEL MACCONNELL

DECEMBER 10, 2011

A RIGHT TO LEARN: ORIGINS OF THE EDUCATION FOR ALL HANDICAPPED CHILDREN ACT AND ITS RELATIONSHIP TO KANSAS LAW

The Individuals with Disabilities Education Act (IDEA) is a principal piece of K-12 special education legislation in the United States. IDEA, first approved in 1990, it has undergone several significant facelifts to mold it into its current form. Educators, handicapped students and their parents often take the current provisions of IDEA for granted, but special education regulations were not always so accommodating for students with disabilities.1 The predecessor to IDEA was the Education for All Handicapped Children Act (EHCA). Until the U.S. Congress passed the act and President Gerald Ford signed it, disabled children were segregated in public schools and were not given the same access to the resources, activities, and curriculum offered to children without disabilities.2 Before the legislation was enacted by Congress, specific events took place to raise awareness about the plight of disabled students in the United States public school system. The Civil Rights movement championed the rights of minorities and

1. Robert L. Osgood, The History of Inclusion in the United States (Washington, DC: Gallaudet University Press, 2005), 8990. 2. Ibid., 118.

women in the educational system. However, it was slower to embrace the constitutional rights of mentally and physically disabled children.3 Though the reasons are not easily identifiable, a separate disability rights movement, inspired by the Civil Rights movement, began in the 1960s.4 In the midst of these movements, President Kennedy created the Special Panel on Mental Retardation, largely due to the fact that he had a mentally handicapped sister.5 Under the Kennedy administration, the nation saw further change in special education programs. As previously mentioned, Kennedys sister was diagnosed with mental retardation, making the President especially sensitive to the plight of handicapped children. Kennedy created the Special Panel on Mental Retardation, which published the report: A Proposed Program for National Action to Combat Mental Retardation, The report outlined policy suggestions. One such proposal was to increase federal funding for special programs that focused on mentally disabled children. Kennedys legacy this area also included the creation of a Division of Handicapped Children and Youth within the U.S. Office of Education.6 President Johnson followed in the footsteps of Kennedy by establishing the Committee on Mental Retardation and helping to pass the Elementary and Secondary

3. Ibid., 121122. 4. Joseph P. Shapiro, No Pity: People With Disabilities Forging A New Civil Rights Movement (New York: New York Times Books, 1993), 12. 5. Osgood, 128. 6. Ibid., 129132.

Education Act (ESEA, PL 89-10).7 The act set funds aside to be used at the state level for special education and led to the creation of the Bureau of Education of the Handicapped. Concerned about the needs of the mentally disabled community, Johnson era legislation was integral in providing a precedent for the EHCA.8 Moving forward to the next decade, the United States Rehabilitation Act was one of the first significant pieces of legislation that addressed educational and workplace discrimination against disabled people. The U.S. Rehabilitation Act, passed in 1973, prohibited discrimination against the disabled in any federally funded institution including public schools, but the legislation failed to focus on learning needs or other issues faced by handicapped children.9 The Civil Rights movement raised awareness of need to recognize the rights of minority groups in American society. At the same time, President Kennedy took initiative by instituting a special panel to conduct research concerning the plight of mentally handicapped in the United States. It can be reasonably concluded, then, that the events of the 1960s and served as a foundation for the landmark special education legislation of the 1970sin particular, the EHCA of 1975. While much attention has been given to special education legislation on the national level, the state of Kansas passed its own education statutes that often times preceded the federal laws. While it

7. Warren H. Button, History of Education and Culture in America, 2nd ed. (Englewood Cliffs, NJ: Prentice Hall, 1989), 237. 8. Ibid., 239. 9. Rehabilitation Act of 1973, Congressional Record 119 (September 26, 1973): H8070, http://www.dotcr.ost.dot.gov/documents/ycr/REHABACT.HTM (accessed November 5, 2011).

