Lessons for All of Us: 

Protecting the Right to Education for Persons with Disabilities 

National Council on Disability 

1331 F Street, NW, Suite 850 

Washington, DC 20004 

202-272-2004 Voice 

202-272-2074 TTY 

202-272-2022 Fax 

Lex Frieden, Chairperson 

Publication date: August 2, 2005 

Foreword 

The National Council on Disability is an independent Federal agency with 15 members 

appointed by the President of the United States and confirmed by the U.S. Senate. The overall 

purpose of NCD is to promote policies, programs, practices, and procedures that guarantee equal 

opportunity for all individuals with disabilities regardless of the nature or significance of the 

disability and to empower individuals with disabilities to achieve economic self-sufficiency, 

independent living, and inclusion and integration into all aspects of society. This topic paper is 

part of a series of topic papers designed to provide brief background information on United 

States disability policy for use by the delegates in their deliberations on the United Nations Ad 

Hoc Committee on a Comprehensive and Integral International Convention on Protection and 

Promotion of the Rights and Dignity of Persons with Disabilities. 

I. Introduction 

In February 2004, Inclusion International (II), a non-governmental organization (NGO) 

comprised of over 200 organizations worldwide that advocates for the rights of people with 

intellectual disabilities, announced that an estimated 98 percent of the world's children who have 

disabilities are not in school.1 

1
Fifty-six years ago, the 1948 Universal Declaration of Human Rights affirmed the right to 

education as a right belonging to every individual. The international community has long 

realized that if we deny an individual the right to an education we condemn that person to a 

lifetime of exclusion and marginalization and perpetuate a cycle of suffering and poverty for 

future generations. Without education it can be insurmountably difficult for people to gain 

employment, earn a living for themselves and their family, contribute meaningfully to their 

society, and fulfill their potential. Education provides the knowledge and the means for people 

to advocate for themselves, their families, and their communities. Thus, education is a 

fundamental human right, the foundation on which many other freedoms and rights are built. 

The first section of this paper provides a brief overview of the international agreements 

and legal frameworks that affirm education as a right for all people, and then reviews those that 

specifically address the educational needs and concerns of the disability community. The second 

part of the paper provides a roadmap of the struggle undertaken by the disability community in 

the United States to have access to a free education centered on the needs of the individual. The 

purpose of using the United States as a case study is not to make the argument that the laws of 

that country should be used as a model, or that they are superior. Instead, this paper seeks to 

illustrate the process by which the disability community in the United States achieved a measure 

of protections and rights in the law to access inclusive education, and to demonstrate the 

continuing struggle in enforcing these laws. 

II. International Frameworks 

International Conferences and Agreements 

1. Protecting the Right to Education 

2 
In 1990, the United Nations Educational, Scientific, and Cultural Organization 

(UNESCO) organized the "World Conference on Education for All" in Jomtien, Thailand. 

Delegates from 155 countries and representatives from 150 organizations attended the 

conference and agreed to work to end illiteracy by the end of that decade and to universalize 

primary education for all children. The same countries met again in Dakar, Senegal, at the 

"World Education Forum" in April 2000. The participants adopted the Dakar Framework for 

Action reaffirming their support to meet their goal of education for all by 2015. 

The most recent report from the Working Group on Education for All was released in 

July 2004 and recommended that in order to meet the Education for All goals, policy formulation 

at the national level needs to be strengthened. The working group called for a wide-ranging 

dialogue to take place with all stakeholders in the design and implementation process. The 

complete agenda of Education for All includes education as a goal for young children and 

adolescents, and recognition of the fact that adults who learn written communication skills are 

able to bring greater benefits to their families. 

