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Legal influence and educational policy in special education.

Legal Influence and Educational Policy in Special Education

In many respects the report of the National Academy of Sciences, "Placing Children in Special Education: A Strategy for Equity" (Heller, Holtzman, & Messick, 1982) deserves commendation and acknowledgement. The report of the panel (as well as its background papers) is a comprehensive, accurate, and insightful treatment of the enormously complex problems and issues associated with delivering services to handicapped stuents, and in particular, delivering those services to racial and ethnic minorities. The report is also to be commended for its attempt to focus the problem of disproportionate placement within the context of seeking solutions, as opposed to exclusive treatment as to the causes of disproportionate placement. Clearly, such an orientation provides the necessary foundation for postulating strategies for resolution; that is, to focus on what to do, and not just why disproportionate placement exists.

The thrust of this article is on the manner in which the problems are conceptualized and the recommendations proposed for alleviating those problems from a perspective of the influence and interaction of educational policy and the law. Specifically, these comments introduce a perspective that is not necessarily meant to criticize, but rather to raise issues and questions emanating from the report in the context of legal involvement and influence on the delivery of educational services to handicapped students. Three areas are addressed:

1. Disproportionate placement as a symptom or as a problem

2. Policy, professional representation, and legal barriers to implementing the report's recommendations.

3. The use of the courts to answer scientific questions and resolve (through adversarial procedures) matters of educational inequality.


After listing and then briefly describing the potential causes of disproportion in educatable mentally retarded (EMR) programs, the report acknowledges the complexity and interaction of these potential causes and concludes that, even if these complex causes are identifiable, it would be difficult at best to implement meaningful remedies easily or effectively. A major thrust of the report, therefore, is to treat disproportionate placement as a symptom as opposed to the problem. As indicated earlier, such an approach represents a strength of the report, for such a position may indeed be necessary for the accurate identification of the underlying problems, as well as for the generation of viable and meaningful suggestions for resolution. From the standpoint of past and current judicial scrutinization of educational programs, however, disproportionate placement, particularly disproportionate placement along racial lines, may be viewed as much more than merely a symptom.

The premise offered here is that even if, as the report states, children are validly placed in programs for the mentally retarded, have received quality regular education programming, and have benefited from their special instruction so as to increase the likelihood of their return to the regular classroom, disproportionate placement (at least as determined statistically) may continue. If it does, it is reasonable to conclude that courts will continue to see disproportionate placement as a problem and not merely a symptom. Over the years, courts have defined the application of the principles of equal protection and due process, as delineated in the Fourteenth Amendment, to educational programs, particularly with respect to provision of services to the handicapped. The cornerstone for judicial intrusion into the educational arena is of course Brown v. Board of Education (1954), in which the doctrine of separate but equal was set aside. The findings and conclusions of Brown served as the basis for precedent-setting cases that challenged school systems in states that systematically denied a free public education to handicapped children.

Early Litigation

Significant early litigation included PARC v. Commonwealth of Pennsylvania (1972) and Mills v. Board of Education of the District of Columbia (1972). The PARC case challenged the exclusion from school of children who were deemed to be uneducable or unable to profit from education on a basis that such exclusion violated their equal protection and due process rights. Settled by consent decree, the case served as an impetus for similar litigation throughout the country. The plaintiffs represented in Mills (1972) argued they were denied an equal educational opportunity as a result of their various handicapping conditions and that the district denied them an education by utilizing procedures of suspension, exclusion, and class reassignment. In addition, they claimed their due process rights were denied when their distric assigned them to special classes, thereby precluding them from access to regular education programs. Both these cases served to affirm the applicability of the equal protection clause of the Fourteenth Amendment to state programs delivering educational services to handicapped children.

Having affirmed a handicapped person's right to an equal educational opportunity, the courts in time turned to the procedures and processes adopted by school systems for delivering educational services to the handicapped. Important interaction of the equal protection clause with procedural due process became obvious in a host of assessment-related cases, including Hobson v. Hansen (1967), Diana v. State Board of Education (1970), Guadalupe v. Tempe School District No. 3 (1971), and Covarrubias v. San Diego Unified School District (1971). Local school systems and state departments of education were told not only to provide equal educational opportunity to handicapped students but to do so in a manner that did not violate either procedural due process or equal protection, particularly wit respect to delivering such services to racial and ethnic minorities.

