Читать книгу Moral Issues in Special Education - Robert F. Ladenson - Страница 8
ОглавлениеThe 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 a school district’s decision concerning removal of their child to an 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:
The [IDEA] promotes inclusion as a civil right, in spite of weak data supporting it as an educational “best practice” for many SWD [students with disabilities] for improved educational results in many situations. . . . To make inclusion work schools often provide paraprofessionals (or one to one aides), accommodations or modifications, co-teaching, and other approaches to maintain the child in a classroom. Such procedures are often provided even when there is scant or nonexistent evidence that they actually improve learning for SWD and are not detrimental to other students.22
Another severe critic, Robert Worth, puts the above point bluntly, saying, “Parents of severely disabled kids . . . regularly try to shoehorn them into mainstream classes, even when it would do little good for the child and plenty of harm to the rest of the class.”23
As for point (3) in their critique, the severe critics object that the IDEA’s mandated procedural safeguards have fostered an adversarial climate in which parents feel compelled to advocate for their children against their schools. In this climate, say the severe critics, educators focus more on process compliance than on improving educational performance of children.24 The IDEA’s procedural safeguards, in the severe critics’ opinion, have resulted in an educational system “built upon mistrust between parents and schools [which] is unwise and not sustainable.”25
Given their witheringly negative assessments of special education in American K–12 public schools on the combined grounds of unfairness, ineffectiveness, and divisiveness, many severe critics would agree that, in the words of Miriam Kurtzig Freedman, the time has come “to consider ending the entitlement status of IDEA.”26
IDEA advocates dissent emphatically from the calls of the severe critics to end the entitlement status of the Act, rejecting the position of the severe critics thoroughly and unequivocally. With regard to the charge of unfairness summarized above, the following two replies could address, respectively, the severe critics’ complaints of excessive expense and excessively protective procedural safeguards for children with disabilities.
First, the greatest per pupil expenditures generally involve children with severe intellectual disabilities and/or severe physical disabilities with adverse effects upon the ability to learn. High expenditure levels are often needed in such cases for the children to have any meaningful education at all. The sole alternative is custodial care, and not education.
Second, apropos the extensive procedural safeguards related to school discipline of children with disabilities, one needs to acknowledge the high correlation between long-term school expulsions, on the one hand (followed by motivation-destroying academic failure), and/or rejection by peers, on the other hand. Further, such situations often lead to dropping out of school, social isolation, and/or depression, resulting in tragically diminished life chances.
In response to the complaint of ineffectiveness, the advocates would say the severe critics’ disparagement of inclusion completely misses the most important point in its favor. Inclusion, they would say, aims to avoid, or prevent, grievous harms of exclusion, which the severe critics either ignore or badly underestimate. The advocates might cite as illustrative in this regard the following recollections offered by Jonathan Mooney. (He is looking back in young adulthood at the impact upon him, in third grade, of removal from his regular education class for reading instruction in a resource room):
Even Mr. R. (Mooney’s 3rd grade regular classroom teacher) couldn’t stop the snide embarrassing looks my classmates gave me every time I left to go to the resource room. . . . Sometimes for cruel fun kids would ask me what room I was going to even though they knew. . . . They wouldn’t wait for an answer but just laughed and called me stupid.27
The advocates would say they could cite many more examples similar to the above. But they would insist that doing so is unnecessary to underscore the irreparable damage that exclusionary educational practices can often cause to a child’s self-confidence, sense of self-esteem, and motivation to learn. The same kinds of damage, the advocates would acknowledge, result inevitably when children with disabilities are placed without appropriate support into regular education classes. That is why, the advocates would point out, the IDEA’s least-restrictive-environment mandate calls for provision of “appropriate” “supplementary aids and services.”
Furthermore, the advocates maintain that when such are provided, inclusion of children with disabilities in regular education classrooms need not diminish the education of nondisabled students and even has the potential to enrich it in transformative ways. Apropos the latter, strong commitment to regular classroom inclusion by K–12 public school districts throughout the United States, say the advocates, could catalyze far-reaching, lifelong changes in prevailing attitudes and behavior of nondisabled persons toward individuals with disabilities. Such attitudinal change, the advocates insist, would make American society both more just and more kind.
