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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

Critical Elements of the IDEA

The IDEA lays out broad mandates for services to all children with disabilities, yet those children are a large and heterogeneous group—from the first-grader with a speech impediment to the college-bound high school student in a wheelchair to the junior high student with emotional disorders and a history of school suspensions. Many lawsuits have been brought to determine the responsibilities of school districts for particular types of services within the IDEA's broad mandates for all children with disabilities.

"Child Find" and Funding Based on Child Count

In 1975, Congress's first concern was that children with disabilities be identified by the schools so that they could be served. The funding mechanism of Public Law 94-142, which provides reimbursement based on the number of children with disabilities served in special education (rather than, for example, on the total number of children in the school district), was designed to encourage districts to identify children with disabilities and provide them with special services.16

Today, it is generally acknowledged that the goal of "child find" has been achieved. Many in the field argue that the IDEA (and, to a greater extent, state funding structures) give financial incentives for separate special education services that are no longer needed to encourage districts to identify eligible children. These observers suggest that such incentives lead to unnecessary segregation of children with disabilities from regular education classrooms.26,27

Other advocates fear that funding which is not based on individual child counts would lose its categorical (targeted) nature and could be sent to the states in block grants with other education dollars. Some states have wanted to implement this approach, but federal law does not permit it with federal funds. A few states today (notably Iowa and Vermont) are experimenting with removing categorical restrictions on state funds. In the 1960s, New York combined regular and special education funding. A few years later, after some state legislators noted an alarming drop in the number of children with disabilities who were receiving services, they reinstated the funding.

Mingling special education and regular education dollars might promote the placement of special education students in mainstream classes without guaranteed financial support for special educational services. Advocates are also concerned that it would increase the use of disciplinary sanctions to rid the system of special education students who do not fit in.28

Evaluation and Eligibility Determination

A child suspected of having a disability is evaluated to determine the child's eligibility for services under the IDEA. Since Mills, school districts are constitutionally prohibited from planning special education programs in advance and offering them to students on a space available basis.


The child must be evaluated before school personnel can begin special programming, and the parents are to be involved in the evaluation process. The child must be evaluated in all areas related to the suspected disability. Reevaluation is required at least every three years or when requested by a parent or when conditions warrant. When a parent disagrees with the school's evaluation, the parent may procure an independent evaluation, which the school must consider in programming decisions.29

Eligibility Determination

Once found to be disabled and in need of special services, a child is entitled to appropriate services. If the school district finds the child to be ineligible, the parents have a right to appeal (see the discussion of due process, Box 1).

Parental Input and Due Process

The IDEA provides many specific procedural protections for the parents of children with disabilities (see Box 1). These include notice to parents of proposed actions, attendance at meetings concerning the child's placement or IEP, and the right to appeal school decisions to an impartial hearing officer.

Although the IDEA provides these protections, some parents and advocates feel that schools frequently flaunt the law.30 While schools are required to provide parents with a full explanation of procedural safeguards available under federal law,29 a 1989 survey conducted by Louis Harris and Associates for the International Center for the Disabled found that 61% of the parents surveyed knew little or nothing about their rights under Public Law 94-142 and Section 504.31

Some see the IDEA's elaborate set of procedural protections as encouraging adversarial relationships between parents and schools.32 This is particularly true since Congress in 1986 amended the IDEA to allow courts to order schools to reimburse parents for their legal fees. Congress reasoned, after hearing testimony, that parents could not afford in many instances to challenge the school systems' greater resources and so provided the legal fee remedy.

Appropriate Education and the Individualized Education Program (IEP)

Although Congress specified that the education provided to the child must be appropriate to his needs, interpreting this standard has proven to be difficult because of the diversity of the special education population. Neither the statutory language of the IDEA, the regulations interpreting the IDEA, nor court cases interpreting the law specify in detail what constitutes an appropriate education for the entire special needs population. Instead, court cases have laid out broad principles to be applied to individual circumstances.

In general, the standard for judging appropriateness is whether the child's educational program is (1) related to the child's learning capacity, (2) specially designed for the child's unique needs and not merely what is offered to others, and (3) reasonably calculated to confer educational benefit. However, the entitlement is not open-ended: the child is not entitled to every service that could conceivably offer a benefit.