2. Protecting the Education Rights of Persons with Disabilities 

In 1982, the United Nations General Assembly adopted the World Programme of Action 

Concerning Disabled Persons (WPA). The goals of the WPA were to increase efforts to prevent 

disability, enhance rehabilitation, and open opportunities to persons with disabilities so that they 

might fully participate in the social life of their communities and contribute to national 

development. Most importantly, the WPA redefined the issue of disability as a human rights 

issue. Out of the WPA, the United Nations developed the Standard Rules on the Equalization of 

Opportunities for Persons with Disabilities (Standard Rules), which were adopted by the United 

Nations General Assembly in 1993. The Standard Rules are not legally binding but they 

3
emphasize to policy makers the importance of developing inclusive policies, creating equal 

opportunities, and actively seeking the participation of persons with disabilities in order to 

benefit the individual and society as a whole. 

Rule 6 of the Standard Rules is dedicated to the protection of the right to education for 

persons with disabilities: 

States should recognize the principle of equal primary, secondary and tertiary 

educational opportunities for children, youth and adults with disabilities, in 

integrated settings. They should ensure that the education of persons with 

disabilities is an integral part of the educational system. 2 

The Standard Rules provided the most detailed and explicit requirements for education 

for persons with disabilities at the time they were adopted, and today they still form a guidepost 

for the implementation of international education protection mechanisms. 

As part of its efforts to promote the agenda for Education for All, UNESCO also 

organized the World Conference on Special Needs Education in Salamanca, Spain in June 1994. 

The conference promoted the approach of inclusive education for people with disabilities and 

was supported by delegates from 92 governments and 25 international organizations. The 

outcome of the conference was the "Salamanca Statement on Principles, Policy and Practice in 

Special Needs Education," which affirmed many of the principles upheld by the Education for 

All conference, including that "every child has a fundamental right to education" and that "those 

with special educational needs must have access to regular schools which should accommodate 

them within a child-centered pedagogy capable of meeting these needs." 

The “Salamanca Statement” is broad in its goals and specific in its recommendations in 

the Framework for Action, which calls on national and international decision-making bodies to 

implement the goals of inclusive education for all. However, in the ten years that have passed 

since the “Salamanca Statement” was issued, its goals have not been realized. 

4
International Human Rights Law 

The American Convention on Human Rights came into force in 1969. Article 26 of the 

American Convention, titled “Progressive Development,” sets forth the goal of protecting 

economic, social, and educational rights under the governance of the Organization of American 

States. However, it does not specifically enumerate education as a right for all people or carve 

out specific protections for the disability community. The counterpart to the American 

Convention in the European Community is the European Convention on Human Rights, which 

was signed in Rome in 1950 and clearly articulates in Article 2 that “no person shall be denied 

the right to education." The International Covenant on Economic, Social, and Cultural Rights 

(ICESCR), which has not yet been ratified, contains the most articulate protection of education 

as a right for all persons: 

The States Parties to the present Covenant recognize the right of everyone to 

education. They agree that education shall be directed to the full development of 

the human personality and the sense of its dignity, and shall strengthen the respect 

for human rights and fundamental freedoms. 3 

The ICESCR lists a number of specific goals for achieving the right to education including free, 

compulsory primary education for all children and continuing education that is free and 

accessible to all persons. 

The International Convention on the Protection and Promotion of the Rights 

and Dignity of Persons with Disabilities 

In drafting the Convention, the experiences of individual nations can be useful in 

determining what kinds of policies work. This is not to say that national laws can simply be 

replicated in other countries because of their apparent success at home; the legislative process is 

a reflection of the different cultural norms of each country. The United States has had long5
standing laws against discrimination and unequal treatment for its citizens. However, the 

enforcement of those laws has had a checkered history. 

The laws of the United States that have served to define and protect the right for persons 

with disabilities to have access to a free and appropriate education are an example of the 

determination of the disability community to have their voices heard and their needs recognized. 

They are also testament to the power of the courts in the country to bring about sweeping 

changes to the nation’s educational system. These changes in culture and in the courts have been 

reflected by the country’s legislatures over the last 30 years. The end result is an imperfect 

system that is constantly being corrected, amended, and redefined by disability advocates, the 

courts, and the legislature. Perhaps the most valuable lessons for countries looking at the process 

in the United States derive from the mistakes that have been made along the way. If one lesson 

stands out from the current state of the legislation and its interpretation by the courts, it is that 

good intentions do not suffice. There must be real force behind the stated objectives to ensure 

that the commitment is real and the goals are met. 

