Perna: Breaking the Cycle of Burdensome and Inefficient Special Education Costs Facing Local School Districts

541

Breaking the Cycle of Burdensome and Inefficient Special Education Costs Facing

Local School Districts

ALESSANDRA PERNA*

ABSTRACT

Almost every issue and side effect of special education legislation comes down to cost. Within special education law, there is a recurring cycle that has never been resolved. Since the first special education legislation was enacted forty years ago, subsequent developments have caused unforeseen consequences. The issue boils down to overly burdensome and inefficient costs, as well as a lack of funding. To begin, school districts should stop over-diagnosing students. Too many students are being placed into special education when a general education, with proper services and supports, is much more effective, efficient, and beneficial to the student. Congress pledged to take on the responsibility of 40% of the cost for educating a disabled student, however, they have never come close to funding their portion of the legislation. This Note unwinds the cycle of, and reasons for, such high costs in the special education system and proposes the multifaceted solution of efficiency for reducing some of these high expenses.

* Juris Doctor, New England Law | Boston (2015). B.S., Business Administration, Babson

College (2011). I would like to thank my family and fianc for their unconditional love,

continued support, and guidanceI owe my success to you.

542 New England Law Review v. 49 | 541

INTRODUCTION

n January 30, 2014, Sarah was hospitalized at the Connecticut Childrens Medical Center for out of control behavior, triggered by trivial issues at home.1 She was aggressive, hostile to the point of

hitting, yelling, screaming, and trying to break a wall. She also attacked one of the police officers responding to the incident.2

Sarah is fourteen years old and in eighth grade at a Connecticut middle school.3 She has multiple daily episodes of out of control behavior both at home and at schoolat times hitting other students.4 In addition, she has numerous daily episodes of syncope5 in which she falls unconscious and refuses to wake up.6 Sarah also reports mood dysregulation,7 which entails headaches, nausea, vomiting, body aches and pains, stomach aches, back pain, feeling tired, lethargic, and poor sleep at night.8 Sarah is diagnosed with autism, ADHD, reactive attachment disorder, and possibly anxiety and other mood disorders.9 Sarah sees a psychiatrist monthly and had a

1 Telephone Interview with Anonymous Teacher, Teacher, Middle School in Conn. (Feb. 23,

2014) (on file with Author). All personally identifiable information of students, teachers, and

the school district have been changed for confidentiality reasons. All subsequent information

is based on real events, real diagnoses, and actual support services the student currently

receives. 2 Id. 3 Id. Sarah was adopted at age four from Guatemala, and little is known about her family

history. Id. 4 Id. 5 See, e.g., Syncope or Fainting, BETH ISRAEL DEACONESS MED. CTR., http://www.bidmc.org/

Centers-and-Departments/Departments/Medicine/Divisions/Cardiovascular-Medicine/For-

Patients/Diseases-and-Conditions/Arrhythmias/Syncope-or-Fainting.aspx (last visited Apr. 9,

2015) (Syncope, better known as fainting, is a transient loss of consciousness and posture.). 6 Telephone Interview with Anonymous Teacher, supra note 1. There are concerns about

Sarah's afunctional-type seizure episodes, which she feels she has been suffering from for the

past two and a half years. Id. She reports multiple somatic complaints, including anxiety,

nervousness, and feeling scared. Id. 7 See generally Disruptive Mood Dysregulation Disorder (DMDD), AM. ACAD. OF CHILD &

ADOLESCENT PSYCHIATRY (May 2013), available at http://www.aacap.org/App_Themes/AAC

AP/Docs/facts_for_families/110_disruptive_mood_dysregulation_disorder.pdf (Disruptive

Mood Dysregulation Disorder (DMDD) is a relatively new diagnosis in the field of mental

health. Children with DMDD have severe and frequent temper tantrums that interfere with

their ability to function at home, in school or with their friends.). 8 Telephone Interview with Anonymous Teacher, supra note 1. Sarah reports feelings of

hopelessness but denies any thoughts of harm to herself or others. Id. However, on numerous

occasions she exhibited out-of-control behavior with aggression towards others. Id. 9 Id. Sarah is currently medicated with Prozac to alleviate mood and anxiety issues, but it

