The Individuals with Disabilities Education Act: A Polity-Centric Approach

!1 Finn Gardiner 13 December 2016 Final Essay T H E I N D I V I D U A L S W I T H D I S A B I L I T I E S E D U C AT I O N A C T Introduction: What Is IDEA? The Individuals with Disabilities Education Act, or IDEA, is a law designed to protect the rights of children and youth with disabilities within US state-funded schools, from early childhood to the end of high school. Initially passed in 1975 as the Education for All Handicapped Children Act (EHA), the bill protects the right of students with disabilities to be educated in public schools. Under the law, public schools are required to provide them a “free and appropriate public education,” meaning that schools must ensure that students with disabilities are educated to the highest standard available. Schools are required to provide comprehensive plans detailing students’ educational needs and how they are to be met through the education system, and must provide what is deemed a “meaningful education,” ensuring that students with disabilities are able to derive benefit from public education in a similar fashion to non-disabled students. Rooted in principles established during the Civil Rights Movement, IDEA bases its principles on the Fourteenth Amendment and its equal protection clause. Using a polity-centric approach—a framework for political analysis introduced by Theda Skocpol (1993)—I will examine the history of the IDEA, the effects the !2 disability rights movement have exerted upon its passage, and the roles civil society and institutions of government played in developing this legislation. Under this approach, the creation of policy is based on the intersection between identity and affinity groups; government institutions, political parties, and the rules established by those institutions; and the amount of access or leverage that these entities can exert on the policymaking process (Skocpol, 1993). Part I: History: From Pariahs to Political Actors: Pre-1970 Disability History Historically, students with disabilities had been excluded from public education after its mainstreaming in the twentieth century. Children and adolescents with disabilities were more likely to be consigned to “state schools,” or institutions designed to warehouse people with disabilities. These facilities were notorious for being devoid of educational content, and for their squalid, Dickensian conditions—a twentieth-century American analogue to the notoriously oppressive British poorhouses. Diagnostic labels like “feebleminded,” “idiot,” “moron,” and “imbecile” were near-death sentences. This systemic exclusion from mainstream education led to the de facto removal of many people with disabilities from public life generally. People born with disabilities were not seen as a protected category of people endowed civil rights; rather, they were the objects of pity and derision, in contrast to people who acquired disabilities later in life, like wounded soldiers. !3 As Linton (1998) states in Claiming Disability, mainstream society treated people with disabilities as pariahs, meant only to be hidden from the rest of society and rendered as a threat to the established social order simply by differing from a vaunted norm. In the United States, this represented itself as the warehousing of people with disabilities in squalid institutions like the Willowbrook State School of New York and Massachusetts’ Fernald State School, forced sterilization, and scapegoating by means of eugenic theory that posited that disability was connected to criminality and degeneracy. Though many associate eugenics and the political and medical devaluation of people with disabilities with Nazi Germany, it is important to remember that the Nazis’ policies found their origins in the United States (Linton, 1998). Nazi violence against disabled people was not a homegrown phenomenon; it was an American import that Hitler and his acolytes honed and “perfected” into the Aktion T-4 extermination program. Under Hitler, people with disabilities were considered lebensunwertes Leben, or “lives unworthy of life”—an extreme interpretation of the pariah model of disability (Linton, 1998). Because people with disabilities and their allies had not become a politicized identity group, it was impossible for them to form a workable coalition that would have allowed them to gain access to political power and dismantle structures that upheld systemic ableism. Without a political consciousness that afforded them the ability to view disability as a class of people worth protecting, there was no way to challenge the !4 status quo and persuade political parties or elected officials that disability rights deserved to be protected. The Civil Rights Movement of the 1950s and 1960s served as a catalyst for the advancement of the civil rights of people with disabilities. The actions of disability advocates, an increased willingness to frame disability rights as civil rights, and the burgeoning awareness of the mistreatment of disabled people in institutions by the mainstream media helped create the coalition that would ultimately push through legislation in the 1970s that enshrined the rights of people with disabilities to be entitled de jure equal treatment. The struggle for Black Americans to be treated equally in a country that had systematically exploited their work and consigned them to the margins of society helped spawn other social movements that built from a similar framework of civil rights, social justice, and the leveraging of a collective identity to advocate for equity in the political sphere. While the second wave of feminism and the rise of the LGBTQ rights movement have perhaps gained more popular attention than