Full Funding & Rights...

Posted by Greg Cruey Jul 7, 2006

While we tend to think in terms of legislation when we consider the rights of special education students, the truth is that laws have consistently been passed by Congress primarily to catch up to what the courts have ruled must happen. Students with disabilities in America have a right to a free, appropriate public education (a FAPE), not because Congress made it law, but because the courts have said so - first in 1971 in the case Pennsylvania ARC v. the Commonwealth of Pennsylvania, and again the next year in the Mills v. the Board of Education. The Education for All Handicapped Children Act (EAHCA, later to become the Individuals with Disabilities Education Act, or IDEA) was an attempt in 1975 to bring order and legal organization to the rights the courts had already recognized.

Consider this:

• When the U.S. Supreme Court ruled in 1954 in Brown v. Board of Education that city and county school systems all across America would have to integrate their schools, not a penny in funding for the task was attached to the ruling.
• In 1972, when the Patsy T. Mink Equal Opportunity in Education Act (eventually to become known as Title IX) was passed requiring some level of parity in funding for sports for men and women, no funding was committed to that.
• When the Rehabilitation Act (including section 504, which prohibits discrimination against people with disabilities) was passed in 1973, not a cent was appropriated to help local government agencies comply with the new law's requirements.
• In 1990 the Americans with Disabilities Act was made law and extended still more civil rights protections to the disabled without a single thin dime of funding.

Rights are rights. And one of the most profound and fundamental values of American society is the idea that money can't buy you your rights. Neither can your lack of money cost you your rights.

So when Congress began, as part of the debate over passing EAHCA, to try and estimate the cost of educating students with disabilities in the public schools, the waters were muddied and clarity of thought on the topic has often been reduced as a result. The idea developed in many state and local educational agencies that the right of a severely retarded child, or of a blind and deaf girl, or of a Down syndrome boy to a FAPE was somehow contingent upon the degree to which federal funding could be used to secure that child's right.

A monetary value was placed on a basic right in American society.

It would be nice if the federal government thought that the value of educating the disabled was worth more. It would be nice, for that matter, if the federal government thought that education in general was worth a greater investment. I'd be for that - for money to lower the student-teacher ratio in American schools and to raises teacher pay so that salaries reflect the level or training and professionalism required to do the job. Instead the current administration's long term goal seems to be the privatization of education in America and the dismantling of Great Society programs like Title I.

The truth is that regardless of the federal government's willingness (or unwillingness) to fund special education in individual states from Washington's coffers, kids with autism or dyslexia, with emotional disturbances or traumatic brain injury have an unmitigated right to an education. A free education. An appropriate education. That's not to say that a disabled child has a right to the best available education; but they do have a right to an appropriate one.

The funding issue is simple, really. When a school system says that it can't provide that kind of education because, well, it can't afford to, it is offering to violate that child's civil rights. And it bears liability for that regardless of federal funding priorities in the current fiscal year....

(For a more complete discussion of the issue, take a look at this examination of the idea of "full funding" for special education, by one of America's leading legal minds in disability law, Reed Martin.)