Moral Issues in Special Education. Robert F. Ladenson
interim alternative educational setting have a right to a hearing presided over by an impartial hearing officer. The hearing officer’s decision may be appealed in either federal or state court.
The passage by Congress of the IDEA in 1975 was preceded in 1972 by two landmark court cases: Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania (PARC) and Mills v. Board of Education of the District of Columbia (Mills).11 PARC involved a statute allowing the Commonwealth of Pennsylvania to deny educational services to mentally retarded children. In Mills the Board of Education of the District of Columbia claimed that owing to lack of funds it had a right to exclude from public schooling a broad class of students, including children with behavioral problems, emotional disturbances, and hyperactivity.
In PARC and Mills the respective courts found the denials of services to the students at issue violated the students’ equal protection and due process rights under the Fourteenth Amendment of the U.S. Constitution. The defendants in both cases (the Commonwealth of Pennsylvania in PARC and the Board of Education of the District of Columbia in Mills) signed consent decrees giving every child within the disability categories involved the right to a free, appropriate public education; these consent decrees also established a range of due process protections.
Judicial decisions following enactment of the IDEA have established firmly that the severity of a child’s disability does not qualify as a legally justified basis for denying the child coverage under the IDEA. In another landmark case, Timothy H. v. Rochester, New Hampshire, School District, a school district argued that a student’s disabilities were so severe that he could not benefit from an education and therefore the school district was not required under the IDEA to provide a special education program for him.12
In rejecting the school district’s position, the U.S. Court of Appeals for the First Circuit stated emphatically that “[t]he language of the Act in its entirety makes clear that a ‘zero-reject’ policy is at the core of the Act” (emphasis added).13
The most critical issue for legal interpretation of the IDEA concerns how to understand what the word “appropriate” means in the context of a special needs student’s right to a FAPE. This question was addressed in the following words of the U.S. Supreme Court in the case of Board of Education of the Hendrik Hudson School District v. Rowley (Rowley):
Insofar as a State is required to provide a handicapped child with a “free appropriate public education” we hold that it satisfies this requirement by providing personalized instruction with sufficient supporting services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State’s educational standards, must approximate the grade levels used in regular education and must comport with the child’s IEP. In addition, the IEP, and therefore the personalized instruction should be formulated in accordance with the requirements of the Act and if the child is being educated in the regular classroom of the public education system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.14
The Supreme Court did not set forth any specific standards in Rowley for deciding whether the education a child with disabilities receives permits him or her to “benefit educationally.” The Court made it clear, however, that a school district need only satisfy a distinctly limited standard for the educational services it provides a student. In this regard the Court said,
By passing the [IDEA], Congress sought primarily to make public education available to handicapped children. But in seeking to provide such access to public education, Congress did not impose any greater substantive standard than would be necessary to make such access meaningful. Indeed, Congress expressly recognized that in many instances the process of providing special education and related services is not guaranteed to produce any particular outcome. Thus, the intent of the [IDEA] was more to open the door to public education to handicapped children on appropriate terms than to guarantee any level of education once inside.15
As for the “least-restrictive-environment” (LRE) requirement of the IDEA, the Act expressly mandates that “special classes, separate schooling, or other removal from the regular education environment occur only when the nature or severity of the disability of a child is such that education in a regular classroom with the use of supplementary aids and services cannot be achieved satisfactorily.”16
When disagreements arise about whether education of a child with disabilities “cannot be achieved satisfactorily” in the regular education environment, a crucial question remains: What are the proper legal standards to employ for resolving such disagreements? Although several circuits of the U.S. Court of Appeals have addressed this question, the U.S. Supreme Court has not done so.17
Positions of Severe Critics and Responses of Advocates
Special education, shaped closely in terms of its implementation framework by rules and regulations of the IDEA, has come to occupy an important place over the past several decades in American K–12 public schools. Despite this fact, special education has severe critics who condemn it as (1) unfair, (2) educationally ineffective, and (3) the principal cause of divisive and dysfunctional relationships between families of children with disabilities and public school districts.
Apropos the charge of unfairness, severe critics identify two concerns as most troubling. First, educational progress of children with disabilities is often limited as compared with other students and also, in some cases, can be extremely expensive. For example, educating a child with severe intellectual disabilities requires, in most cases, (1) a special education teacher, (2) a one-on-one aide, (3) the services of an inclusion specialist to help incorporate regular education inclusion into the child’s educational program “to the maximum extent appropriate,” and (4) diverse related services personnel as needed (e.g., a speech and language therapist, an occupational or physical therapist).
Furthermore, in the case of any child with a disability, if the child’s disabilities pose significant educational issues the school district is not able to address, then it must bear the often-costly expense of an out-of-district placement.
Does not fairness thus require, ask the severe critics, redistributing public expenditures for K–12 public education so that much of the portion now devoted to educating children with severe intellectual disabilities would go to help other students with great educational needs, but also greater likelihood of benefiting from the expenditures? An obvious group to target in this regard, say the severe critics, would be low-achieving regular education children in poverty.18
The second problem area related to unfairness for the severe critics concerns the extensive provisions of the IDEA, summarized in section I, regarding discipline. The IDEA imposes significant limitations of both a procedural and substantive nature upon school discipline of children with disabilities which do not apply to regular education students.19 Attempting to apply disciplinary measures in compliance with these limitations, the severe critics object, is both time consuming and—in some instances—expensive.
Given the unavoidably frequent subjective judgments involved when deciding whether the limitations are applicable in specific cases, say the severe critics, differential disciplinary treatment for students with disabilities can generate strong feelings of resentment on the part of nondisabled students and their families about disruptive classroom behavior.20
To this point, severe critic Mark Kelman writes, “[T]here are many cases in which emotionally and behaviorally disordered children have proven disruptive, even when mainstream teachers are tolerant, supportive, and adequately assisted by special education aides. . . . [A] high level of integration may well improve the educational experience of disabled children, but harm nondisabled children.”21
Apropos (2) in the list of criticisms above—that special education often is ineffective—the severe critics direct their most intense attention to the least-restrictive-environment mandate of the IDEA. This mandate calls for education of children with disabilities in the regular education classroom “to the maximum extent appropriate.” The following words of severe critic Miriam Kurtzig Freedman express a common stance of the severe critics in this connection: