The struggle for an equal education for individuals with disabilities has been a long and sordid affair. The history of inclusion started with the drafting of the 14th amendment. Rep. Thaddeus Stevens and Rep. John Bringham had a desire to see that individuals had protected rights, and this drove them to write the Equal Protection Clause found in the 14th amendment which says, “No state shall make or enforce any law which shall… deny to any person within its jurisdiction the equal protection of the laws.”1 This was subdued in the Plessy v. Furguson case where it was determined that there could be “separate but equal” conditions (Cambron-McCabe, McCarthy, Thomas, 2009, p. 117).2 However, Brown v. Board of Education found segregated schools “inherently unequal”.3 Then came the case of Mills v. Board of Education of District of Columbia in 1972 where the court ruled “The District of Columbia shall provide to each child of school age a free and suitable publicly-supported education regardless of the degree of the child's mental, physical or emotional disability or impairment”4 The Rehabilitation act of 1973 reaffirmed this ruling stating, that an individual based upon their disability cannot, “be excluded from the participation in, be denied the benefits of, or be subjected to discrimination”.5 This however had no funding behind it, and it was found that schools unfortunately continued to discriminate against students with disabilities. Extending this trend in reduction of discrimination was the Americans with Disabilities Act which required the construction of new facilities to allow, “individuals with disabilities an equal opportunity to benefit from all of their programs, services, and activities”.6 Schools finally started to change their way after funding was linked to the adherence of the Education for all Handicaps Children Act, which upon amendments was later called the Individuals with Disabilities Education Act (IDEA). IDEA expresses the need for students to be included as much as possible into the regular classroom, and calls this the Least Restrictive Environment (LRE).7 It was with this recent integration of funding and inclusion of students with disabilities into the regular classroom that discrimination has abated in the United States school systems, though it is not yet gone.
Laws require application. Application of enacted laws help to create the IEP’s we currently use. In one case, a third grade boy, we will call Mark, (his true name will be protected) had been diagnosed with Autism with an accompanying speech/language impediment. Mark did relatively well with classroom accommodations previously instituted by the general education classroom instructor. Accommodations included, but were not limited to: extended time on tests, allowed to take sensory breaks, moving chairs, gum or gummies, use of a keyboard device, and preferential seating. Upon placement determination it was found that Mark was meeting the expectations within the general education curriculum, and therefore was not to be removed from the curriculum. However, due to his speech/language impediment he would be removed form the regular classroom environment twice a week for 30 minutes each time to work in the resource room explicitly for speech-language issues. Mark’s IEP identified 6 goals for the year, those being: displaying 80% competency in Language Arts and reading standards with proscribed accommodations, increase on-task time to 80%, demonstrate growth in social interactions to 80% correct response, increasing intelligibility to 90% of interactions, and 80% accuracy in expressive/receptive language after being reminded. It is also noted that with the expectation of taking the 4th grade state standardized test in the following year he would be able to have accommodation upon that test, where he would be given extra time, encouragement to remain on task, having directions read aloud, turning pages him, simplifying directions on the test, and others.
Development of IEP’s should be scrutinized under the law to insure that all modifications meet a student’s legitimate need. Mark’s parents, for example, had also expressed interest in seeing Mark attain help in Science and Social Studies, continue with “lunch bunch”, and desired to hear equity used by the classroom teacher in asking the students to sit down. Though these accommodations do not appear much, the LRE for Mark would be to keep him in the general education room for the Science and Social Studies time, as his main form of disability is not revolved around subject, but the speech/language of all subjects. The placement team also agreed that the LRE for Mark would be to keep him in the “lunch bunch” once a week to continue to grow appropriate social interactions. Though it may be “best practice” to ask students to sit down in equally, it may not happen in the classroom, and the teacher is not required to do so by law. Accommodations instituted on state standardized tests are not tailored for Mark, where all subcategories of the test list the exact same accommodations. This is disturbing because the writing of these particular accommodations there appears to be little regard for Mark and his learning disability, but appears to be a “canned” or predetermined set of general accommodations. The creation and function of an IEP is so that each student with a learning disability is given appropriate modifications for their particular disability, and if this is the case undermines what the Equal Protection Clause, section 504, ADA and IDEA all stand for. After placement it becomes the responsibility of the general education and special education teachers to make sure that Mark receives what was determined to be an appropriate education plan.
The development of laws, their application and subsequent securitization, allow for individuals with disabilities to access their constitutional right. Even though stigmas, misconceptions, and prejudicial thoughts and actions remain through ignorance, stubbornness, resentment, or other means of human nature. We are progressing towards the vision Thomas Jefferson drafted into the Declaration of Independence where, “all men are created equal; that they are endowed by their Creator with inherent and inalienable rights; that among these, are life, liberty, and the pursuit of happiness.”8
1 U.S. CONST. amend. XIV, § 1
The full text of Section 1 of the Fourteenth Amendment reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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; nor deny to any person within its jurisdiction the equal protection of the laws.
2 Cambron-McCabe, N. H., McCarthy, M. M., Thomas, S. B. (2009). Legal Rights of Teachers and Students. United States: Pearson
3 347 U.S. at 495 (1954)
4 348 F.Supp. at 878 (1972)
5 529 U.S.C. § 794(a) (2008)
6 U.S. Department of Justice. (2009). A Guide to Disabilities Rights Law. p 5, Found at http://www.ada.gov/cguide.pdf
7 34 C.F.R. § 300.114(2)(i)(ii)
8 U.S. Declaration of Independence, Paragraph 2 (1776)