Commentary | Education

Lessons—A Misstep in the Senate

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These pieces originally appeared as a weekly column entitled “Lessons” in The New York Times between 1999 and 2003.

[ THIS ARTICLE FIRST APPEARED IN THE NEW YORK TIMES ON APRIL 11, 2001 ]

A Misstep in the Senate

By  Richard Rothstein

A bipartisan group of senators successfully held budget and tax negotiations hostage last week to demands for more special education aid. The senators say they only want Congress to fulfill a pledge made years ago, but the proposed legislation is a case of good intentions gone awry.

The bill, sponsored chiefly by Senators Chuck Hagel, Republican of Nebraska; James M. Jeffords, Republican of Vermont; and Edward M. Kennedy, Democrat of Massachusetts, would appropriate an extra $38 billion by 2007. This is more than special education should have. And it leaves big needs unmet for regular classes.

The harmful consequences of these good intentions stem from two provisions in current law.

First, special education has legal guarantees that regular programs lack. Children with disabilities who need extra help must get it. Parents who disagree with denial of services can sue, and a court can reverse school decisions, regardless of cost. Regular education has no such standing. Parents cannot seek court orders for tutoring or small classes, even if the need is great.

The special-education entitlement was created in 1975 when President Gerald R. Ford signed a much-needed educational guarantee for children with disabilities. The law has been a big success. Children’s lives were saved. Many became productive in ways previously unimaginable.

But it has not worked perfectly. Some parents have to sue for aid. Some children get more services than they need because districts fear lawsuits. Schools in some urban areas find it easier to put slow learners and children with behavior problems in special education, where financing is guaranteed, than to keep them in regular programs where they may not get extra support.

And because of ever-present litigation threats, each child’s special education is documented, generating massive paperwork.

The 1975 law authorized federal subsidies for each child with a disability. The amount was to be 40 percent of the average amount spent nationally per pupil. But Congress never kept this promise. Appropriations never rose above 15 percent.

This failure to provide 40 percent has been deeply resented by state and local leaders who must starve regular programs to pay for special education. They have lobbied an increasingly sympathetic Congress to meet the 40 percent obligation. In the 2000 campaign, President Bush promised to do so. Budgets of both the president and Senate now provide for more special education money.

The mischief in these proposals, however, stems from combining special education’s entitlement status with a second proviso of the 1975 law. It says federal funds must  “supplement, not supplant” local spending for children with disabilities. At the time, this made sense. Many states had tiny special-education programs. Congress had reason to worry that schools would withdraw existing special-education dollars once federal financing flowed. Then, children with disabilities would still lack good education.

But things have changed. Initially, many states came up with money themselves because federal law required it. Now, however, they have enacted their own special-education guarantees. Most children with disabilities today get services to which they are entitled, paid for largely by states and localities.

Districts need relief. With more federal financing from new legislation, they should be able to shift money to regular programs with soaring needs.

In 1997, “no supplant” rules were modified slightly to permit one-fifth of new federal special education money to be used for other purposes, provided all special needs were met. The bill now before Congress does not change this further but it should. If the law is enacted, schools already meeting 100 percent of special-education needs will get a lot of new money, with the requirement that almost all of it, too, must be spent on special education. This is foolish.

Special-education lobbyists who have pressed for this admit the anomaly. They say many districts resist providing special services because they are so costly, forcing parents to go to court. Schools with more federal money, the argument goes, would be less likely to resist legitimate parent requests.

This may be true in some cases. But many district leaders are also strapped for regular education funds. With almost all special-education needs now being met, districts should have more discretion about whether marginal dollars should be spent on regular or special programs.

This can be fixed. Congress could fulfill its promise of 40 percent by giving the $38 billion to states without restricting it to special education. States would still be obligated by federal and their own laws to provide fully for children with disabilities.

Schools would get relief they need, and a growing resentment of special education by regular educators would end.

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