newjerseynewsroom.com

BY SALVATORE PIZZURO

COMMENTARY

Special Education programs in New Jersey are becoming more expensive each year, and are underfunded. Currently, the Governor and the State Department of Education are faced with the dilemma of finding additional dollars for programs for children with disabilities who have specific needs for related services that are provided in addition to the educational program. Yet, it is the right of every student with a disability to receive a free and appropriate education (FAPE). The history of how FAPE became a guaranteed civil right is circuitous, yet specific.

Although the Individuals with Disabilities Education Act, which guarantees a free and appropriate education, was not passed until 1975, the groundwork actually began with three United State Supreme Court cases, the first of which dated back to 1896. Plessy v. Ferguson (1896) was a landmark United States Supreme Court decision that was used to support the "separate but equal" doctrine in the schools, even though the initial case dealt with railroads. Homer Plessy, who was one-eighth black, boarded a train and sat in a “whites only” car on June 7, 1892. Plessy was arrested when he refused to leave, and filed a lawsuit in State court, asserting that his thirteenth and fourteenth amendment rights were violated. Not successful at the state level, the case eventually made it way to the United States Supreme Court, where a decision was made in 1896. The 7–1 decision authored by Justice Henry Billings Brown upheld Louisiana’s right to segregate its trains.

According to Justice Brown: “We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”

Interestingly, Melville Fuller served as the Chief Justice during Plessy. The Fuller Court developed the fourteenth Amendment Equal Protection Clause “as a safeguard of property rights” (Schwartz, (1993). Unfortunately, Homer Plessy was not a beneficiary of the clause.

Associate Justice John Marshall wrote a scathing dissent: “But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.”

Cumming v. Richmond County Board of Education (1899) was a class action suit filed by three individuals in Georgia who were persons of color. Their goal was to end school segregation by claiming that a tax, paid by their county to the state, was used to support a school district they served only white children. The Supreme Court denied that it had any jurisdiction to interfere in the affairs of Georgia. Thus, the Cummings case became a de facto decision in support of school segregation.

The Supreme Court said in part: “Under the circumstances disclosed, we cannot say that this action of the state court was, within the meaning of the Fourteenth Amendment, a denial by the state to the plaintiffs and to those associated with them of the equal protection of the laws or of any privileges belonging to them as citizens of the United States, … the education of the people in schools maintained by state taxation is a matter belonging to the respective states, and any interference on the part of Federal authority with the management of such schools cannot be justified except in the case of a clear and unmistakable disregard of rights secured by the supreme law of the land.”

Brown v. Board of Education (1954) set the groundwork for future legislation that provided civil rights protections for persons with disabilities. The Individuals with Disabilities Education Act and the Americans with Disabilities Act would not have been possible without the Brown decision.

This case began as a class action suit in 1951 as a class action suit was filed against the Board of Education of the City of Topeka, Kansas in the U.S. District Court for the District of Kansas. The plaintiffs were thirteen Topeka parents on behalf of their twenty children. Oliver L. Brown, who eventually became a minister, allowed the suit to be filed in his name, because his daughter, Linda, was forced to travel to a school on the other side of town to a school for black children, when a school, for whites only, was but a few blocks away. The case of Brown v. Board of Education as heard before the Supreme Court combined five cases: Brown itself, Briggs v. Elliott (filed in South Carolina), Davis v. County School Board of Prince Edward County (filed in Virginia), Gebhart v. Belton (filed in Delaware), and Bolling v. Sharp (filed in Washington D.C.).

On May 17, 1954 the Warren Court handed down a 9-0 decision which stated, in no uncertain terms, that "separate educational facilities are inherently unequal”, which reversed the precedent set by the Court's previous decision in Cumming v. Richmond County Board of Education.

The Individuals with Disabilities Education Act (IDEA) guarantees FAPE, designed in the Individualized Education Program (IEP). The plan should meet the unique needs and degree of disability of the child. Parents have a right to due process and a meeting before a neutral hearing officer if they disagree with the IEP.