III. The Development of Disability Education Law in the United States 

Changing Perceptions of Disability 

In 2004, the United States celebrated the fiftieth anniversary of the Brown v. Board of 

Education decision by the United States Supreme Court that ended racial segregation in 

America's schools.4 The Brown decision was handed down in 1954, but it would be another 

twenty years before children with disabilities would have their right to education protected by the 

Court and the legislature. Prior to 1975, children with disabilities did not have access to a free 

public education appropriate to their needs. 

6
“While some special programming was available in separate settings, such as schools for 

blind children or deaf children, children who were mentally retarded or who had serious behavior 

disorders were more likely to be institutionalized and given minimal, if any, educational 

programming.”5 If the resources of the family were sufficient, children with disabilities were 

either educated in private schools that would accept them, or at home by their parents and private 

tutors. In some instances children with disabilities were sent to institutions where they were 

housed in appalling conditions and received little, if any, educational or vocational training. 

Between these two extremes, were children whose needs were not being met by the public 

education system either because they were excluded on the basis of their disability, or, the needs 

created by their disability were ignored. 

The movement advocating for inclusion of persons with disabilities into the American 

education system was encouraged by the decision in Brown v. Board of Education, where the 

Court rejected the notion that educational facilities and opportunities for black students could be 

separate yet equal. Advocates recognized that the same arguments could be applied against 

separation of students with disabilities from their peers without disabilities in public education. 

Segregation would never lead to equality and by the early 1970s, the courts began to rule on 

challenges to the segregation of students with disabilities.6 

In Pennsylvania Association for Retarded Children (PARC) v. Pennsylvania, the district 

court found that all children have the ability to learn, regardless of having a disability, and cannot 

be denied a free and appropriate public education.7

 The next landmark decision was Mills v. 

District of Columbia Board of Education,

8

 which applied the same reasoning from PARC to the 

federally run school system in the District of Columbia. Both of these decisions resulted in 

settlement agreements, in which the parties agreed to provide education on an equal basis for all 

7
children, including children with disabilities. Furthermore, the states had to agree that before 

any kind of different treatment was given to a student with a disability, a set of procedural 

safeguards had to be followed to protect against the stigmatization of differential treatment. 

The Individuals with Disabilities Education Act 

The momentum that was gained from the PARC and Mills decisions was critical to the 

movement advocating for increased educational rights for students with disabilities. Congress 

recognized that it needed to respond more effectively to the call by parents and advocates for 

inclusion of children with disabilities into the free education system available to their peers 

without disabilities. In response to the PARC and Mills decisions, Congress enacted the 

Education for All Handicapped Children's Act (EAHCA) in 1975. The legislation has been 

modified since its inception, including a change of name in 1990 to the Individuals with 

Disabilities Education Act (IDEA) in an effort to recognize the importance of "people first 

language."9 IDEA was revised and reauthorized in 1997 and again in 2004.10 

From its inception, EAHCA/IDEA has been based on the premise that all children are 

educable.11 This was in stark contrast to the assumptions that had been in effect before the 

PARC and Mills decisions. Congress recognized that IDEA would place additional financial 

burdens on the state because of the specialized nature of special education and the need to 

develop programs that met individual needs. Additional funding was made available to the states 

through the Department of Education on the condition that each state agency for education would 

submit a state plan showing that it was in compliance with the new law.12 Compliance with 

IDEA (like EAHCA before it) requires that the states guarantee that children with disabilities 

will receive a free, appropriate education in the least restrictive setting, and that they will receive 

an individualized education program and procedural protections designed to safeguard the rights 

8
of each student.13 Each component presents a specific set of burdens on the states and a source 

of protection for students with disabilities. At the same time, the requirements of IDEA have 

been confusing for parents and advocates seeking protections under the law, and for school 

districts struggling with remaining complaints. The discussion below gives an overview of each 

component required for compliance with IDEA. 

