Essay Grade

Chapter5: Who is Protected
72 SPECIAL EDUCATION LAW
courts have traditionally applied different levels of scrutiny, depending on the type of
case involved. Two major factors are at issue in deciding what level of scrutiny to apply.
One is whether the person claiming a denial of equal protection is a member of a class
of individuals who are or should be entitled to special consideration. The other is the
importance of the right at issue.Classification of Individuals With DisabilitiesThe
following opinion excerpt demonstrates the level of scrutiny that is to be applied to
individuals who are intellectually disabled. The decision did not involve the educa-tional
setting, but it is instructive in evaluating potential constitutional claims involv-ing
individuals with disabilities. The case involved a city council’s denial of a special-use
permit to operate a group home in a residential neighborhood. The applicant for the
permit wanted to operate a group home for 13 men and women with intellectual disabilities. They would have had constant staff supervision. The reason for the city’s
denial included negative attitudes and fears of nearby property owners, concern that
residents would be harassed by junior high students from a nearby school, the location
of the home on a flood plain, and concern that a group home would result in crowded
conditions. In deciding what level of scrutiny to apply in evaluating whether the denial
was constitutional, the Supreme Court examined the classification of the group affected.
It should be noted that the term mentally retarded is no longer the preferred term;
intellectual disability is generally used instead and is now required in federal law. This
decision, however, was made before that change.CITY OF CLEBURNE V. CLEBURNE
LIVING CENTER473 U.S. 432 (1985)Justice White delivered the opinion of the
Court.The Equal Protection Clause of the Fourteenth Amendment commands that no
State shall “deny to any person within its jurisdiction the equal protection of the laws,”
which is essen-tially a direction that all persons similarly situ-ated should be treated
alike. Section 5 of the Amendment empowers Congress to enforce this mandate, but
absent controlling congres-sional direction, the courts have themselves devised
standards for determining the validity of state legislation or other official action that is
challenged as denying equal protection. The general rule is that legislation is presumed
to be valid and will be sustained if the classifi-cation drawn by the statute is rationally
related to a legitimate state interest. . . .When social or economic legislation is at issue,
the Equal Protection Clause allows the states wide latitude, and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic
pro-cesses.The general rule gives way, however, when a statute classifies by race,
alienage or national FOR THE USE OF GRAND CANYON UNIVERSITY STUDENTS
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Publications, Inc. origin. These factors are so seldom relevant to the achievement of
any legitimate state inter-est that laws grounded in such considerations are deemed to
reflect prejudice and antipathy— a view that those in the burdened class are not as
worthy or deserving as others. For these reasons and because such discrimination is
unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny and will be sustained only if they are suit-ably tailored to serve a compelling state
interest. Similar oversight by the courts is due when state laws impinge on personal
rights protected by the Constitution. Legislative clas-sification based on gender also
calls for a heightened standard of review. . . .A gender classification fails unless it is
sub-stantially related to a sufficiently important governmental interest. Because
illegitimacy is beyond the individual’s control and bears “no relation to the individual’s
ability to partici-pate in and contribute to society,” official dis-criminations resting on that
characteristic are also subject to somewhat heightened review. Restrictions “will survive
equal protection scru-tiny to the extent they are substantially related to a legitimate state
interest.”We have declined, however, to extend heightened review to differential
treatment based on age. The lesson is that where indi-viduals in the group affected by a
law have distinguishing characteristics relevant to the interest the state has the authority
to imple-ment, the courts have been very reluctant to closely scrutinize legislative
choices as to whether, how and to what extent those inter-ests should be pursued. In
such cases, the Equal Protection Clause requires only a ratio-nal means to serve a
legitimate end.Against this background, we conclude for several reasons that the Court
of Appeals erred in holding mental retardation a quasi-suspect classification calling for a
more exacting stan-dard of judicial review than is normally accorded economic and
social legislation. First, it is undeniable, and it is not argued otherwise here, that those
who are mentally retarded have a reduced ability to cope with and func-tion in the
everyday world. Nor are they all cut from the same patterns:as the testimony in this
record indicates, they range from those whose disability is not immediately evident to
those who must be constantly cared for. They are thus different, immutably so, in
relevant respect, and the states’ interest in deal-ing with and providing for them is
plainly a legitimate one. How this large and diversified group is to be treated under the
law is a difficult and often a technical matter, very much a task for legislators guided by
qualified profes-sionals and not by the perhaps ill informed opinions of the judiciary.
