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Tiina Itkonen
Volume 16, Number 2, Fall 2007
PL 94-142 fundamentally changed the lives of children with disabili- ties, families, and professionals. The policy opened school doors for all children, regardless of the type or degree of their disability. This article examines the policy in its historical context with a framework grounded in social sciences. The historical analysis is helpful in understanding some of the more recent changes, shifts, and dynamics in special educa- tion. The article begins with a review of the legislative road of PL 94- at the federal level, and then examines the policy’s evolution and the political landscape shift over the decades. I conclude by discussing the implications of these changes for teacher education.
History of PL 94-
P.L. 94-142 grew out of the courts, namely the Pennsylvania Associa- tion of Retarded Citizens ( PARC) and Mills cases (Melnick, 1995).^1 In both cases, parents of children with disabilities challenged the school systems in an effort to gain access to public education for their children. Until the mid 19 0’s, schools could say ‘no’ to educating children whose abilities were different. Students with disabilities were systematically denied access to education for a variety of reasons (e.g., the nature of their disabilities; the prevailing thought that segregation was appropriate),
Tiina Itkonen is a professor of education at California State University, Channel Islands.
PL 94-142:
Policy, Evolution,
and Landscape Shift
Tiina Itkonen California State University, Channel Islands
Issues in Teacher Education, Fall 2007
PL 94-
Issues in Teacher Education
thus spending their days at home or segregated centers run by charities and not-for-profit organizations (Biklen, Ferguson & Ford, 19 9). On the other hand, students with learning and other invisible disabilities, who were at school but were not formally diagnosed, had no access to supplemental services and supports, and were left on their own devices to ‘make it’ or fail (Turnbull & Turnbull, 19 2). PL 94-142 ended the systemic, institutionalized exclusion (Biklen et al., 19 9). Education of children with disabilities—just like any children, including those from various ethnic and linguistic communities—was now the responsibility of society. Segregation or exclusion based on ability was no longer ac- ceptable (Silverstein, 2000). An historical review reveals that the political battle to gain edu- cational access for students with disabilities started with court cases across the country. By 19 3, 2 right-to-education lawsuits were pending or a decision had been recently rendered in 21 states (Melnick, 1995). These cases were brought forward by groups of youngsters and their families. Most cases argued that denying access to schooling was a vio- lation of due process of law under the U.S. Constitution. Despite court victories gained by special education advocates in the early 19 0s, there was no constitutional provision for “free appropriate public education” (this term was used in PARC to define special education). There was also great variation in how the states were (or were not) beginning to develop policies for students with disabilities (Biklen et al., 19 9). In ad- dition, advocacy organizations were losing a few cases in federal courts. For example, the federal court in Michigan ruled against the students and parents in 19 2, arguing that since the state had enacted a public law that required programs for children with disabilities (although not necessarily in a public school), educational access for these students was not denied in the case because of this law ( Harrison v. Michigan , 350 F. Supp 46 [192]). Advocates also feared that the Supreme Court would reject a constitutional basis for special education, should a case be appealed to the highest court (Melnick, 1995). The Supreme Court had already announced in a school finance case in 19 3 that the U.S. Constitution did not establish a right to public education ( San Antonio v. Rodriquez , 411 U.S. 1 [193]). The advocacy community, which had moved a “right to education” agenda through state policies and court cases, thus began to appeal to Congress for federal legislation on special education. The timing was right—a policy window was open—as other important social policies had been passed in the early 19 0’s (Kingdon, 1995; Melnick, 1995; Scotch, 2001). These included the Occupational Safety and Health Act of 19 0, Child Development Act of 19 1, and Section 504 of the Vocational Re-
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(Scotch, 2001). Interest groups representing school administrators and teachers were further convinced that reforms were inevitable. After all, the right to education had been established in various court orders across the country, and many states had already enacted special education policies. Facing the inevitability of reform, school professionals wanted to ensure adequate revenues (Melnick, 1995). However, parent and professional groups disagreed with one another over the implementation monitoring and the compliance mechanism of the bill. Disability advocates preferred appeals procedures through which parents could file a due process hearing to challenge a school district’s decision. Education groups, in contrast, vehemently opposed the contractual nature of the individualized education program (IEP) and other due process provisions. According to Melnick (1995), this matter resulted in a deadlock in conference committee and threatened the Act’s passage, until Representative George Miller (D-CA) drafted a compromise solution that was acceptable to all parties. Interestingly, the groups invited to the table during these deliberations included CEC, The Arc, United Cerebral Palsy, and the National School Board Associa- tion (Melnick, 1995). These groups’ legislative directors were visible at the national level at the time, and enjoyed the trust of policy makers. Hence, these four directors sat down with policy makers and crafted a solution on which both advocates and school boards agreed. There was one final hurdle to be conquered. President Ford had op- posed the bill publicly and had threatened to veto it because the implied costs of a national special education policy were too high. Persuaded by his aides, he finally signed the bill on November 29, 19 5, thus enacting PL 94-142 and the conception of free appropriate public education.
