SYMHC Classics: P.A.R.C. and Mills

00:00:02
Speaker 1: After this week's episode on the five oh four sit Ins, we are returning to the topic of disability rights for our Saturday classic with something that took place a few years earlier than that. It is about lawsuits involving disabled students that followed in the wake of Brown versus Board and the passage of the first US law establishing that all children, regardless of ability, have the right to a free, appropriate public education.

00:00:28
Speaker 2: In this episode, we mentioned that the Education for All Handicapped Children Act, which is now called the Individuals with Disabilities Education Act, required evaluation programs to be non discriminatory because poor children and children who weren't white were disproportionately being identified as disabled. This continues to be an ongoing and pervasive issue today. Black and Indigenous children in particular are disproportionately more likely to be incorrectly identified as disabled, and there are also gender disparities in special education. This relates to how many children are identified as disabled and which disabilities they are identified as having, and it can have a negative impact on students' entire educations and their later lives.

00:01:15
Speaker 1: This episode also makes a passing reference to no Child Left Behind. No Child Left Behind was repealed on December tenth, twenty fifteen, and it was replaced with the Every Student Succeeds Act. This episode originally came out on March twenty fifth, twenty fifteen. Enjoy Welcome to Stuff You Missed in History Class, a production of iHeartRadio Hello, and Welcome to the podcast.

00:01:48
Speaker 2: I'm Tracy V.

00:01:49
Speaker 1: Wilson and I'm Holly Frye. While we research this podcast, you and I uncover things that surprise us. Basically all the time, for sure. So sometimes though, we discover things that surprise us, and the fact that we are just learning this is also in itself surprising because we should have known about that before because of various things in our background. In this case, my mom spent most of her career working with people who had a range of disabilities. For she was a teacher for adults with disabilities, and then she worked in a couple of different roles at a residential care center for children who had multiple disabilities, most of whom really needed full time care. My aunt also taught third grade special education for nearly her whole teaching career, and one of my first jobs as a writer was writing for a company that sold educational supplies and they had a whole business unit that dealt specifically with products for children who had special needs. And yet, in spite of all of that family history, I was surprised to learn from a listener email that until nineteen seventy five, children with disabilities in the United States were not getting guaranteed a public education. Listener Amy wrote in to tell us about this aspect of Brown versus Board that I hadn't known about before. After the Supreme Court ruling that the practice of segregation based on race was unconstitutional came out, it sparked a similar series of cases that were related to children who were at that point either segregated into different classrooms or restricted from public schools entirely because they had a disability. So that is what we're going to talk about today, And as a caveat before we start, the language that we use to talk about disabilities has evolved so much since the nineteen sixties and seventies, so, particularly in quoted material from court proceedings and laws, this episode includes some terminology that we would not use the day today. This would be considered insulting or offensive. We're gonna note those as they come up, but just as an advanced warning. There are words we're going to use that today we absolutely would not be using in that way.

00:03:58
Speaker 2: So uh to kick it off. The first US state to pass a compulsory school attendance law was Massachusetts, and it did so in eighteen fifty two, having passed a similar law when it was still a British colony more than two hundred years prior to that. Other states followed suit, and these laws required children in a specific age range to attend school, and parents whose children didn't go to school or get an equivalent education at home faced prosecution.