Finally, the advocates would disagree categorically with the severe critics’ view that the right for parents of a child with a disability to challenge educational decisions concerning their child at a due process hearing (under the IDEA) has resulted in a system based upon mistrust between parents and school districts. The advocates would counter this view by noting that trust in the system requires the confidence of everyone involved that the system is fair. In this regard, the advocates would contend, the IDEA’s procedural safeguard of a right to due process is indispensable to uphold the moral right of American children with disabilities to receive an appropriate K–12 public education—a right they possess no less than do nondisabled students.
The Morally Basic Questions
The attitudes of many—if not most—people about special education in American K–12 public schools tend to lie uneasily between the polar opposite positions of the severe critics and the advocates as summarized above. On the one hand, the widespread stigmatizing and shunning that faced children with disabilities and their families well into the twentieth century has been substantially replaced—compared with years past—by empathetic awareness of the immense problems they confront. Many, though by no means all, people agree that those children with disabilities have a moral right, like all other children, to receive an appropriate K–12 education.28
On the other hand, there also is widespread recognition of the following points: The costs of educating children with disabilities, in some instances, can be very high and the educational progress of the children, compared with nondisabled peers, in many cases is small. Furthermore, the presence of children with disabilities in a regular education class often poses difficult issues with regard to allocation of educational resources, especially teacher time. As with all American K–12 public schooling, taxpayers must cover all the costs.
For the above reasons, many people don’t fully and clearly understand the rationales for practices, methods, and goals central to special education and incorporated in the IDEA. Prime examples in this connection are the zero-reject policy, the least-restrictive-environment mandate, the strict requirements and limitations regarding discipline of children with disabilities, and the IDEA’s extensive procedural safeguards (especially the right of parents to challenge a school district’s placement decision in a due process hearing).
Six morally basic questions raised by the disagreement between the severe critics of special education in American K–12 public schools and advocates for children with disabilities and their families are set forth below. No one—whether severe critic, advocate, or anyone else—has articulated all these questions clearly. And no one has analyzed them carefully and deeply enough for an adequate exploration.
(1) Do all American children, including children with disabilities, have a moral right to receive an appropriate K–12 education?
(a) If the answer is “yes” then what are the justifying reasons?
(b) If the answer is that no American child with a disability has a moral right to receive an appropriate K–12 education, then what are the reasons that justify this conclusion?
(c) If the answer is that some, but not all, American children with disabilities have such a moral right then which children have it, which do not, and, in both cases, why?
(2) Is the zero-reject policy (under which a child with a disability is assured a free appropriate K–12 education under the IDEA regardless of the nature or extent of her/his disability) morally justified? If so, why? If not, why not?
(3) Do American children with disabilities have a moral right to inclusion in K–12 regular education classes and school activities?
(a) If so, then (i) why?, (ii) does this moral right have limits?, (iii) if so, then what is their nature and moral justification?
(b) If American children with disabilities do not have a moral right to K–12 regular education inclusion, then why not?
(4) Are the IDEA’s procedural safeguards regarding school discipline of children with disabilities morally justified? If so, why? If not, why not?
(5) Are the IDEA’s due process review procedures morally justified?
(a) If so, then (i) why? and (ii) what is the basic moral responsibility of a special education due process hearing officer?
(b) If not, then why not?
(6) What are the basic moral responsibilities relative to K–12 special education of American children with disabilities of (a) lawmakers, (b) K–12 public school educators, and (c) parents of children with disabilities?
One cannot set aside the above six questions on the ground that they concern abstract, theoretical matters of interest only to philosophers of education and moral philosophers. To the contrary, all six questions require clear and, to the extent possible, precise answers if one construes the dispute between the severe critics and the advocates as, at bottom, about moral issues.
