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The New Segregation: School Choice in AZ Takes on a Different Meaning If Your Kid Has a Disability

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Special education laws in this country -- when enforced -- really are pretty awesome. Technically speaking, the public school system is supposed to collaborate with parents and other members of a child's team (including teachers and a parent) to create a custom-designed plan -- an Individualized Education Program -- to ensure success, a living, legal document that can be changed at any time to reflect new needs.

And it's all supposed to happen without concern for cost. Really.

Yeah, you're thinking, and unicorns exist. But it's true. That's pretty much what the law requires. Of course, making it happen can be tricky. But it's true that special education law (in theory, anyway) has come a long way in a short time. So far, that reality often can't keep up.

In 1954, the U.S. Supreme Court took the first fundamental step in ending segregation based on race and ethnic background with its decision in Brown v. Board of Education. That ushered in the Civil Rights Era and, years later, the notion that kids with special needs should -- and could -- be integrated into regular education settings. The simple idea that these kids should attend regular public schools did way more than simply put special-needs kids in the classroom; it helped to get them out of institutions and introduced them to their peers.

Many people recognize that the extended Kennedy family was hugely influential in the developmental disability community (John F. Kennedy's sister, Rosemary, was mentally retarded) because of the creation of the Special Olympics. But JFK also deserves credit for pushing for special education during his presidency. At the end of the Eisenhower administration, a federal law was passed that funded training for teachers instructing students with mental retardation (the accepted terminology at the time). Kennedy championed the increase of public awareness and expansion of federal laws to govern special education. Kennedy's administration created the Division of Handicapped Children and Youth under the U.S. Department of Education.

In the '60s, it was a numbers game -- namely, increasing the number of special-needs kids served in public schools. In an eight-year span, the number of school districts with special education programs increased from 3,641 to 6,711. In a three-year period, the number of teachers in special-needs schools and institutions went from 71,000 to 82,000.

That didn't mean the services provided were so hot. Far from it. For pretty much the first time, the idea occurred to more than a few do-gooders that developmentally disabled children had a right to an education. It was an obvious important first step, as states passed laws creating special education policies, and communities began to recognize the contributions of the developmentally disabled and other people with special needs.

In a 1964 textbook for teachers titled A Time for Teaching, Willard Abraham, an education professor at ASU, reported that "trends in the education of mentally retarded children are encouraging."

"We have come a long way since the Middle Ages, when children and adults like these were the court fools and were denounced as 'evil spirits,' and since the days when persecutions were the rule," he writes. "But our public and our teachers have . . . to accept the fact that children limited in mentality can be educated or trained."

By 1970, according to the U.S. Department of Education, only 1 in 5 children with disabilities (both physical and mental) were enrolled in public schools. Indeed, it took more than the legacy of an empathetic president and a sideways glance from the civil rights movement to cause much change. It took two landmark class-action lawsuits.

The first, Pennsylvania Association of Retarded Children v. the Commonwealth of Pennsylvania, was filed in 1971 by the Public Interest Law Center of Philadelphia over a state law that said Pennsylvania didn't have to educate any child who hadn't reached the "mental age" of 5 by first grade. That lawsuit quickly ended in a consent decree in which the state agreed to provide a free public education to mentally retarded children.

The second lawsuit, Mills v. the Board of Education of the District of Columbia, was decided in favor of the plaintiffs, as well, and specifically declared that money is no object in the education of mentally retarded and mentally ill children. Both cases provided impetus for Congress to pass the Education for All Handicapped Children Act in 1975. The law mimicked language from the court cases and was the first sweeping legislation passed to ensure appropriate education of these children. It serves as the framework for the current law, the Individuals with Disabilities Education Act, passed in 1997 (note the change from Handicapped to Disabilities).

The basic message: Figure out how to educate these kids alongside their peers, without regard for how much it costs. Of course, it's way more complicated than that -- hundreds of pages of complicated, including several re-authorizations by Congress to tweak the law. And then came charter schools. Special education law applies to all public schools -- both charter and district -- but many charters manage to wiggle out of it by pushing out special-needs students. Hence, the new segregation.

Hope Kirsch, a special education lawyer in Scottsdale, has noticed it. Kirsch says she taught school in New York from 1975 to the early '90s. She was assigned to work with special-needs children; inevitably, she recalls, her classroom was in the school basement or the top floor, "shoved away, very segregated."

She became a lawyer and was delighted to see strides made in special education later in the '90s and in the 2000s, in which special-needs kids were mainstreamed in the classroom with typical kids -- something she says was good for all. But that, she says, has been short-lived, ironically because of school choice.

"We're going back to the days of institutionalization," Kirsch says.

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Amy Silverman is a two-time winner of the Arizona Press Club’s Journalist of the Year award. Her work has appeared on the radio show This American Life and in the New York Times, the Washington Post, Lenny Letter, and Brain, Child. She’s the co-curator of the live reading series Bar Flies, and a commentator for KJZZ, the NPR affiliate in Phoenix. Silverman is the author of the book My Heart Can’t Even Believe It: A Story of Science, Love, and Down Syndrome (Woodbine House 2016). Follow her on Instagram (@amysilverman), Twitter (@amysilvermanaz), and at amy-silverman.com.