1. Children with Disabilities 

IDEA applies to children between the ages of three and eighteen (or to the maximum age 

of twenty-one depending on state law), who have been evaluated to be eligible in one or more 

categories and thereby can receive special education services. The statute defines a child with a 

disability as a child, 

(i) with mental retardation, hearing impairments (including deafness), speech or 

language impairments, visual impairments (including blindness), serious 

emotional disturbance (referred to in this title [20 USCS §§ 1400 et seq.] as 

"emotional disturbance"), orthopedic impairments, autism, traumatic brain injury, 

other health impairments, or specific learning disabilities;14 

The principle that all children could benefit from an education, even if they acquired a 

severe disability, was an assumption at the heart of EAHCA/IDEA, but a new concept in the 

1970s. Yet this concept was not significantly challenged until Timothy v. Rochester School 

District was decided in 1989, when a district court held that a child who had a severe cognitive 

disability would not benefit from any form of educational services and was therefore properly 

denied EAHCA protections.15 The First Circuit Court of Appeals overruled the lower court 

finding that, 

The language of the Act could not be more unequivocal. The statute is permeated 

with the words "all handicapped children" whenever it refers to the target 

population. It never speaks of any exceptions for severely handicapped children. 

Indeed, as indicated supra, the Act gives priority to the most severely 

handicapped...the Act speaks of the state's responsibility to design a special 

9
education and related services program that will meet the unique "needs" of all 

handicapped children.16 

Thus, the extent of the disability is irrelevant to the main goal of the statute. 

2. Appropriate Education 

Under IDEA, an appropriate education does not impose a burden on the states to ensure 

that their educational departments provide the best programs available. At the same time, the 

decision in Mills v. Board of Education17 made it clear that insufficient funds to finance the 

services and programs for children with disabilities could not be used to justify the inequitable 

distribution of funds so students with disabilities were denied appropriate educational 

programming.18 The decision called for the equitable distribution of resources so that no child 

would be excluded from a public education consistent with his, or her, needs. This priority is 

reflected in the IDEA understanding that an appropriate education will be more likely where 

there is an equitable distribution of funds in an effort to meet the needs of all students. This was 

clarified in 1982 when the U.S. Supreme Court held in Board of Education v. Rowley,

19 that, at a 

minimum, the law required access to “specialized instruction and related services, which are 

individually designed to provide educational benefit to the handicapped child.”20 Rowley stated 

that the “Act requires participating States to educate handicapped children with nonhandicapped 

children whenever possible.”21 In resolving the discrepancies that have arisen, the courts look 

carefully at the setting of the educational program to determine whether the program is in 

compliance with the statute. The hierarchy, in which a setting is classified as either restrictive or 

non-restrictive, also affects costs because the most restrictive settings are also usually the most 

costly to the state. 

3. Least Restrictive Setting 

10 
A fundamental principle of IDEA is that children with disabilities should be educated 

alongside children without disabilities. The statute defines a least restrictive environment in the 

following manner, 

To the maximum extent appropriate, children with disabilities, including children 

in public or private institutions or other care facilities, are educated with children 

who are not disabled, and special classes, separate schooling, or other removal of 

children with disabilities from the regular educational environment occurs only 

when the nature or severity of the disability of a child is such that education in 

regular classes with the use of supplementary aids and services cannot be 

achieved satisfactorily.22 

Educational programs are regarded as being in the least restrictive setting when they 

occur in the regular classroom. As additional services are added, they become progressively 

more restrictive in classification so that a student who received part-time special classes and parttime regular classes would be in a more restrictive setting than a child who took all of his, or her, 

classes in a regular classroom and received specialist consultation. Increasingly, restrictive 

settings include special day school, special residential school, with the most restrictive setting 

being a hospital. The underlying expectation in IDEA is that if a student requires a more 

