In Brown, school children from four states argued that segregated public schools were inherently unequal and deprived them of equal protection of the laws. The Supreme Court found that African-American children had the right to equal educational opportunities and that segregated schools “have no place in the field of public education.” The Court wrote:

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures 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 public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today, it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. 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. Such an opportunity, where the state has undertaken to provide it, is a right that must be made available to all on equal terms.

We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.

In Brown, the Supreme Court described the emotional impact that segregation has on children, especially when segregation “has the sanction of the law:”

To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court that nevertheless felt compelled to rule against the Negro plaintiffs:

Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the Negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racially integrated school system.

After the decision in Brown, parents of children with disabilities began to bring lawsuits against their school districts for excluding and segregating children with disabilities. The parents argued that, by excluding these children, schools were discriminating against the children because of their disabilities.

Elementary and Secondary Education Act of 1965 (ESEA)

Congress enacted the Elementary and Secondary Education Act (ESEA) in 1965 to address the inequality of educational opportunity for underprivileged children. This landmark legislation provided resources to help ensure that disadvantaged students had access to quality education.

In 1966, Congress amended the ESEA to establish a grant program to help states in the “initiation, expansion, and improvement of programs and projects . . . for the education of handicapped children.” In 1970, Congress enacted the Education of the Handicapped Act (P.L. 91-230) in an effort to encourage states to develop educational programs for individuals with disabilities. According to the National Council on Disability:

Congress first addressed the education of students with disabilities in 1966 when it amended the Elementary and Secondary Education Act of 1965 to establish a grant program to assist states in the “initiation, expansion, and improvement of programs and projects . . . for the education of handicapped children.” In 1970, that program was replaced by the Education of the Handicapped Act (P.L. 91-230) that, like its predecessor, established a grant program aimed at stimulating the States to develop educational programs and resources for individuals with disabilities. Neither program included any specific mandates on the use of the funds provided by the grants; nor could either program be shown to have significantly improved the education of children with disabilities.

PARC and Mills

During the early 1970s, two cases were catalysts for change: Pennsylvania Assn. for Retarded Children v. Commonwealth of Pennsylvania (PARC) and Mills v. Board of Education of District of Columbia.

PARC dealt with the exclusion of children with mental retardation from public schools. In the subsequent settlement, it was agreed that educational placement decisions must include a process of parental participation and a means to resolve disputes.

Mills involved the practice of suspending, expelling and excluding children with disabilities from the District of Columbia public schools. The school district’s primary defense in Mills was the high cost of educating children with disabilities. Judge Waddy wrote:

The genesis of this case is found (1) in the failure of the District of Columbia to provide publicly supported education and training to plaintiffs and other “exceptional” children, members of their class, and (2) the excluding, suspending, expelling, reassigning and transferring of “exceptional” children from regular public school classes without affording them due process of law.

The inadequacies of the District of Columbia Public School System whether occasioned by insufficient funding or administrative inefficiency, certainly cannot be permitted to bear more heavily on the "exceptional" or handicapped child than on the normal child.

Congressional Investigation (1972)

After PARC and Mills, Congress launched an investigation into the status of children with disabilities and found that millions of children were not receiving an appropriate education:

Yet, the most recent statistics provided by the Bureau of Education for the Handicapped estimated that of the more than 8 million children . . . with handicapping conditions requiring special education and related services, only 3.9 million such children are receiving an appropriate education. 1.75 million handicapped children are receiving no educational services at all, and 2.5 million handicapped children are receiving an inappropriate education.

The investigation so moved members of Congress that they wrote:

The long-range implications of these statistics are that public agencies and taxpayers will spend billions of dollars over the lifetimes of these individuals to maintain such persons as dependents and in a minimally acceptable lifestyle. With proper education services, many would be able to become productive citizens, contributing to society instead of being forced to remain burdens. Others, through such services, would increase their independence, thus reducing their dependence on society.

There is no pride in being forced to receive economic assistance. Not only does this have negative effects upon the handicapped person, but it has far-reaching effects for such person’s family.

Providing educational services will ensure against persons needlessly being forced into institutional settings. One need only look at public residential institutions to find thousands of persons whose families are no longer able to care for them and who themselves have received no educational services. Billions of dollars are expended each year to maintain persons in these subhuman conditions . . .

Parents of handicapped children all too frequently are not able to advocate the rights of their children because they have been erroneously led to believe that their children will not be able to lead meaningful lives . . . . It should not . . . be necessary for parents throughout the country to continue utilizing the courts to assure themselves a remedy . . . .

In 1972, legislation was introduced in Congress after several “landmark court cases establishing in law the right to education for all handicapped children.”

Public Law 94-142: The Education for All Handicapped Children Act of 1975

On November 19, 1975, Congress enacted Public Law 94-142 in 1975, also known as The Education for All Handicapped Children Act of 1975. Congress intended that all children with disabilities would “have a right to education, and to establish a process by which State and local educational agencies may be held accountable for providing educational services for all handicapped children.”

Initially, the law focused on ensuring that children with disabilities had access to an education and due process of law. Congress included an elaborate system of legal checks and balances called “procedural safeguards” that are designed to protect the rights of children and their parents. The law has been reauthorized several times, most recently in 2004.

Did Your State Pass the IDEA Compliance Test? (The Special Ed Advocate, October 11, 1999)