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Moral Issues in Special Education. Robert F. Ladenson
however, my objective has been to open or to further discussion rather than to close it. I hope that sharing the results of these efforts with thoughtful readers will further moral understanding in regard to the ongoing intensely disputed issues in American K–12 special education.
The Need for Philosophical Analysis
Nearly six and one-half million children receive special education in American K–12 public schools, as estimated by the U.S. Department of Education.1 Their educational programs are shaped, to a great extent, by the provisions of a federal statute, the Individuals with Disabilities Education Act (IDEA), which was enacted in 1975 and went into effect in 1978.2
Congress enacted the IDEA to address the inadequacy of educational services for children with special educational needs. The congressional findings section prefacing the IDEA states that prior to its enactment “the educational needs of millions of children with disabilities were not being fully met because the children did not receive appropriate educational resources . . . were excluded entirely from public school and from being educated with their peers . . . [or] undisclosed disabilities prevented them from having a successful educational experience.”3
Under the IDEA states may receive federal financial support for K–12 public school special education programs provided that a free appropriate public education (FAPE), implemented “to the maximum extent appropriate” in the “least restrictive environment,” is made available to every child eligible for services.4 The IDEA sets forth a comprehensive and detailed legal framework of rules and regulations concerning education in K–12 public schools for children with disabilities, which a state receiving IDEA funds must assure are complied with by school districts. All fifty states have opted for IDEA funding.
In the early twentieth century—when special education programs were initiated in American K–12 public schools—and for more than a half-century afterward, the inclination to stigmatize, shun, and/or marginalize children with disabilities was both widely prevalent and strong throughout American society.5
In this social environment parents frequently placed their children with disabilities in institutions; there, with only a small number of exceptions, a child at best received custodial care with no effort made to educate him or her and at worst suffered grave abuse and/or severe neglect.6
Throughout the first half of the twentieth century, special education programs grew and developed in American K–12 public schools. Many of the educators involved viewed themselves as participating in an effort to create a vastly preferable alternative, both educationally and morally, to “putting away” children with disabilities.7
Many consider enactment of the IDEA in 1975 a major moral achievement.8 However, as with the similarly regarded 1964 Civil Rights Act (to which the IDEA is at times compared), controversial, complex, and difficult-to-resolve issues have emerged since the IDEA’s provisions went into effect in 1978. The IDEA has severe critics who contend that these issues indicate grave moral flaws at the IDEA’s core and crucial ways in which special education in American K–12 public schools has gone irretrievably off the rails under the IDEA framework.
Unsurprisingly, advocates for children with disabilities and their families reject the above viewpoint unequivocally. Among these advocates are several spokespersons for organizations that played a key role in moving Congress to enact the IDEA. Such advocates affirm with great force and conviction that, to the contrary, American children with disabilities have a moral right to receive special education in K–12 public schools, and that the IDEA has played an indispensable role in effectuating this right.
The first section of this introductory chapter summarizes important provisions of the IDEA which give rise to the principal disputed issues between severe critics of K–12 special education under the IDEA (hereinafter, “the severe critics”) and advocates for children with disabilities and their families (hereinafter, “the advocates”). The second section identifies the principal disputed issues and summarizes the respective positions of the severe critics and the advocates with regard to these issues.
The third section sets forth six morally basic questions for special education in American K–12 public schools. Without addressing these questions, it is impossible to frame a non-question-begging, let alone plausible, position on any of the key points of disagreement between the severe critics and the advocates regarding K–12 special education for children with disabilities under the IDEA.
The fourth section provides a summary of the topics to be considered in the chapters that follow (chapters 2 through 7). Each chapter focuses on one of the six morally basic questions identified in the third section. The discussions in each chapter apply concepts drawn from major works of moral, political, legal, and educational philosophy.
The IDEA
As noted above, under the IDEA states receive financial support for special education programs provided they assure that every student eligible for services receives a FAPE, implemented “to the maximum extent appropriate” in the “least restrictive environment.”
The IDEA, as also noted above, outlines extensive procedures that states accepting funds under the Act must assure are followed by school districts. For example, school districts must initiate efforts to identify every child among those they serve who may have special educational needs. Having identified such students, school districts must then decide in each case whether to conduct a full-scale evaluation to determine that child’s eligibility for services.
The IDEA provides an extensive range of parents’ rights with regard to the evaluation process when a school district decides to conduct a full-scale evaluation. If an evaluated child is found eligible to receive special education, then a school district must develop an Individualized Educational Plan (IEP) through conference meetings of teachers and school staff who will implement the student’s plan. The IDEA requires that an eligible student’s parents be invited to participate in the IEP conference meeting.
Under the IDEA, states that accept funds must establish an administrative review process which enables parents to challenge any decision of a school district where they disagree concerning “identification, evaluation, or educational placement of the child or provision of a free appropriate public education to [the] child.”9 The parents’ challenge takes place before an impartial hearing officer in a proceeding referred to in the IDEA as an “impartial due process hearing.” The IDEA gives parents (and school districts as well) a right to appeal a due process hearing officer’s decision in federal or state court.
The IDEA sets forth extensive rights, both substantive and procedural, for children with disabilities with regard to school discipline; the most important of these concern long-term suspensions and expulsions.10
If a child with a disability has been suspended for ten days in the course of a school year, the district must conduct a special meeting before any further day of suspension may be imposed. This meeting will determine whether or not the infraction giving rise to the contemplated next (eleventh) day of suspension was a manifestation of the child’s disability.
If decided in the affirmative, then a functional analysis (an inquiry into the circumstances tending to trigger the child’s unacceptable behavior) must be done and a behavioral intervention plan put in place if one has not already been developed and implemented. When a child already has a behavioral intervention plan, it must be modified appropriately or replaced if necessary.
If a child is determined to be a danger to himself or others, he may be placed in an interim alternative educational setting for up to forty-five days before returning to his prior educational placement or to a new placement decided upon for him. Parents who want to challenge