Costly expenditures for the K–12 public education of a given child with a disability are morally justified if (a) they are essential for providing the kind of K–12 education to which the child has a moral right and (b) such expenditures do not prevent other students (both nondisabled and children with disabilities) from receiving the kind of K–12 education to which they have a moral right.
Doubts about the educational effectiveness of particular instructional methods in special education (e.g., inclusion of children with disabilities in regular education classrooms) raise morally relevant concerns only if the effectiveness in doubt relates to attainment of goals entailed by the moral right of children with disabilities to receive an appropriate K–12 education. The IDEA’s extensive limitations and restrictions upon school discipline of children with disabilities are morally unjustified only if not essential for upholding the children’s moral right to receive an appropriate K–12 education.
If the procedural safeguards of the IDEA have resulted in divisiveness, such is morally objectionable only if it could have been avoided in a morally justified way. Such divisiveness would not be morally objectionable if it resulted unavoidably from parents’ efforts to claim the moral rights of their children with disabilities to receive an appropriate K–12 education. The respective moral responsibilities of lawmakers, K–12 public school educators, and parents of children with disabilities apropos the children’s K–12 education encompass diverse kinds of effort—which are all essential for providing the kind of education to which these children have a moral right.
None of the issues in dispute between the severe critics and the advocates is easily separable from the six basic moral questions identified above concerning special education in American K–12 public schools. Nonetheless, both the severe critics and the advocates seldom address the questions explicitly (or even implicitly), and rarely at the level of depth required.
Severe critics, for example, frequently dismiss assertions of the advocates that key entitlements under the IDEA are indispensable for giving legal effect to the moral rights of children with disabilities concerning K–12 public education. They view these assertions as badly misplaced civil libertarian rhetoric. In the same vein, however, advocates often brush aside the concerns of the severe critics about expense, unfairness, educational ineffectiveness, and divisiveness as failures to take seriously the moral right of children with disabilities to receive an appropriate K–12 education.
Characteristically absent on either side is an adequate analysis of the six basic moral questions identified above. Each side would need to set forth such an analysis in order to justify its thoroughgoing rejection of the other side’s stance.
However, the absence does not appear to stem entirely or even primarily from either obstinate refusal or failure to consider, in the heat of impassioned disagreement, the basic moral questions. A serious effort to address these questions leads quickly to complex and philosophically deep issues; these involve interpretive controversy over understanding and application of such concepts as happiness/unhappiness, justice, human dignity, and freedom relative to education of children with disabilities.
Ordinarily, neither diverse professionals in special education nor parents of children with disabilities and their advocates are well attuned to these issues, so despite their moral centrality the issues hover in the background unaddressed. The chapters that follow, summarized briefly below, thus deal with the basic moral questions for special education in American K–12 public schools in a focused, sustained, and philosophically informed way.
Overview of Chapters 2 through 7
Chapter 2 has two principal components. First, it sets forth an analysis of an appropriate K–12 education which applies to a group referred to in the chapter as “Group A.” Group A consists of the following members: (1) all American children who are nondisabled and (2) all American children who are eligible for special education under the IDEA definition of a “child with a disability,” except for children with severe or profound intellectual disabilities (referred to in chapter 2 as “Group B”).
Under this analysis an appropriate K–12 education for children in Group A has two prongs. It must be reasonably calculated to help children acquire knowledge and develop abilities required (1) to exercise rights, fulfill responsibilities, and exemplify ideals of membership in the American democratic body politic and (2) to have a reasonable chance for success in seeking the basic human good of self-fulfillment.
The second principal component of chapter 2 is an account that seeks to justify the conclusion that children in Group A have a moral right to receive an appropriate K–12 education, understood in terms of the above two-pronged analysis. The account consists of four arguments for this conclusion, each proceeding from the standpoint of a different major philosophical theory; each major theory differs from the other three in the concept it takes as central to the idea of social justice. The four theories, paired with the respective concepts they take as central to the idea of social justice, are as follows:
1. utilitarianism—happiness and avoidance of unhappiness;
2. Rawlsian Justice as fairness—fairness;
3. capabilities account of social justice—human dignity; and
4. moderate libertarianism—liberty (freedom).
