A Justification for Special Education Legislation

Discussion Board #2

Daniel Kurland

February 1, 2012

The Civil Rights Movement, through the 1954 landmark Supreme Court Decision, Brown vs. Board of Education, provided the legal justification for “the federal special education and antidiscrimination laws” that followed. (Turnbull, H., Stowe, M., & Huerta, N., p. 5). Brown vs. Board of Education found the doctrine of “separate but equal,” the legal basis for segregation, to be unconstitutional. The Supreme Court found “separate but equal” to be a direct violation of the equal protection clause of the 14^th Amendment. Previously, since education is a power not expressly held by the federal government under the Constitution, education had been a role reserved for state governments. This landmark decision uncorked the genie of federal, regulations, and Supreme Court decisions, whereby state education associations (SEAs) and local education associations (LEAs) were forced to comply with encroaching federal mandates, first to desegregate schools, and ultimately, to guarantee every child a free and appropriate education (FAPE). Given the supremacy of the Constitution, and the historic failure of state governments and LEAs to adequately protect all citizens from discrimination, the federal government has been entirely justified in encroaching on States Rights concerning education.

 The United States government does not have unlimited resources of time and money, nor do state governments or LEAs. Over time, the friction of limiting factors has led to a number of uncomfortable questions about of the mission of special education and real time decisions that place limits on how real children must be educated, including whom, in what setting, and with which methods. The Individuals with Disabilities Education Act (IDEA 2004) helped clarify roles and expectations. No Child Left Behind Act (NCLB 2001), on the other hand, highlighted fault lines and the need for changing roles, as well as increased collaboration and professional development requirements.

Federally mandated educational outcomes, i.e., LEAs being held accountable for Adequate Yearly Progress (AYP) targets, have bumped into limiting factors including poverty, language, culture, and family structure (Turnbull, H., Stowe, M., & Huerta, N., p. 42). While federal statutes, regulations, and Supreme Court decisions offer reasonably clear guidance for state governments and LEAs to support and meet the needs of students with disabilities, Supreme Court decisions such as Board of Education v. Rowley (1982) have upheld the principle that educational outcomes cannot be guaranteed beyond what is reasonable. A larger question emerges concerning what to do about limiting factors that directly and indirectly lead to a “Nation at Risk”, and whether the education is fully equipped to handle all these factors.

Behind the consistent 30% national rate of people who fail to graduate from high school, are real people who did not adequately learn how to read or do math, despite federal sanctions imposed on “failing schools,” and despite special education services. Few enter the teaching profession fully prepared for the complexity of teaching academic vocabulary to students who enter our classrooms with issues of poverty, language, and dysfunctional family structures. These limiting factors are often comorbid with learning disabilities. (Turnbull, H., Stowe, M., & Huerta, N., p. 42). Whether special educators are fully equipped to handle all these issues, or should be for that matter, they need to be aware of the legal basis for how and why special education services are provided.

Brown vs. Board of Education (1954) - Supreme Court ordered state (SEAs) and local (LEAs) schools to be desegregated.

"Now, it is no longer a matter of who goes to school with whom (Brown), but where and  how all students are education (their curriculum and teacher's competency) and the outcomes they will achieve (IDEA and NCLB)." (Turnbull, Stowe, & Huerta, p. 7).

As a side note, when my father, Norman Kurland, was at the University of Chicago’s Law School in the late 1950’s, many at the university had concluded that it would be another 100 years before segregation would be ended. After law school, he was hired by the U.S. Commission on Civil Rights. He was sent to Mississippi to direct field operations, where he became a close personal friend of Medgar Evers, who was the NAACP’s Director in Mississippi. Evers and my father discussed a strategy called “Federal Presence,” designed to generate public embarrassment about Jim Crow Laws in Mississippi to trigger a federal response. Non-violent protests, sponsored by the NAACP, SNCC (Student Non-Violent Coordinating Committee), etc., supported that strategy. Ironically, the assassination of Medgar Evers triggered an acceleration of the very “Federal Presence” strategy he and my father had been discussing.

In short, in matters of exclusionary policy, federal laws play a vital function in holding states governments and LEAs to the high standards set by our legal system. While improvements could be made in terms of clarifying matters of “educational outcomes,” the overall legal framework surrounding special education is actually not too bad thanks to legal precedent.

References: 

Turnbull, H., Stowe, M., & Huerta, N. (2007). Free Appropriate Public education: The Law and Children With Disabilities, 7th edition. Denver: Love Publishing Company.