The requirements of appropriateness were interpreted by the Supreme Court in Board of Education v Rowley.33 Amy, a profoundly deaf six-year-old girl, had an IQ of 122, and her parents were concerned that Amy's "energy and eagerness" were not spent in achievement but rather were used to compensate for her disability. The court held that the total package of services furnished to Amy (which included an hour of tutoring each day from a certified teacher of the deaf, as well as three hours of speech therapy each week) was reasonably calculated to enable her to benefit from her education. The law does not require that the IEP be designed to obtain the maximum possible benefit to the child, that is, the child is not entitled to every service that could conceivably confer a benefit. Rather, the Court concluded that "the basic floor of opportunity provided by [the IDEA] consists of access to specialized instruction and related services that are individually designed to provide educational benefits to the handicapped child." The Court noted that the IDEA "leaves to the states the responsibility for developing and executing educational programs for handicapped children" within the broad requirements of the IDEA.

Other cases have established that the school district must consider more than just the narrowly defined educational needs of the child. Socialization and mental health are legitimate and, in some cases, required goals to include in the IEP.

In Howard S. v. Friendswood Independent School District,34 the court found that Douglas, an emotionally disturbed teenager, had enjoyed reasonable scholastic and personal successes when enrolled in special education in junior high school. However, when he entered high school and began to manifest behavioral problems, the school chose to treat Douglas's behavioral problems as a disciplinary matter and refused the parents' requests for evaluation of Douglas's special needs.35 The court was persuaded by testimony that, without appropriate behavioral programming, Douglas would probably develop a worsening behavioral pattern, likely ending in incarceration. The court ordered the school district to provide behavioral programming and to reimburse Douglas's parents for the cost of a private school with a therapeutic program recommended by Douglas's psychiatrist.

Least Restrictive Environment (LRE)

Under the IDEA, whenever appropriate, the disabled child must be educated in the regular classroom.29 Judgments on appropriateness have led to wide variations between jurisdictions. However, state funding schemes often included weighted formulas that provided more funding for children with severe disabilities who were placed in separate classrooms.26,27

Modification of the Regular Classroom and Training Regular Teachers

The IDEA requires the school to consider modifications in the regular classroom before moving the child to a more restrictive placement.29 This means that regular classroom teachers sometimes need specialized training to deal with a child's special needs. The IDEA requires state educational agencies to develop plans for personnel development, requires school districts to provide such training,29 and does not allow the district to plead "lack of qualified staff" as a justification for removing a child from the regular classroom.33

Placement in a More Restrictive Environment

There is a persistent tension between the requirements of appropriate education and least restrictive environment. In some instances, the most appropriate services may be most successful in a separate classroom. What parameters govern the decision to move a child to a more restrictive environment? A two-part test was spelled out by the Fifth Circuit in the case of Daniel R. R. v. State Board of Education.36 Daniel was an elementary school student with Down's syndrome. The school district claimed that, because Daniel could not perform at the same academic level as his classmates, he would obtain no benefit from inclusion in the regular classroom.

The Fifth Circuit Court created a two-part inquiry to determine the child's placement. First, the school must determine whether placement in the regular classroom, with supplementary services, could be achieved satisfactorily. To make that determination, the school must ask the following questions:


  • Has the school taken steps to provide supplementary aids and services to modify the regular education program to suit the needs of the disabled child?

  • Once modifications are made, can the child receive an educational benefit from regular education?

  • Will any detriment to the child result from placement in the regular classroom?

  • What effect will the disabled child's presence have on the regular classroom environment and, thus, on the education the other students are receiving?37

Second, if the decision is made to remove the child from the regular classroom for all or part of the day, then the school must also ask whether the child has been mainstreamed (spending some time in the regular classroom) to the maximum extent possible. As the court stated, "The [IDEA] and its regulations do not contemplate an all-or-nothing educational system in which children with disabilities attend either regular or special education. Rather, the Act and its regulations require schools to offer a continuum of services."

The Ninth Circuit Court recently adopted a slightly different standard in the case of Sacramento City Unified School District, Board of Education v. Rachel H.38 The Ninth Circuit Court examines four factors in determining appropriate placement: (1) the educational benefits available to the child in the regular classroom, (2) the nonacademic benefits of interaction with children who are not disabled, (3) the effect of the disabled child's presence on the teacher and other children in the classroom, and (4) the cost of mainstreaming.

If incorrectly interpreted, the third and fourth criteria spelled out by the Ninth Circuit Court could pose a threat to the spirit of the IDEA. The effect of the presence of the child with disabilities on the other children in the classroom should be a concern only if the child is so disruptive or requires so much of the teacher's time that the teacher is unable to teach.

While there is little doubt that the cost of mainstreaming is an unexpressed criterion in many placement and service decisions made by school districts, nowhere does the IDEA explicitly allow cost to be considered. Certainly, where a service is necessary for an individual child, cost considerations would not allow a school district to escape its obligations to the child. However, in instances where more than one appropriate program or configuration of services is available to meet a child's needs, then the school district may be allowed to consider the cost of different alternatives.