is not within the scope of this paper to determine how or if the state statutes influenced the passage of the federal legislation, it is clear that Kansas was at the forefront when it came to recognizing the unique needs of disabled students and passing laws to ensure those needs were met by the public school system. Historian Cohen Sol claims that inclusive classrooms were probably the most significant result of the EHCA of 1975 and subsequent special education reform laws. Far from hindering the rights of mainstream students, inclusive classrooms enhance the educational experience of all students as well as for teachers, she writes.10 Therefore, including disabled students in the main classroom not only benefits the special needs students, but it also is beneficial for the other students as well as the classroom teachers. In the end, the entire education system is strengthened by including previously excluded students. Fellow historian Tracy Riley echoes both Sol and Robert Osgood by crediting the growing awareness that started by the time of Brown v. Board of Education of Topeka, the Supreme Court case which did away with existing segregation based on race in public schools, for rousing support for the EHCA of 1975.11 During the 1960s, the Civil Rights movement provided an amenable social foundation for inclusiveness in education that went beyond race to include children with disabilities, she says.12

10. Cohen Sol, A History of Education in the United States (New York: Random House, 1973), 247. 11. Tracy L. Riley, A Glance Back Before a Glimpse Ahead: 10 Events of the Past that Might Just Shape the Future, Gifted Child Today, November-December 1999, 49-50. 12. Ibid.

The historical connection to Kansas is clear, but it bears repeating that Brown v. Board of Education is not only a landmark Supreme Court case, but it is also historic in Kansas because of its association with the state capitol of Topeka. The class action case, which began in 1951, put Kansas at the forefront of the fight for equal access to education for African American students. It also served as a foreshadowing of things to come some twenty years later. Remember that the U.S. Rehabilitation Act was passed by Congress in 1973. From the perspective of education rights for disabled students, the Rehabilitation Act provided a foundation for future federal legislation including the EHCA of 1975. On the state level, Kansas once again found itself out in front on the issue of education reform. Prior to the passage of Rehabilitation Act, the sixty-fourth Kansas State Senate passed Bill 600 in 1972. The statute allowed schools to contract with private organizations for the education of developmentally disabled children. However, Kansas gave schools the option to establish an on-site special education class or contract with an external institution. The law stipulated that a program of some type had to be in place by July 1, 1974. Senate Bill 600 also mandated that districts had to cover for special education expenses, up to three-times that of the per pupil operating cost of that district. The bill states Compliance with the requirements of this section may also be accomplished by [] contracting with any accredited private non-profit corporation within or without the state which has proper facilities for the education of

such student.13 While the state statute had its problemsnamely the fact that disabled students could still be educated in separate institutionsit was groundbreaking in the sense that it recognized something needed to be done to change the way disabled students were being educated. Still, the access to educationand to the social capital that came with it became more and more defined in terms of social status on the national level. The disabled, left on the outside, were often intentionally excluded from receiving an acceptable public education before the EHCA was passed in 1975. While disabled students received a public education, special education was plagued by poor learning conditions, a lack of adequate curriculum, and ill-trained teachers. Education expert and author Kate Long says that educators largely lost hope in disabled children, unwilling or unable to work with them on an individual basis or uncover their strengths. Leaning on the precedent of Brown v. Board of Education and the Civil Rights movement as a whole, the proponents of the 1975 act worked tirelessly to apply a similar political argument that was used to eradicate race-based discrimination in education.14 Historian Osgood states that special education underwent a dramatic metamorphosis during the 1960s in terms of the number of programs offered by schools as well as the number of students served, but he also says that all children

13. Kansas State Legislature, Secretary of State, Elwill M. Shanahan, 1972 Session Laws of Kansas, (Topeka, KS, 1972): 600. 14. Kate Long, Johnnys Such a Smart Boy, What a Shame Hes Retarded (Boston: Houghton Mifflin, 1977), 6869.

were not treated equally.15 Before handicapped students were included in general education classrooms, they were placed in overcrowded institutions that were often cited for cruel and inhumane treatment of children.16 Students who were both poor and disabled suffered most of all because special education services were not funded by the government prior to the passing of the act; therefore, the burden financial was placed on individual school districts, and disabled students needs were often neglected. Research that linked disability with poverty, cultural deprivation, and minority status substantially altered views on the etiology and diagnosis of disability, especially in the area of mental retardation.17 Therefore, disability advocates routinely framed physical or mental disabilities as social justice matters and not just ones about health care. The National Association for Retarded Children (NARC), which worked with Kennedy and Johnson on special education, remained one of the most powerful lobbying groups throughout the 1960s. The organization stimulated scholarly discussion and discourse related to social stigma, social justice, and the civil rights of Americans with disabilities. The NARC also helped promote research into the best methods of special education. Scientific research allowed public policy to be