restrictive setting for any reason, there will be a concerted effort to return the child to a less 

restrictive setting as soon as possible.23 

Funding for each state is contingent on evidence showing adequate programming in 

compliance with the least restrictive environment requirement. States must grapple with the 

practicalities of implementing the least restrictive setting requirement. Several points of conflict 

have arisen over the years. One issue is the distance a child must travel to school in order to 

receive an appropriate educational program. Education agencies understandably try to reduce 

costs by distributing the number of special programs so as to avoid implementing them at each 

and every school. The issue of travel can severely limit the educational experience and place an 

11
additional level of stress on a child with a disability. School districts also commonly try to 

regulate the age groups of the special education programs so that students who have disabilities 

are in classes with their peers as much as possible. This also presents cost ramifications for 

educational agencies that must plan class sizes and the availability of special education teachers 

and support staff. 

Cost considerations become even more important when the child needs to be placed in a 

residential school, which is a very restrictive environment and very costly for the state. In Hall 

v. Shawnee Mission School District, 

24 the parents of a child with a disability were denied 

reimbursement for moving him into a residential program after they made their own assessment 

that his needs were not being met in a day program, which they argued resulted in his poor 

behavior in the home. The court found that because of IDEA’s mandate to have programs in the 

least restrictive setting, the option that the parents chose for the child was most likely too 

restrictive for the school district to agree with, and the parents were denied reimbursement for 

the cost of the residential program. 

4. Individualized Education Program 

The Individualized Education Program (IEP) is arguably the most powerful tool in IDEA. 

The IEP requires the participation of the parents, at least one teacher, a member of the school 

district, a person who can translate the evaluation into an instructional plan, others who have 

knowledge of the child (at the discretion of the parents and the school officials) and, when 

possible, the child with the disability. 25 

The IEP contains a high level of specificity regarding the current academic level the child 

has attained, the age of the child, a description of the disability and how it affects participation in 

the educational programs, as well as the frequency, location, and goals of the special education 

12
programs that are being provided. At the ages of fourteen and sixteen, and one year before 

eligibility expires because of age (eighteen in some states and twenty-one in others), the 

necessary upcoming transitions for the child are assessed as part of the IEP.26 At the heart of 

these requirements is that the focus be on the child as an individual. The inclusive nature of the 

IEP process is the first step in bringing the parents and school representatives together to craft a 

program for the child that is amenable to everyone. However, like other areas of IDEA, the IEP 

requirement has been extensively litigated. 

Two cases illustrate the priority the courts place on the IEP. In Thornock by Baugh v. 

Boise the court called the IEP “the decision-making document” and held that the IEP was 

inadequate when it failed to comply with the detailed requirements of the statute. 27 In Cleveland 

Heights-University Heights City School District v. Boss, the court held that the school district 

violated the law when the student’s reading disability was not properly diagnosed in a timely 

fashion and that the IEP was inadequate once the disability became apparent.28 The court 

distinguished between minor technical violations which would be excusable and those that 

destroyed the purpose of the statute. The court held that “the violation was far from technical, 

and its absence was not harmless. The omission went to the heart of the substance of the plan.”29 

When a parent or a school district wishes to modify an aspect of the IEP and the other side 

disagrees, IDEA has a set of procedural processes designed to protect the well-being of the child, 

promote constructive problem-solving between the parties, and, where possible, avoid the costs 

and delays of litigating the matter through the courts. 

5. Procedural Protections 

Once a child comes within the protections of IDEA, a number of procedural safeguards 

must be followed before changes to the child’s IEP and placement can occur. For the most part, 

13
the due process requirements in IDEA echo the language in the Mills decision, which set the 

floor for procedural safeguards the states would be required to adopt.30 The funding of state 

programs is tied to the proper implementation of procedural safeguards in compliance with the 

statute. 

