The Church, the State, and the EHA: Educating the Handicapped in Light of the Establishment Clause

Marquette Law Review, Dec 1989

By Thomas F. Guernsey and M. Grey Sweeney, Published on 01/01/89

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The Church, the State, and the EHA: Educating the Handicapped in Light of the Establishment Clause

The C hurch, the State, and the EHA : Educating the Handicapped in Light of the Establishment Clause as F. Guernsey M. Grey Sweeney Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Thom as F. Guernsey and M. Grey Sweeney, Th e Church, the State, and the EHA: Educating the Handicapped in Light of the Establishment Clause, 73 Marq. L. Rev. 259 (1989). Available at: http://scholarship.law.marquette.edu/mulr/vol73/iss2/3 - CLAUSE THOMAS F. GUERNSEY* M. GREY SWEENEY** I. INTRODUCTION All parents have the basic right to guide the educational future of their children.1 Prior to the 1970 s, however, it was not unusual for the parents of a handicapped child to find it difficult, if not impossible, to provide their child with a genuine opportunity to learn. 2 Despite the Supreme Court's proclamation in 1954 that education, "where the state has undertaken to provide it, is a right which must be made available to all on equal terms,"3 handicapped children were routinely excluded from public education or segregated within it. Congress, responding to the increasingly vocal call for equal education, took significant steps in 1970 to remedy the inequities by enacting legislation to help states educate handicapped children, the culmination of which was the Education for All Handicapped Children Act of 4 1975 ("EHA"). * Professor of Law, University of Richmond. B.A., University of Michigan, 1973; J.D., Wayne State University, 1976; LL.M., Temple University, 1980; member, New Hampshire and Virginia Bars. ** Associate, Heilig, McKenry, Fraim and Lollar, Norfolk, Virginia; B.A., Longwood College, 1986; J.D., University of Richmond, 1989; member, Virginia Bar. 1. See Wisconsin v. Yoder, 406 U.S. 205 (1972); Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923). 2. See S. THOMAS, LEGAL ISSUES INSPECIAL EDUCATION 1-6 (1985). Thomas reports that as recently as 1968, only 38% of handicapped children were being served by public education. Id. at 3. 3. Brown v. Board of Educ., 347 U.S. 483, 493 (1954). Although Brown involved the question of racial segregation, the principles articulated were later used in a number of cases involving handicapped children. See S. THOMAS, supra note 2, at 4 (discussing the development of case law relating to discrimination against handicapped children in education). 4. 20 U.S.C. §§ 1400-61 (1982) (amending Education of the Handicapped Act, Pub. L. No. 91-230, § 601, 84 Stat. 175 (1970)). Congress' efforts to include handicapped children in the public schools actually began in 1966, when Title VI was added to the Elementary and Secondary Education Act. Title VI created the Bureau of Education for the Handicapped (later replaced by the Office of Special Education Programs) and offered grants to assist states in educating the handicapped. In 1970 , Congress replaced Title VI with the Education of the Handicapped Act ("EHA"). The EHA added grants for equipment and facilities to the existing state grant program, but lacked a permanent entitle The EHA, in tandem with Section 504 of the Rehabilitation Act,5 makes state and local educational authorities responsible for ensuring that handicapped children in their districts receive a "free appropriate public education" ("FAPE").6 Where public facilities and services are inadequate to provide a child with a FAPE, the educational agency may be required to place that child in a private educational facility at no cost to the parent.7 Even when public facilities are adequate to provide a child with a FAPE, some parents choose to place their child in a private institution. In many instances, the private institution selected by parents is a parochial or church sponsored school.8 While public agencies are not required to fund a unilateral private placement,9 they do retain a significant responsibility for ensuring that handicapped children in parochial schools receive special education and related services.1" Public school authorities, therefore, may find themment program. In 1974, the House and Senate proposed several amendments to the EHA, including an entitlement scheme and a timetable for state enactment. These amendments became the core of the Education of All Handicapped Children Act, Pub. L. No. 94-142, which was signed into law by President Ford on November 29, 1975. WEINER, Pub. L. 94-142: IMPAcT ON THE SCHOOLS 14-20 (1985). 5. Pub. L. No. 93-112, § 504, 87 Stat. 394 (1973) (codified as amended at 29 U.S.C. § 794 (1982)); see also 34 C.F.R. § 104 (1988) (to effectuate § 504 of the Rehabilitation Act). The Rehabilitation Act was enacted on September 26, 1973. Section 504 of the Act, hailed as the first civil rights statute for the handicapped, states in part: "No otherwise qualified handicapped individual in the United States... shall, solely by reason of his handicap be excluded from the participation mn,be denied the benefits of, or b (...truncated)


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Thomas F. Guernsey, M. Grey Sweeney. The Church, the State, and the EHA: Educating the Handicapped in Light of the Establishment Clause, Marquette Law Review, 1989, Volume 73, Issue 2,