O

2015 Costs o f Sp ec ia l Educat ion 543

neuropsychological evaluation done in February 2014, paid for by her school district.10

At school, Sarah receives: a one-to-one paraprofessional thirty hours per week; academic labs (special education resource time) three hours per week; co-taught math about four hours per week; co-taught reading and writing six hours per week; academic support (with special education staff) eight hours per week; counseling with the school psychologist one hour per week; and speech and language therapy with a speech and language pathologist four and one-half hours per week.11 Sarah has access to computers in every class; a calculator; headphones to listen to music to help her maintain focus; and modified/alternative tests for math, social studies, and science.12 She is given an alternate setting and extended time for test taking, a modified amount of vocabulary for vocabulary lessons, and a reader for all areas and modified assessments.13 Finally, Sarahs grades are based on modified assessments.14

This is not even Sarahs entire file.15 Sarah is one student receiving these servicesand not all services were mentioned abovein a middle school educating over 650 students in just three grades (68).16 The cost of educating this one student is unfathomable, yet Sarahs school district is required to cover all the costs of providing her with a free appropriate public education under the Individuals with Disabilities Education Act (IDEA).17

This Note argues that almost every special education legislation comes down to cost. Within special education law, there is a recurring cycle that has never been resolved. The developments in special education that have occurred over the past forty years, since the first special education legislation was enacted, have caused unforeseen consequences. The issue

has not helped. Id. Abilify was added as an augmentation strategy but was discontinued

because of hypotensive episodes and feelings of syncope; correlation between Abilify and

these adverse effects could not be established and is most likely secondary to her underlying

mental illness. Id. Sarah has also been on Vyvance, Risperidone, and Adderall, all with little or

no change. Telephone Interview with Anonymous Teacher, supra note 1. 10 Id. Sarahs Functional Behavior Analysis was also paid for by the school district. Id. Sarah

sees a therapist for her reactive attachment disorder every two weeks, along with therapy to

work on self-regulation skills. Id. 11 Id. 12 Id. 13 Telephone Interview with Anonymous Teacher, supra note 1. 14 Id. 15 Id. 16 Id. 17 See 20 U.S.C. 1401(9) (2012).


boils down to excessive, overly burdensome, and inefficient costs and a lack of funding. This Note unwinds the cycle of, and reasons for, such high costs in the special education system and proposes an efficient, multifaceted solution for reducing some of these high costs.

Part I of this Note examines the development and legislative history of special education and the laws funding streams. Part II argues that almost every issue with special education legislation and case law boils down to undue and burdensome costs facing local school districts. Part II also argues that it is unhelpful that there are no accurate national studies of the costs involved in educating a student with disabilities. It also notes that IDEA has faltered, in that costs are going unreported to Congress and are based on one childs situation. Part III unravels the cycle of why special education is too expensive and unjust to the school districts and an overall resolution of efficiency is offered in several areas of special education law.

I. The Legislative History of Special Education

A. The Special Education System

The Office of Special Education and Rehabilitative Services (OSERS), under the U.S. Department of Education, is devoted to improving results for infants, toddlers, children, and youth with disabilities, ranging from birth through twenty-one years old, by providing leadership and financial support to assist states and local districts.18 Its mission is to provide leadership to achieve full integration and participation in society of people with disabilities by ensuring equal opportunity and access to, and excellence in, education, employment and community living.19 Common special needs include learning disabilities, communication disabilities, emotional and behavioral disorders, physical disabilities, and developmental disabilities.20 Students with these kinds of special needs are likely to benefit from additional educational services, such as different approaches to teaching, the use of technology, a specifically adapted teacher area, or a resource room.21 Educators modify teaching methods and environments to serve the maximum number of students in general

18 See Office of Special Education and Rehabilitative Services, U.S. DEPT OF EDUC.,

http://www2.ed.gov/about/offices/list/osers/osep/index.html (last modified Feb. 13, 2015). 19 Office of Special Education and Rehabilitative Services: Mission, U.S. DEPT OF EDUC.,

http://www2.ed.gov/about/offices/list/osers/index.html?src=oc (last modified Mar. 20, 2015). 20 See Types of Childhood Disabilities and Other Special Needs, CTR. FOR IMPROVEMENT CHILD

