Special Education Law
Part One — History
In the 1960s, as America struggled to desegregate schools pursuant to the Supreme Court’s 1954 decision in Brown v. Board of Education and the Civil Rights Act of 1964, families of children with disabilities began to advocate for equal public education for their children. In 1966 Congress amended the Elementary and Secondary Education Act and provided some funding for “initiation, expansion, and improvement of programs and projects . . . for the education of handicapped children.” Families also started suing states and school districts to stop the exclusion of their children from public schools. The U.S. Department of Education explains that “[i]n 1970, U.S. schools educated only one in five children with disabilities, and many states had laws excluding certain students, including children who were deaf, blind, emotionally disturbed, or had an intellectual disability.”
Public pressure to end segregation on the basis of disability culminated in the 1975 passage of the Education for All Handicapped Children Act (EAHCA). Congress found that “it is in the national interest that the Federal Government assist State and local efforts to provide programs to meet the educational needs of handicapped children in order to assure equal protection of the law.” Because education has traditionally fallen under state and local rather than federal jurisdiction, Congress used the concept of voluntary fiscal federalism, providing federal funding to states in exchange for compliance with federal regulations, to meet their goal of ensuring access to special education. Congress promised to pay 40 percent of the costs with state and localities shouldering the rest. But this promise has never been kept, leading to decades of chronic underfunding (although there is some hope of improved funding in the current Congress). New Mexico was the last state to take EAHCA funding and did so only because of a 1982 federal decision ruling that the state was obligated to provide appropriate special education under the Rehabilitation Act whether or not they accepted EAHCA funding.
In contrast, Washington was ahead of the curve. The ARC of Washington State notes that “[i]n 1971, a small but fierce group calling itself the Education for All Committee — Evelyn Chapman, Katie Dolan, Janet Taggart, Cecile Lindquist — worked with two law students, George Breck and Bill Dussault, to craft legislation that would mandate public education for all children with disabilities age 3–21. They descended on the state legislature with a mission to pass a law with teeth. And, with backing from WARC’s vigorous grassroots network, the bill was signed into law that same year.” This bill was HB 90 which became Chapter 66 of the Laws of 1971, entitled Educational Opportunities for Handicapped Children, but generally referred to as the Education for All Act. Washington’s special education law is now codified at RCW 28A.155.
The EAHCA has been amended numerous times since 1975 and was reauthorized and renamed the Individuals with Disabilities Education Act (IDEA) in 1990, with Congress adopting a more respectful “people first” title for the statute.
The key statutory rights in the IDEA are a “free appropriate public education” (FAPE), in the “least restrictive environment” (LRE), for students with disabilities aged 3 to 21 as outlined in an “individualized education program” (IEP) created by a team that includes parents, teachers, administrators, and specialists such as speech, physical, and occupational therapists. The law gives families procedural rights such as notice, participation, hearings, and appeals to challenge school districts when they feel their children are not receiving an appropriate education. As a civil rights statute, IDEA’s procedural rights are enhanced by a fee-shifting section that requires school districts to pay the attorney fees for parents who win special education due process hearings in some circumstances.
Unfortunately, the federal Supreme Court hobbled the right to FAPE in their 1982 decision Hendrick Hudson Dist. Bd. Of Ed. v. Rowley. Amy Rowley was a deaf student whose school district refused to provide a sign language interpreter, instead having her use a less expensive FM wireless hearing aid and lip reading, which together allowed her to understand about 60% of what was said by the teacher. The Supreme Court, in a 6 to 3 decision written by Justice Rehnquist, held that the IDEA only required an IEP that permitted “some educational benefit,” essentially that 60% is good enough. Over time, Rowley was interpreted by some lower courts to stand for the principle that districts only needed to provide just a ”merely more than de minimis” special education.
In 2017, a generation later, a unanimous court rejected the cramped “merely more than de minimis” interpretation of Rowley in Endrew F. v. Douglas County School District, RE-1. While the court also rejected the parents’ request to interpret FAPE as requiring districts to provide “equal opportunity” for kids with disabilities to make the same progress as their non-disabled peers, they took the middle ground and held that districts must “offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Chief Justice Roberts wrote for a unanimous Supreme Court, explaining that “a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all.”
Disputes are common between families and school districts about whether an IEP is actually individualized and reasonably calculated to help a child make educational progress. The administrative and judicial outcomes of these disputes turn on interpretation of interconnected state and federal statutes and regulations. Part Two of our special education law blog posts will examine the specifics of finding these resources for Washington and will highlight tricks for finding controlling and persuasive precedent. (RM)