15. Osgood, 229. 16. Ibid., 231. 17. Ibid., 251.

proposed and implemented logically. The public dialogue changed as well, as terms like learning disabilities entered the American lexicon.18 The 1975 EHCA addressed the needs of children with mental and physical disabilities and clearly outlined core objectives including the guarantee for a free and appropriate public education for all students with mental and physical disabilities between the ages of five and eighteen.19 In many cases, these allowances extended to children younger than five and up to the age of twenty-one.20 The government provided all special education programs at no cost to the parents. The act was especially helpful in guiding both teachers and school administrators, and it drastically changed the role of disabled children in the classroom.21 It has been said before, but it cannot be overstated how important the Civil Rights movement was in increasing the recognition of the needs of disabled students. According to the EHCA, all handicapped students would be able to receive both regular and special education services depending on his or her specific needs. In fact, the legislation established the individualized education program (IEP) for disabled childrena concept that is widely used today.22 Therefore, administrators

18. Ibid., 271. 19. Education for All Handicapped Children Act of 1975, Congressional Record 121 (November 29, 1975): 779. 20. Ibid. 21. Robert L. Church and Michael W. Sediak. Education in the United States: An Interpretive History (New York: Free Press, 1976), 89. 22. Education for All Handicapped Children Act of 1975, 781.

and teachers were forbidden to instruct handicapped children as if they belonged to a generalized, monolithic group. The act helped eliminate stigma and stereotype in the classroom and demanded more individualized and personal attention for each student. Furthermore, the IEP was far from haphazard or based on biased teacher observations. Instead, the EHCA set provisions forth that the IEP was to be based on multidisciplinary assessment and includes a statement of specific special education and related services to be provided to the child.23 The act also stated that disabled children had to be allowed to learn in a least restrictive environment rather than be automatically pulled out and sectioned off from the rest of the students. Finally, the act provided a clause regarding the rights of parents. Parents had specific rights granted by the EHCA including the right to participate inand object toany and all evaluations, assessment methods or placement of their child. The law also guaranteed parents the right to appeal any decisions made by teachers or school administrators about their child.24 This legislation was ground-breaking because it was as much about funding education as it was about the basic civil rights of disabled students. The act did not just alter procedures and teaching strategies, but it also had an influence on school budgets. President Ford signed the Act but with several hesitations and doubts, noting that: Its good intentions could be thwarted by the many unwise provisions it contains [and] the funding levels proposed in this bill will simply not be possible if Federal expenditures are to be brought under control. [The bill] 23. Ibid., 782. 24. Ibid., 784.

10

contains a vast array of detailed, complex, and costly administrative requirements which would unnecessarily assert Federal control over traditional State and local government functions.25 Therefore, the EHCA was a controversial piece of legislation, and it was not without its opponents. Riley claims that when the act was passed in 1975, the government promised to pay up to forty percent of special education expenses. However, she says that the government averaged less than ten percent through 1999 and says that the states could not make up what was left-over.26 Historians Robert L. Church and Michael W. Sediak echo these sentiments by stating that the government set about thirty-five billion dollars aside for special education. However, he says the funds were poorly managed. They also point out that the EHCA was applied inconsistently.27 Osgood suggests that the driving force behind the EHCA came from public sensitivity to the failures of private institutions to care for the handicapped. He writes that public outcry called for dismantling the dependency on segregated institutions and [] encouraging a more normalized, community-based approach to caring for and educating this particular population of persons with disabilities.28 As the movement gained significant ground, the table was set for a reasoned discussion 25. Gerald Ford, On Signing the Education for All Handicapped Children Act of 1975 (statement, White House, Washington, DC, December 2, 1975) http://www.ford.utexas.edu/library/speeches/750707.htm (accessed November 1, 2011). 26. Riley, 49. 27. Church and Sediak, 93. 28. Osgood. 243.