Heightened scrutiny inevitably involves substantive judgments about legislative
decisions, and we doubt that the predi-cate for such judicial oversight is present where
the classification deals with men-tal retardation.Second, the distinctive legislative
response, both national and state, to the plight of those who are mentally retarded
demonstrates not only that they have unique problems, but also that the lawmakers
have been addressing their difficulties in a manner that belies a continu-ing antipathy or
prejudice and a correspond-ing need for more intrusive oversight by the judiciary. . .
.Such legislation thus singling out the retarded for special treatment reflects the real and
undeniable differences between the FOR THE USE OF GRAND CANYON
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Copyright © 2014 by SAGE Publications, Inc. 74 SPECIAL EDUCATION LAWretarded
and others. That a civilized and decent society expects and approves such leg-islation
indicates that governmental consider-ation of those differences in the vast majority of
situations is not only legitimate but desir-able. . . . Especially given the wide variation in
the abilities and needs of the retarded them-selves, governmental bodies must have a
cer-tain amount of flexibility and freedom from judicial oversight in shaping and limiting
their remedial efforts.Third, the legislative response, which could hardly have occurred
and survived without public support, negates any claim that the mentally retarded are
politically powerless in the sense that they have no ability to attract the attention of
lawmakers. Any minority can be said to be powerless to assert direct control over the
legislature, but if that were a criterion for higher level scrutiny by the courts, much
economic and social legislation would now be suspect.Fourth, if the large and
amorphous class of the mentally retarded were deemed quasi-suspect for the reasons
given by the Court of Appeals, it would be difficult to find a princi-pled way to distinguish
a variety of other groups who have perhaps immutable disabili-ties setting them off from
others, who cannot themselves mandate the desired legislative responses, and who can
claim some degree of prejudice from at least part of the public at large. One need
mention in this respect only the aging, the disabled, the mentally ill, and the infirm. We
are reluctant to set out on that course, and we decline to do so.Doubtless, there have
been and there will continue to be instances of discrimination against the retarded that
are in fact invidious, and that are properly subject to judicial correc-tion under
constitutional norms. But the appropriate method of reaching such instances is not to
create a new quasi-suspect classifica-tion and subject all governmental action based on
that classification to more searching evaluation. Rather, we should look to the likelihood that governmental action premised on a particular classification is valid as a
general matter, not merely to the specifics of the case before us. Because mental
retardation is a characteristic that the government may legiti-mately take into account in
a wide range of decisions, and because both state and federal governments have
recently committed them-selves to assisting the retarded, we will not presume that any
given legislative action, even one that disadvantages retarded individuals, is rooted in
considerations that the Constitution will not tolerate.Our refusal to recognize the
retarded as a quasi-suspect class does not leave them entirely unprotected from
invidious discrimination. To withstand equal protection review, legislation that
distinguishes between the mentally retarded and others must be rationally related to a
legitimate governmental purpose.The Cleburne case demonstrates that individuals with
intellectual disabilities specifically, and individuals with disabilities generally, will not be
given any height-ened level of scrutiny, because they are neither a suspect nor a quasisuspect class. It is important to note, however, that the Supreme Court emphasized that
irrational prejudice could not be the basis for unequal treatment. This standard will be
impor-tant in assessing the exclusion of students with HIV, because it is well
documented FOR THE USE OF GRAND CANYON UNIVERSITY STUDENTS AND
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Publications, Inc. Who Is Protected 75that the fear of being infected with HIV through
the types of casual contacts that occur in the education setting is irrational.Subsequent
to the Cleburne decision, Congress enacted the Americans with Disabilities Act (ADA)
in 1990. The preamble states that “historically, society has tended to isolate and
segregate individuals with disabilities; . . . [and] individuals who have experienced
discrimination on the basis of disability have often had no legal recourse to redress such
discrimination; . . . [and] individuals with disabilities are a discrete and insular minority . .