Larry P. and Later Litigation

The most publicized case in this area is of course, Larry P. v. Riles (1984). In all likelihood Larry P., more so than any other litigation in the past 15 years, served to catapult the issue of disproportionate placement into the limelight. Larry P. is significant to postulating that, at least from the perspective of past or potential judicial review, disproportionate placement is as much the problem as it is a symptom. It was in essence the indisputable fact of disproportionate placement between Blacks and Whites in programs for the mildly retarded that provided plaintiffs the data not only to argue a harmful impact on Black children, thereby violating the equal protection clause, but also to request that the school system shoulder the burden in attempting to prove that the assessment and classification process was fair and equitable. Absent such significant disproportionate placement data, Larry P. might never have come to trial (Prasse, 1984). Between the preliminary injunction and the actual trial, the Supreme Court decided Washington v. Davis (1976), a case involving disproportionate impact on Blacks. Reversing the lower court's decision, a decision itself argued on the foundations of Griggs v. Duke Power Company (1971), the Supreme Court made it clear that any finding of a constitutional violation predicated on disproportionate impact would necessitate evidence of intent and not merely negative discriminatory impact.

The ultimate outcome of Larry P.--the pervasive, if not insidious, link between psycho-educational assessment and special education programming, and the enormously complex interaction of probable causes contributing to disproportionate placement--suggests (Washington v. Davis notwithstanding) that disproportioante placement data, at least initially, will be received by the courts as prima facie evidence of discrimination. Messick's (1984) conclusion that "if effective educational services are provided in the least restrictive appropriate environment to meet student's validly assessed functional needs, then any resulting inequality in minority representation would not constitute inequity" (p. 4), is itself a legal conclusion that until recently would not be supported by the preponderance of judicial history. The qualification is prompted by a more recent decision, which--at least in this case--reversed the direction previously noted in disproportionate placement cases. This case, Marshall v. Georgia (1985), which dealt with overrepresentation of minorities, resulted in a decision that concluded such overrepresentation was not discriminatory provided certain conditions were not violated (see Reschly's article in this issue).


In the main, the recommendations set forth in the NAS report for addressing the problem of disproportionate placement are logical and defensible. This is particularly true for the recommendations that I categorize as general in nature, including that referral and assessment processes be valid, that all children receive quality instruction both in regular education and special education programs, and that these two recommendations themselves be based on empirical research findings that support sound professional practice. And yet, when one considers the implementation of such recommendations in the context of federal, state, and local educational policy, along with the current structure of both federal and state statutes that governs the control of educational service delivery to handicapped students, questions arise as to the feasibility of implementing such recommendations without concurrently addressing other but significantly related matters. The current service delivery system for educating the handicapped in public schools is well entrenched, supported by federal program legislation (P.L. 94-142), The Rehabilitation Act, Section 504, and specific state legislation in all 50 states. Many of the proposed changes considered in the report would necessitate a major revamping of both attitude and established service delivery systems. Such a maor revamping might prove more difficult than the report is prepared to acknowledge and undoubtedly, in the long run, more difficult than even the major research efforts necessary to provide the data base to implement the general recommendations. I believe the report fails to give sufficient consideration to these realities and, therefore, falls somewhat sort of providing a comprehensive and implementable strategy for change. Although not intended to be exhaustive, a few of the realities bear mentioning, particularly in light of reviewing the report from a standpoint of educational policy and legal influence.


There exists today a multitude of classification systems predicated on varying and diverse definitions of handicapping conditions. To assume consensus of definition is naive at best. Federal definitions are vague and ambiguous and are themselves filled with undefined terms (e.g., adaptive behavior). Individual states do not necessarily have to adopt definitions provided in federal statutes, and many of them choose not to do so. As a result, there is a wide range of definitions found among the 50 states (Patrick & Reschly, 1982). When one considers the traditional mildly handicapped classification, the problem is even more severe. Reschly (1984) states it well: "The variations in terminology and classifications are quite large, so much so that the same student may be classified as exceptional in one state, but regarded as below average in another, or a student's classification may change from LD to EMR simply by crossing state lines" (p. 17). Make no mistake, the problem of definition is not restricted to statute. There is a noticeable lack of consensus among professionals and professional assocaitions concerning terminology and its definition. Any existing consensus is, at best, implicit and suggets that rather than "definig the problem" we must acknowledge "definition as a problem."