00:04:27
Speaker 1: However, most states granted exceptions to their compulsory attendance laws in the cases of children who had disabilities. These children weren't permitted to enroll in public schools at all, or if they were allowed to enroll in school, they were kept in separate, segregated classrooms away from other children, regardless of the nature of their disability or what kind of education that they needed. School systems had different rules for determining who could be excluded, but in general, students deemed to be quote uneducable were not a allowed to enroll. Laws were all over the place when it came to defining who exactly could be categorized as unedugable. In some cases it was an IQ below a certain number. But there were states that labeled a range of disabilities that had absolutely nothing to do with the ability to learn as uneducable, and that is not a label we would use anymore. Children who were excluded from school mostly stayed home or were institutionalized. Many of these institutionalized children did not actually need full time care because of their disabilities, and even if they did, the institutions that existed in the nineteenth and early twentieth centuries were not equipped to give that kind of care. In general, these facilities just provided housing, minimal food and attentive care, and virtually no education for the children who lived there. Even after the Supreme Court ruled in Brown versus Board that schools could not be segregated based on race, other courts were finding that segregation based on ability was allowed. In nineteen fifty eight, the Illinois Supreme Court ruled that the state's compulsory education laws did not apply to children with disabilities. In North Carolina, it was a crime for parents whose children had already been excluded because of a disability to try again at enrolling them. This law was actually in effect all the way until nineteen sixty nine. So apart from the fact that children were being denied in education, the Supreme Court opinion in Brown versus Board had outlined very eloquently a number of ways in which segregation based on race was psychologically harmful, and it seems to a lot of people that the same would be true in the case of segregation based on ability. For example, if you just changed the word race to ability in this sentence from the ruling quote, 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 unlike ever to be undone end quote. So if being put in a separate classroom made black children feel inferior to white children, logically people thought it would do the same in the case of children who had a disability who were being separated from the rest of the school, And the same questions were on the minds of legislators, and the US started to pass a variety of laws that addressed various aspects of education for disabled students in the late nineteen fifties, new laws provided teacher training programs for working with blind and deaf students, as well as captioned films and other accessible teaching materials. Not long before his assassination in nineteen sixty three, President John F. Kennedy signed two pieces of legislation that were related to this subject. One was an amendment to the Social Security Act, which expanded programs for mothers and children in an effort to prevent intellectual disabilities, which were things like screening programs and nutrition programs that I aimed at prevention. The other was the Mental Retardation and Community Mental Health Centers Construction Act of nineteen sixty three. This funded research and programs, including the training of special education teachers. Then, as a part of his war on poverty, President Lyndon Johnson signed the Elementary and Secondary Education Act into law in nineteen sixty five, and this law was meant to address student inequality, especially when it came to children from financially disadvantaged families. In nineteen sixty six, this law was amended to include two parts related to students with disabilities. It established the Bureau of Education of the Handicapped and the National Advisory Council, and it created programs for students with disabilities and provided grant funding for those programs. As a side note, the Elementary and Secondary Education Act was really controversial at the time. It increased spending on education really dramatically, and since many of the poorest children it was meant to help were also racial and ethnic minorities, that raised the hackles of a lot of the same citizens and lawmakers who had previously opposed integration and at that point were still opposing integration. This law actually continues to be controversial today. It was reauthorized in two thousand and two and at that point renamed No Child Left Behind. Additional laws expanded access to services through the nineteen sixties, and in the early nineteen seventies, two court rulings outlined the idea that all children had the right to a free, appropriate public education. We're going to talk more about that after we have a quick word from a sponsor. A number of court cases came about in the nineteen sixties and seventies that related to the right to an education for children with disabilities. Two of them have become really the landmark cases in this field, and the ones that are cited over and over again. The first one was the Pennsylvania Association for Retarded Children Versus the Commonwealth of Pennsylvania, also known as PARK versus Commonwealth. The Pennsylvania Association for Retarded Children was an advocacy organization for children with developmental disabilities and their parents. It was at that point also providing education for most Pennsylvania children with disabilities who were not being educated in public schools. Under Pennsylvania law, at this point, children had to have reached a quote mental age of five years before the age of eight to start first grade, and schools could deny admission to any student who didn't meet that criteria. People were still talking about mental age a lot when my mom was still working, but I don't think we do that anymore. It's a very nebulous thing, the idea of a mental age, and it's not nearly the prevalent standard that it used to be. Along with Park, the parents of thirteen children who had been excluded from school formed a class action lawsuit against the Commonwealth of Pennsylvania quote on behalf of all mentally retarded persons between the ages of six and twenty one, whom the Commonwealth of Pennsylvania is presently excluding from a program of education and training in the public schools. Their attorney, Thomas K. Gilhul, argued that excluding the children from school was unconstitutional because it violated the equal protection clause of the Fourteenth Amendment, so as a quick refresher, The Fourteenth Amendment was one of the reconstruction amendments passed in the wake of the Civil War, in part to help protect the rights of recently freed slaves. The end of the first section of the Amendment includes both the equal protection and due process clauses. Quote No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Nor shall any State deprive any person of life, liberty, or property without due process of law law, nor deny to any person within its jurisdiction the equal protection of the laws. Pennsylvania's defense was basically to cite the laws that were already on its books. One was the law we just talked about that required a mental age of five years. Another relieved Pennsylvania of the obligation to educate children who were quote uneducable and quote untrainable. The Commonwealth also argued that educating these children would create an undue financial burden on the government of Pennsylvania.

