Corrupted intentions: reforming special education

National Review, March 11, 1996 by Chester E. Finn

CONSERVATIVES talk a good game about lifting Uncle Sam's heavy hand from the back of American education and restoring control of schools to parents and communities. It's high time they tackle the 'special' education of disabled students. For more than two decades, this program has embodied all that Newt Gingrich and the feisty freshmen say they abhor: onerous, unfunded federal mandates; extra benefits and rights for government-designated populations; opportunities for activists and lawyers to hustle more taxpayer-financed largesse; and, most of all, the smug assumption that Washington knows best how to run the nation's schools.

The special-education program does not even work very well. And it costs real money: about $3.25 billion in federal funds each year, plus billions from Medicaid and other programs that help pay for services it mandates.

Yet today it's not even on the reformers' list. Special education has been exempted from all known block-grant schemes. Bills to abolish the Education Department would transfer it intact. The pending 1996 appropriation scarcely nicks it. Although the main statute awaits reauthorization, nobody on Capitol Hill suggests more than mere tinkering. Sub-committee chairmen Bill Frist and 'Duke' Cunningham handle it with kid gloves.

The reason for such caution is, to put it gently, non-substantive. Everyone knows there's reason to revamp the entire program, recently described by a House staffer as 'an incredible case of . . . micromanaging local school districts.' Still, it's assumed throughout political Washington that any attempt to change it would be suicidal.

The special ed-ifice rests on two pillars. One is civil-rights legislation that since 1973 has barred discrimination against the handicapped. The other is the federal aid program, first enacted in 1975, which declares that every disabled youngster must be provided a 'free appropriate public education' tailored to his unique needs -- whatever that entails.

The statute does not say this should be done within available resources or that Uncle Sam will pay for it. At its peak, Washington covered about 12 per cent of the cost. Today, the federal share is around seven per cent. States and localities are saddled with a bill of at least $30 billion, perhaps as much as $50 billion.

States do not have to participate -- but then they would forfeit their federal monies. Faced with no-escape civil-rights laws and court decisions that use the 'equal protection' clause to mandate extra educational services for disabled youngsters, it is no surprise that the federal program now rules from ocean to ocean.

As one might expect, both the civil-rights measures and the special-education program began as remedies for bona fide wrongs. Many handicapped youngsters did not attend school at all in the early 1970s. 'Compulsory attendance' laws often exempted them. Horror stories told of kids shut in attics and cellars.

In response, a rash of successful lawsuits secured handicapped youngsters the right to public education almost everywhere. By 1975, only two states had not provided schooling for most such children. But leaving this to the states was too slow and patchy for the advocates. Why have fifty programs with different provisions when Uncle Sam could create a single big one -- and dangle the federal dollar to draw everyone into its web?

Today's special-education program is complex, as might be expected of anything that serves five million-plus youngsters. Each state must have a comprehensive plan for serving all disabled persons aged 3 to 21, whether they're in school, home, hospital, or jail. The more such people the state finds, the more federal dollars it gets.

School systems must provide all the services spelled out in each child's individual education plan, even if that means hiring more staff, paying tuition to private schools, or arranging for 'clean catheterization.' In practice the special-education program has first claim on the district's entire budget.

Disabled students must be educated in the 'least restrictive environment,' which means placed whenever possible in regular classrooms. Such 'inclusion' works well for some but can lead to chaos when a teacher must cope with youngsters who have severe emotional and behavioral problems.

YET the teacher does not have much say. Parents have sweeping 'due process' rights to shape their disabled child's educational program, and a thriving legal practice is eager to help them exploit those rights. (Since the school system must pay parents' legal fees, it's no surprise that administrators are apt to cave quickly to their demands.)

A double standard applies to discipline. It's nearly impossible to suspend or expel a disabled child. Even moving him out of the classroom requires parental consent or a court order. Although one federal law requires states to suspend a gun-toting student for a full year, if he is disabled another statute limits even his placement in an 'alternative setting' to 45 days. (For other weapons, the limit is ten days.) Says Fairfax County's school superintendent Robert Spillane, 'Any student who is classified as disabled is now literally able to get away with anything.'