Moral Issues in Special Education. Robert F. Ladenson
9. 20 U.S.C. 1415 (b) (6) (A).
10. 20 U.S.C. 1415 (k).
11. 343 F. Supp. 279 (1972), 348 F. Supp. 866 (1972).
12. 855 F.2d 954 (1st Cir.) (1989), cert denied 973 U.S. 982 (1989).
13. Timothy H. v. Rochester, New Hampshire School District, 960.
14. 458 U.S. 176, 203–04 (1982).
In Rowley the Supreme Court did not consider the essential requirements of an appropriate K–12 educational program for children with disabilities who are educated in other placements than a regular education classroom. In the recent case of Endrew F. v. Douglas County S.D. RE 1 (580 U.S. ____ 2017), however, the Supreme Court, in an (extremely rare) 8–0 decision, supplemented its ruling in Rowley with the following statement:
While Rowley declined to articulate an overarching standard to evaluate the adequacy of the education provided under the [IDEA] the decision and statutory language point to a general approach. To meet its substantive obligation under the IDEA a school must offer an IEP reasonably calculated to enable a child to make progress in light of the child’s circumstances.
Rowley had no need to provide concrete guidance with respect to a child not fully integrated in the regular classroom and not able to achieve grade level. That case concerned a young girl who was progressing smoothly through the regular curriculum. If that is not a reasonable prospect for a child his IEP need not aim for grade level advancement. But his educational program must be appropriately ambitious in the circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom.
The goals may differ, but every child should have a chance to meet challenging objectives. (pp. 13–14)
As the unanimous agreement of the Justices of the Supreme Court suggests, the Court’s opinion and ruling in Endrew F follows directly in terms of both logic and common sense from the standard the Court set forth in Rowley for an appropriate K–12 education in the case of a child with a disability who is educated in the regular education classroom.
15. Board of Education of the Hendrik Hudson School District v. Rowley, 192.
16. 20 U.S.C. 1412 (a) (5) (A).
17. E.g. Roncker v. Walther 700 F.2d 1056 (6th Cir. 1983), Daniel R.R. v. State Board of Education 874 F.2d 876 (4th Cir. 1989), Sacramento City School District v. Rachel Holland 14 F. 3d 1298 (9th Cir. 1994), Harman v. Loudoun County Board of Education 118 D. 3d 990 (4th Cir. 1997).
18. Robert Worth, “The Scandal of Special Education,” The Washington Monthly 31 (June 1999): 272–81.
19. Mark Kelman, “The Moral Foundations of Special Education Law,” in Rethinking Special Education in a New Century, ed. Chester E. Finn Jr., et al. (Washington, DC: Thomas B. Fordham Foundation, 2001), 78.
20. Kelman, “The Moral Foundations of Special Education Law,” 78.
21. Kelman, “The Moral Foundations of Special Education,” 80.
22. Miriam Kurtzig Freedman, “Special Education: Its Ethical Dilemmas, Entitlement Status, and Suggested System Reforms,” University of Chicago Law Review 79, no. 1 (2012): 12–13.
23. Worth, “The Scandal of Special Education,” 276.
24. Freedman, “Special Education,” 18.
25. Freedman, “Special Education,” 21.
26. Freedman, “Special Education,” 22.
27. Jonathan Mooney and David Cole, Learning Outside the Lines (Simon and Schuster: New York, 2000), 35.
28. See, e.g., Al Baker, “Working to Combat the Stigma of Autism,” New York Times, July 1, 2013, A 18.
29. E.g., Michael Berube, father of a child with Down’s syndrome named Jamie wrote,
Jamie came into the world asking us a fundamental question. . . . Assuming that we can even imagine a form of social organization in which citizens like Jamie are nourished, supported, and encouraged to reach their full human potential why might we seek to create it at all? There’s no self-evident reason why we should. (Life as We Know It [New York: Random House, 1996, 226)
30. See appendix I of chapter 7.
The Moral Right of American Children to Receive an Appropriate K–12 Education
Do all American children have a moral right to receive an appropriate K–12 education? If so, then for what reasons? If not, then why not? If the answer is that only some American children—either with disability conditions or nondisabled—have this moral right, then which children have it, which do not, and why?
As noted in chapter 1, crucial issues exist concerning how one answers these complex, yet morally basic, questions. They hover unaddressed in the background of most major controversies between severe critics of special education under the IDEA framework and advocates for children with disabilities and their families.
Chapter 2 sets forth a justification of the idea that American children have a moral right to receive an appropriate K–12 education. The justification applies to all nondisabled children; it also applies to most, but not to all, children with disability conditions enumerated in the IDEA. The justification to be developed applies only in part to children with mild or moderate intellectual disability conditions, and not at all to children with severe or profound intellectual disabilities.
Every American child, whether nondisabled or with a disability, has a moral right to receive an appropriate K–12 education. However, the justification of this belief for children with severe or profound intellectual disability conditions raises large issues requiring further discussion in a separate dedicated chapter. Such will be provided in chapter 3, which focuses on justification of the zero-reject policy underlying American special education law.
Chapters 2 and 3, considered together, are intended to justify the judgment that all American children have a moral right to receive an appropriate K–12 education. The justification developed over these two chapters will address the following two principal questions:
(1) What is the essential content of an appropriate K–12 education (i.e., the kind of K–12 education to which every American child has a moral right) for the following two groups of children, considered respectively in chapters 2 and 3:
Group A, consisting of both American children who are not disabled and American children who have disability conditions enumerated in the IDEA other than severe or profound intellectual disability and
Group B, consisting of American children who have severe or profound intellectual disability conditions?
(2) What reasons justify the judgment that all American children (i.e., both Group A and Group B) have a moral right to receive an appropriate K–12 education containing such essential content?
The Right to an Appropriate K–12 Education: Its Essential Content and Moral Justification
Tennis great Andre Agassi recounts in his autobiography the time he spent at the Bollettieri Tennis Academy. His father, consumed by the desire that Agassi become the top-ranked professional tennis player in the world, sent him there when he was thirteen years old.1 Nick Bollettieri, the owner and director of the academy, founded it to provide live-in training for tennis prodigies, and intended to develop them into professional-level tennis players.
Agassi paints a bleak picture of the school (the Bradenton Academy), where he and the other prodigies were bused on weekdays for their high school education; he concludes with the following assessment:
Bradenton Academy exists because the Bollettieri Academy keeps sending it a bus full of paying customers every semester. The teachers know . . . they can’t flunk