Deep in Judge Thomas Moukawsher’s decision in the Connecticut Coalition for Justice in Educational Funding v. Rell is troubling language regarding funding for students with severe disabilities.

Judge Moukawsher is correct that identifying students with disabilities remains imprecise and subjective. And yes, school funding issues are negatively and disparately impacting students with disabilities. However, the language Judge Moukawsher uses in his ruling regarding determining educational benefits for students with the most severe disabilities is disturbing at best.

At worst, it creates an extremely slippery slope that could send our idea of what it means to educate students with severe disabilities backward, to an era when many of these students would have otherwise been excluded from public schools or institutionalized. While the ruling is currently under appeal, this issue, and several of the others raised in the case, should be considered and discussed, regardless of the outcome of the appeal.

In 1972, two landmark court decisions assured students with disabilities of their federal constitutional right to a free and appropriate education, regardless of the severity of the disability. Both cases — Pennsylvania Association for Retarded Children (PARC) v. the Commonwealth of Pennsylvania and Mills v. Board of Education of the District of Columbia — were foundational in the development of federal special education legislation, now known as the Individuals with Disabilities Education Act.

Combined with civil rights laws such as Section 504 of the Rehabilitation Act of 1973, and later, the Americans with Disabilities Act of 1990 (and amended in 2008), these pieces of legislation have been nothing short of critical in providing access to educational opportunities for generations of students with disabilities. Educational and post-school outcomes have significantly improved for generations of students with disabilities as a result, though more needs to be done.

Judge Moukawsher stated that school officials “may never consider the possibility that the education appropriate for some students may be extremely limited because they are too profoundly disabled to get any benefit from an elementary or secondary school education.” He also wrote that “extensive services are not always required” for these students, as schools may spend “fruitlessly on some at the expense of others in need.”

The ruling apparently leaves decisions about which students will — and will not — benefit from funding (as well as what services should be provided) to local officials. How will these officials square these decisions with the mandates of the IDEA that require services for these students? The ruling seems to ignore the fact that the federal law requires a free and appropriate public education for all children with disabilities, including any necessary related services. And given that the ruling also critiqued the method by which students are determined to have a disability, what criteria would be used to make these decisions? Furthermore, the ruling states that related services considered essential to a student with a disability need not necessarily be paid out of education budgets. Where will these essential services come from?

Although Judge Moukawsher’s ruling addresses students with severe disabilities, often medical in nature, the lessons of the historic PARC and Mills cases should still ring true. In the PARC case, decisions about who could benefit had been left to local officials, just as Judge Moukawsher’s ruling seems to advocate. The result? Students labeled “uneducable,” unable to “profit” from a public education, or who were determined to have a mental age of less than 5 years old, were excluded from schools altogether. The financial burden of serving these students shifted from the board of education to the Department of Public Welfare.

Fortunately, the court unequivocally barred these practices, noting that “all mentally retarded persons are capable of benefiting from a program of education and training” and that the earlier this education begins, the more benefit will be seen. Research findings in the decades since have proven this to be accurate.

In the Mills case, students with disabilities had been excluded from “specialized instruction adapted to their needs,” as the defendants argued that funds to provide these specialized services would be at the expense of children without disabilities. Again, fortunately, the judges in the case were “not persuaded by that contention.”

Although Judge Moukawsher is correct on a number of fronts, this portion of the ruling comes dangerously close to moving the state backward in how we determine educational benefits for students with severe disabilities. We need to remember that issues related to funding special education and identifying disabilities can be worked on and resolved; such discussions need to be revisited periodically as circumstances and knowledge changes.

For example, with advances in research and changes in public attitudes, the criteria used to identify different disability types have been updated many times over the past 20 years. The state and local districts do need to work on improving the consistency by which these criteria are implemented.

Likewise, the state, districts, policymakers, and researchers must work together to determine new, innovative — and yes, more cost-effective — ways to provide an appropriate education to students with significant disabilities while keeping them in their local district. But we must not allow policy that simply removes funding for students with significant disabilities and is based on a regressive and divisive philosophy of determining which children can benefit. Let’s keep moving forward.

Joseph Madaus, Ph.D., is Associate Dean for Academic Affairs at the University of Connecticut’s Neag School of Education. He also also serves as director of UConn’s Center on Postsecondary Education and Disability.

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