The statute provides that the parents of a child with a disability should be kept fully 

informed of the records, meetings, and decisions involving the child and that they have the right 

to seek an independent evaluation of the child if they are unhappy with the assessment by the 

school district.31 Other types of procedural protections required of the states include the right to 

seek mediation, the protection of the rights of the child when the parents cannot be located or in 

cases where the child is a ward of the state, and the development of a clear complaints process 

for parents to follow.32 

It is clear that in most cases the courts have required that the complaining party must 

exhaust all administrative remedies before bringing an action in court, except where the violation 

is so blatant that following administrative remedies would be ineffectual. In Kerr Center 

Parents Assoc. v. Charles,

33 the court held that because the state agency had denied the parents 

an administrative due process hearing, their only available remedy was to file an action in court. 

The Rehabilitation Act 

Prior to the enactment of EAHCA/IDEA, the Rehabilitation Act of 1973 was the law 

being followed by public entities. The Rehabilitation Act was a series of amendments made to 

an older law, in which the primary goal had been to rehabilitate World War I veterans who had 

returned home with a disability and required retraining in order to find employment.34 However, 

the new amendments would have a significant impact on disability education rights through the 

application of Section 504 of the Rehabilitation Act, which prohibits recipients of federal funds 

14
from discriminating on the basis of disability. Because most schools receive some form of 

financial assistance from the federal government, this swept them within the reach of the statute. 

Early interpretations of the Rehabilitation Act by the federal courts appeared to carve out 

an exception to the “federal funds” requirement, so that if an institute of higher learning received 

federal funds for only some programs, those that did not receive federal funding could not be 

subjected to the requirements of the Rehabilitation Act. However, in 1987 the Civil Rights 

Restoration Act was passed. The Civil Rights Restoration Act amended Section 504 of the 

Rehabilitation Act so that any institution receiving federal financial assistance to finance all or 

part of a program would find itself subject to the requirements of Section 504 of the 

Rehabilitation Act.35 

Despite initial problems with implementation, the Rehabilitation Act provided much 

needed protections for students with disabilities. The Rehabilitation Act’s main impact was in 

the area of higher education in the 1980s, as students with disabilities were attending colleges 

and universities in greater numbers and these institutions were now required to comply with the 

law in order to continue to receive federal funding. 

There have been various explanations for the increase in the number of students with 

disabilities attending college in the 1980s. The first explanation is that the children who had 

received the benefits of the first generation of disability rights and protection laws in the 1970s 

were now reaching college age, and they were accustomed to advocating for their needs. The 

second explanation is that there was an increasing awareness of disability in general. 

Legislation, landmark court cases, and news coverage were all increasing public debate about the 

issue of disability rights.36 

The Americans with Disabilities Act (ADA) 

15 
In 1990, the Americans with Disabilities Act (ADA) was signed. As a result, the laws 

designed to prevent discrimination against persons with disabilities became more unified and 

comprehensive under a single statute. The ADA served to strengthen the Rehabilitation Act of 

1973 by extending the protections afforded to persons with disabilities by that statute to cover 

the private sector, as well as state and local governments.37 

The ADA comprehensively prohibits discrimination on the basis of disability through 

five separate provisions. Two provisions have direct implications for the protection of education 

rights for persons with disabilities. Title II prohibits public universities and other locally run 

institutions of higher education that receive federal funds from discriminating against individuals 

with disabilities. Title III applies to private colleges and universities that fall within the sweep of 

the Rehabilitation Act because they provide public accommodations. 

One of the most important aspects of the ADA that affects education rights is the 

requirement that “reasonable accommodations” should be made to facilitate the employment of 

persons with disabilities and for students with disabilities at all levels of education.38 

Accommodations are required to be made at all points of contact with the institution, including 

recruitment, admission or hiring, evaluation, and termination. An example of the type of 

accommodation available under this requirement is the provision of transcripts and/or tapes of 

classroom sessions for students who require extra time to understand and assess the material 

because of their disability. Further examples include allowing extended time to complete exams, 

and providing readers, interpreters, and technology that allow a student to be functional and 

integrated in the classroom setting. Institutions are required to have their accommodation policy 

clearly written and accessible, and it must contain a clear complaints procedure for students with 

disabilities and employees to follow if their needs are not being met. 