CARING, http://www.ciccparenting.org/childhooddisabilities.aspx (last visited May 21, 2015). 21 See Special Education Teacher Support Services, UNITED FEDN OF TCHRS.,

http://www.uft.org/teaching/special-education-teacher-support-services (last visited May 21,

2015).


education environments.22 Furthermore, special education is often regarded as a service rather than a place.23

B. The Historic Treatment of Persons with Physical and Mental Disabilities

Persons with physical and mental disabilities have been the target of discrimination across cultures for thousands of years.24 On almost every continent there are examples of isolation and exclusion of persons with disabilities.25 There has been a recent pattern of governmental benefits provided to persons with disabilitiesstarting with their placement in institutions and slowly moving into the educational system and the workplace.26

Historically, services to students with disabilities were nominal and unfortunately only provided at the discretion of the local school districts.27 In fact, [t]he first special education programs were delinquency prevention programs for at risk children who lived in urban slums.28 Until the mid-1970s, school districts were permitted to refuse the enrollment of any student they considered uneducable, a term defined by local school administrators.29 Starting in 1975, when handicapped children were allowed to attend school, they were frequently lumped together in generic special education classes, even though they all had different disabilities.30 Because schools segregated children with

22 See id. 23 Inclusionary Education for Students with Disabilities: Keeping the Promise, NATL COUNCIL ON

DISABILITY (Dec. 30, 1994), http://www.ncd.gov/publications/1994/Dec1994. 24 Edwin W. Martin et al., The Legislative and Litigation History of Special Education, THE

FUTURE OF CHILD., Spring 1996, at 26, available at http://wwfinductionmodules-

resources.wiki.educ.msu.edu/file/view/History+of+Special+Education.pdf; see Education for

All Handicapped Children Act of 1975 (EAHCA), Pub. L. No. 94-142, 89 Stat. 773 (1975)

(codified as amended at 20 U.S.C. 1401 (2012)). 25 See Frederick J. Weintraub & Alan Abeson, New Education Policies for the Handicapped: The

Quiet Revolution, in PUBLIC POLICY AND THE EDUCATION OF EXCEPTIONAL CHILDREN 713

(Frederick Weintraub et al. eds. 1978), available at http://mn.gov/mnddc/parallels2/

pdf/70s/76/76-PEC-CEC.pdf. 26 Martin et al., supra note 24. 27 Id.; Austin Moody, The Education for All Handicapped Children Act: A Faltering Step Towards

Integration, TRINITY COLL. BLOGS (May 3, 2012), http://commons.trincoll.edu/edreform/2012/05/

the-education-for-all-handicapped-children-act-a-faltering-step-towards-integration/. 28 PETER W.D. WRIGHT & PAMELA DARR WRIGHT, SPECIAL EDUCATION LAW 7 (2d ed. 2007),

available at http://www.wrightslaw.com/bks/lawbk/ch3.history.pdf. 29 Martin et al., supra note 24. 30 WRIGHT & WRIGHT, supra note 28, at 8.


disabilities from normal children, therefore special education classes often took place in undesirable, out-of-the-way places like trailers and school basements.31 Regardless of compulsory attendance laws,32 most states permitted school administrators to exclude students if they believed that the child would not benefit from education or if the childs presence would be disruptive to others, i.e., to non-disabled children and teachers.33 It was not until 1978 when Education for All policies became a norm after the Education for All Handicapped Children Act (EAHCA) became effective and, in a number of states, after federal and state court cases were decided.34

C. The Landmark Case of Brown v. Board of Education

In 1954, the Supreme Court issued a landmark civil rights decision in Brown v. Board of Education.35 In Brown, children from four states argued that the segregated public schools were inherently unequal and deprived them of equal protection of the laws.36 The Court found that African-American children had the right to equal educational opportunities and segregated schools ha[ve] no place in the field of public education.37 The Court noted that education was perhaps the most important function of state and local governments.38 Today [education] is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.39 The Court further noted that it was uncertain whether a

31 Id. 32 See DAVID SPERRY ET AL., EDUCATION LAW AND THE PUBLIC SCHOOLS: A COMPENDIUM 139

(1998).

