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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

Evolving Federal and State Roles

Early Federal Efforts

Prior to the 1950s, few federal laws authorized direct education benefits to persons with disabilities. There were acts in the early and mid-1800s making grants to the states for "asylums for the deaf and the dumb"4 and to promote education of the blind.5 But after these early efforts, the federal government had extremely limited involvement in public schools. The first major federal efforts in the modern era to improve public elementary and secondary schools came in 1958 and 1965, and neither included provisions for education of children with disabilities.

The National Defense Education Act

When the Soviet Union launched Sputnik in the 1950s, the perceived threat inspired Congress to pass the National Defense Education Act of 1958 (NDEA),6 which provided grants to improve science and math teaching in the earlier grades. The NDEA opened the door for federal involvement in elementary and secondary education. Four days after signing the NDEA, President Dwight Eisenhower signed a small act (Public Law 85-926) providing financial support to colleges and universities for training leadership personnel in teaching children with mental retardation.7 In 1963 Congress expanded Public Law 85-926 to include grants to train college teachers and researchers in a broader array of disabilities.8

The Elementary and Secondary Education Act

The Elementary and Secondary Education Act (ESEA) of 19659 was the first major federal effort to subsidize direct services to selected populations in public elementary and secondary schools, and it remains the primary vehicle for federal support of public schools today. While the original ESEA did not provide for direct grants on behalf of children with disabilities, in the second year of that Congress, Public Law 89-313 provided that children in state-operated or state-supported schools "for the handicapped" could be counted for entitlement purposes, and special Title 1 funds could be used to benefit this relatively small population of children in state schools.

Consolidation of Federal Leadership and Categorical Funding

In the 1960s, advocates for children with disabilities wanted (1) a single entity that would coordinate federal educational efforts for children with disabilities; (2) increased categorical funding, that is, funding for the exclusive purpose of educating students with disabilities; and (3) an enforceable entitlement, which was eventually obtained through the courts.

Experience with federal and state education agencies convinced advocates that children with disabilities were shortchanged by agencies that were enforcing broader federal mandates. They lobbied for a special administrative unit at the highest level, a bureau, in the U.S. Office of Education. Congress in 1966 mandated a Bureau for the Education of the Handicapped (BEH) under Title VI of the ESEA, which also provided grants to states to initiate, expand, or improve programs for educating children with disabilities.10 This program, popularly known as Title VI, had a legislative title that made it the first "education of the handicapped act."

Increased federal funding to assist state and local service programs was harder to achieve. During the Johnson and Nixon administrations, the concept of using federal aid to stimulate local and state programming in special education was accepted, as was the concept of federally supported resources for the states, for example, trained teachers, research, and model programs. From 1967 through 1975, when Public Law 94-142 was passed, the BEH stimulated a number of federal programs aimed at specific priority populations, for example, early childhood education, education of children who were deaf/blind or multiply handicapped, and model programs for children with specific learning disabilities.

Disappointed in their efforts to increase federal grants for special education, advocates pursued a strategy of earmarking portions of general education programs. Fifteen percent of the ESEA's Title III (which funded innovative and exemplary local programs) was set aside in 1970 for programs and projects serving children with disabilities.11 (Later, when this program became part of a block grant, it stopped serving children with disabilities.12) Legislation effective in 1982 required that 10% of each Head Start program's enrollment be available to children with disabilities, without requiring these children to meet other Head Start eligibility criteria.13 A similar program earmarked 10% of the funds under the Vocational Education Act.14

As separate programs for the disabled—and earmarked portions of general education programs—proliferated, the BEH recommended that many existing federal programs be codified into a more comprehensive Education of the Handicapped Act (EHA). In 1970, Congress passed the EHA.15

State Laws

During the 1960s and early 1970s, no state served all its children with disabilities. Many states turned children away. Still other states placed children in inappropriate programs. For example, children of normal intelligence with physical disabilities were placed in classes designed for children with mental retardation. In response, parents pursued a second generation of laws, known colloquially as "mandatory" laws. These state laws provided partial funding and required local school districts to offer special education to children with disabilities. By 1973, some 45 states had passed some form of legislation for educating children with disabilities.16

Despite these supplementary funds and mandatory laws, many children with disabilities remained unserved or underserved by public schools. Many of the laws had loopholes (such as applying only to children "who could benefit from education") or were simply not enforced by state officials. Problems of insufficient funding remained, and many school districts were reluctant to reallocate funds from general education to special education. In growing frustration, parents and advocates turned to Congress and to the courts.