Evolution and Landscape Shift
By the late 19 0s, all states had adopted the federal special educa- tion policy. There were no fundamental changes in the law for many years. Policy makers referred to the changes as “tinkering around the edges—a word here, a word there” (Egnor, 2003; Meyer, 199 ; Itkonen, 2004, p. 30 ). But in the 1990’s, the focus in special education slowly shifted from access to outcomes, partially as a result of the standards- based reform and accountability movements in general education (McDonnell & McLaughlin, 199 ). Goals 2000, enacted by Congress in 1994, encouraged states to adopt content and performance standards. Improving America’s Schools Act, the reauthorized Elementary and Secondary Education Act of 1994, further specified that in order for schools to receive Title I funds, states were required to submit plans
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for challenging content and performance standards, and assessments of students meeting those standards. The move from access to results was also an evolution within special education itself. Once children had access to education, the natural progression was to focus on what they were learning while in school. In 1995, the general education community argued that it was time to open up the special education law, and transform it from an access law to a quality and an outcomes statute. Some of the reasons behind this included a concern for funding, the rising cost of special education, and the need for teacher training to meet the diverse needs of students (Egnor, 2003). Major changes were made to the Act for the first time in its history in the 199 reauthorization. These included student participation in statewide exams and a general education teacher presence at IEP meetings. As the general education community got more involved, so did general govern- ment groups who were interested in finding solutions to the funding of special education. For example, groups such as the National Governors’ Association as well as mayors and state legislature groups lobbied and testified before Congress (Egnor, 2003; Itkonen, 200 ). In 19 5, Congress had said that it would pay 40% of the excess costs to states and districts. This promise has not been met as federal funding is at about 1 %.^2 Bi- partisan coalitions continue to advocate for full federal funding. Besides the change from access to outcomes, another major land- scape shift in the past thirty years occurred within the disability com- munity. The community has experienced a proliferation of new groups and interest-specific organizations (e.g., groups advocating for students with Attention Deficit and Hyperactivity Disorder (ADHD) or autism, or representing the interests of specific professions such as school social workers). For example, The Consortium of Citizens with Disabilities—a major public policy voice of the disability community—consists of over 100 organizations today. One leader who was involved in the 19 5 enact- ment of the law, noted: In the old days [190s] there were a few of us and you could hold a co- alition meeting in a telephone booth. In the 1990s, you needed a hall... (Itkonen, 2004, p. 245) Interests are likely to mobilize around issues located around the details of a policy framework rather than at the “core” of the policy idea (Kelman, 19 ; Majone, 19 9; Weible, 2005). Hence, while most people would agree that students with disabilities have the right to free appropriate public education, policy conflicts occur once the issue moves to the specifics (e.g., in what setting special education should take place or what to do about students who are “disruptive”). Specificity implies assigning costs
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services for a student with disabilities. The matter was reversed in the Senate, which still has several members who were elected officials in the 19 0’s when PL 94-142 was enacted. The enacted Individuals with Disabilities Education Improvement Act of 2004 kept the parental due process rights, but also expanded school administrator authority in suspending students or placing them in alternative educational set- tings. Future reauthorizations will tell whether a decrease in a power base will prompt legislators to pass amendments that benefit schools’ interests versus parents’ rights. Yet another evolution in special education has been the increased involvement of the private sector (Itkonen, 2004). While private schools were the first efforts to provide services for individuals with disabili- ties, and have maintained their place in the continuum of educational placements, the private sector has become more and more involved in the delivery of education in public schools. For example, chronic person- nel shortages in certain professions have resulted in school districts entering in contracts with private agencies (Arner-Costello, personal communication, April 2, 200 ; Bednersh, personal communication, April 1, 200 ). The hired teachers or speech therapists, for example, are thus not staff of a school district, but contracted through a third-party agency. The school district often pays a higher salary for their privately recruited staff than district employees in alike positions. Many private enterprises are also involved at the student-level by providing education to a student with disabilities. If such arrangements are the result of a due process ruling or a mediation agreement, the school district often pays market rates for the private agency’s involvement (Arner-Costello, personal communication, April 2, 200 ; Bednersh, personal communica- tion, April 1, 200 ). More recently, Arizona, Florida, Ohio and Utah have passed legislation to provide school vouchers exclusively for students with disabilities—another example of private sector involvement. With the recent reauthorization of Individuals with Disabilities Edu- cation Improvement Act of 2004 and No Child Left Behind Act (NCLB), special education is slowly being re-framed from a civil rights statute to an education law. State policies such as the California High School Exit Exam are further pushing special education under education policy by requiring the same graduation standards for students with and without disabilities. The Supreme Court also recently ruled that parents who challenge the school district bear the burden of proof in the case and that their expert witness’ fees cannot be recovered.^3 These decisions seem to further move special education from a civil rights frame toward a broader educational policy frame. The future of special education remains to be decided. Further
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generational changes are likely to affect the dynamics within the dis- ability community and among advocates and policy makers. Increased emphasis on standards and accountability, and the inclusion of special education in these and other future educational reforms will necessitate an on-going dialogue about how educating children with disabilities fits in the education of all students, and vice versa. Or does it? Is special education a civil rights statute, or does it belong under the broad um- brella of education policy?