For public schools to succeed in the mission of socializing children, all

children had to attend school. Poor children attended school sporadically,

quit early, or didnt enter school at all. Public school authorities lobbied

their legislatures for compulsory school attendance laws. Compulsory

attendance laws gave school officials the power to prosecute parents

legally if they failed to send their children to school.

Id. 33 WRIGHT & WRIGHT, supra note 28, at 8. 34 Martin et al., supra note 24. 35 See Brown v. Bd. of Educ., 347 U.S. 483, 49596 (1954). 36 Id. at 486, 488. 37 Id. at 495 (The doctrine of separate but equal has no place in the field of public

education, since separate educational facilities are inherently unequal.); see also U.S. CONST.

amend. XIV. 38 Brown, 347 U.S. at 493. 39 Id.


child could reasonably be expected to succeed in life if he was denied the opportunity of an education.40 Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.41

The Court then posed a question: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other tangible factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.42 The Court described the emotional impact that segregation has on students, specifically when segregation has the sanction of the law.43 Separating these students from others of similar age and qualifications exclusively because of their race creates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.44

Subsequent to the Brown decision, parents of students with disabilities started to bring claims against school districts for segregating their children.45 Parents alleged that when these students are excluded, schools are discriminating against them because of their disabilities.46

D. The Catalyst Cases in Special Education Law

In the early 1970s, two cases served as catalysts in special education law: Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania47 (P.A.R.C.) and Mills v. Board of Education of District of Columbia.48 P.A.R.C. dealt with the exclusion of intellectually disabled children from public schools.49 Specifically, P.A.R.C. contested a state law that particularly allowed public schools to refuse services to children who [have] not attained a mental age of five years at the time they would customarily enroll in first grade.50 Under a consent agreement, the state made full access to a free, public education available to students with

40 Id. 41 Id. 42 Id. 43 Id. at 494 (quoting Belton v. Gebhart, 87 A.2d 862, 865 (Del. Ch. 1952)). 44 Brown, 347 U.S. at 494. 45 WRIGHT & WRIGHT, supra note 28, at 8. 46 Id. 47 343 F. Supp. 279, 302 (E.D. Pa. 1972). 48 348 F. Supp. 866, 873 (D.D.C. 1972). 49 P.A.R.C., 343 F. Supp. at 282. 50 Id.


intellectual disabilities up to age twenty-one.51 This case also recognized the standard of appropriatenessthat each child be offered an education appropriate to his or her learning capacitiesand recognized a clear preference for the least restrictive placement for each student.52

The following year, Mills discussed the practice of suspending, expelling, and excluding exceptional students from the District of Columbias public schools.53 Seven students between the ages of eight and sixteen, with a variety of mental and behavioral disabilities, brought suit against the District of Columbias public schools, which refused to enroll some students and expelled others, solely on the basis of their disability.54 The school district confessed that roughly 12,340 students with disabilities within the districts boundaries would not be served during the 19711972 school year because of budget constraints.55 The district court ruled that school districts were constitutionally barred from deciding that they had inadequate resources to serve students with disabilities because the Equal Protection Clause of the Fourteenth Amendment does not permit the burden of insufficient funding to fall more heavily on students with disabilities than on other students.56

In May 1972, Congress initiated legislation after a number of landmark court cases establishing in law the right to education for all handicapped [children].57 In Brown, the Court established the principle that all students are guaranteed an equal educational opportunity.58 Students with disabilities have an equal right to public education in a structure that is meaningful for them.59 As such, when the school contemplates changing their status (including suspension, expulsion, reassignment, or transfers out of regular public school classes), these students are entitled to equal protections.60 These protections included notice of proposed changes, access to school records, a right to be heard and to be represented by legal counsel at hearings to determine changes in individual programs, and regularly scheduled status reviews.61 Congress,

51 Id. at 285. 52 Id. at 30001, 307. 53 Mills, 348 F. Supp. at 868. 54 Id. 55 Id. at 869. 56 See id. at 87475. 57 WRIGHT & WRIGHT, supra note 28, at 9. 58 Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954). 59 Martin et al., supra note 24, at 28. 60 Id. 61 Id.


via the EAHCA, codified these protections.62

62 Pub. L. No. 94-142, 89 Stat. 773 (1975) (codified at 20 U.S.C. 1401 (2012)); Martin et al.,

supra note 24, at 28.


