Brown v. Board of Education and the Development of Special Education

Background

A characteristic of racial relations in the United States during the 19th and 20th centuries was segregation. The U.S. Supreme Court authorized state adoption of officially sanctioned segregation in Plessy v. Ferguson (hereinafter Plessy) in 1896. In this ruling, the Supreme Court held that as long as separate facilities for races were equal, the presence of such facilities was constitutional. The Plessy ruling essentially became the justification for Jim Crow laws, which allowed racial segregation in public facilities, such as buses, movie theaters, and schools (Separate but equal, 2021). The separate but equal doctrine would be used in areas of the country, especially the South, for the next 60 years (Pelka, 2012).

In the early 1950s, the National Association for the Advancement of Colored People (NAACP) began bringing lawsuits to overturn the Plessy decision. Led by attorneys from the NAACP, including Thurgood Marshall, who was later appointed to the U.S. Supreme Court by President Lyndon Johnson, lawsuits were brought to directly challenge the separate but equal doctrine, which included state-sanctioned segregation in public schools.

In the early 1950s, five cases that addressed racial segregation in education were heard in various states throughout the nation. These cases were Briggs v. Elliott (1952), Brown v. Board of Education of Topeka (1952), in Kansas; Davis v. County School Board of Prince Edward County (1952), in Virginia; Gebhart v. Belton (1952), in Delaware; and Bolling v. Sharp (1954), in Washington, DC. The rulings in these cases were appealed to the U.S. Supreme Court. The Court consolidated the cases and used Brown v. Board of Education of Topeka to address the separate but equal doctrine in public schools.

The Brown case involved a young African American girl, Linda Brown, who was denied admission to an all-White elementary school in Topeka, Kansas. Her father, Oliver Brown, filed a class-action suit against the Board of Education in Topeka. In the lawsuit, Brown challenged the separate but equal doctrine. Thurgood Marshall was the chief counsel for the NAACP and argued the case for the plaintiffs (i.e., Oliver Brown and the other plaintiffs) before the Court. The defendants (i.e., the Board of Education of Topeka Kansas) were represented by John W. Davis, a former presidential candidate and attorney. Davis had argued more than 100 cases before the Supreme Court. In Brown, Davis argued that states had the right to educate their children as state officials saw fit and that the doctrine of separate but equal was constitutional.

The Ruling in Brown

The case was heard by the Supreme Court in 1953. The chief justice at the time was Fred Vinson, who believed the Plessy doctrine of separate but equal should be upheld. Interestingly, John W. Davis made his opening argument for the defendant state of South Carolina in the Brown case as follows:

May it please the Court, if the Court should find for the Negro children here, then I am unable to see how the schools of the state could anymore segregate on the basis of sex, or age, or mental deficiency [emphasis added]. (Gilhool, 2011; Harbaugh, 1973)

Davis’s opening statement proved to be prescient!

After the oral arguments were finished, John W. Davis remarked that he believed that the defendants would win the case (Lennon, 2007), the Supreme Court justices, however, were unable to come to a decision. Associate Justice Felix Frankfurter therefore requested that the case be reheard at beginning of the next term. However, before the beginning of the new term Chief Justice Vinson died. President Dwight Eisenhower nominated a former governor of California, Earl Warren, to be the next chief justice. Earl Warren was confirmed and thus was the chief justice of the U.S. Supreme Court during the rehearing of Brown and in the eventual decision in the case.

Showing great political skill, Chief Justice Warren guided the Court to a unanimous ruling in Brown, in which the Court overturned the Plessy separate but equal doctrine. In the opinion, Warren wrote that “in the field of public education the doctrine of separate but equal has no place. Segregated schools are inherently unequal” (Brown, p. 495). The Court ruled that because of segregation in the schools, the plaintiffs were being “deprived of the equal protection of the laws guaranteed by the 14th Amendment” (Brown, p. 495). In perhaps the most well-known statement on the importance of education from Brown, Chief Justice Warren wrote,

Today, education is perhaps the most important function of state and local governments . . . 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 education. Such an opportunity, where the state has undertaken to provide it, is a right that must be available to all on equal terms. (Brown, p. 493)

The ruling in Brown was a major victory for the civil rights movement and became a foundation for further civil rights actions and changes in education. The U.S. Supreme Court ruled that state-required or state-sanctioned segregation solely on the basis of a person’s unchangeable characteristics, such as race, was unconstitutional because it violated the equal protection and due process clauses of the U.S. Constitution and denied children of color equal educational opportunity. According to Justice Elena Kagan of the U.S. Supreme Court, the moment Brown was decided, the days of segregation in every aspect of American life were numbered (Caouette, 2014).