00:12:33
Speaker 2: The case was settled before the U. S. District Court for the Eastern District of Pennsylvania. Judge Thomas Ambrose Masterson ruled that yes, it was unconstitutional for Pennsylvania to interfere in any exceptional child's right to an education, and the Commonwealth was deemed to be responsible for providing a free education for all children between the ages of six and twenty one, regardless of their ability. The Commonwealth was also required to offer free preschool to all students regardless of ability as well, and if for some reason a school system could not provide a free, appropriate education for a child within its own schools, it had to find other arrangements for that child's education at no cost to the family. The other case that's most cited in this context is Mills versus Board of Education of the District of Columbia or Mills versus Board. This was another class action suit, and this time it involved seven children who had been excluded from school in the District of Columbia. The case is named for plaintiff Peter Mills, who, at the time of the proceedings is twelve years old in a ward of the district. He had been excluded from school in fourth grade due to a quote behavior problem. Another plaintiff, Dwayne Blackshear, was also excluded because of a behavior problem, and the remaining plaintiffs were reported to have been excluded for a number of intellectual disabilities and medical conditions. Thetiffs had been trying to get access to public education for the nineteen seventy one nineteen seventy two school year, and after failing to get results by going through normal channels, filed their suit on September twenty fourth, nineteen seventy one. On December twentieth, nineteen seventy one, the court signed an interim stipulation that four of the plaintiffs get access to a public education that would meet their needs by January third of nineteen seventy two, and that the Board of Education take a series of steps to identify other children in need of special education services and figure out how to provide them with an education. The ruling that I was reading did not get into why only four of the children were ordered to be enrolled in school immediately. Based on the descriptions of the various plaintiffs, that are included, and the ruling, I think it was just an issue of we need to figure out more accommodations for these, but let's go ahead and get these into school. God, that is sort of my conclusion, but it wasn't really spelled out that clearly. However, the Board of Education missed this January third deadline, and it continued to miss new deadlines as the judge ordered them, and so the plaintiffs had to keep bringing the matter back before the judge. It dragged on for months before Judge Joseph Cornelius Wattie ruled that excluding these children was a violation of their constitutional rights. He cited Brown versus Board and Bowling versus Sharp as precedents. Those are all things that we've talked about during our two parter on Brown versus Board, along with a number of other civil rights cases, and he found that the whole process of excluding children from school violated their due process clause of the Fifth Amendment. We've kind of alluded before to the way the Fourteenth Amendment is worded applies to states and not to the District of Columbia, which is why this really focused on Fifth Amendment rights rather than Fourteenth Amendment rights, and he finally ordered quote that no child eligible for a publicly supported education in the District of Columbia public schools shall be excluded from a regular public school assignment by a rule, policy, or practice of the Board of Education of the District of Columbia or its agents, unless such child is provided a adequate alternative educational services suited to the child's needs, which may include special education or tuition grants, and be a constitutionally adequate prior hearing and periodic review of the child's status, progress, and the adequacy of any educational alternative.

00:16:36
Speaker 1: So, to be very short, that says you cannot exclude children from school without providing them an alternate education that's suitable for them, and you can't exclude children from school without actually allowing them to do process. And that was a problem that was happening all over the country where basically a principal would say this child is excluded from school because of this disability, and the child really had no recourse. There was no due process in that situation. So this brings us to the first federal law that guaranteed the same thing that Judge Wattie had just guaranteed in the District of Columbia, and we'll talk about this after another brief word from a sponsor. One of the things that was really exceptional about Brown versus Board is that it was a Supreme Court ruling that dramatically and fundamentally changed the way people lived in their daily lives. One of the questions that was raised during the Supreme Court's arguments and re arguments in Brown versus Board, and it's actually a question that still still persists in some people's minds today, is whether the Court even had the authority to make such a massive change. Critics argued that that wasn't the court's job at all, that it really should have fallen to Congress to pass a law to change segregation, not to the Court to over turn all of those laws that were already on the books.

00:18:03
Speaker 2: Congress did eventually pass civil rights legislation that had some things in common with the Brown versus Board decision, but when it came to children's rights to an education regardless of disability, Congress took a more focused approach. In nineteen seventy two, after these and other cases had started moving through the courts, Congress introduced legislation meant to directly address the subject of education for children with disabilities. First, Congress launched an investigation into the state of education for children with disabilities, and these findings were kind of shocking to today's sensibilities. Millions of children in the United States were effectively being denied a public education due to a disability, either by being excluded from schools entirely or by being put into a segregated classroom that was not appropriate for their needs. There were, according to this investigation, more than eight million children who needed special education services. Only three point nine million of these children, so less than half were getting an education that was appropriate to their needs. One point seventy five million children were receiving an education that wasn't appropriate for their needs, and two point five million weren't getting any education at all. Aside from the basic idea that so many children just were not receiving the education that they were entitled to, this investigation actually raised another point. By failing to educate children appropriately, state governments were essentially forcing them to remain dependent on other people for their entire lives. The end result of this lack of education was that children who could have otherwise become independent were growing up to rely exclusively on public agencies and taxpayer dollars in order to survive. According to the legislative records, the figure was cited as billions of dollars spent per year to keep people in quote subhuman conditions. The Education for All Handicapped Children Act of nineteen seventy five, also known as Public Life Law ninety four Tosh one forty two, was signed into law by President Gerald Ford on November seventeenth, nineteen seventy five, and it was to take effect by September first of nineteen seventy eight. This is the law that guaranteed all children between the ages of three and twenty one be allowed access to a free, appropriate public education, regardless of whether they had a disability. It had four purposes. First was quote to assure that all children with disabilities have available to them a free, appropriate public education, which emphasizes special education and related services designed to meet their unique needs. Second, quote to assure that the rights of children with disabilities and their parents are protected. Third quote to assist states and localities to provide for the education of all children with disabilities. And force quote to assess and assure the effectiveness of efforts to educate all children with disabilities. This law also outlined a number of ideas that are still part of education for children with disabilities today. This included individual education programs are IEPs, which are tailored plans of education that are put together to meet each child's specific needs. The concept of the least restrictive environment was also part of this law, so that's the idea that a child should be educated in the least restrictive setting that is still simultaneously appropriate to meet their educational needs. It also sets up education as a collaborative process. This is one that involves the active participation of the parents, the teachers, and other professionals all working together to put together a plan and educate a specific child. There were a lot of other provisions in the law as well. Evaluation programs had to be non discriminatory. They needed to account for economic differences as well as language and ethnicity. And this was a big deal because poor and minority children were dispropored portunately represented in programs for children with disabilities, sometimes for discriminatory reasons and not because an actual disability existed. And to be clear, this was really an enormous step. We had gone from people just being institutionalized as a matter of course to there being a law that guaranteed that everyone had the right to the same education. But this was not an easy process at all, and it wasn't even one that a lot of people had high hopes for. When the law was originally passed, President Ford himself said, quote, Unfortunately, this bill promises more than the federal government can deliver, and its good intentions could be thwarted by the many unwise provisions it contains. Everyone can agree with the objectives stated in the title of this bill, educating all handicapped children in our nation. The key question is whether the bill will really accomplish this objective, and as people's understanding of what was actually needed and how it would work progressed, Public TIK Law ninety four TOASH one four two was amended several times between nineteen seventy five and nineteen ninety seven. In the nineteen eighties, amendments expanded the scope of the law to include services that started from birth, as well as transition services from graduation into adult living. In nineteen ninety the law was reauthorized, and at that time it was renamed the Individuals with Disabilities Education Act, or idea. It was reauthorized again in nineteen ninety seven, and this reauthorization involved research into the outcomes of special education, in other words, what had actually happened to special education students, and the research was not particularly positive. Special education quote has been impeded by low expectations and an insufficient focus on applying replicable research on proven methods of teaching and learning for children with disabilities. So while at times this progress has been slow or faltering, overall things have improved over the last forty years. The majority of children with disabilities now go to neighborhood public schools and are educated in regular classrooms, and both the graduation rates and employment rates after graduation have increased, along with enrollments into secondary schools by students who have disabilities. The number of college freshmen with disabilities has tripled since nineteen seventy eight. However, while things have improved, there are definitely a number of challenges and issues that parents and teachers, and as they get older and become more accountable for their own education, the students themselves still face.

00:24:36
Speaker 1: Yeah, most of the parents I know whose children have some sort of disability have talked really candidly about various struggles, like they will have teachers who they love, and the teachers are obviously doing the best that they can with the resources that they have, but they they're like still struggles in getting IEPs put together and approved and having them implemented once they actually are our put together. So it's definitely definitely not a perfect process yet, but it's also one that has certainly come a long long way since nineteen seventy five. Thanks so much for joining us on this Saturday. If you'd like to send us a note, our email addresses History Podcast at iHeartRadio dot com, and you can subscribe to the show on the iHeartRadio app, Apple Podcasts, or wherever you listen to your favorite shows.