. subjected to a history of purposeful unequal treat-ment, and relegated to a position of
political powerlessness in our society, based on characteristics that are beyond the
control of such individuals. . . .”1 It would appear that Congress was setting the stage
for possible future cases that might address dis-ability under a constitutional challenge
to provide a basis to overrule the Cleburne decision. Since 1990, however, the Supreme
Court has not addressed a case where this issue was raised. Thus, it is not clear
whether the Court would change its analysis. Given the comprehensive statutory
coverage, however, it is less necessary to bring a case under the Constitution’s equal
protection and due process clauses.Heightened Scrutiny for EducationThe Cleburne
case examined the classification of individuals with disabilities and con-cluded that their
status does not give them any special protection. As the following case excerpt
demonstrates, however, special education cases will be examined with a high level of
scrutiny, not because students with disabilities are involved, but because education is
considered to be a right entitled to “special constitutional sensitivity.” The case involved
whether undocumented alien students residing in the United States were entitled to
public education.PLYLER V. DOE457 U.S. 202 (1982)Public education is not a “right”
granted to individuals by the Constitution. But neither is it merely some governmental
“benefit” indis-tinguishable from other forms of social welfare legislation. Both the
importance of education in maintaining our basic institutions, and the lasting impact of
its deprivation on the life of the child, mark the distinction. . . .We have recognized “the
public schools as a most vital civic institution for the preservation of the democratic
system of government,” and as the primary vehicle for transmitting “the values on which
our society rests.” . . .[H]istoric “perceptions of the public schools as inculcating
fundamental values necessary to the maintenance of a democratic political sys-tem
have been confirmed by the observations of social scientists.” In addition, education
provides the basic tools by which individuals might lead economically productive lives to
the FOR THE USE OF GRAND CANYON UNIVERSITY STUDENTS AND FACULTY
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Publications, Inc. 76 SPECIAL EDUCATION LAWbenefit of us all. In sum, education
has a fundamental role in maintaining the fabric of our society. We cannot ignore the
significant social costs borne by our Nation when select groups are denied the means to
absorb the values and skills upon which our social order rests. In addition to the pivotal
role of educa-tion in sustaining our political and cultural heritage, denial of education to
some iso-lated group of children poses an affront to one of the goals of the Equal
Protection Clause: the abolition of governmental barri-ers presenting unreasonable
obstacles to advancement on the basis of individual merit. Paradoxically, by depriving
the children of any disfavored group of an education, we foreclose the means by which
that group might raise the level of esteem in which it is held by the majority. But more
directly, “edu-cation prepares individuals to be self-reliant and self-sufficient participants
in society.” Illiteracy is an enduring disability. The inability to read and write will
handicap the individual deprived of a basic education each and every day of his life. The
inestimable toll of that deprivation on the social, economic, intellec-tual, and
psychological well-being of the individual achievement make it most difficult to reconcile
the cost or the principle of a sta-tus based denial of basic education with the framework
of equality embodied in the Equal Protection Clause. . . .In these days, it is doubtful that
any child may reasonably be expected to succeed in life if he is denied the opportunity
of an educa-tion. Such an opportunity, where the state has undertaken to provide it, is a
right which must be made available to all on equal terms. . . .If the State is to deny a
discrete group of innocent children the free public education that it offers to other
children residing within its borders, that denial must be justified by a showing that it
furthers some substantial state interest. No such showing was made here.As the
preceding two opinions demonstrate, it would seem that constitutionally based cases
involving unequal treatment in the education system are going to incorpo-rate a
“heightened equal protection” test, which will probably result in a very close examination
of the state’s treatment of students with disabilities. The judicial opinion in the PARC
(Pennsylvania Association for Retarded Children [PARC] v. Pennsylvania) case, issued
before either Plyler or Cleburne, similarly indicated that exclusion of stu-dents with
intellectual disabilities is unlikely to be rationally based.2Inasmuch as a constitutionally
based challenge to unequal treatment or denial of education without due process is
likely to succeed for students with disabilities, why then are all special education cases
not brought alleging constitutional violations? The two major reasons that more are not
constitutionally based are that constitu-tional cases are cumbersome and complex to
litigate, and that the Smith v. Robinson3 decision established that most special
education claims must be brought under the Individuals with Disabilities Education Act
(IDEA). In that case, the Supreme Court also concluded in that “Where the [IDEA] is
available to a handicapped child . . . [it] is the exclusive avenue through which the child
and his parents or guardian can pur-sue their [equal protection claim].”4 In most cases,
the IDEA will provide an adequate basis for redress.FOR THE USE OF GRAND
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Protected 77Cases Under the IDEAWhat Is a Disability?As noted in Chapter 4, the
IDEA defines children with disabilities as thosehaving mental retardation [now
intellectual disability], a hearing impairment (including deafness), a speech or language
impairment, a visual impairment (including blindness), a serious emotional disturbance
(referred to in this part as “emotional disturbance”), an orthopedic impairment, autism,
traumatic brain injury, another health impairment, a spe-cific learning disability, deafblindness, or multiple disabilities, and who, by reason thereof, needs special education
and related services.5Chapter 4 mentioned briefly some of the problems of labeling.