Related to the problem of definition is the existing structure for funding special education programs. Changing definitions adn implementing different classification systems, in most cases, will necessitate radical changes to the current funding structure (Wang & Reynolds, 1985). In many states and local districts, program funding is categorical, and financial program support is tied specifically to individual student classification. Indeed, many on-line supportive and related services (e.g., social work, school psychology) are supported in part through various funding formulas established by state legislators. Mandated services are a very real component of program legislation, and proposals to alter the existing program system and structure must be made with full knowledge and understanding of differing professional self-interests. Suffice it to say that existing funding systems perpetuate categorization of handicapped students based on labels, and implementation of the NAS report's recommendations must proceed with the full understanding that changes in federal and state reimbursement programs also must occur.

Opposing Forces

Acknowledging the implict and explicit problems accompanying placement and labeling, the report suggests that consideration be given to altering the existing categorization and placement labels. Appropriately so, the report's suggestion is based in large part on the fact that precious little research exists to support continuation of existing classifications allegedly based on difering instructional methodology tied specifically to different handicapping conditions. Though admitting that some form of child identification will be necessary if special services are to be received, the report states: "We can find little empirical justification for categorical labeling that discriminates mildly retarded children from other children with academic difficulties, such as LD children or children receiving compensatory education" (p. 87). Based in large part on the fact that instructional approach and methodology across different mildly handicapping conditions (e.g., EMR, LD, ED) is by and large more similar than dissimilar, the report recommends that rather than basing programmatic labels on child deficiency, labels should be generated that reflect the type of special instruction provided the child. The suggestion is sound, particularly in light of the fact that research (albeit small in quantity at this time) suggests instructional approaches that appear to be effective at least when reviewed in the context of mildly handicapped students.

Progress in this direction, however, is dependent on recognizing and working with factors that would indeed impede implementation--factors I have termed opposing forces. These opposing forces might be categorized as within and between rather than from outside, for they all emanate from sources that have historically supported providing quality educational services to handicapped students, yet bring to bear differing perspective and positions that, over the years, have served to formulate educational policy. Involved are professional training programs, professional associations , and a multitude of advocacy groups--all of which have vested interests that serve to perpetuate and maintain current practice respecting labeling and classification.

Proposed changes in classification and definition have been presented before (Hallahan & Kauffman, 1977; Hobbs, 1975). To initiate changes necessitates major changes in other related arenas. University training programs, state certification requirements, and entire service delivery systems are established around existing definitions and classifications. In addition, parent and professional advocacy groups who have struggled to obtain equal educational opportunity for various classes of children are not the least bit enamored of the abolition of certain labels or the merger of certain classifications. Again, Reschly (1984) states it well: "Any suggestion to combine LD with EMR encounters a veritable hornet's nest of parental outrage" (p. 17). Defusion of definition and of classification may be perceived by many as threatening to professional identity and professional interests. Efforts to initiate progress in this direction must be made with an understanding of how the forces involved must be brought together--a task that in the past has proven very difficult.


Ever since the adoption of federal and state legislation designed to provide an equal educational opportunity for handicapped students, educational agencies at both the state and local level have developed what I coin circumventions--processes or procedures that are endorsed more for administrative efficiency or control and that frequently have at least the appearance of circumventing the intentions of the legislation. A few will be mentioned for illustrative purposes. Over the years through the influence of litigation and legislation, it was decided that group decision making on program placement of handicapped children was better than single-person decision making. And yet, in many local areas throughout the nation, single-person decision making is still effectively in place. Various state statutes and local policies permit district-level administrators veto power over multidisciplinary team recommendations. Although abuses of such power are rare, they make folly of the integrated team approach and, de facto, lessen the professional contribution of educators constituting individual teams.

In a similar vein, construction of an individualized education plan (IEP)--what many believe to be, including some courts, the cornerstone for defining a free appropriate public education--is subject to the pressures of administrative policy politics. On occasion, team members are cautioned to avoid including program requirements that districts may not be postured at that moment to deliver or don't care to provide. The individual component of the IEP is threatened and undercut in such a situation. Finally, the existence of overt or cover dual referral systems threatens the purpose and intention of federal and state legislation addressing educational opportunity for

handicapped students. Concerned with meeting timelines and personnel resources, teachers in some districts are permitted to refer a child as either having a suspected handicapping condition or as not having a suspected handicapping condition. Recognizing the mandate of referral/assessment/ decision-making timelines associated with providing services to the handicapped, regular education teachers experiencing a problematic child in their classroom quickly learn to refer all children as having a suspected handicapping condition. These and other practices strongly influence the manner and quality in which educational services to handicapped students are delivered. In many places, they are indeed a matter of policy. To implement many of the recommendations of the NAS report suggests an acknowledgement of these areas of concern and a willingness to confront and change them. Failure to do so will render even the most viable and meaningful report recommendations unlikely to succeed.