other movements, the disability rights movement also emerged from this collective raising of the American consciousness. The relationship between disability rights activists and the Civil Rights Movement went beyond a simple appropriation of the techniques used by racial justice activists; in fact, they noted the intersection between systemic racism and systemic ableism. They found that Black children in Missouri were disproportionately !5 more likely to have diagnoses of mild intellectual disability—then called “educable mental retardation”—than were White children, leading Black pupils to receive an inferior education to White children even after the end of de jure segregation in schools (Fleischer & Zames, 2011). The mainstream media, too, would eventually play a role in drawing attention to civil rights abuses inflicted on disabled people. Geraldo Rivera, then an investigative reporter for a local New York television station, exposed the Willowbrook State School’s abuses in a special called The Last Great Disgrace in 1972 (D. Brown, 2014). Though the school had already received condemnation from Senator Robert Kennedy (D-MA), who had called it a “snake pit,” there had been little action to reform the school before the airing of The Last Great Disgrace (D. Brown, 2014). Willowbrook’s abuse of its residents gained regional and national notoriety; soon after the broadcast of The Last Great Disgrace, news publications like The New York Times covered the inhumane treatment of Willowbrook’s prisoners (D. Brown, 2014). Like televised shots of altercations between police officers and Black civil rights protestors in the Deep South, or the exposure of Nazi concentration camps after Hitler’s defeat in World War II years before, The Last Great Disgrace created a concrete image of what systemic violence towards marginalized people looked like. Rivera himself drew the comparison between Willowbrook’s squalor and Hitler’s Germany: he characterized Willowbrook as “not unlike Nazi death camps,” where inmates were forced to lie in their own excrement (Linton, 1998). !6 Bernard Carabello, a former resident of Willowbrook with cerebral palsy who had been misdiagnosed with an intellectual disability, reported severe physical and sexual abuse, including being beaten with belts and sticks (D. Brown, 2014). Another former resident, Judy Moiseff, recalls being isolated from her parents, being taught very little, and being sequestered inside the building with little opportunity to go outside (D. Brown, 2014). Carabello, Moiseff, and other people with disabilities who were “educated” in institutions like Willowbrook were the victims of a system that had not viewed people with disabilities as being part of public life, and it took the work of wide-ranging coalitions invested in civil rights to begin to rectify these gross abuses. Like other civil rights movements that gained traction in the mid-twentieth century, the disability rights movement was not without opposition, primarily from politicians who thought laws protecting people with disabilities would present an undue burden and dismissed the civil rights implications that the denial of disabled people’s equal rights invited. Chief among these politicians was President Richard Nixon, who expressed his opposition to disability rights bills introduced in Congress, including the Rehabilitation Act. The Rehabilitation Act was a precursor to IDEA, the Americans with Disabilities Act, and other disability-related legislation that included disability rights within a broader civil rights framework. When Congress passed the first versions of the Rehabilitation Act in 1972 and 1973, Nixon vetoed it twice, claiming that it was “too expensive,” and that the bill would unnecessarily shift the focus from !7 employment to entitlements, a common Republican bugbear (Fleischer & Zames, 2011). Nixon’s placing costs over the principle of equal protection is redolent of the Republican Party’s Southern Strategy and anti-civil-rights revanchism that propelled him to victory in the 1968 presidential election. Nixon’s vetoes of the Rehabilitation Act were met with protests from disability activists, including a sit-in led by Judith Heumann, an early leader in the disability rights movement (Fleischer & Zames, 2011). Part II: Mobilizing for Justice: EHA and IDEA: 1970-2010 The Road to Justice: Precursors to EHA The increased awareness of disability rights as a civil right led to concrete pushes towards protecting the rights of children and youth with disabilities to receive an education beyond what had been previously afforded to them by institutions. One early disability advocate, Gunnar Dybwad, played an outsized role in educational advocacy through his contribution to court cases that led to the passage of legislation protecting the educational rights of children and youth with disabilities. Dybwad, who had trained as a lawyer in his native Germany before moving to the United States, believed strongly in the role of federal courts and the Supreme Court as a means to ensure the human rights of people with disabilities. Inspired by the success of Brown v Board of Education, Dybwad applied equal-protection principles drawn from the Fourteenth Amendment— the same techniques used to successfully defend the right of Black children to attend !8 integrated public schools—to advocate for equal treatment for people with disabilities in his work collaborating with other advocates to use the court system to enshrine disability rights (Disability Justice). Before Brown, schools engaging in racial segregation used Plessy v Ferguson, the Supreme Court case upholding racial segregation and other “separate-but-equal” forms of social inequity, to defend the existence of whites-only