One September day in 1950, Oliver Brown took the hand of his seven-year-old daughter and walked up the steps of their neighborhood school in Topeka, Kansas to enroll her in third grade.
Brown, a pastor, wanted his daughter Linda to go to the all-white school—not because it was necessarily better than the all-Black school two miles away. Brown knew that segregating people by race was wrong. Linda deserved to learn in her neighborhood school just as her white peers did. This act of protest was a step in the right direction for a more inclusive world. Brown and his daughter were rejected outright.
In a speech that Linda Brown gave nearly fifty years later at the University of Michigan, she recounted, "My father pondered, ‘Why?’ Why should we have to tell our children that they cannot go to the school in their neighborhood because their skin is black?"
You probably already know the end of this story.
The landmark 1954 Brown v. Board of Education Supreme Court decision theoretically ended decades of segregation in public schools in the United States. But racial segregation is still happening 70 years later, and another type of segregation has been happening for just as long: segregation by disability.
Thousands and thousands of children continue to be sent to segregated classrooms or schools, declared too disabled to learn alongside their typically developing peers.
If you are an advocate for children—specifically children with disabilities—it is essential to know special education case law. Here are four landmark cases to start with.
In the early seventies, the Pennsylvania Association for Retarded Citizens (PARC, now The Arc of Pennsylvania), sued the Commonwealth of Pennsylvania over a law that gave them the right to exclude students who had not “reached the mental age of 5" by the time they were in first grade from their public school buildings.
The attorneys who represented PARC relied on Brown v. Board of Education in the class action suit. They argued that excluding students with developmental disabilities violated their rights under both the equal protection clause and the due process clause of the Fourteenth Amendment.
In the Consent Agreement, the court barred Pennsylvania from denying any child (up to the age of 21) admission in a public school, and said that placement in a regular school was preferable to placement in a special school.
PARC v. Pennsylvania opened the door to the creation of the Individuals with Disabilities Education Act, which declares that students with disabilities have a legal right to an education up until they fulfill high school graduation requirements, or up until the day before their 22nd birthday. The Individuals with Disabilities Education Act set a precedent for educational advocates that helped them persuade school districts across the country to allow students with disabilities in all public schools. Brown v. Board of Education set an example for advocates on how to successfully argue to level the playing field for people with disabilities in general education classrooms.
This particular case challenged the practice of putting students with disabilities in disability-specific programs and schools. The ruling established the "principle of portability," which means that it is not enough for a school district to claim that a self-contained program is superior. In a case where the school district believes the specialized program is superior, the district also needs to determine whether services could be "feasibly provided" in a non-segregated setting (general education classroom). If they can, the placement in the self-contained classroom is inappropriate under the Individuals with Disabilities Education Act.
The Roncker Court found that placement decisions must be individually made and that school districts automatically placing children in a predetermined type of school or classroom solely on the basis of their disability rather than on the basis of the IEP are in violation of federal laws. While in the case of Roncker v. Walter the ruling was in favor of the school district providing the LRE in a more restrictive setting, the portability standard exists for future placement discussions.
For advocates looking to have a robust conversation about the least restrictive environment, raising the portability test is a good strategy. Since special education is a service and not a place, what services can be provided in an inclusive classroom? And if they cannot be provided, have they even been tried? Many school districts, in opposing a move to a less restrictive environment, will say that they don’t have the data to support the placement change. When advocating for the LRE, it is important to ask whether the team has the data to support the assertion that a more-inclusive environment would not be successful for the student.
In this 1989 decision by the US Fifth Circuit Court of Appeals, the court applied a two-part test to determine whether Daniel, a boy with Down syndrome who attended a regular education classroom for part of his day, was being served in the Least Restrictive Environment. The court asked (a) "whether education in the regular classroom, with the use of supplemental aids and services,can be achieved satisfactorily for a given child, and if it cannot and the school intends to provide special education or to remove the child from regular education" and (b) "whether the school has mainstreamed the child to the maximum extent appropriate."
The court ultimately declared that academics are not the only purpose of inclusion in a regular education classroom. "Integrating a handicapped child into a nonhandicapped environment may be beneficial in and of itself...even if the child cannot flourish academically."
Removing a student with disabilities from all interaction with their typically developing peers should be an exceptionally rare occurrence, but unfortunately it happens quite frequently. During IEP meetings, the team should focus on what part of the day the student can flourish in a typical classroom, even if that flourishing is not academic. The term "maximum extent appropriate" means what is appropriate for the student, not what the school deems appropriate.
In 1993, the U.S. Third Circuit Court upheld the right of Rafeal Oberti, a boy with Down syndrome, to be included in his neighborhood school with supplementary aids and services. Originally, the school district recommended the student be placed in a self-contained classroom. The decision ultimately places the burden of proof on the school district as to whether that district is doing all it can to educate students with disabilities in an inclusive environment. The district judge wrote that "inclusion is a right, not a special privilege for a select few," words which have been used as a rallying cry by advocates for inclusion since this decision.
Families who find themselves in the same situation can now hold the school accountable for providing the services required in an inclusive classroom first. It is not enough for a student with significant support needs to simply be present in a classroom with typically developing peers. Authentic inclusion means that teachers are thoughtfully planning for the success of the student and attempting to provide services in that setting. The U.S. Third Circuit Court made it very clear that the strong preference was for services to be provided in the inclusive setting.
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