Moral Issues in Special Education. Robert F. Ladenson
however, suggests that Mill would have held that necessary functions are those a government has a moral responsibility to fulfill. Furthermore, to preserve consistency with his utilitarian moral theory, Mill would have considered a given function necessarily governmental if the following conditions apply:
(a) Carrying out the function is essential to avoid, prevent, or reduce grave conditions productive of unhappiness for a large number of individuals with respect to whom the government has responsibilities.
(b) There are strong reasons to doubt the function could be fulfilled adequately without governmental action.
In regard to (a) above, from a utilitarian perspective, appropriate K–12 education is crucial in two key respects. First, an appropriate K–12 education is indispensable for widespread development of abilities and attitudes intrinsic to the kinds of deliberation that must be common throughout the American body politic for democratic government in the United States to flourish. Availability of an appropriate K–12 education thus fosters intelligent and well-informed respect, support, participation, and commitment on the part of the persons over whom U.S. governments at all levels—federal, state, and local—claim legitimate governmental authority.
Second, for virtually every child in Group A, appropriate K–12 education is likewise indispensable for a reasonable chance of success in seeking the basic human good of self-fulfillment. Not having had an appropriate K–12 education tends to result in deep-seated feelings of inadequacy, alienation, and/or hopelessness—feelings that place persons on a trajectory that often includes prolonged unemployment, reliance upon public assistance, drug abuse, alcoholism, and/or criminal incarceration.
Apropos (b), the idea that American children in Group A could be assured an appropriate K–12 education without any governmental action at all presupposes assumptions that many would say are highly unrealistic; these assumptions concern how the total cost could be covered if financed solely by tuition payments of parents and private philanthropy.
Utilitarianism in its pure form (i.e., unmodified by combining it with a nonutilitarian approach) calls for moral judgments to be based solely upon comparative assessment of benefits (considerations productive of happiness) and harms (considerations productive of unhappiness). It is reasonable to conclude that such a harm-benefit assessment overwhelmingly supports providing an appropriate K–12 education, as understood in terms of the two-pronged analysis set forth in this chapter, for every American child in Group A. This conclusion becomes apparent when one considers the totality of harms likely to result from not doing so, specifically:
• the causes of unhappiness enumerated above that tend to result for educationally deprived individuals in American society and
• the sense of deeply bitter resentment, with all its unsettling social consequences, generated among the members of a large segment of the population—people who consider themselves, their families, and their friends as having been deprived of a reasonable opportunity for self-fulfillment in their lives.
One is hard pressed to think of realistically likely benefits that, from a utilitarian standpoint, could outweigh the above harms.
Rawlsian Justice as Fairness
John Rawls presented his theory of justice as fairness in A Theory of Justice—a book that became, by far, the most influential work in political philosophy among academic philosophers within the past half-century.20 Rawls proposed two principles of justice (in an essay written subsequently to A Theory of Justice), which he set forth as follows:
(1) Each person has an equal right to a fully adequate scheme of equal basic liberties, which scheme is compatible with a similar scheme for all.
(2) Social and economic inequalities are to satisfy two conditions:
First, they must be attached to offices and positions open to all under conditions of fair equality of opportunity.
Second, they must be to the greatest benefit of the least-advantaged members of society.21
In regard to the first principle, the liberties that comprise the system of basic liberties are those enumerated above in the summary of attitudes intrinsic to democratic deliberation. These include “political liberty (the right to vote and to be eligible for public office) together with freedom of speech and assembly, liberty of conscience and freedom of thought, freedom of the person along with freedom from arbitrary arrest and seizure as defined by the rule of law.”22
As for the second principle, its second part, which Rawls terms “the difference principle,” concerns the distribution of income and wealth in society. The principle specifies that while such distributions may include inequalities, the distributions must, on balance, be to the greatest benefit of the least-advantaged members of society, in the sense that their position would be worse off if the inequalities were eliminated.23
The difference principle is, however, constrained by what Rawls terms “the priority of liberty.” This means that any attempt to eradicate unjust inequality must not violate any of the equal liberties that make up the system of equal basic liberty referred to in the first principle.24
As Rawls conceives of government in a just society, lawmakers have a moral responsibility to regard the two principles of justice as paramount when deliberating about proposals for legislative enactment.25 From this standpoint, it seems apparent that legislation directed at assuring that American children receive an appropriate K–12 education is a morally required governmental responsibility for the following reasons related respectively to Rawls’s first and second principles of justice.
First, an appropriate K–12 education is designed to provide knowledge and develop abilities central to meaningful participation in American democratic deliberation, which requires understanding (both theoretical and practical) of the rights that make up the system of basic liberty in Rawls’s first principle of justice.
Second, for the United States the vast preponderance of inequalities referred to in Rawls’s second principle of justice concern the distribution of income and wealth. These inequalities result from a complex combination of deeply embedded economic, political, and cultural factors.
Major changes in all three of these domains would be needed even to approximate the requirements of Rawls’s difference principle. Nonetheless, in light of the strong correlation between educational advancement and economic opportunity, any serious effort to meet Rawls’s requirements would have to include the assurance that American children in Group A receive an appropriate K–12 education.
The Capabilities Account of Social Justice
The capabilities account of social justice, as developed by its leading theorist, Martha Nussbaum, “begin[s] with a conception of the dignity of the human being, and of a life that is worthy of that dignity—a life that has available in it truly human functioning.”26 Nussbaum presents a list of ten central human capabilities, which she claims are “part of a minimum account of social justice,” in the respect that “a society that does not guarantee these to all its citizens, at some appropriate threshold level, falls short of being a fully just society.”27
The following are the ten central human capabilities Nussbaum lists:28
(1) Life—being able to live to the end of a human life of normal length; not dying prematurely (i.e., before one’s life is so reduced as to be not worth living);
(2) Bodily health—being able to have good health, including reproductive health; to be adequately nourished; to have adequate shelter;
(3) Bodily integrity—being able to move freely from place to place; to be secure against violent assault, including sexual assault and domestic violence; having opportunities for sexual satisfaction and for choices in matters of reproduction;
(4) Senses, imagination, and thought—being able to use the senses to imagine, think, and reason—and do these things in a “truly human” way informed and cultivated by an adequate education;
(5)