schools (Disability Justice). Similar injustices were enacted upon students with disabilities, who were routinely excluded from accessing the same resources that nondisabled students were granted through the school system. Though Dybwad recognized the potential of Brown to be used for disability rights cases soon after its passage, the opportunity to apply this principle to disability-rights-related cases would not appear until twenty years after Brown had become the law of the land. Two 1972 federal court cases—Pennsylvania Association for Retarded Children (PARC) v Commonwealth of Pennsylvania and Mills v Board of Education of District of Columbia—proved to be watershed cases that would enshrine the right of children and youth with disabilities to receive a public education (Disability Justice). Like Brown v Board of Education twenty years earlier, these court cases used the Equal Protection Clause of the Fourteenth Amendment to argue that segregation of children with disabilities in the public school system was a violation of their equal rights (Disability Justice). The plaintiffs in the PARC case sued the State of Pennsylvania for disallowing children with a “mental age of less than five years” from enrolling in first grade, using !9 Brown and the Fourteenth Amendment as their guide (Disability Justice). This restriction prevented children with intellectual disabilities from accessing the same education that their peers without an intellectual disability were able to obtain from the state. Three judges with the District Court for the Eastern District of Pennsylvania ruled that the state was not allowed to deny any student under the age of 21 access to public schools, and that schools were required to educate students “appropriate to [their] learning capacities” (Disability Justice). Furthermore, parents were entitled to due process remedies if schools violated this ruling and continued to deny their children access to public education (Disability Justice). Free and Appropriate Public Education: The Beginnings of EHA Mills v. Board of Education of District of Columbia, the second major court case that would prove decisive in ensuring the right of children and youth with disabilities to receive a free and appropriate public education, built on the foundation of the PARC case. Like PARC, Mills was a class-action lawsuit brought on behalf of a group of Washington, DC, children who had been rejected from public schools because of their disabilities (Disability Justice). The children represented in the PARC case all had intellectual disability diagnoses, but the group represented in Mills represented a wider range of disabilities. Though the District of Columbia Board of Education admitted that it was responsible for the education of all children in Washington, DC, it claimed that it !10 did not have the resources to educate children with intense support needs beyond what was offered by the standard curriculum. In Mills, the US District Court of the District of Columbia ruled on the side of the plaintiffs, declaring that students with disabilities were entitled to a free and appropriate education, and financial burden was not an acceptable excuse to deny children the education they deserved (Disability Justice). These court cases were an example of the confluence, or “fit,” between voluntaryassociation groups and the structures of government that Skocpol articulated in Protecting Soldiers and Mothers: advocates working outside government itself took advantage of a political climate that supported passing legislation based on civil-rights principles and pushed it towards becoming government policy itself. The Mills ruling and 27 subsequent federal court cases spurred Congress to introduce a bill—later known as the Education for All Handicapped Children Act, or EHA—that would protect the rights of children with disabilities to receive a suitable education (Disability Justice; Fleischer & Zames, 2011). Though both the House and Senate versions of the bill were sponsored by Democrats, EHA was ultimately signed by a Republican president, Gerald Ford, in 1975 (Congressional Research Service). EHA was based on the principles initially stated in Mills: that children with disabilities were entitled to a free and appropriate public education. EHA stipulated that that state education systems were required to identify and assess children with disabilities to provide them with an appropriate education; and that schools were required to draw !11 up an “Individualized Education Plan,” or IEP, a guide created by school officials and professionals to identify the specific educational needs of children with disabilities (Fleischer & Zames, 2011). The passage of EHA did not change the climate for students with disabilities overnight, however; enforcement of the law was haphazard and dependent on states’ willingness to advocate on behalf of disabled students. The Children’s Defense Fund, under the aegis of Marian Wright Edelman, also found that schools in Mississippi were using special education as a means to segregate Black from White students after the federal government mandated legal desegregation, and obtained a consent decree to attempt to enforce EHA (Fleischer & Zames, 2011). Before desegregation, students in special education were White; after desegregation, they were Black (Fleischer & Zames, 2011). EHA included provisions to prevent the special education system from being used as a vehicle for racial segregation as it had been used in states like Missouri before its passage, but it took the work of civil society advocates to ensure that the government of Mississippi was adhering to federal standards (Fleischer & Zames, 2011). Mississippi was not the only state found to be noncompliant; New