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Hastings Law Journal

Authors

Wendy F. Hensel

Abstract

This Article examines the issue of eligibility under the Individuals with Disabilities Education Act ("IDEA"), that is, what kind of disability a child must have to qualify for protection and services under the statute. The author explores whether the current legislative approach to disability and eligibility enhances the integration and advancement of children with impairments or reinforces the stigma of difference and inequality. Part I of the Article examines the legislative evolution of eligibility since the passage of the statute, then known as the Education for All Handicapped Children Act, in 1975. This Part also explores the legal and social implications of the rising number of special education students. Part II of the Article describes current trends in eligibility determinations, looking to judicial and administrative decisions interpreting the meaning of "child with a disability." This section highlights and critically evaluates the ways in which courts and hearing officers have used the vagueness of the statutory terms to endorse an increasingly narrow view of disability. Finally, Part III evaluates the legal and public policy implications of the shift towards restrictive eligibility under the IDEA. The author concludes that although the special education population increasingly includes students with more moderate, intangible impairments, this growth is positive in some respects and consistent with early Congressional intent. She argues that the debate over the growth of special education is more appropriately focused on the extent of services available to students with disabilities, rather than the characteristics of the students who are receiving services.

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