11

about how to integrate disabled children into the mainstream public education system. When the act was passed, the discussion paused at leveling the playing field in terms of access to public education funding. However, as the act evolved, inclusiveness became its core theme.29 Although much of the legislation and research on special education prior to 1975 was geared toward specifically mental learning disabilities, the act provided for the needs ofas the title suggestsall children who are disabled. The EHCA would initiate further research into the ways technology and education strategies could make the United States a more inclusive and progressive society.30 Largely driven by federal and state court rulings, substantial progress was made over the next ten years in ensuring that handicapped children received an education equal to that of their able-bodied peers. While the EHCA of 1975 was a landmark piece of legislation, judicial interpretation of the act over the next ten years would be instrumental in how states were required to implement the law. The courts faced many pivotal questions: 1) Under what circumstances was a handicapped student entitled to private school placement? 2) Was the school district solely responsible for the financial burden? 3) Did schools have to require summer school programs for special education students? 4) To what extent were schools responsible

29. Rutherford H. Turnbull and Craig R Fiedler, Judicial Interpretation of the Education for All Handicapped Children Act (Reston, VA: ERIC, 1985), 4. 30. Angela Woodward, Education for All Handicapped Children Act, in Gale Encyclopedia of Childhood and Adolescence, eds. Susan B. Gail and Jerome Kagan, (Boston: Gale Research, 1998), 374.

12

for non-educational needstransportation, physical therapy, catheterization, behavioral therapy services, etc.of handicapped students?31 Meanwhile, Kansas once again was on the cutting edge of education reform in the United States. In 1974, Kansas remained ahead of the curve by passing the Special Education for Exceptional Children Act (SEECA). The Kansas statute defined exceptional children as students who are school age and differ in physical, mental, social, emotional or educational characteristics to the extent that special education services are necessary to enable them to progress toward the maximum of their abilities or capacities.32 It also defined special education services to be implemented by a special education teacher.33 A year after the passage of the EHCA by the United States Congress, the Kansas Legislature passed House Bill 3100 which granted immunity to school employees who participated in screening, diagnosing, or certifying students in need of special education services.34 This was in response to angry parents who reacted against school officials assessing, diagnosing and deciding their children needed special education services without their permission.35

31. Turnbull and Fiedler, 7. 32. Kansas State Legislature, Secretary of State, Elwill M. Shanahan, 1974 Session Laws of Kansas, (Topeka, KS, 1974): H1672. 33. Ibid. 34. Kansas State Legislature, Secretary of State, Elwill M. Shanahan. 1976 Session Laws of Kansas, (Topeka, KS, 1976): H3100. 35. Ibid.

13

Amendments to the EHCA where abundant, reflecting changes in attitudes toward special education. For example, an amendment in 1986 (P.L. 99-457) included provisions for providing preschool childrenthree to five years oldwith disabilities a free and appropriate public education.36 The 1986 amendment also provided for an early intervention program geared towards toddlers.37 An early intervention program helps educators to develop the best IEP possible, and it can also help diagnose and treat disabilities that can be treated with early intervention. The 1986 amendments also allowed for an individualized family service plan to encourage families to be actively engaged in their childs educational progress.38 Again, the Kansas legislature was a step ahead of the U.S. Congress. The SEECA was amended in 1979 by the sixty-eighth Kansas Legislature. The changes included extending the age limit of eligible students from eighteen to twenty-one. It was also expanded to include gifted students, or those who were thought to have a high learning aptitude.39 It may be too ambitious to claim that Kansas special education statutes impacted the federal governments actions to legislate reforms on the issue. However, it is not too big of an assumption to say that Kansas took some level of initiative when

36. Education for All Handicapped Children Act Amendments of 1986, CRS Report to Congress (February 21, 1986): 17. 37. Ibid., 1819. 38. Ibid., 24. 39. Kansas State Legislature, Secretary of State, Jack H. Brier. 1979 Session Laws of Kansas, (Topeka, KS, 1979): H2075.

14

it came to passing special education reform laws, often times before the U.S. Congress did so. As in most cases, reform took time and many obstacles still had to be worked out in the court system. It was not until the EHCA was overhauled and renamed the Individuals with Disabilities Education Act (IDEA) in 1990 that school districts were required to provide on-site services for handicapped students. Prior to that, the courts ruled that it was legal for schools to either offer special education programs within the walls of their own building or contract with outside organizations that were set up to meet the needs of disabled students.40 Before IDEA, courts ruled that handicapped students could be placed in private residential or day schools that were best equipped to meet their needs. This issue raised many concerns about what services were covered and how such services would be paid for. Some also asked if states could place a cap on the amount of money the government would pay for a childs education. The judiciary mandated that schools provide funds for placement in residential and day schools as well as transportation costs. The courts also ruled that while schools were responsible for providing services, the parents of the child would ultimately be responsible for deciding if special services were necessary.41 How, though, did the EHCA and subsequent court rulings relate to education statutes in Kansas in the 1970s?

