Civil Rights Fight

Fight for Special Education Rights Follows Same Track as Other Fights for Civil Rights

An essay by Dorene Philpot, Attorney, Texas

It’s easy for the relatively small group of us who are fighting for the rights of children with disabilities to become discouraged and think about taking a different path where the struggle isn’t so hard, day in and day out.

After all, we singlehandedly face the largest law firms in the nation with access to a bottomless pit of taxpayer funds and insurance company dollars.

As if that weren’t enough, add to that the opposition we get from the state education agencies, who federal law says are supposed to enforce and supervise the implementation of special education laws but which have an obvious vested interest in keeping costs down and covering up the problems.

If the state agencies were out there, making obvious the failings of the schools they were supposed to be supervision, state and federal tax dollars might be at stake.

Yes, it’s in both the schools’ and the states’ interests to make it appear that all is well in special education, thank you very much, and that’s part of the reasons that you see the lies, altered paperwork and cleanup activities that occur in IDEA and Section 504 cases.

However, those of us fighting The Good Fight against the unbelievable injustices that we still see going on today, must keep in mind that this fight for the rights of children with disabilities will take years, just as the fight for other civil rights has required through the centuries.

This fight will take time, and there will be resentments, wasted money, wasted time, wasted lives and unconscionable losses of potential, but we will prevail.

We must be patient and tenacious. We will win this fight.

Fighting the Good Fight Takes Time and Perseverance

From the 1640s until 1865, people of African descent were legally and inhumanely enslaved in the U.S., mostly by whites.

Yes, for about 200 years, many in our society thought it was OK, and in fact their birthright, to kidnap people from another continent and force them to build our homes, tend our crops and care for our families and livestock without pay and, in many instances, without humane housing, food or treatment.

Many slaves were freed during the Civil War (1861-65), many by president Abraham Lincoln’s Emancipation Proclamation (1862) and then many finally by the 13th Amendment to the U.S. Constitution (1865).

Our country didn’t move away from slavery voluntarily. It actually had to go to war with itself over this issue before it was resolved, with untold deaths, dismemberment and financial cost. This demonstrates how fiercely people can and will hold on to untenable positions.

More recently, it wasn’t until about 50 years ago that black children won the right to simply attend school with white children. In 1954, the U.S. Supreme Court stated in Brown v. Board of Education, 347 U.S. 483 (1954) that African-American children had the right to equal educational opportunities and that segregated schools “have no place in the field of public education.”

It’s stunning that we, as a society, couldn’t decide this on our own. We had to have a court order this before we would do it? Are we human beings really this ignorant or evil?

Of course, people could not be counted on to voluntarily do the right thing even when the nation’s highest court said we had to. Yes, the militia often had to be called in to enforce these laws because people clearly couldn’t trusted to do the right thing simply because it was the right thing or simply because the law now required it.

Special education civil rights fight

Would you believe that in 1958, which was only about 50 years ago, the Illinois Supreme Court held that compulsory education laws did not apply to children with mental impairments? And in North Carolina, up to 1969, parents could be criminally prosecuted for trying to enroll a disabled child in public school after the child had been excluded.
Not long after that, Congress launched an investigation into the status of children with disabilities and found that 2.5 million disabled children were not receiving an appropriate education and even worse, 1.75 million handicapped children were receiving no educational services.

Yes, in the 1970s, which is only about 40 years ago, it finally became apparent to our legislators that children with disabilities were being trodden on.

The worst trampling was being done by educators themselves, the very same people who professed to love children and who professed to know the value of education. This is clear because if educators had willingly welcomed children with disabilities into their classrooms, Congress wouldn’t have had to intervene.

So, since educators couldn’t be trusted to educate disabled children and the courts couldn’t be trusted to order schools to educate disabled children, the legislators wrote laws to make sure that the schoolhouse doors were kept open for children whose only sin was that they were more difficult to educate than their peers. At that time, schools some how rationalized that it was better to bar the doors to children with disabilities than to take the extra time and effort that it would take to teach them to read, write, get along with peers and learn self-help skills that would enable them to live productive lives.

As a result of this, Public Law 94-142, called the Education for All Handicapped Children Act of 1975, was enacted. Fifteen years later, when the law was reauthorized in 1990, it was renamed the Individuals with Disabilities Education Act (IDEA). Later it was reauthorized again in 2004 and renamed the Individuals with Disabilities Education Improvement Act.

At this point, just having laws saying that children with disabilities were entitled to an education was not enough. The Supreme Court had to weigh in also, which it did with Board of Education v. Rowley. In that case, which was decided in 1982, the same year I graduated from high school, the U. S. Supreme Court issued the first decision in a special education case. The decision includes an account of the evolution of special education law.
The battle continues: More recently, in Indiana, in Evans v. Tuttle, 613 N.E.2d 854, a case decided in 1993, the state Indiana Department of Education actually appealed a trial court decision that held that the State could not deny disabled children over the age of 18 a free and appropriate public education, even though no one disputed it was required by federal law to be provided.
So, in other words, the state was so vehemently opposed to providing special education services to individuals above age 18, even though the federal law clearly required it, the state was willing to file an appeal on this issue, in federal court, which they obviously and rightly lost. This is an example of your tax dollars at work.
Today, someone who enslaved another against his will or who barred a black child from the schoolhouse door simply because he was black would be loathed by our society and would be criminally prosecuted.

But someone who tries to bar a child with a disability or someone who tries to give a shoddy education to a child with a disability often can get away with it.

But this isn’t permanent, as long as we don’t give up the fight.

The point of all of this: It took years and years of struggle and bloodshed before the ability to enslave others was no longer seen as a birthright but as something that was morally, ethically and socially abhorrent.

Yes, just like in the historic civil rights fights such as anti-slavery, suffrage for women, etc., our lawmakers actually had to force people to do the right thing.

Don’t become discouraged in fighting the Good Fight for children with special needs.

Decades from now, I predict that folks will say things like:

“Are you serious? You had to SUE to keep the schools from expelling kids with emotional disabilities from school? Where were they supposed to go? What were they supposed to do? Who benefited from their being excluded from school?”

“You had to sue to keep a school from physically restraining a child on the floor for 5 and a half hours out of his six-hour school day? The school readily admitted at hearing that they did this – and they stated with a straight face that they thought that was acceptable and necessary?”

They’ll ask: “No way. You had to SUE to get your schools to attempt to teach a child with dyslexia to be able to read, using scientifically based methods of instruction that were already proven to work but which weren’t used by public schools until decades after the research on them became widely available?”

They’ll ask: “Really? You had to SUE to get public schools to offer ABA programs to young children with autism when decades of research showed that it was the only scientifically proven method to work for many children with autism to make them indistinguishable from their peers?”

They’ll ask: “You actually had to fight for those things?”

So, even though the fight to enforce these rights is discouraging, disheartening and definitely not the path of least resistance, this is the path to effecting change in our society and winning the war, just as the civil rights activists did to get slavery abolished, women the right to vote, and disabled children the right to attend school.

Don’t give up – your efforts are important. In fact, without a continued, concerted fight, change cannot and will not occur.

Take heart in the knowledge that the fights you fight now, even though you do not win, get us one day closer to the time when our society will say, “Really? You mean you had to fight for that? Seems like a no-brainer to me.”

From http://www.dphilpotlaw.com/html/civil_rights_fight.html