An Exclusionary Past

It is said that a society can be judged by the way it treats those who are different. By this criterion, our educational system has a less than distinguished history. Children who are different because of race, culture, language, gender, socioeconomic status, or exceptionality have often been denied full and fair access to educational opportunities (Banks & Banks, 2004; Smith, 2004). (It’s important, however, to note that past practices were not entirely negative. Long before there was any legal requirement to do so, many children with special needs were educated by devoted teachers and parents [cf. Safford & Safford, 1996].)

Although exceptional children have always been with us, attention has not always been paid to their special needs. In the past, many children with disabilities were entirely excluded from any publicly supported program of education. Before the 1970s, many states had laws permitting public schools to deny enrollment to children with disabilities (Murdick, Gartin, & Crabtree, 2006). Local school officials had no legal obligation to grant students with disabilities the same educational access that nondisabled students enjoyed. One state law, for example, allowed schools to refuse to serve “children physically or mentally incapacitated for school work”; another state had a law stipulating that children with “bodily or mental conditions rendering attendance inadvisable” could be turned away. When these laws were contested, the nation’s courts generally supported exclusion. In a 1919 case, for example, a 13-year-old student with physical disabilities (but normal intellectual ability) was excluded from his local school because he “produces a depressing and nauseating effect upon the teachers and school children” (Smith, 2004, p. 4).

When local public schools began to accept a measure of responsibility for educating certain exceptional students, a philosophy of segregation prevailed—a philosophy that continued unchanged until recently. Including children with disabilities in regular schools and classes is a relatively recent phenomenon. Children received labels—such as mentally retarded, crippled, or emotionally disturbed—and were confined to isolated and segregated classrooms, kept apart from the other children and teachers in the regular education program. One special education teacher describes the crude facilities in which her special class operated and the sense of isolation she felt in the 1960s:

I accepted my first teaching position, a special education class in a basement room next door to the furnace. Of the 15 “educable mentally retarded” children assigned to work with me, most were simply nonreaders from poor families. One child had been banished to my room because she posed a behavior problem to her fourth-grade teacher.

My class and I were assigned a recess spot on the opposite side of the play yard, far away from the “normal” children. I was the only teacher who did not have a lunch break. I was required to eat with my “retarded” children while other teachers were permitted to leave their students. . . . Isolated from my colleagues, I closed my door and did my thing, oblivious to the larger educational circles in which I was immersed. Although it was the basement room, with all the negative perceptions that arrangement implies, I was secure in the knowledge that despite the ignominy of it all I did good things for children who were previously unloved and untaught. (Aiello, 1976, p. 14)

Children with mild learning and behavioral problems usually remained in the regular classroom but received no special help. If they did not make satisfactory academic progress, they were termed “slow learners” or simply “failures.” If their deportment in class exceeded the teacher’s tolerance for misbehavior, they were labeled “disciplinary problems” and suspended from school. Children with more severe disabilities—including many with visual, hearing, and physical or health impairments—were usually placed in segregated schools or institutions or kept at home. Gifted and talented children seldom received special attention in schools. It was assumed they could make it on their own without help.

Society’s response to exceptional children has come a long way. As our concepts of equality, freedom, and justice have expanded, children with disabilities and their families have moved from exclusion and isolation to inclusion and participation. Society no longer regards children with disabilities as beyond the responsibility of the local public schools. No longer may a child who is different from the norm be turned away from school because someone believes that he is unable to benefit from typical instruction. Recent legislation and court decisions confirm that all children with disabilities have the right to a free, appropriate program of public education in the least restrictive environment.

The provision of equitable educational opportunities to exceptional children has not come about by chance. Many laws and court cases have had important effects on public education in general and on the education of children with special needs in particular. And the process of change is never finished; legal influences on special education are not fixed or static but fluid and dynamic (Yell, 2006).

Separate Is Not Equal

The history of special education, especially in regard to the education of children with disabilities in regular public schools, is related to the civil rights movement. Special education was strongly influenced by social developments and court decisions in the 1950s and 1960s, especially the landmark case Brown v. Board of Education of Topeka (1954). This case challenged the practice of segregating students according to race. In its ruling in the Brown case, the U.S. Supreme Court declared that education must be made available to all children on equal terms:

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditure for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic responsibilities. . . . In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. (Brown v. Board of Education, 1954)

The Brown decision began a period of intense concern and questioning among parents of children with disabilities, who asked why the same principles of equal access to education should not apply to their children. Numerous court cases were initiated in the 1960s and early 1970s by parents and other advocates dissatisfied with an educational system that denied equal access to children with disabilities. Generally, the parents based their arguments on the 14th Amendment to the Constitution, which provides that no state shall deny any person within its jurisdiction the equal protection of the law and that no state shall deprive any person of life, liberty, or property without due process of law.

Equal Protection

In the past, children with disabilities usually received differential treatment; that is, they were excluded from certain educational programs or were given special education only in segregated settings. Basically, when the courts have been asked to rule on the practice of denial and segregation, judges have examined whether such treatment is rational and whether it is necessary. One of the most historically significant cases to examine these questions was the class-action suit Pennsylvania Association for Retarded Children (PARC) v. Commonwealth of Pennsylvania (1972). The association challenged a state law that denied public school education to certain children considered “unable to profit from public school attendance.”

The lawyers and parents supporting PARC argued that even though the children had intellectual disabilities, it was neither rational nor necessary to assume they were ineducable and untrainable. Because the state was unable to prove that the children were, in fact, ineducable or to demonstrate a rational need for excluding them from public school programs, the court decided that the children were entitled to receive a free, public education. In addition, the court maintained that parents had the right to be notified before any change was made in their children’s educational program.

The wording of the PARC decision proved particularly important because of its influence on subsequent federal legislation. Not only did the court rule that all children with mental retardation were entitled to a free, appropriate public education, but the ruling also stipulated that placements in regular classrooms and regular public schools were preferable to segregated settings.

It is the Commonwealth’s obligation to place each mentally retarded child in a free, public program of education and training appropriate to the child’s capacity. . . . placement in a regular public school class is preferable to placement in a special public school class and placement in a special public school is preferable to placement in any other type of program of education and training. (PARC v. Commonwealth of Pennsylvania, 1972)

In addition to the Brown and PARC cases, several other judicial decisions have had far-reaching effects on special education. The rulings of some of these cases were incorporated into subsequent federal legislation, notably the Individuals with Disabilities Education Act.