This section will focus on some of the issues that arise under the definition of child with
a disability under the IDEA. More detailed information about eligibility under the IDEA is
pro-vided in Chapter 6.One of the key provisions in the child with a disability definition is
that the child must require special education services as a result of the disability. A
student who needs only related services that are not special education services is not
covered under the IDEA.For example, a student who is able to participate fully in the
regular classroom but who has a mobility impairment and needs assistance in moving
from class to class may not be protected by the IDEA. Similarly, a student with spina
bifida who is mentally and physically able to participate in the regular academic program
but who requires inter-mittent catheterization is likely not disabled within the IDEA.
Failure to provide needed services to these students, however, is probably a violation of
Section 504 and the Americans with Disabilities Act requirements to provide reasonable
accommodation.One of the more unusual early cases involving a disability and related
services was Espino v. Besteiro.6 In that case, the boy had a condition preventing the
regulation of his body temperature. Although his condition was unusual, the student was
covered under the IDEA, and, as a result, the court held that the school was required to
air-condition the entire classroom in order to meet the least restrictive environment
(LRE) require-ments under the IDEA. The court reasoned that providing air-conditioning
would give the student maximum classroom interaction with his classmates. This case
would prob-ably have required the same accommodation had it applied Section 504 or
the ADA.Another interesting decision involved a 13-year-old intellectually gifted girl who
had anorexia nervosa. The court concluded that this physical condition resulted from
underlying emotional disturbance and that she was classified as emotionally disturbed
and disabled within the IDEA.7Age EligibilityTo be eligible for federal funding under the
IDEA, states are to provide special education to all students with disabilities as defined
under the law aged 3 through 21, including FOR THE USE OF GRAND CANYON
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Copyright © 2014 by SAGE Publications, Inc. 78 SPECIAL EDUCATION LAWthose
who have been suspended or expelled from school.8 But for those aged 3 to 5 and 18
to 21, education need only be provided to the extent consistent with state law.
