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