E. The Development and Growth of Federal Law Through Litigation, 1970 to Present

1. Federal Statutes

The development of state and federal law established numerous new responsibilities that local school districts were not ready to meet.63 By 19711972, regardless of the fact that every school district in America had some kind of ongoing special education program, seven states were still educating less than 20% of the known students with disabilities.64 Only seventeen states educated greater than 50% of students with disabilities.65 In 1973, Congressional hearings exposed the fact that 3.5 million students with disabilities were not getting an education appropriate to their needs, while close to one million more students with disabilities were not receiving an education at all.66

It was not until state laws and federal courts determined that it was the states responsibility to provide a free, appropriate, public education to all students that states joined advocates in attaining the passage of federal legislation.67 The legislation would provide consistency, federal leadership, and federal subsidy of the costs of special education.68 Congresss response to this national crisis took two approaches: nondiscrimination through the Rehabilitation Act and an educational grant program through the EAHCA.69

2. The Rehabilitation Act

The Rehabilitation Act provided that any recipient of federal financial assistance, including state and local educational agencies, must not discriminate in its services offered to persons with disabilities.70 However, 504 of the Act did not include funding or monitoring; as a result, it was

63 Martin et al., supra note 24, at 2829. 64 20th Anniversary of the Individuals with Disabilities Education Act (Part B): Joint Hearing

Before the Subcomm. on Disability Poly of the Comm. On Labor and Human Res. and Subcomm.

Early Childhood, Youth, and Families of the Comm. on Econ. and Educ. Opportunities, 104th Cong.

99 (1995) (statement of John Brademas). 65 Id. 66 See Education for the Handicapped, 1973: Hearing on H.R. 70 Before the Subcomm. on

Handicapped of the Comm. on Labor and Pub. Welfare, 93d Cong. 16, 40 (1973). 67 See Martin et al., supra note 24, at 29; Moody, supra note 27. 68 Martin et al., supra note 24, at 29. 69 See discussion infra Parts I.E.23. 70 Rehabilitation Act of 1973, Pub. L. No. 93-112, 504, 87 Stat. 355, 394 (1973).


practically ignored by local and state educational agencies for twenty years.71

In 1990, Congress passed the Americans with Disabilities Act (ADA), which expanded the rights of persons with disabilities by banning discriminatory practices in employment, public accommodations, transportation, and telecommunications.72 The above laws are a major catalyst for special education litigation because 504 and the ADA present more remedies to parents than does IDEA.73

3. The Education for All Handicapped Children Act

In 1975, Congress tried a second approach with an educational grant program, the EAHCA.74 It required that all students with disabilities receive a free appropriate public education (FAPE) and provided a funding mechanism to help with the excess costs of offering such programs.75 Each of these students would have an individualized education program (IEP) jointly developed by the school and the parents.76 Each student would be placed in the least restrictive learning environment (LRE) appropriate to the student, and parents would have the approval rights in placement decisions.77

The title of the EAHCA was changed by amendments in 1983 and again in 1991, when it was renamed IDEA.78 IDEA prescribes certain procedures.79 In order to receive funds, state departments of education and local school districts are required to establish a child find system in order to locate all students with disabilities.80 This involves performance evaluations to determine the effect of the disability on educational performance, annual meetings that produce an IEP for each student with

71 See id.; Martin et al., supra note 24, at 29. 72 Americans with Disabilities Act of 1990 (ADA), Pub. L. No. 101-336 (1990) (codified as

amended at 42 U.S.C. 12101 (2009)). 73 Martin et al., supra note 24, at 29. 74 Education for All Handicapped Children Act of 1975 (EAHCA), Pub. L. No. 94-142, 89