Additional limitations are placed on incarcerated individuals. The state has an obligation to identify, locate, and evaluate all students entitled to special education.9 This child
find mandate is an important element for identifying students with disabilities and
preparing schools to provide education for them once they are age eligible. In some
situations, as when the child is attending private school by the choice of the parent, the
IDEA does not always mandate that the schools actually provide services, but they do
have to offer them to the student. In recognition of the value of early intervention to the
individual and societal benefits of such intervention, in 1986 Congress amended the
IDEA to provide additional incentives to states to provide programming earlier than
school age. The 2004 amendments again recognized the value of early
intervention.10Schools that wish to receive federal grants under the IDEA for special
education and related services for children ages 3 to 5 must now provide special
education to all students with disabilities in that age group.11 Previous to the effective
date of the amendment, incentive grants did not mandate coverage for all age eligible
students. Students entitled to services under this section must meet the definition of a
child with a disability but are also entitled to coverage at the state’s discretion if they
have devel-opmental delays in physical, cognitive, communication, social, emotional, or
adaptive development. State education agencies that elect to apply for grants for this
age group must have in place procedural safeguards and state plans that already apply
to children ages 6 to 18.For infants and toddlers up to 2 years of age, grants can be
awarded to an agency other than the state education agency. The goal is early
intervention as a means of reducing educational costs over the long run, maximizing the
potential for indepen-dent living, and enhancing the capacity of families to meet the
needs of this popula-tion. The services are to be provided to “individuals under 3 years
of age who would be at risk of experiencing a substantial developmental delay if early
intervention ser-vices were not provided to the individual.”12The policy of the infant and
toddler provisions does not mandate that the grantee agency actually provide all the
needed services but that it be the agency responsible for coordinating the development,
implementation, and payment of such services. Education agencies, while recognizing
the value of these programs, are challenged with the financial and practical difficulties in
implementing them.At the other end of the age spectrum, the IDEA provides that
services end at age 21 or when the student receives a regular high school diploma.13
Students who have reached the age of 18 but who have not graduated or who have
been given a diploma even though they do not actually meet the competency
requirements for graduation can raise issues for educational agencies. State policies
differ substantially in their treatment of these individuals. In some states, once the
individual has been given a diploma, the individual is no longer eligible for public
education. Some states even prohibit educational agencies from providing public
education once the student has graduated, basing this on state constitutional or state
statutory provisions. In these states, it may violate state policy to provide compensatory
education even in cases FOR THE USE OF GRAND CANYON UNIVERSITY
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Copyright © 2014 by SAGE Publications, Inc. Who Is Protected 79where it is
determined that the state had not provided appropriate education to the student before
he or she graduated. Other states are more permissive about providing education
beyond the receipt of a diploma. There is a developing body of state admin-istrative
decisions and judicial decisions on this issue, and thus far the federal special education
policymakers have not chosen to override state policies that conclude state
responsibility at graduation.14Section 504 and the Americans with Disabilities Act and
Application to Special Education SettingsSection 504 of the Rehabilitation Act of 1973
provides that “no otherwise qualified individual with a disability . . . shall solely by reason
of her or his disability, be excluded from the participation in, be denied the benefits of, or
be subjected to discrimination under any program or activity receiving Federal financial
assistance.”15 The Americans with Disabilities Act, which defines a protected individual
in similar terms, prohibits such discrimination by both public and private schools.A
person with a disability is an individual with a physical or mental impairment that
constitutes a substantial impairment to one or more major life activities, an indi-vidual
who has a record of such an impairment, or an individual who is regarded as having
such an impairment.16 This definition contrasts with the IDEA definition, which is a
categorical listing.In 1984, the Supreme Court, in Smith v. Robinson17 established that
whenever the special education statute provides a remedy, it should be the exclusive
avenue for seek-ing recourse for a student with a disability. This decision makes it
unlikely that most cases involving students with disabilities will be brought alleging a
violation of Section 504; there will be cases in which Section 504 or the ADA is
relevant.Who Is CoveredThe first element of a Section 504 or an ADA case is
determining whether the indi-vidual meets the definition of being disabled within the
statute and whether it is a situation that is not remedied by the IDEA. An example would
be a student with a mobility impairment who cannot gain access to some areas of a
school building (such as the auditorium stage or seating areas in the sports stadium) or
a student who is not allowed on the basketball team because he or she is HIV positive.
A student with severe arthritis who needs book lockers on two floors of a high school
building as a reasonable accommodation illustrates another situation.The following
decision is an example of a case of discrimination not addressed by the IDEA. The case
involved a 6-year-old boy with hemophilia who had gotten HIV through a blood
transfusion. When the school board decided to exclude him pursuant to its policy on
children with chronic communicable diseases (adopted to respond to his situation), it
became necessary to resolve whether his mother was required to pur-sue IDEA
remedies in challenging the exclusion. The excerpt clarifies the distinction between
coverage under the IDEA and Section 504.FOR THE USE OF GRAND CANYON
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BELLEVILLE PUBLIC SCHOOL DISTRICT672 F. Supp. 342 (S.D. Ill. 1987)Because
defendants’ argument relies on the applicability of EAHCA [Education for All
Handicapped Children Act] to the plaintiff, the court must determine if plaintiff’s
diagnosis of AIDS brings him within the statutory defini-tion of a handicapped individual.