16
How the Three Statutes Work Together 

In 1984, the Supreme Court decided Smith v. Robinson and found that IDEA was 

intended by Congress to be the exclusive avenue of relief in cases involving education for 

school-age children with disabilities. 39 The ADA had not been enacted at the time of the Smith 

decision, but it can be expected that, like Section 504 of the Rehabilitation Act and the other 

federal statutes available to persons with disabilities to resolve issues of discrimination in the 

education setting, IDEA would still be held to be the primary statute for resolving the issue 

today. While there are some instances in which a child would not find an adequate remedy under 

IDEA, such as cases in which the disability presents a purely physical barrier and no special 

education or physical therapy is required, in these circumstances the remedies available under 

Section 504 of the Rehabilitation Act and/or the ADA may be appropriate.40 

Unlike IDEA, Section 504 of the Rehabilitation Act and the ADA do not provide funds to 

implement the requirements of the law. By the same measure, the requirements under the 

Rehabilitation Act and the ADA do not impose a burden on the states comparable to that 

imposed by IDEA. The highly specific mandate by IDEA to provide individualized treatment to 

each child with a disability makes it a powerful statute for ensuring the rights of students with 

disabilities but also renders it an unwieldy tool for practitioners, complainants, defendants, and 

the courts alike. 

In spite of the significant financial resources available to implement IDEA, and the power 

of the federal government to withhold funds from the states for non-compliance, the National 

Council on Disability (NCD) reported that, during the report’s review period of IDEA (1978-

1998), every state had, to various degrees, failed to comply with the law.41 More than half failed 

in five of the seven key compliance criteria, which include general supervision of the state 

17
agencies, appropriate transition services of students to the next level of education or vocational 

training, free appropriate public education, establishment of procedural safeguards and complaint 

mechanisms, and failure to ensure that children would be educated in the least restrictive 

environment.42 

Government’s Role in Ensuring Equal Access to Education 

In order to ensure children with disabilities are receiving a free, appropriate education in 

the least restrictive setting, the Department of Education has established various safeguards, 

including providing technical assistance, monitoring state compliance, and ensuring enforcement 

of IDEA, to assist in carrying out the statute. 

Technical assistance is provided by the Department of Education in order to assist states, 

school districts, educators, and individuals with disabilities and their families regarding their 

rights and obligations under the law. Technical assistance may come in the form of advice by 

experts and the Department, assistance with developing methods of instruction, and identifying 

local school officials to provide support. Information regarding procedural safeguards must be 

disseminated to parents, and this same information must be available on the local school’s 

website. The Department may also provide training for a parent training and information center. 

The Department of Education has oversight of the states regarding IDEA and monitors 

each state to ensure compliance. The Department must review state plans, and each state must 

review its own performance plan every six months, with any changes being submitted to the 

Department. State plans include such items as identifying which children in the state are in need 

of services, determining eligibility criteria, and establishing funding mechanisms. States are also 

required to release the state performance report to the public, and submit an annual assessment to 

the Department. 

18
The Department of Education has a number of mechanisms in place to assist in the 

enforcement of IDEA. The Department may, among other things, advise states of the technical 

assistance that is available to them, require states to prepare a plan in order to correct problems in 

administering program, or withhold or recover federal funding for education. The Department of 

Justice can bring a cause of action in the courts. 

IV. Conclusion

Education is the starting point from which all other rights and protections are realized and 

reinforced. An important part of the legislative process is to hear testimony from people whose 

lives will be affected by the changes in the law and determine what the real needs are without 

imposing well-meaning measures that have little guaranteed effect. An equally important part of 

the legislative process is to reflect on the state of the current law, to define carefully its flaws and 

problems as well as its successes. Although the U.S. has enacted legislation to guarantee a child 

a free education appropriate to his or her needs, the problems that remain are with compliance, 

monitoring, and enforcement of those laws. 