The Brown Ruling and the Right to Education Cases

One of the first persons to comment on the applicability of the Brown ruling to persons with disabilities was Dr. Gunnar Dybwad, the executive director of the National Association of Parents and Friends of Mentally Retarded Children (now the Arc). Dr. Dybwad believed that the Brown ruling had great implications for families and their children with disabilities because these children often had no access to public education (Gilhool, 2011). Attorneys such as Thomas Gilhool and Stanley Herr collaborated with parent advocacy groups to begin filing lawsuits against school districts that excluded children with disabilities using the Brown ruling as a basis for their complaints (Gilhool, 2011).

The cases brought by Gilhool and Herr were similar to Brown except for the populations addressed. That is, that the purpose of Brown was to secure the rights of children of color to an education and the purpose of the special education cases was to the secure the rights of children with disabilities to an education (Gilhool, 1976). As Stanley Herr, one of the attorneys in the case Mills v. Board of Education of the District of Columbia (1972) noted, “Rights are generally exercised by the assertive. Legal systems do not often better themselves for those too inactive to protest fundamental deprivation” (Herr, 1972b, p. 743).

In the early 1970s, the Commonwealth of Pennsylvania had a law allowing the public schools to exclude “children who were found to be uneducable or untrainable” (Pennsylvania Association for Retarded Citizens (PARC) v. Commonwealth of Pennsylvania, 1972, p. 280). Because the state was using this law to exclude students with intellectual disabilities, officials at the Pennsylvania Association for Retarded Children (PARC) decided to hire a young attorney, Thomas Gilhool, to represent the organization in a class-action lawsuit against Pennsylvania’s exclusionary law. The PARC organization hired Gilhool because PARC officials knew that he had been involved in the civil rights movement in the late 1950s and 1960s (Gilhool, 2011). In PARC v. the Commonwealth of Pennsylvania, attorney Gilhool based his arguments on the Brown decision, asserting that if the Supreme Court should find for the African American children in Brown, how could states anymore segregate students on the basis of sex, age, or disability (Gilhool, 2011). The case ended with the Court approving a consent decree that required the state to provide a free public education to the students with intellectual disabilities that would match the education provided to students in the general education system. The court noted that the willingness of officials for the Commonwealth of Pennsylvania to negotiate reflected “an intelligent response to overwhelming evidence against their position” (Pennsylvania Association for Retarded Citizens (PARC) v. Commonwealth of Pennsylvania, 1972, p. 290). In this statement, the judge noted that the evidence against the state was so devastating that officials had no option but to settle the case.

A year later a lawsuit was filed against the District of Columbia in the U.S. District Court for the District of Columbia. The case, Mills v. Board of Education of the District of Columbia (1972), was a class-action lawsuit filed on behalf of seven children with varying types of disabilities. Stanley Herr, an attorney who spent his career working to secure the rights of persons with disabilities, was the lead attorney for the plaintiffs. He used the Brown decision to argue that if African American children had a right to a public education so did children with disabilities (Gilhool, 2011; Herr, 1972a). The plaintiffs prevailed in this case and in his ruling the judge in the Mills case, Joseph Waddy, cited the Brown decision in emphasizing the importance of education. He further issued an order requiring the District of Columbia school board to provide a free and appropriate public education to students with disabilities. In Mills, the constitutional basis of the right of students to receive a publicly supported education was unequivocally settled (Herr, 1972a). According to Judge Waddy, the District of Columbia Board of Education had violated the due process clause of the Consitution by denying students with disabilities access to publicly supported education.

The decisions in the PARC and Mills cases were crucial in the development of special education. These cases secured the rights of students with disabilities to receive a free public education and set a precedent for similar cases to be filed across the United States. In the 2.5 years following these decisions, 46 similar right to education cases were filed in 28 states. Three years after the PARC and Mills decisions, Congress passed the Education for All Handicapped Children Act of 1975, which was renamed the Individuals with Disabilities Education Act in 1990.

The attorneys in the PARC and Mills case based their arguments on the U.S. Supreme Court’s decision in Brown in which the Court specifically addressed the rights of children of color to be integrated with White children in the educational process. However, the Court’s words in Brown were eventually applied to millions of children and youth with disabilities, allowing them equal participation in the U.S. educational system.