EAHCA defines “handicapped children” as children who are:mentally retarded, hard of
hearing, deaf, speech or language impaired, visually handicapped, seriously emotionally disturbed, orthopedically impaired, or other health impaired chil-dren, or children
with specific learning disabilities, who by reason thereof require special education and
related services. [Emphasis added] 20 U.S.C. § 1401(a)(1) [Now § 1401(3)].In this case
the parties agree that the only category into which Johnny fits is that of “other health
impaired children.” That phrase is defined as children who have:limited strength, vitality
or alertness due to chronic or acute health problems such as heart condition,
tuberculosis, rheu-matic fever, nephritis, asthma, sickle-cell anemia, hemophilia,
epilepsy, lead poi-soning, leukemia, or diabetes, which adversely affect a child’s
educational performance. [Emphasis added] 34 C.F.R. § 300.5(b)(7).In applying these
definitions to the plaintiff, the Court concludes that three tests must be met before the
provisions of EAHCA can be made to apply in this case: 1) there must be limited
strength, vitality, or alertness due to chronic or acute health problems, 2) which
adversely affects a child’s educational perfor-mance, and 3) which requires special
educa-tion and related services. Here, the record reveals virtually no evidence that
plaintiff suf-fers from limited strength, vitality, or alertness. Furthermore, given such
evidence as is in the record of Johnny’s limited strength, there is virtually no evidence
that this limitation has adversely affected his educational perfor-mance.The Court also
finds it noteworthy that, while the defendants assert that Johnny’s hemophilia brings him
within the statutory definition of “other health impaired children,” the health impairment
they are apparently concerned with is Johnny’s AIDS virus. AIDS is not listed as an
example of an acute or chronic health problem in the statute. Furthermore, the United
States Department of Education, directly addressing the applicability of EAHCA to AIDS
victims, has opined that a child with AIDS might be considered “handicapped” under
EAHCA, depending upon his or her con-dition. More significantly, the Department’s
opinion concludes that a child with AIDS is not considered to be “handicapped,” as the
term is defined in the EAHCA, unless he or she needs special education. With respect
to the avail-ability of special education programs for chil-dren with AIDS, the opinion
states:Children with AIDS could be eligible for special education programs under the
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Publications, Inc. Who Is Protected 81category of other health impaired: if they have
chronic or acute health problems which adversely affect their educational
performance.Based on the Department of Education’s opinions and the tenor of the
statutory lan-guage, the Court concludes that EAHCA would apply to AIDS victims only
if their physical condition is such that it adversely affects their educational performance;
i.e., their ability to learn and to do the required classroom work. There is no such
showing at the present time, and it seems clear that the only reason for the Board’s
determination that Johnny needs “spe-cial education” is the fact that he has a contagious disease—AIDS. In the Court’s opinion, given the facts of this case as they now
exist, the provisions of EAHCA would not apply to the plaintiff at this time.The decision
in this case denied the defendant’s motion to dismiss the claim for failure to exhaust
administrative remedies because the claim was proper under the Rehabilitation Act, and
exhaustion is not required under that Act. While the excerpt indicates that the student is
not covered under the IDEA, it does not decide whether he was covered under the
Rehabilitation Act. Section 504 of the Rehabilitation Act of 1973 provides that “no
otherwise qualified individual with a disability . . . shall solely by reason of her or his
disability, be excluded from the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal financial
assistance.”18 The ADA, which defines a protected individual in similar terms, prohibits
such discrimination by both public and private schools.19In 1999 and 2002, the
Supreme Court narrowed the definition of disability to exclude individuals whose
conditions were mitigated by eyeglasses or other measures such as medication for
epilepsy, diabetes, and other health conditions. In 2008, Congress amended the
definition of disability for both the ADA and the Rehabilitation Act. The amendments
clarify that a number of health conditions are now almost cer-tainly considered to be
disabilities. Discriminatory treatment or failure to provide reasonable