Why We Have Special Education Law: Legal Challenges to the IDEA

ABSTRACT

In 1974, the Education for all Handicapped Protection Act was signed into law by President Gerald Ford. This law which was renamed the Individuals with Disabilities Education Act (IDEA) in 1990, established a federal entitlement to special education for eligible students with disabilities. In 1982 and again in 2017, the U.S. Supreme Court clarified the primary purpose of the law, that is the obligation of public schools to provide eligible students with a free appropriate public education. In this article we (a) examine the legal underpinnings of special education in the IDEA, (b) analyze legal challenges to IDEA, focusing on the U.S. Supreme Court’s efforts to define the IDEA-mandated free appropriate public education (c) focus on the limits of the law to require scientific solutions for improving special education and (d) offer potential solutions to these challenges in the law and in the federal government’s efforts to improve special education.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

¹ The name of the federal special education law titled the Education for All Handicapped Children Act was changed to the Individuals with Disabilities Education Act in 1990.

² Two excellent books that detail the early development of federal special education legislation are Martin, E.W (2013). Breakthrough: Federal Special Education Legislation 1965–1981. Bardolf & Company and the interview with Joe Ballard in the Prologue of Hulett K.E. (2009). Legal aspects of special education. Pearson.

³ An author in this issue, Edwin Martin, was a director of BEH.

⁴ According to Section 7 (6) of the Rehabilitation Act ‘The term “Handicapped Individual” means any individual who (a) has a physical or mental disability which for such individual constitute or results in a substantia handicap to employment and (b) can reasonably be expected to benefit in terms of employability from vocational rehabilitation services provided pursuant to Titles I and III of this act’ (Section 7 (6) of the Rehabilitation Act of 1973).

⁵ In 1976 there was no Department of Education, rather it was an office within the Department of Health, Education, and Welfare.

⁶ Courts are required to follow the decisions of higher courts in the same jurisdiction. Such decisions are considered controlling, binding, or mandatory. Because the U.S. Supreme Court is the highest court in the U.S., all state and federal courts are bound by the High Court’s decisions.

⁷ De minimis is a Latin term meaning minor or trivial.

⁸ Because Endrew’s parents called him ‘Drew’ when we refer to the student, we will use Drew and when referring to the case we will use Endrew F.

⁹ The oral arguments in Endrew F. can be heard at https://www.oyez.org/cases/2016/15–827.

¹⁰ The Legal Information Institute at the Cornell law School defines dicta as “a comment, suggestion, or observation made by a judge in an opinion that is not necessary to resolve a case … but may be still be cited as persuasive authority in future litigation Legal Information Institute, (https://www.law.cornell.edu/wex/dicta#:~:text=Dicta%20is%20short%20for%20the,%22something%20said%20in%20passing.%22)