What we seem to have lost is a sense of purpose, a sense of what we are trying to accomplish in special education. We have concentrated so heavily on compliance requirements, and we have placed so much of the responsibility for the programs with administrators rather than educators, that we have lost sight of what should be our principle goal--education. (Beattie, 1985, p.61)

To a large degree, that statement from the final report to Mayor Koch of the Commission on Special Education, captures not only a sense of the problem, but also a consequence of years of litigation covering not only broad, sweeping issues affecting special education, but also litigation involving what can be categorized as minutiae. A great deal of the progress in defining and making available equal educational opportunities for handicapped students has been a direct result of litigation. Indeed, it is reasonable to conclude that absent judicial involvement in this area, the report to which we are here reacting might never have come to be. If so, then I believe any proposed strategy for equity must acknowledge the historical influence in special education litigation and suggest proposals for using courts in a manner that is constructive and facilitative of providing and improving quality eduational services.

There are obvious reasons, of course, for pursuing litigation. Courts ostensibly provide an impartial third party: They are a mechanism for seeking and reaching closure on a dispute, and they act as a vehicle to force officials to carry out legislated responsibilities. Litigation, however, has its negative side: a lack of educational expertise on behalf of the judiciary, the potential costs associated with litigation (a factor not to be taken lightly in view of Smith v. Robinson, 1984), and the enormous amount of time that litigation can and usually does consume. Generally speaking, courts have an easier time ordering restitution than they do creating equality. If true, I question using the courts for the purpose of resolving certain issues in special education, particularly when aspects of those issues involve scientific questions and controversies.

Courts are an unacceptable arena for settling scientific controversy for several reasons. One such reason is that relatively speaking, court cases are settled rather quickly when compared with the settlement of major scientific questions and controversies. Indeed courts are under great pressure to settle in a timely fashion. Another reason courts are unacceptable is that decisions of the court are rendered by a lay person or lay people. The potential negative impact of court decisions is captured by MacMillan and Meyers (1980) when, in response to Judge Peckham's ordered quota, they stated: "This mandate causes schools to ignore the principle that the best education for the given child is based on that child's needs, not on quotas" (p. 147). Frequently the manner in which evidence is presented on one side or the other of a scientific question is more important than the evidence itself, and the actual number of expert witnesses may take a distant second seat to the ability of counsel for defendants or plaintiffs to present their case.

We must also acknowledge that the adversarial procedure may not be the best arena for ascertaining the truth, particularly when viewed in the context of differing, positions as presented by plaintiffs and defendants. It was Justice Holmes who said "This is not a court of equity, this is a court of law." Truth, then, is ascribed to the party that wins. To that end, when special education issues also involve matters of scientific controversy (as was the case in Larry P.), I question the judicial arena as the place to settle such scientific controversies. The impact becomes clearer when understood in the context of weighing a press for equity as opposed to a press for excellence (MacMillan, Hendrick, & Watkins, in press). Although qualifications are necessary, some evidence presented by these authors suggests an increase in "false negatives" (not identifying children in need of special education) as a result of court decisions such as Larry P.

There does exist a basis for judicial involvement in special education litigation, which I believe is more productive than the full-fledged, two-party adversarial confrontation. The idea is not unique or without precedent. Simply put, the two parties agree to settling disputes through negotiated consent decrees rather than proceeding with a trial on the merits. Whether by design or more by accident, there exist models for such an approach. The recent, if not ongoing, cases of Luke S. and Hans S. v. Nix (1981), Jose P. v. Amback (1983), and Lora v. Board of Education of the City of New York (1984) are illustrative of judicial involvement in an ongoing consultative manner where resolution of different stances is accomplished through continuous negotiation.

There will be those who strongly object to my proposal. I acknowledge those objections and recognize the important role courts have played in providing and equal educational opportunity for all the children of this country. It is also time, however, that both the judiciary and educators begin to articulate the manner in which courts will facilitate the continued development of equal educational opoportunity. As indicated earlier, judicial and Office of Civil Rights scrutinization of disproportionate placement in classes for the mildly retarded may have had as much to do with the creation of the NAS report as anything else. And yet for all this judicial scrutinization, meaningful and viable recommendations that can be defended on the basis of sound professional practice (which itself must be predicated on sound empirical research) have yet to be offered by the courts. The NAS report, through its recommendations, acknowledges with integrity what must be accomplished if problems such as disproportionate placement are ultimately to be addressed. By and large the court has not been and will not be the arena for that to be accomplished, for court action more times than not will simply increase polarization and shift an underlying problem from one sector to another. Educational policy and practice is molded and shaped through litigation. I believe changes in special education, embodied as recommendation in the report, must acknowledge the pervasive presence of judicial involvement in special education.


