‘Dark poison’ in Judge Moukawsher’s education ruling

Judge Thomas Moukawsher issued a monumental ruling last week in Connecticut Coalition for Justice in Education Funding v. Rell.  Based on an extensive trial that ran from January through June, the judge determined that Connecticut’s system of funding education was irrational and unconstitutional.  As to his basic findings, Judge Moukawsher is to be applauded.

The excellent decision came, however, with a very dark poison in it. Judge Moukawsher proposed that certain children with severe disabilities be denied a public education.  He says, “The call is not about whether certain profoundly disabled children are entitled to a ‘free appropriate public education.’  It is about whether schools can decide in an education plan for a covered child that the child has a minimal or no chance for education, and therefore the school should not make expensive, extensive, and ultimately pro-forma efforts.”  He claims, inaccurately, that “no case holds otherwise, and this means that extensive services are not always required.”

This triage proposal is at odds with what the litigants argued in the case and diametrically opposed to federal civil rights law.

The judge proposes discriminating against the severely disabled.  Yet, discrimination based on the severity of disability violates the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.   Judge Ellen Bree Burns addressed this issue head-on in Messier v. Southbury Training School, 1999 U.S. Dist. LEXIS 1479 (D.Conn. 1999).

Federal ADA regulations provide that a public entity, such as a school board, may not provide different benefits or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with benefits or services that are as effective as those provided to others.

Judge Burns wrote that courts have repeatedly held that the Americans with Disabilities Act and Section 504 of the Rehabilitation Act prohibit discrimination based on the severity of disability.  Specifically, she held that the State violated the ADA by failing to provide profoundly or severely disabled individuals with the same array of services as those provided to other less handicapped individuals, thereby discriminating solely on the degree of one’s disability.

Subsequently, the United States Supreme Court came to the same conclusion.  The question of whether ADA covers discrimination among disabled individuals was clearly confronted in Olmstead v. L.C., 527 U.S. 581 (1999).  Indeed, Justice Thomas, in his dissent, criticized the majority for finding that “discrimination occurs when some members of a protected group are treated differently from other members of that same group.” Responding to this allegation, the Supreme Court majority called Justice Thomas’ contention “incorrect as a matter of precedent and logic.”

Numerous other federal courts and the U.S. Department of Education have held that it is illegal to discriminate against the most disabled.  This policy is not only mandated by the language of the Individuals with Disabilities Education Act, it is also sound, just, and humane.  For years, individuals with disabilities have been shunned, segregated and placed out of sight in institutions.  Indeed, Hitler’s Germany went further by establishing extermination programs for the disabled long before creating such programs for Jews, gypsies, and others.  By deeming the disabled as the Other, we strip them of their humanity and feel free in removing their basic human rights.

Judge Moukawsher deems it economically infeasible to provide comprehensive special education services to those with severe disabilities.  He decides that they are hopeless or worthless, and certainly not worth the expenditure of public resources.  The judge has no idea what thoughts, dreams, hopes, and loves reside in the heart of an individual who cannot speak or who cannot control his or her physical movements.  Yet, ignorant of the basic humanity of an individual with a severe disability, he wants to deprive them of educational services.  Shame on him.

Equally frightening is the underlying notion that the level of societal expenditures on an individual ought to be based on that individual’s potential contribution to society.  We cannot, of course, predict with any accuracy what an individual may offer to the world.  Beyond that, this notion could lead to a termination of benefits for the elderly, as well as the disabled.  It is a notion out of the selfish and stern philosophy of Ayn Rand.

We must, as a society, reject such an approach.  We need to focus on unlocking the potential of all our citizens.  We need to focus on the contributions made by each of our neighbors.  Only by helping those most in need can we create a just society.

Andrew Feinstein is a special education lawyer in Mystic.