Many of us, who went to school not that long ago, remember that being a special needs student meant riding to school in a separate bus and attending one class with other children of varying disabilities. These classes resembled more of a day care than school, and even the most advanced students had little hope of receiving a high school diploma, let alone attend college. Since that time, the term disability, and special needs student, has expanded to encompass much more than a person with an IQ below a certain arbitrary standard. What I have attempted to do in my first article is to give a little history of the evolution of the Individuals with Disabilities Education Act.

In 1954 the United States Supreme Court decided Brown v. Board of Education, 347 U.S. 483 (1954) which found that segregated schools were a violation of equal protection rights. It would be another twenty years before this concept was applied to children with handicaps, especially learning disabilities, trying to receive an education. In fact, shortly after Brown was decided the Illinois Supreme Court found that compulsory education did not apply to mentally impaired students, and as late as 1969, it was a crime to try to enroll a handicapped child in a public school if that child had ever been excluded.

Due to court challenges in Pennsylvania and the District of Columbia in the early 1970's things started to change. In 1975 Congress enacted the Education for All Handicapped Children Act of 1975. This was the first law that mandated that all handicapped students had a right to an education. Not only did it mandate that all handicapped students had a right to an education, it also mandated that local educational agencies could be held accountable for not doing so. Shortly thereafter, the term handicapped was replaced with "child with a disability". Although revised in 1990 as the Individuals with Disabilities Education Act (IDEA), the most comprehensive changes came in 1997. This law required schools to identify children with disabilities to make sure that all children have available a "free appropriate public education and related services designed to meet their unique needs and prepare them for employment and independent living" 20 U.S.C. § 1401 (d). Unfortunately, the most recent changes in 2004 made the law slightly more difficult to receive the benefits they deserve, which, depending upon the next administration and the make up of Congress may or may not be a trend that will be followed in the future.

Exactly what is a "free appropriate public education"? Under the law, it is defined as "special education and related services that (A) have been provided at public expense, under public supervision and direction, and without charge: (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under [the law]." In other words, the school must provide services that meet the needs of a child with a disability that may affect their ability to learn. These "related services" can be services that are provided in the classroom, such as giving the child extra time to finish taking tests. They can also encompass services that can be provided outside of the classroom, such as tutoring, or having the child attend either a day or residential program outside of the school, along with transportation.

For the historical data, I relied on Wrightslaw: Special Education Law by Peter W. D. Wright and Pamela Darr Wright and Special Education Law in Massachusetts by Massachusetts Continuing Legal Education.

Paul Epstein is of counsel to the Massachusetts law firm of Epstein, Lipsey & Clifford. Attorney Epstein concentrates in Personal Injury, Products Liability, Special Education Law, Veteran's Disability Law and Criminal Defense. He was formerly a supervising Assistant District Attorney, a Clinical Instructor at Harvard Law School, an Investigator with the Public Defender's Office, and a Police Officer.
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