40. Osgood, 281. 41. Turnbull and Fiedler, 14.

15

In conclusion, a cursory review of the state legislation actually shows that, in many ways, ahead of the curve when it came to education reform laws. The Rehabilitation Act of 1973, EHCA of 1975, and the federal court decisions on the federal level get more recognition from politicians, advocates, and historians. However, Kansas was particularly unique in that the state legislature took the initiative to pass SEECA before the United States Congress took action in 1975. Kansas was also on the cutting-edge when it expanded SEECA to include high ability, gifted learners in 1979. Many people take the current state of special education in the United States under IDEA for granted. However, it has been clearly shown that special education regulations have not always done so much to meet the needs of disabled students. In fact, before the EHCA was passed in 1975, disabled children were unfairly segregated and did not enjoy equal access to the same educational opportunities offered to ablebodied children. It has been detailed how the Civil Rights movement and actions by the Kennedy administration raised awareness about the discrimination against disabled students. The events of the 1960s laid the foundation that made the nation more amicable to the day when Congress passed the EHCA in 1975. Moreover, it has been shown that this landmark piece of legislation and court rulings over the next several years did not happen in a vacuum. On the contrary, the Kansas legislature passed its own special education reform statutes in 1972 and 1974, even before the U.S. Congress passed the Rehabilitation Act in 1973 and the EHCA in 1975. Therefore, Kansas stands out as one of the frontrunners when it comes to the monumental special education reform that occurred in the United States in the 1970s.

BIBLIOGRAOHY PRIMARY SOURCES

Education for All Handicapped Children Act of 1975 (P.L. 94-192). Congressional Record 121 (November 29, 1975): 773-96. Education for All Handicapped Children Act Amendments of 1986 (P.L. 99-457). CRS Report for Congress (February 21, 1986): 1-29. Ford, Gerald. On Signing the Education for All Handicapped Children Act of 1975. Statement, White House, Washington, D.C., December 2, 1975. Kansas State Legislature. Secretary of State, Elwill M Shanahan. 1972 Session Laws of Kansas. Topeka, KS, 1972. ______. Secretary of State. Elwill M. Shanahan. 1974 Session Laws of Kansas. Topeka, KS, 1974. ______. Secretary of State, Elwill M. Shanahan. 1976 Session Laws of Kansas. Topeka, KS, 1976. ______. Secretary of State, Jack H. Brier. 1979 Session Laws of Kansas. Topeka, KS, 1979. Rehabilitation Act of 1973 (P.L. 93-112) Congressional Record 119 (September 26, 1973): H8070, http://www.dotcr.ost.dot.gov/documents/ycr/ REHABACT.HTM (accessed November 5, 2011). SECONDARY SOURCES

Button, Warren H. History of Education and Culture in America. 2nd ed. Englewood Cliffs, NJ: Prentice Hall, 1989. Church, Robert L., and Michael W. Sediak. Education in the United States: An Interpretive History. New York: Free Press, 1976. 16

17

Long, Kate. Johnnys Such a Bright Boy, What a Shame Hes Retarded. Boston: Houghton Mifflin, 1977. Osgood, Robert L. The History of Inclusion in the United States. Washington, D.C.: Gallaudet University Press, 2005. Riley, Tracy L. A Glance Back before a Glimpse Ahead: 10 Events of the Past that Might Just Shape the Future. Gifted Child Today, November-December 1999, 48-52. Shapiro, Joseph P. No Pity: People With Disabilities Forging A New Civil Rights Movement. New York: New York Times Books, 1993. Sol, Cohen. A History of Education in the United States. New York: Random House, 1973. Turnbull, H Rutherford and Craig R Fiedler. Judicial Interpretation of the Education for All Handicapped Children Act. Reston, VA: ERIC Clearinghouse, 1985. Woodward, Angela. Education for All Handicapped Children Act. In Gale Encyclopedia of Childhood and Adolescence. Edited by Susan B. Gail and Jerome Kagan. Boston: Gale Research, 1998.