Nery Castillo-McIntyre, the Cornell PTA's Diverse Learners Liaison, wrote this brief history paper about the right to education for children with disabilities. You can reach Nery at diverselearners@cornellpta.org.

At the Intersection of Race & Disability: A brief history of disability education rights law

By 1918, the United States had finally figured out how to address an issue that affected citizens (or residents) in every American household; yet, a whole century later, locales across the country continue to struggle with how to deliver a public benefit to all without exception. This is not about social practices, protective gear, or vaccines to cure a deadly virus wreaking havoc around the world in a global pandemic, but about the promise of public education to cure ignorance and empower an informed citizenry.

The mid-nineteenth century saw the beginning of compulsory public elementary education in a few states, and the initiative caught on in every state by the year 1918; however, barriers to quality education remained in place for students of color, and barriers to mere access remained in place for children with disabilities. While people of color were subjected to de jure, “separate but equal” segregation in public spaces, people with disabilities were subjected to so- called “ugly laws” that required this group of citizens to stay out of the mere sight of non- disabled people.

Since civil rights tend to advance—if and when they advance at all—at a glacial pace and, often, they take a few steps back before moving forward, in retrospect, it makes sense that the incremental fight of one group to improve access to quality public education would serve as the stepping stone for the other to get mere access to any education at all. Thus, the struggle to end segregation on the basis of color, race and ethnicity set the stage for the struggle to end exclusion on the basis of disability. While most everyone familiar with the history of segregation in the public school system recognizes Brown v. Board of Education, a lesser-known California state case set the stage for that landmark ruling.

They Were Brown Before There Was Brown: Mendez v. Westminster

The question before the court was whether the segregation of Mexican and/or Latin children in Orange County schools that were separate and clearly inferior from those of their white counterparts in Southern California was a violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution; the court ruled that “the pattern of public education promulgated in the Constitution of California and effectuated by provisions of the education code of the State prohibits segregation of the pupils of Mexican ancestry in the elementary schools from the rest of the school children.” Mendez v. Westminster School Dist., 64 F. Supp. 544, 547-548 (1946).

In looking at the record, the court found the defendant school districts’ defense for their practice of admitted discrimination lacking in substance; first, the defendants’ claims that Mexican children had to be segregated because their Spanish language was an impediment to learning in English started to crumble when, during trial, one of the children called to testify did so in English; further, the Court noted that, even if it was true that learning in English-speaking schools might be more challenging for children in Spanish-speaking households, the segregation served as a further impediment to learning, not as a solution to it. Because the districts could not produce a defensible rationale for their practice of segregation, they were in violation of the equal protection clause of the Fourteenth Amendment.

Other civil rights organizations from around the country joined the plaintiffs as friends of the court, most notably the NAACP, represented by Thurgood Marshall; after the Court’s ruling, then California Governor Earl Warren signed legislation officially ending legal segregation in the state. Both Marshall and Warren would play a crucial role ending segregation in all states less than a decade later.

Separate Is Inherently Unequal: Brown v. Board of Education

The question before the United States Supreme Court was whether the “segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities.” Brown v. Board of Education, 347 US 483, 493 (1954). The unanimous Court ruled that “Separate educational facilities are inherently unequal” and held that “the plaintiffs ... are ... deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.”

Arguing for the plaintiffs, Thurgood Marshall relied on similar arguments made less than a decade before in Mendez. Fortunately for him and the plaintiffs, they had in former California Governor and now U.S. Chief Justice Earl Warren a receptive audience – having outlawed segregation as governor in a state, he had the opportunity (or faced tremendous pressure) to do the same for the entire country.

As luck would have it, the broader context of the United States’ Cold War conflict with the Soviet Union played a not insignificant role in the Court’s decision: some of the amicus briefs submitted to the Supreme Court reminded the justices to keep in mind the country’s international standing with the rest of the world; in its decision, the Court had to take into consideration the inevitable contradiction of promoting democracy around the globe while supporting apartheid at home.

Advocates for children with disabilities now had a couple of landmark cases in which they could replace the word “race” for “disability” and see a path toward ending the exclusion of children from public school systems.

Due Process & Free Appropriate Public Education: Pennsylvania Association for Retarded Children (P.A.R.C.)

The Court had to decide whether a Consent Agreement requiring access to public education for children with intellectual disabilities and due process of the law when such access is denied or modified was fair to the parties in the case, which almost fell apart when one of the defendant districts objected that it would not be able to remove “disruptive retarded” children from the classroom. P.A.R.C. v. Pennsylvania, 343 F. Supp. 279 (E.D. Pa. 1972). The court dismissed the objection, approved the Consent Agreement as fair and reasonable, and ordered that the plaintiffs, “who heretofore had been excluded from a public program of education and training will no longer be so excluded” in the Commonwealth of Pennsylvania.

P.A.R.C. is remarkable in the level of detail it goes into to ensure access to education by children with disabilities: it prevents further use of so-called “ugly laws” that had formed the legal basis of exclusion; it provides access to a free, appropriate, public education (FAPE) to children between six and twenty-one years of age; it also provides the same for preschool aged children in places where available to typically-developing students; it requires notice and a hearing prior to changing the placement of a child; and, it sets a process of regular evaluation and re-evaluation of placement, along with a prerequisite notice and opportunity for a hearing.

Such level of detail in a judicial decision created the general framework for what later would be enacted into statutory law, even though it did not quite define what an “appropriate” education entailed; that would be decided in later cases—some, like Rowley, interpreting FAPE rather restrictively as mere access and, others, like Endrew F. almost three decades later, interpreting it more vigorously as an opportunity to meet appropriately challenging objectives. For now, the question of mere access had been resolved in favor of children with disabilities.

Race & Disability: Mills v. Board of Education

In light of Brown’s declaration that “separate is inherently unequal” and subsequent end of legal segregation in public schools, it is difficult to read this case and not wonder whether the still legal exclusion of children with disabilities was being expanded in order to continue segregating children of color, as all of the plaintiffs in the case were African American; the case also raises the question whether the definition of disability is often expanded not so much as to increase and improve services for qualifying children, but to exclude or segregate children who may otherwise not qualify.

Whatever the case, the Court stated that “the Board of Education has an obligation to provide whatever specialized instruction that will benefit the child”, even if the child has behavioral problems, intellectual disabilities, emotional disturbance or hyperactivity.” Mills v. Board of Education of the District of Columbia, 348 F. Supp. 866 (D.D.C. 1972). In making its statement, the court obviated the need to point out “that requiring parents to see that their children attend school under pain of criminal penalties presupposes that an educational opportunity will be made available to the children.”

Crucially, the Court rejected defendant’s budget defense, declaring that “the District of Columbia’s interest in educating the excluded children clearly must outweigh its interest in preserving its financial resources,” which had to be expended equitably for children with disabilities and typically developing students alike. This set a significant precedent for parents/guardians and advocates to demand an appropriate education for children with disabilities no matter how much districts protest that special education is a burden on their budgets, even as they continue to accept federal funds conditioned on that very service.

The following years would see the codification of these court enunciated rights in the Rehabilitation Act of 1973, the Individuals with Disabilities Education Act (IDEA) of 1975, and the Americans with Disabilities Act (ADA) of 1990. However, while robust, these are all pieces of civil rights legislation, which means they are neither properly funded nor self-executing— thus, it is up to civil rights advocates to see to it that they are properly enforced and to seek remedies when they are not.

The exclusionary and discriminatory neglect of people with disabilities during a pandemic is a grim reminder that there is a long way to go, but at least there is a framework to fight the good fight. For now, it will have to do.