Inclusion in General Education

While enthusiasm for inclusion remains high among some parents and professionals, many others are concerned that inclusive programs have not been demonstrated to be effective by any comprehensive research. (Regarding this matter, see the article by Hocutt in this journal issue.) On the other hand, data exist to support the belief that some specially designed separate programs are effective for children with certain disabilities.39 There are also reports that inclusive programs vary greatly from school to school and that some attempts at inclusion do not offer specific, individually designed, educational approaches to the students with disabilities who are included. 40 The IDEA requires that a range of educational placements be available to meet the unique needs of each individual student.

Related Services

Under the IDEA, schools must provide the related services needed for the child to benefit from his or her schooling. Related services include transportation and such developmental, corrective, and other supportive services as are required to assist a child to benefit from special education, including physical therapy, occupational therapy, speech therapy, psychological services, school health services, social work services, and parent counseling and training.29


  • Access to the Classroom. The school must provide those related services that are essential for the child to have access to the school. Amber, a young girl born with spina bifada, was the subject of Irving Independent School District v. Tatro 41 in which the Supreme Court addressed the issue of related services. Amber's school district was willing to provide her with special education but not with one critical service: Amber needed someone to accompany her to the bathroom and assist with catheterization at least once each day. The school argued that this was a medical procedure which was beyond its responsibility as an educational agency. Amber's counsel argued that the relatively simple service of catheterization was the only barrier between Amber and public school attendance. The Supreme Court established this standard: when (1) a service is necessary or the student will otherwise be barred from receiving an appropriate education and (2) the service can be provided by someone with less training than a physician, then the school must provide the service.


  • Assistive Technology. In the 1990 amendments to the IDEA, Congress made schools responsible for ensuring that students with disabilities have access to assistive technology. For children who require medical devices or technology to benefit from schooling and have no other way of obtaining them, the schools in effect become the payer of last resort.42


  • Extended School Year and Extended School Day. Although all children to some extent lose school-based skills during summer vacation, some children with severe disabilities stand to lose a great deal, including critical life skills. The courts required that educational programs be designed so that youngsters with severe disabilities do not regress in terms of skills needed for self-sufficiency and independence.

In the case of Alamo Heights v. State Board of Education,43 the court held that, if the absence of summer services would place the previous year's gains in jeopardy, then summer services must be offered. The plaintiff, Steven, suffered from cerebral dysplasia, an abnormal development of the brain. He had an unusual laxity in his joints, could walk only with assistance, and had been diagnosed as severely mentally retarded. Although Steven had taken his first unaided steps, the absence of programming over the summer caused him to lose the skill of walking unaided, which he never regained. The court ordered the school to provide summer services for Steven.

In Garland Independent School District v. Wilks,44 a severely autistic boy named Sterling moved between extended-day, private treatment (where his mother enrolled him when her resources permitted) and the public schools (which limited services to the six-hour school day). In public school, Sterling's behavior regressed to the point where he caused injury to himself and others unless he was kept in restraints and tied to a chair. When enrolled in the private, extended-day program, however, Sterling was able to sit in a chair without restraints. The court upheld the right to an extended school day.

Services to Infants, Toddlers, and Preschoolers

Under the IDEA, states must provide services to children with disabilities who are between the ages of 3 and 21.29 The 1986 amendments to the IDEA, Public Law 99-457, stated that all children with disabilities become eligible for services from their school district at age three, a change to be implemented in all states by the 1991-92 school year.

The 1986 amendments also established the Handicapped Infants and Toddlers Program, Part H of the IDEA.45 Part H supports services to infants and toddlers, from birth through age two, who meet at least one of three criteria: the child (1) is experiencing developmental delay in cognitive, physical, communication, social/emotional, or adaptive development, (2) has been diagnosed with a physical or mental condition that has a high probability of resulting in developmental delay, or (3) is at risk of having developmental delays if early intervention services are not provided.

The states are required to provide services to children in the first two categories and have the option of using federal funds to support services to children in the third category. In addition, members of the child's family are entitled to services to enable them to assist in the development of their child. To receive federal funds, the state must have in place a comprehensive, statewide interagency service delivery system.

Like the IDEA, Part H is not mandatory for the states, but at this writing, all 50 states have opted to receive federal support under Part H. Unlike services provided under the IDEA, Part H services are not always the responsibility of the local school district; Part H services are to be provided by multiple agencies, coordinated through a state interagency coordinating council, and administered by a lead agency selected by the state.

The Part H program is still relatively new. The initial legislation allowed states five years to develop their programs. In the 1991–92 school year, the number of states in full compliance with Part H jumped from 18 to 41.46