All four of the arguments developed are highly plausible. That is to say, each argument could be found persuasive by a large group of reasonable and thoughtful persons. A persuasive argument need not establish its conclusion beyond a reasonable doubt. Instead, it sets forth considerations that call for careful reflection; this shifts the burden of persuasion to the other side of the issue by requiring a thoughtful, considered response.
To summarize, the application of different major philosophical theories of social justice, with differing conceptual cores, produces an overlapping consensus. Such consensus, accordingly, provides a persuasive justification of the judgment that American children in Group A have a moral right to receive an appropriate K–12 education, understood in terms of the two-pronged analysis.
Chapter 3 first sets forth an analysis of an appropriate K–12 education for children in Group B—that is, for children with severe or profound intellectual disabilities. According to that analysis, a K–12 education for a child with a severe or profound intellectual disability condition is appropriate if and only if it is reasonably calculated to foster significant development of central human capabilities relevant in the child’s case, given the particular aspects of his/her disability condition.
Chapter 3 then develops a justification of the judgment that all children in Group B have a moral right to receive an appropriate K–12 education in the sense specified immediately above. The justification follows the same strategy of argument utilized in chapter 2. Four arguments are presented to support the judgment, from the respective standpoints of utilitarianism, Rawlsian Justice as fairness, the capabilities account of social justice, and moderate libertarianism.
On first impression none of these theories seems to provide an adequate basis for a moral justification of the judgment. On deeper analysis, however, each theory can be interpreted in a way that lays the groundwork for a well-reasoned justification of such a judgment. This enables the framing of plausible responses to challenges that even some disability rights advocates find difficult to answer.29 The analysis in chapter 3 thus, in effect, morally justifies the zero-reject policy at the core of American special education law.
Chapter 4 focuses upon the inclusion of children with disabilities in regular education classrooms, school activities, and school functions. The chapter opens with a brief summary of a special education due process case in which the author was the hearing officer. The case serves well as a point of departure for the discussion that follows. The brief case description provided illustrates strikingly the intense and deep controversy surrounding the idea of inclusion in the context of American K–12 special education.
Chapter 4 focuses upon two conceptions, both of which are indispensable elements of any reasonable interpretation of the idea of inclusion. The first conception—the ideal of an inclusive educational community—concerns aspirations that embody moral ideals for K–12 education of children with disabilities, whether in Group A or Group B. The second conception—the principle of equal educational concern and respect—concerns morally basic required responsibilities of K–12 public school districts. (This is in contrast to ideals that from a moral standpoint are worthy of aspiration, rather than being basic moral requirements.)
Chapter 4 sets forth accounts of both conceptions and analyzes why, in some difficult cases, the two conceptions, although not inherently opposed, nonetheless tend to pull in opposed directions.
Chapter 5 opens with two case vignettes involving K–12 public school disciplinary decisions. The first vignette summarizes the factual background of a special education case the author adjudicated as a due process hearing officer. The second vignette concerns a situation involving expulsion of six regular education students, which gave rise to immense public controversy at the time it occurred. The two vignettes are considered carefully in connection with the IDEA’s requirements concerning out-of-school suspensions and expulsions of children with disabilities.
Moral questions about school discipline apropos children with disabilities, whether of a general nature or relative to disciplinary decisions concerning specific children, cannot be separated from a troubling broader moral issue. Out-of-school suspensions and expulsions withhold educational services from children. The idea, however, that children have a moral right to receive an appropriate K–12 education is central to the moral justification of K–12 public education as understood by most Americans. Correlatively, the idea that government, acting in the name of the public, has a moral responsibility to provide it is also central to such justification.
Prima facie tension thus exists between using out-of-school suspensions and expulsions as disciplinary measures and the idea that every child in the United States has a moral right to receive an appropriate K–12 public education. Chapter 5 identifies and justifies five conditions for deciding in specific cases whether or not an out-of-school suspension or expulsion violates a student’s right to receive an appropriate K–12 education.