York City’s public schools “allowed for greater segregation […] than would have been tolerated in Mississippi,” spawning another series of federal lawsuits aimed at protecting the rights of students with disabilities (Fleischer & Zames, 2011). Organizations that filed amicus curiae briefs on behalf of the plaintiffs in one case, the Jose P. v Board of Education suit of 1979, !12 included Advocates for Children, United Cerebral Palsy, and advocates working to improve access for Latino children who were not native speakers of English (Fleischer & Zames, 2011). Like Mills and PARC before them, Jose P. was the work of civil society organizations using the court system in order to push the institutions of government into action on behalf of a marginalized class of people. In addition to continued violations of civil rights law by state and municipal governments, tension existed between parents and professionals about the roles each faction would play in advocating for educational rights for students with disabilities under EHA (Fleischer & Zames, 2011). Parent advocates and their allies were concerned that professionals would overshadow their work, especially if parents had reduced cultural capital in comparison to professionals. Parents with limited education, incomes, or English proficiency would be at a strategic disadvantage compared to professionals. Parents wanted to ensure that they could maintain leverage over the process without the potential hijacking of the education rights movement by professionals, which was an inducement to push back on professional-centric reforms that did not place parents’ and families’ needs at the forefront. From EHA to IDEA In 1986, Congress amended EHA to add provisions to add coverage from birth for children with disabilities; previously, the law had only covered children and youth !13 between the ages of 3 and 21 (OSEP, 2000). When EHA was reauthorized in 1991, the law was given its current name, the Individuals with Disabilities Education Act, or IDEA. George H.W. Bush signed the revised IDEA in 1991. In the 1990s, the federal government and state governments placed more emphasis on the concept of “least restrictive environment” (Fleischer & Zames, 2011). The principle of the least restrictive environment, or LRE, posits that students with disabilities should be included with non-disabled students as much as possible, and that they should be separated from mainstream classrooms if and only if the mainstream classroom cannot adequately address the child’s specific educational needs, even if supports are provided (Fleischer & Zames, 2011). LRE was created to be similar to school desegregation, where inclusion with non-disabled students was intended to allow dialogue and social connections across ability levels (Fleischer & Zames, 2011). In 1997, Congress further amended IDEA to include concrete steps for youth with disabilities transitioning out of public education into the adult world, whether that transition entails higher education, joining the workforce directly, or other post-secondary programs appropriate for the young adult in question (OSEP, 2000). Schools are required to include transition planning in students’ IEPs after students reach the age of 14 (OSEP, 2000). Despite strong efforts to enforce IDEA and promote accessible education for students with disabilities, there were still school districts and opponents to strict enforcement of special-education law that proved recalcitrant, citing budgetary !14 constraints and other excuses as a means to continue segregating students. New York City, already the subject of lawsuits in the 1970s and 80s, continued to prove problematic for students with disabilities; in 1994, only 7% of students were in mainstream classrooms, in comparison to Vermont, where 87% of students were mainstreamed (Fleischer & Zames, 2011). Television commentators, parents of nondisabled children, journalists, and others whose children did not directly benefit from special education would harangue about the high costs of special education and that the education of non-disabled or intellectually gifted children was being shortchanged to serve students with more intense support needs (Fleischer & Zames, 2011). There have been some arguments from disability scholars, however, that IDEA in its current incarnation does not go far enough in redressing the systemic ableism that students with disabilities face in the school system (Beratan, 2006). This opposition serves as a counterpoint to the standard objections to IDEA; rather than going too far to accommodate the needs of a protected class, it upholds some of the structural barriers that it was intended to dismantle. Under the IDEA, students are entitled to be educated to inclusion “to the maximum extent appropriate”—without an explicit definition of “appropriate”—and“appropriate” education can be used to segregate students who are determined not to fit in the mainstream classroom, or to provide disabled students with the bare minimum of supports, rather like the situation in New York City’s public schools even after the passage of IDEA (Beratan, 2006). Beratan also believes that the !15 IDEA is steeped in the deficit model, which views disability as a fault within the individual, rather than a natural part of human existence. The wording of “appropriateness” is connected to this attitude, where school systems can get away with denying a student the chance to excel because an affirming environment is “inappropriate.” Justice Rehnquist’s opinion in the Hendrick Hudson Central School District v Amy Rowley Supreme Court case of 1982 found that education for children with disabilities was not required to be at a “greater standard than would be necessary to make such