An IDEA in Need of a Better Answer

Blogs, Letters & Testimonials

October 6, 2016

By Michael Dannenberg

Outside of fights for fully funding the Individuals with Disabilities Education Act (IDEA), I’ve always shied away from policy work on special education.  My mom is disabled and one of the millions who prior to IDEA was kept out of public school – in her case until 6th grade. IDEA is a personal, emotional issue for me as it is for millions of parent advocates. It’s also a pretty successful education civil rights law — one that has the potential to do even more.


Almost everyone in education views IDEA as a law that codifies in federal statute a right to education for children with disabilities.  But maybe, just maybe, IDEA could also be viewed as a law that codifies a derivative right to education for non-disabled children as well

The IDEA special education law provides that children with disabilities are to receive a “free appropriate public education” in the “least restrictive environment.”  But what if the regular public school is so bad, so inadequate for all kids that a child with a disability can’t get an appropriate public education in that school regardless of his or her disability?  Does that mean the relevant public school district has to segregate out that child with a disability into a special classroom or separate school that does provide an appropriate public education?  If so, how is that the “least restrictive environment?”

I’d submit that schools have to provide an appropriate public education for everyone or risk violating IDEA’s requirement that a child with a disability receive an appropriate education in the least restrictive environment to which he or she is entitled.

Now I haven’t checked recent case law, but let’s look at the IDEA statute because ultimately that’s what should control; that and the U.S. Constitution.

The IDEA Statute

Under Section 602 of the IDEA statute, a free appropriate public education is defined to have several elements, of which the most relevant here is that it must “meet the standards of the State educational agency.”

Section 612 of the statute explains that the least restrictive environment is basically the regular classroom to the maximum extent it possibly can be. There is to be segregation “only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”

But what does it mean to meet the standards of a state agency? Well, as per state court decisions as well as subsequent and independent state policy, states have come up with all sorts of standards from fire code to academic standards. The federal government has weighed in as well.

The ESSA Statute

Take a look at the new Every Student Succeeds Act (ESSA) that passed last December that amends the Elementary and Secondary Education Act (ESEA). It lays out requirements regarding state education standards (i.e. content and skills that students are taught to, but don’t necessarily have to master), including that those North Star content and skill expectations must be the same for all children.

Section 1111 of ESSA includes a series of civil rights guardrails. State ESEA Title I plans are to be “coordinated with . . . the Individuals with Disabilities Education Act, the Rehabilitation Act,” and other ESEA programs. State academic standards are to be the same for all children. That’s where some people stumble. “Can disabled kids really learn to the same standards?” Well, yes, but set that aside and look at the ESEA law.

‘‘(A) IN GENERAL.—Each State, in the plan it files under subsection (a), shall provide an assurance that the State has adopted challenging academic content standards and aligned academic achievement standards (referred to in this Act as ‘challenging State academic standards’) . . .

‘‘(B) SAME STANDARDSExcept as provided in subparagraph (E), the standards required by subparagraph (A) shall—

‘‘(i) apply to all public schools and public school students in the State; and

‘‘(ii) with respect to academic achievement standards, include the same knowledge, skills, and levels of achievement expected of all public school students in the State.

‘‘(C) SUBJECTS.—The State shall have such academic standards for mathematics, reading or language arts, and science, and may have such standards for any other subject determined by the State.

‘‘(i) IN GENERAL.—Each State shall demonstrate that the challenging State academic standards are aligned with entrance requirements for credit-bearing coursework in the system of public higher education in the State . . .

That last part about state education standards having to be aligned with what public colleges require for credit-bearing coursework is new and should prevent a dumbing-down of K-12 content standards.

Ok. So to recap the argument:

Under IDEA –

(1) a free appropriate public education has to meet the standards of the State.

Under ESEA –

(2) state standards have to be the same for all students.

Under IDEA –

(3) children with disabilities are to receive a standards-based education in the least restrictive environment.

Under IDEA –

(4) an education in the least restrictive requirement means that to the maximum extent appropriate, children with disabilities cannot be taught in separate schools or separate classes.

Given those four premises, doesn’t it stand to reason that an inadequate public school has to be made adequate (i.e. reasonably able to teach and for children to learn state standards) for all children so that children with disabilities aren’t unfairly forced into segregated settings?

Now the skeptical lawyer-types will say there’s no private right of action under ESEA and besides, you can’t ignore case law.  But first, there is a private right of action under IDEA (with attorney fees covered in successful cases). Second, case law can be overtaken by new facts.

For almost 35 years, the controlling case law interpretation of the free appropriate public education clause has been found in Justice Rehnquist’s Hendrick Hudson Central School District v. Rowley, 458 U.S. 76 (1982), decision.  There, a divided court held that all a school district needs to do to meet IDEA’s free appropriate public education requirement is to provide children with disabilities a program with “some educational benefit” — presumably anything above zero benefit. But the 1982 Rowley decision predates the statewide standards-based education reform movement. It predates articulation of state content and performance education standards much less ESSA’s heightened requirement of statewide academic standards aligned with preparation for credit-bearing, college level work. It doesn’t examine the specific, relevant subparagraph of the statute (subparagraph (9)(B)).

Granted, IDEA and ESEA state participation is voluntary. But every state participates in IDEA and ESEA as amended by ESSA.  Theoretically, a state could withdraw from participating, but no state has ever done so.  Frankly it wouldn’t make a lot of sense given the range of other federal disability laws (e.g. the Americans with Disabilities Act) as well as federal and state constitutional provisions that intertwine with IDEA. In fact, a majority of states have their own versions of IDEA on their books as state law. IDEA and its forerunner the Education For All Handicapped Children Act in part was based on over twenty pre-existing state laws assuring children with disabilities receive a free appropriate public education in the least restrictive environment.

For most states, it just doesn’t make sense to contemplate withdrawing from IDEA.  If nothing else, the loss of federal revenue to any state pulling out of IDEA or ESEA would be politically prohibitive. Plus if a state withdrew from one or the other, it’s not as if other state and federal laws, not to mention state and federal constitutional law, would not apply.

Bottom line: IDEA and a host of other federal and complementary state disability and education laws are supposed to provide children with disabilities two essential promises:

  1. An adequate education; and
  2. An integrated environment to the maximum extent possible.

Based on the text of the IDEA statute, it seems that participating states should have to make at least some showing that they are providing an adequate education consistent with state standards to all children in a public school lest children with disabilities in those schools be forced to give up one of their two statutory rights to adequacy and access.

Who knows? Maybe one day, we’ll find out that there is a federal right to education . . . for everyone.  There certainly should be.

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