Beattie, R., (chair) (1985). Special education: A all for quality. (Finally Report to Mayor Edward I. Koch of the Commission on Special Education). New

Brown v. Board of Education, 347 U.S. 483 (1954). Covarrubias v. San Diego Unified School District, Civ. No. 70-394-S, (S.D. Cal., Filed Feb. 1971).

Diana v. State Board of Education, C. A. N. C-70-37 R. F. P. (N.D. Cal., Filed February 3, 1970).

Griggs v. Duke Power Co., 401 U.S. 424 (1971).

Guadalupe Organization Inc. v. Tempe School District No. 3, Civ. No. 71-435. (D. Ariz. Filed August 9, 1971).

Hallahan, D., & Kauffman, J. (1977). Labels, categories, behaviors: E.D., L.D., and E.M.R. reconsidered. Journal of Special Education, 11, 139-149.

Heller, K., Holtzman, W., & Messick, S. (1982). Placing children in special education: A strategy for equity. (Report of the National Academy of Sciences' Panel on Selection and Placement of Students in Programs for the Mentally Retarded). Washington, DC: National Academy Press.

Hobbs, N. (1975). The futures of children. San Francisco: Jossey-Bass.

Hobson v. Hansen, 269 F. Supp. 401 (D. D. C. 1967).

Jose Peter v. Ambach, 669 F. 2 D 865 (1982); 557 F. Supp. 1230 (1983).

Larry P. v. Riles, 495 F. Supp. 96 (N. D. Cal. 1979) Aff'r (Ninth Cir. 1984), 1983-84 E.H.L.R. D.E.C. 555:304.

Lora v. Board of Education of the City of New York, 74 F. R. D. 565 (E.D.N.Y. 1977); 456 F. Supp. 1211 (1978), Remanded, 623 F. 2D 248 (1980); 587 F. Supp. 1572 (1984).

Luke S. and Hans S. v. Nix et al., U.S.D.C. Civ. No. 81-3331, (E.D. Lou. Filed Aug 17, 1981).

MacMillan, D. L., Hendrick, I., & Watkins, A. V. (In press). Impact of Diana, Larry P., and PL 94-142 on minority students: A reinterpretation. Exceptional Children.

MacMillan, D. L., & Meyers, C. E. (1980). Larry P.: An educational interpretation. School Psychology Review, 9(2), 136-148.

Marshall et al. v. Georgia. 775 F.2d 1403 (1985).

Messick, S. (1984). Assessment in context: Appraising student performance in relation to instructional quality. Educational Researcher, 13, 3-8.

Mills v. Board of Education of the District of Columbia, 384 F. Supp. 866 (D.D.C. 1972).

PARC (Pennsylvania Association for Retarded Children) v. Commonwealth of Pennsylvania, 434 F. Supp. 279 (E.D. Pa. 1972).

Patrick, J., & Reschly, D. (1982). Relationship of state educational criteria and demographic variables to school system prevalence of mental retardation. American Journal of Mental Deficiency, 86, 351-360.

Prasse, D. (1984). School psychology and the law. In J. E. Ysseldyke (Ed.), School psychology: The state of the art, (pp. 245-278). Minneapolis: National School Psychology Inservice Training Network.

Reschly, D. (1984). Beyond IQ test bias: The National Academy panel's analysis of minority overrepresentation. Educational Researcher, 11, 15-19.

Smith v. Robinson, 104. S. Ct. 3457 (1984).

Wang M., & Reynolds, M. (1985). Avoiding the "Catch 22" in special education reform. Exceptional Children, 51, 497-502.

Washington v. Davis, 426 U.S. 229 (1976).

DAVID P. PRASSE is Professor, Department of Educational Psychology, University of Wisconsin-Milwaukee.
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Title Annotation:includes bibliography
Author:Prasse, David P.
Publication:Exceptional Children
Date:Jan 1, 1988
Previous Article:Perspectives on eligibility for placement in special education programs.
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