What's "appropriate"?: Finding a Voice for Deaf Children and Their Parents in the Education for All Handicapped Children Act

• Publication year: 1990

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 14, No. 2WINTER 1991

What's "Appropriate"?: Finding a Voice for Deaf Children and Their Parents in the Education for All Handicapped Children Act

Suzanne J. Shaw

I. Introduction

Since its passage in 1975, the Education for All Handicapped Children Act (EAHCA or the Act)(fn1) has given rise to substantial litigation between the parents of handicapped children and local and state school authorities.(fn2) Some of the most difficult EAHCA cases have involved the education of deaf children.(fn3) In fact, certain underlying premises of the Act, such as the protection of civil rights of handicapped students, have caused an implementation often at odds with the needs of individual children.(fn4) In addition to its avowed purpose of providing a free appropriate public education, the Act requires that "to the maximum extent appropriate, handicapped children . . . are educated with children who are not handicapped. . . . "(fn5) This desire for integration has been labeled "least restrictive environment" by the U.S. Department of Education, the agency responsible for implementing the EAHCA,(fn6) and is often referred to as "mainstreaming."(fn7) The attempt to balance the competing notions of "appropriate" and "least restrictive" is the source of much of the conflict between litigants in EAHCA cases.

In the case of deaf children, whose needs are both unique and varied, the consequences are particularly acute.(fn8) Under the EAHCA as it has been implemented by the states and interpreted by the courts, deaf children are often denied what the EAHCA was intended to give them-a free appropriate public education.(fn9) Parents of deaf students are anguished and frustrated with a system that, however well-intentioned, fails to provide an adequate learning environment for their children.(fn10)

In applying the Act to educational placements of deaf children, courts have deferred consistently to educators as experts, even when they are not required to do so and even when it is unclear that the school has made an effort to meet an individual child's educational needs.(fn11) Although courts may be well-intentioned, such an approach fails to afford deaf children and their parents the "free appropriate public education" that Congress intended. When parents and teachers cannot agree, rather than defer to the expertise of school officials, courts must make some independent assessment of a child's procedural rights under the Act in light of that child's need. Otherwise, school officials may freely assess the child's need in light of their own resources, a result not intended by Congress.(fn12)

This Comment will present some of the impacts that previous court decisions have had on deaf children and will provide background on the educational, cultural, and social implications to deaf children of the choice of communication methodology(fn13)- language. This background is essential to an understanding of deaf education, for nothing is more central to learning than language. Likewise, language is central to acculturation and to socialization.(fn14) A decision that imposes a particular communication methodology on a child and her family cannot be made lightly, because that decision has an impact that reaches beyond her daily life into her future. To be sure, schools have limited resources and cannot provide unlimited choices. However, schools should not be allowed to choose the communication method used for teaching a deaf child or deaf children solely for their own convenience. When a deaf child and her parents are disturbed enough to challenge such a decision, courts should respond by at least satisfying themselves that the child's individual needs are met.

This Comment explores a significant impact of the EAHCA on deaf children, the inability of such children and their parents to have an effective voice in identifying their own educational needs. This Comment argues that the courts should defend the rights of deaf children and their parents to play a meaningful role in defining and effecting an appropriate education for their children and ensuring that the children's educational needs are met. The Supreme Court has in fact recognized that Congress intended parents to play such a role.(fn15)

Initially, the Comment briefly reviews the EAHCA's purpose and its legislative history, and describes the workings of its adrninistrative procedures.(fn16) The Comment then examines the seminal case interpreting the EAHCA, Board of Education v. Rowley,(fn17) as it applies to the parents' role in a deaf child's education.(fn18) This section of the Comment also explores the meaning currently given to "free appropriate education" and "least restrictive environment" (LRE), as well as the natural, and possibly irresolvable, tension between these requirements.

Against this background, Section III of this Comment then sets out the Act's unique impact on deaf children. This impact is caused not only by the characteristics of the children themselves, but by factors such as the small population of deaf children and limitations on public resources. In addition, the Comment identifies, at least partially, the potential significance of choices of educational and communication methodology for deaf students and their parents.

Finally, Section IV examines how recent federal court decisions, by substantially deferring to school authorities, have effectively disenfranchised deaf children and their parents as both participants and beneficiaries of the EAHCA.

II. Background of the EAHCA

A. Purpose of the Act

1. Legislative History

Several factors played key roles in the enactment of the EAHCA. Among these were developing trends in special education, pressure from parents and educators, and two landmark decisions in 1972. From the late sixties, segregated education of moderately or mildly handicapped children began to fall into disfavor, and experts began supporting the education of handicapped and nonhandicapped children in the same classroom. The popular term for this concept, "mainstreaming," came into wide use at about this time.(fn19)

Parents of handicapped children provided additional impetus for the enactment of the EAHCA. Parents organized themselves and questioned the need for segregation, as well as methods then used for evaluating and placing children. Parents also sought more funding for meeting the educational needs of their children.(fn20)

Pursuing their efforts in the courts, parents and organizations supporting them were successful in two 1972 class actions involving placement and educational services for handicapped children. The first of these cases, Pennsylvania Association for Retarded Children v. Commonwealth(fn21) (P.A.R.C.), was brought on behalf of mentally retarded children excluded from education or training in Pennsylvania public schools. Approving a consent decree in P.A.R.C., the court required Pennsylvania to provide members of the class with a free public education appropriate to individual learning capacity.(fn22) The court's consent decree also required the state to provide each child with a written educational strategy and to review that strategy annually. Furthermore, the state agreed to provide parents with notice and an opportunity to be heard before causing any change in a child's educational status.(fn23)

The second case, Mills v. Board of Education,(fn24) involved a much broader class. In Mills, seven children sued the District of Columbia Board of Education on behalf of all mentally, emotionally, or physically handicapped children excluded from publicly supported education.(fn25) Relying on Brown v. Board of Education,(fn26) the Mills court held that the District of Columbia's treatment of handicapped children violated the due process clause.(fn27) In addition, both P.A.R.C. and Mills established a preference for educating handicapped children in mainstream settings whenever possible.(fn28)

A number of right-to-education cases followed the P.A.R.C. and Mills decisions.(fn29) School officials responded to these cases by joining the lobbying efforts of parents and special education experts.(fn30) Partly as a result of such efforts, Congress passed the EAHCA in 1975.

As enacted, the EAHCA is broad in scope. In varying degrees, it attempts to meet the interests of all those who lobbied for its passage.(fn31) The Act provides financial assistance to any state that "has in effect a policy that assures all handicapped children the right to a free appropriate public education."(fn32)

At the time of the Act's passage, there were approximately eight million handicapped children in the United States; Congress found that as many as half of these children were "not receiv[ing] appropriate educational benefits which would enable them to have full equality of opportunity."(fn33) In response to concerns about lack of opportunity, the EAHCA mandated that, to the maximum extent possible, handicapped children should be educated with children who are not handicapped.(fn34)

2. How the Act Works

In order to identify children who are in need of special education and related services, schools often rely in the first instance on referrals from parents and teachers.(fn35) A multidis-ciplinary team, including at least one specialist in the area of the child's disability, then conducts an evaluation to determine...