The Education of All Handicapped Children Act (renamed the IDEA in 1990) was passed in 1975. The primary sponsors were Harrison Williams of New Jersey in the Senate and John Brademus of Indiana in the House of Representatives. The states were required to provide a free and appropriate education (FAPE) to all children with disabilities between the ages of 5 and 21 (in 1986, Senator Lowell Weicker of Connecticut extended preschool services to children between the ages of 3 and 5, and early intervention services to children from birth to 36 months). Immediately, the Law was considered by many to be an unfunded mandate. Although the Congress mandated that the federal contribution be no more than 40 percent of the average per pupil expenditure (APPE), federal dollars, at the time it was no more than 12 percent. The inevitable legal challenges were unsuccessful; the Court correctly interpreted the Law to be civil rights legislation. The right to FAPE would not be tampered with.

The famous Rowley case (Board of Ed. of Hendrick Hudson Central School Dist. v. Rowley, 1982) prompted the Supreme Court to define FAPE, on behalf of Amy Riley, a deaf student. The Arlington case (Arlington Board if Education v. Pearl Murphy and Theodore Murphy, 2006) re-designed, and in some ways rewrote, the Individuals with Disabilities Education Act. Justice Alito, writing for the majority, held that parents of special education students who, upon successfully challenging the IEP of the child, are not entitled to reimbursement of attorneys fees. During the more the 30 previous years in which the IDEA was in operation, attorneys’ fees were automatically returned to parents who were successful litigants. In addition, previous Supreme Court interpretations of the Law supported reimbursement. However, the appointment of Alito to the Court, replacing the moderate O’Connor, has automatically changed the direction of the federal law that guarantees that children with disabilities will be formally educated.

Children with disabilities are also protected under Section 504 of the Rehabilitation Act. In 1973, the Congress passed Public Law 93-112, the Rehabilitation Act Amendments, which included the following language: “No otherwise qualified individual with a disability in the United States, as defined in Section 705(20), shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

Section 504 was considered so offensive by President Nixon that he vetoed it twice (the second time as a pocket veto). Nixon clearly believed that 504 was a violation of “States Rights” and vowed to see its repeal. Similarly, President Gerald Ford refused to sign the Education of al Handicapped Children Act when it was passed in 1975. Like Nixon, Ford believed that it took power away from the states. Ultimately, political pressure forced Ford to sign the EHA. However, he made a statement at the signing, vowing, like Nixon, to see it repealed.

The rights and protections of people with disabilities have changed over the years. In addition, laws have been passed on the state and federal level; yet, litigation continues. The passage of the IDEA has not lessened litigation over the education of children with disabilities. Similarly, the inclusion of Section 504 in the Rehabilitation Act has not lessened the litigation over the exclusion of people with disabilities in educational and other public settings. Furthermore, the passage of the ADA has not lessened litigation over the quality of life and services for people with disabilities in the schools, employment settings, hospitals, and prisons. One might argue that the continued litigation is an extension of the IDEA, Section 504, and the ADA.

The State of New Jersey is committed by law to provide funding for student whose costs are more than $40,000 per school year. In addition, Governor Christie has proposes that the state provide an additional seven percent of funding. Currently, the state has a formula in which New Jersey would pay between 75 and 90 percent of additional costs above the $40,000 threshold. Unfortunately, the average costs have been much higher. Some have estimated that the average per pupil cost is currently closer to $55,000 per year.

During this time of fiscal restraint and an economy that may not recover for years, New Jersey is faced with the problem of meeting the legally mandated needs of children with disabilities. We are then left with the question of what is an appropriate education? The soaring costs include related Services, such as speech/language services, occupational and physical therapy, and counseling. Of course, included in the costs are the ever-increasing costs of health insurance and pension payments for staffers.

There is no easy answer to this dilemma. New Jerseyans will have to be united in order to solve this and other crises.

Dr. Salvatore Pizzuro is a disability policy specialist and civil rights advocate in New Jersey.

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