access meaningful,” and that it was not intended to “guarantee any particular level of education once inside” the mainstream classroom (Beratan, 2006). The Rowley ruling allows schools serving students with disabilities to help them get by, rather than to get ahead (Fleischer and Zames, 2011). Part III: Contemporary Issues: Educational Justice in the Age of Trump The Trump Card The enforcement of IDEA may be under threat from an incoming Donald Trump administration: both Trump himself and his appointees have demonstrated both indirect and direct hostility towards people with disabilities. Trump has been dismissive to people with disabilities; in 2015, he faced public censure for mocking a reporter with a disability, Serge Kovaleski of the New York Times. He has also referred frequently to his IQ and “great genes,” recalling eugenic ideals that were thought to have been largely !16 repudiated after the Second World War (Mortimer, 2016). Senator Jeff Sessions, a Republican from Alabama and Trump’s top choice for Attorney General, dismissed the effects of IDEA, despite strong bipartisan support in Congress and the approval of three Republican presidents. In a speech he gave in 2000, Sessions claimed that IDEA was “the single most irritating problem for teachers throughout America today,” and that litigation had led to “special treatment” for students receiving accommodations under disability-rights legislation (Strauss, 2016). While Sessions also claimed that he did not support dismantling IDEA entirely, his comments about the legislation indicate that he is not a fervent supporter. If the Senate confirms him—which is likely, given Republican control—then there is a risk of increasingly lax federal enforcement of IDEA compared to that of previous administrations. A similar threat occurs in the form of Trump’s choice for Secretary of Education, Betsy DeVos. DeVos is an advocate of “school choice,” preferring to issue vouchers for private schools rather than funding public education. Unlike public schools, private schools are not under the same obligation to provide free and appropriate education to students with disabilities (E. Brown, 2016). In addition to the spectre of an imminent Trump administration and its potential deleterious effects on public education protections for children and youth with disabilities, another blow may come to students with disabilities by means of an upcoming Supreme Court ruling. Endrew v Douglas County School District, which the Court will hear on 11 January 2017 (Jones, 2016). The US Court of Appeals for the 10th !17 Circuit—along with five other circuit courts—ruled that the IDEA merely required that IEPs provide “some educational benefit,” in contrast to the “meaningful education” that two other circuit courts ruled that IDEA requires a higher standard in order for education to be considered “meaningful” (Jones, 2016). The Obama Administration encouraged the Supreme Court to grant certiorari. If the plaintiffs lose the case, schools will be able to provide a lower standard of education than had been previously mandated under the Court’s interpretation of EHA with the Rowley ruling, and situations like New York’s haphazard interpretation of IDEA may become more prevalent in other states. If state school systems are allowed to have more leniency with IDEA, then this development may give them carte blanche to segregate students with disabilities and offer them substandard educations under the cover of providing them “some educational benefit,” since some education would be considered better than no education. It stands to reason that the enforcement of IDEA and other pro-disability national statutes may shift to the states under a potentially hostile or apathetic Trump administration, especially considering previous attitudes demonstrated by Trump, Sessions, and DeVos. Civil society organizations may change their targets from national figures like Congress, the President and the Department of Justice to statehouses and governors in order to maximize their results. This shift to state-level advocacy may be !18 further compounded if the Supreme Court rules on the side of the defendants in the forthcoming Endrew case. Conclusion The processes that led to the passage and enforcement of the Individuals with Disabilities Education Act are emblematic of the polity-centric approach that Skocpol articulated in Protecting Soldiers and Mothers: the interactions between politicized identity groups, civil society organizations, government actors, and the institutions of government that allow policy to be created and enforced. This was particularly evident in the use of the court system in order to enshrine civil rights, an approach that had its origins in the seminal Brown v. Board of Education ruling. The growth of the disability rights movement as an integral part of the Civil Rights Movement allowed for different groups to agitate for policy that benefited a community that had once been consigned to pariah status, and take advantage of a political climate that had become more sensitive to the demands of marginalized groups seeking justice and liberation. !19 References 1. Beratan, G. (2006). Institutionalizing inequity: Ableism, racism and IDEA 2004. Disability Studies Quarterly, 26(2). Accessed 12 December 2016. 2. Board of Educ. v. Rowley 458 U.S. 176 (1982). Justia Law. Accessed 12 December 2016. 3. Brown, D. (2014). The horrifying truth uncovered: Willowbrook State School. Rooted in Rights. Accessed 8 December 2016. 4. Brown, E. (23 November 2016). Trump selects school-choice advocate Betsy DeVos as education secretary. The Boston Globe. Accessed 13 December 2016. 5. Congressional Research Service. 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