National and international legislation is a continuous exercise of revision that needs to 

reflect the overarching goals of the legislature and the plurality of needs those goals are designed 

to meet. We can move more quickly toward the goals of education for all in an inclusive 

environment and effective protection of rights and freedoms when we learn from the mistakes 

that have been made in the past and apply those lessons as consumers, advocates, and legislators 

to build upon each success. 

Acknowledgement 

The National Council on Disability wishes to express its appreciation to Galina Sergen for 

drafting this topic paper. 

19
1

 Press release, Inclusion International website www.inclusion-international.org. 2

 The Standard Rules on the Equalization of Opportunities for Persons with Disabilities 

II. Target Areas for Equal Participation Rule 6. Education, http://www.un.org/esa/socdev/enable/dissre00.htm. 3

 Article 13 (1) International Covenant on Economic, Social, and Cultural Rights. 

4

 347 U.S. 483 (1954). 

5

 LAURA F. ROTHSTEIN DISABILITY LAW: CASES, MATERIALS, AND PROBLEMS 471 Michie 

Butterworth, 1995. 

6

 Robert L. Burgdorf “Perspectives on the Directive from U.S. Law: Disability Nondiscrimination Law as a Key 

Element of Human Rights Law.” April 2004. 

7

 334 F. Supp. 1257 (E.D. Pa. 1971). 

8

 348 F. Supp. 866 (D.D.C. 1972). 

9

 Ed Halsell "Notes and Comments: Disabled School Children: Where are their advocates?" 23 J. Juv. L. 65 

(2002/2003).

10 For in depth analysis of the workings of the IDEA and an assessment of its effectiveness see, “Back to School on 

Civil Rights: Advancing the Federal Commitment to Leave No Child Behind” NCD Report, January 25, 2000.

11 ROTHSTEIN, supra note 5, at 7. 

12 Id. at 471. 

13 20 USCS § 1400 et seq.

14 § 1401. 

15 875 F.2d 954 (1989). 

16 Id. at 960-961. 

17 348 F. Supp. 866 (D.D.C., 1972).

18 LAURA ROTHSTEIN, DISABILITIES AND THE LAW 109, West Group, 1997. 

19 458 U.S. 176, 201 (1982).

20 Id. at 201. 21 458 U.S. 176, 202 (1982).

22 20 USCS (a)(5)(A). 23 ROTHSTEIN, supra note 18 at 102. 

24 856 F. Supp. 1521 (1994). 25 ROTHSTEIN, supra note 18 at 107. 26 Id. 

27 767 P.2d 1241, 1246 (Idaho 1988). For a full explanation of the requirements see 20 USCS § 1414(d). 28 144 F.3d 391 (6th Cir.) (1998). 

29 Id. at 399. 30 348 F. Supp. 866 (D.D.C. 1972). See also ROTHSTEIN, supra note 18 at 105. 31 20 USCS § 1415(b)(1). 32 ROTHSTEIN, supra note 18 at 146. 33 897 F.2d 1463. 

34 ROTHSTEIN, supra note 5, at 8. 35 Id. at 348. 36 ROTHSTEIN, supra note 18 at 214. 

37 Ruth Colker “The Americans With Disabilities Act: The Death of Section 504” 35 U. Mich. J.L. Ref. 219 Fall, 

2001/Winter, 2002.

38 For further perspective on reasonable accommodation, see Robert L. Burgdorf “Perspectives on the Directive 

from U.S. Law: Disability Nondiscrimination Law as a Key Element of Human Rights Law” April 2004. 

39 468 U.S. 992. 

40 ROTHSTEIN, supra note 18 at 214. 41 Back to School on Civil Rights: Advancing the Federal Commitment to Leave No Child Behind, NCD Report, 

January 25, 2000 http://www.ncd.gov/newsroom/publications/2000/backtoschool_1.htm 42 Id. 

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