Implications for Teacher Education
What are the implications of policy evolution and landscape shift for teacher education? One clear implication from the previous histori- cal discussion is that the evolving nature of special education places on-going demands on teacher education. Alignment with NCLB neces- sitates a dialogue between special and general educators on how to achieve high standards for students with disabilities while meeting their unique educational needs and providing appropriate accommoda- tions (Egnor, 2003). As policies such as response-to-intervention (RTI) become more widely implemented, this dialogue becomes even more critical since RTI presents a continuum of interventions between gen- eral and special education (Fuchs & Fuchs, 2005; Fuchs, Mock, Morgan & Young, 2003). Institutes of higher education need to consider how to align general and special education teacher education programs to prepare candidates for these types of joint efforts they will be expected to perform at the school site. Meeting the needs of diverse learners also affects special education teachers. Congress and the Department of Education have included new disabilities under special education eligibility (e.g., autism and traumatic brain injury in the 1990 reauthorization; ADHD in the 1999 regulations; Tourette’s Syndrome in the 2004 reauthorization). The common practice of heterogeneous case loads in many school districts require that special educators entering the field have skills in teaching learners with a va- riety of disabilities. A teacher certified for a “mild/moderate” credential may thus have students who range from having learning disabilities, mental retardation, emotional disturbance, autism-spectrum disorders, to traumatic brain injuries. This school based practice has implications for teacher education, and is a complex process that may involve educat- ing generalists versus specialists (See Richards et al., this issue). Further, just as special education has evolved over the decades from an access to an outcome law, teacher education has recently faced similar accountability demands. Under IDEA 2004, special educators now have to
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advancement. In T. Loveless (Ed), Conflicting Missions, 69-109. Washington, DC: Brookings Institution. Biklen, D., Ferguson, D. & Ford. A (199). Disability and schooling. 88th^ Yearbook of the National Society for the Study of Education. Chicago: University of Chicago Press. Cohen-Vogel, L. (2005). Federal role in teacher quality: “Redefinition” or policy alignment? Educational Policy, 19 (1), 1 -43. Darling-Hammond, L. (2000). Reforming teacher preparation and licensing: Debating the evidence. Teachers College Record , 102 (1), 2 -56. Egnor, D. (2003). IDEA reauthorization and the student discipline controversy. Love Publishing. Denver: Love Publishing Company. Fuchs, D. & Fuchs, L. (2005). Responsiveness-to-Intervention: A blueprint for Practitioners, Policymakers, and Parents. Teaching Exceptional Children, 38, 5 -61. Fuchs, D., Mock, D., Morgan, P. L. & Young, C. L. (2003). Responsiveness-to-inter- vention: Definitions, evidence, and implications for the learning disabilities construct. Learning Disabilities Research & Practice, 18(3), 15 -11. Itkonen, T. (200). Politics of passion: Collective action from pain and loss_. American Journal of Education_ , 113 (4), 5 - Itkonen, T. (2005). Vanhempienryhmät USA:n erityisopetuspolitiikassa [The role of parent advocacy groups in the U.S. special education policy]. Yhteiskun- tapolitiikka [Finnish Journal of Social Policy], 5 , 529-534. Itkonen, T. (2004 ). Stories of hope and decline: Interest groups and the making of national special education policy. Unpublished doctoral dissertation, University of California, Santa Barbara. Kelman, S. (19). Making public policy: A hopeful view of American government. New York: Basic Books Kingdon, J. (1995). Agendas, alternatives, and public policies (2nd ed.). New York: Harper Collins. Majone, G. (199). Evidence, argument, and persuasion in the policy process. New Haven, CT: Yale University Press. McDonnell, L. M., & McLaughlin, M. J. (199). Educating one and all: Students with disabilities and standards-based reform. Washington, DC: National Academy Press. McFarland, A. S. (1992). Interest groups and the policymaking process: Sources of countervailing power in America. In M. P. Petracca (Ed.), The politics of interests: Interest groups transformed (pp. 5 -9). Boulder, CO: Westview Press. Melnick, R. S. (1995). Separation of powers and the strategy of rights: The expansion of special education. In M. K. Landy & M. A. Levin (Eds.), The new politics of public policy (pp. 23-46). Baltimore, MA: The John Hopkins University Press. Meyer, L. (199). Tinkering around the edges? Journal of the Association for Persons with Severe Handicaps, 22 (2), 0-2. Scotch, R. K. (2001). From good will to civil rights. Philadelphia: Temple Uni- versity Press.
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Silverstein, R. (2000). Emerging disability policy framework: A guidepost for analyzing public policy. Iowa Law Review, 85 (5), 1691-106. Turnbull, H., & Turnbull, A. (192). Free, appropriate, public education: Law and implementation. Denver, CO: Love Publishing Company. Weible, C. M. (2005). Beliefs and perceived influence in a natural resource con- flict: An advocacy coalition approach to policy networks. Political Research Quarterly, 58 (3), 461-45.