When a school district’s policies and practices concerning out-of-school suspensions and expulsions satisfy these five conditions, any reasonable concerns regarding the fairness to nondisabled students (specifically with regard to the IDEA’s procedural and substantive due process requirements for suspensions and expulsions) are addressed adequately.
Chapter 6 concerns the right of due process review, which the IDEA provides when parents of a child with a disability want to contest the appropriateness of K–12 educational decisions made by school district personnel concerning their child. The discussion in chapter 6 identifies and evaluates the morally relevant considerations with respect to the IDEA’s mandated special education due process review system. It then analyzes the controversy between the severe critics and the advocates about whether this mandate is morally justified and arrives at the following two conclusions.
First, the system has a morally indispensable function—it upholds the moral right of children with disabilities to receive an appropriate K–12 education. This system provides a method with the force of law behind it to meaningfully effectuate the right in diverse, hard-to-resolve cases. Second, the morally justified response to diverse, valid criticisms of the way the system operates in practice is not to eliminate the system. It is instead to try to remedy its shortcomings and address major background problems which affect American K–12 special education, such as racism and economic deprivation. Neither revising the IDEA nor making changes in how it is implemented alone can solve such problems.30
Chapter 6 also considers the hearing officer’s duty of fidelity to the rule of law. This is an indispensable element of any plausible conception of morally justified due process review procedures for American K–12 special education, yet it has not been analyzed in sufficient depth. The examination includes an account of the duty’s moral basis, degree of stringency, and limits. These are brought into focus through close analysis of immensely difficult and emotionally wrenching moral issues raised by the first of the two case vignettes in chapter 5.
Chapter 7 sets forth a general account of the respective moral responsibilities of lawmakers, K–12 public school educators, and parents of children with disabilities in regard to provision of an appropriate K–12 public education for American children with disabilities. The account draws heavily upon the arguments and analyses developed in chapters 2 through 6.
Chapter 7 concludes with a brief discussion that returns to the key points of disagreement between the severe critics of American K–12 special education and the advocates for children with disabilities and their families (as summarized at the beginning of this first chapter). The concluding discussion utilizes the arguments and analyses developed in chapters 2 through 7 as conceptual resources.
Summary
The discussion in this chapter has identified six morally basic questions for K–12 special education in America. The chapters that follow will each focus upon one of these six questions in turn. They will show why and how that question is important to the moral dimensions of the significant policy issues under consideration—issues related to special education or to planning and implementation of educational programs for children with disabilities. The analyses and discussions in chapters 2 through 7 will seek to make it apparent that careful consideration of the six morally basic questions is essential to thoughtful deliberation regarding American K–12 special education.
NOTES
1. National Center for Educational Statistics, U.S. Department of Education, Digest of Educational Statistics, 2011, Table 18, Number and percentage of Students served under Individuals with Disabilities Education Act Part B by age and State jurisdiction, Selected years 1990–1991 through 2009–2010.
2. 20 U.S.C. 1400 et seq. The original name of the IDEA upon enactment in 1975 was the Education for all Handicapped Children Act (EAHCA).When Congress reauthorized the Act in 1997 it changed the Act’s name to the Individuals with Disabilities Education Act (IDEA). In the 2004 reauthorization the Act was again given a new name—this time the Individuals with Disabilities Education Improvement Act (IDEIA). Most practitioners in the field of special education, however, continue to refer to the Act as the IDEA.
3. 20 U.S.C. 1400 (c) (2) (A)–(D).
4. 20 U.S.C. 1412 (a) (1); (5) (A).
5. Robert L. Osgood, The History of Special Education: A Struggle for Equality in American Public Schools (Westport, Conn: Praeger, 2008), 44–45, 94.
6. Osgood, The History of Special Education, 31–36, 80–84.
7. Osgood, The History of Special Education, 50–54, 80–84.
8. eg., Martha Nussbaum, Frontiers of Justice (Cambridge, MA: Harvard University Press, 2006), 210.
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.