Stat. 773 (1975) (codified as amended at 20 U.S.C. 1400 (2012)). 75 See 20 U.S.C. 1401(8)(9) (2012). 76 See id. 1414(d)(1)(B), (d)(3). 77 See id. 1412(a)(5), 1414(e); see also id. 1415. 78 Individuals with Disabilities Education Act, Pub. L. No. 102-119, 105 Stat. 587 (1991)

(codified as amended at 20 U.S.C. 140020 (2012)). In 1997, Congress undertook a

comprehensive revision of IDEA, and in 2004, it again significantly revised the statute;

however, the basic provisions of the law were retained. THOMAS B. MOONEY, A PRACTICAL

GUIDE TO CONNECTICUT SCHOOL LAW 385 (6th ed. 2008). 79 See 20 U.S.C. 1400(d) (2012). 80 See id. 1412(a)(3).


disabilities, and the assurance that the plan is carried out in the LRE.81 Decisions about curriculum, elements of IEP, and other instructional matters are left to local and state authorities.82 Only the broad protections of the law are federally agreed upon.83

IDEA also spawned an inclusive schools movement.84 Supporters advocate that schools should not assign any students to special classrooms or segregated wings of public schools.85 Particularly, 1412(a)(5)(A) of Title 20 of IDEA requires states that receive educational funding under IDEA institute procedures to assure that, [t]o the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled.86 Advocates of IDEA argued that the inclusion option signifies the end of labeling and separate classes but not the end of necessary supports and services for all students requiring them.87

F. IDEA Authorized Funding Streams

Under IDEA, federal special education funds are dispersed through three state grant programs and various discretionary grant programs.88 The main program, IDEAs Part B, authorizes grants to state and local education agencies to offset part of the costs of the K12 education needs of disabled students.89 Additionally, it authorizes preschool state grants.90 Section 1411 permits funding to students ages three to twenty-one and 1419 specifically targets students ages three to five.91 Although Congress

81 Id. 1414(d). 82 See 34 C.F.R. 300.26(b)(3) (2006); see also 20 U.S.C. 1400(c)(5)(A) (2012). 83 See, e.g., 20 U.S.C. 1400(d)(1)(A)(4) (2012). IDEA has six federally agreed upon

principles that provide the framework around which special education services are designed

and provided to students with disabilities: (1) Free and Appropriate Education (FAPE); (2)

Appropriate Education; (3) Individualized Education Program (IEP); (4) Least Restrictive

Environment (LRE); (5) Parent and Student Participation in Decision Making; and (6)

Procedural Safeguards. Id. 1412. 84 Id. 1400(c)(5)(D). 85 Id. 86 Id. 1412(a)(5)(A). 87 JAMES WM. NOLL, TAKING SIDES: CLASHING VIEWS ON CONTROVERSIAL EDUCATIONAL

ISSUES 249 (13th ed. 2006). 88 Fed. Educ. Budget Project, Background & Analysis: Individuals With Disabilities Education

Act Funding Distribution, NEW AM. FOUND. (Apr. 25, 2014, 4:16 PM), http://febp.newamerica.

net/background-analysis/individuals-disabilities-education-act-funding-distribution

[hereinafter Funding Distribution]; see 20 U.S.C. 141119 (2012). 89 20 U.S.C. 141118 (2012); Funding Distribution, supra note 88. 90 20 U.S.C. 1419 (2012); Funding Distribution, supra note 88. 91 20 U.S.C. 1411, 1419 (2012).


separately allocates total funds for each section independently, the funding formulas for distribution to the states are practically the same.92

Part B 1411 is the greatest share of annual IDEA funding granted to states.93 In fiscal year 2013, which covers the school year 20122013, the total IDEA funding was $11.98 billion.94 Of that, $10.97 billion was dedicated to IDEA Part B 1411 state grants.95 When advocates say that IDEA programs are under-funded, they are most often referring to Part B [ 1411] state and local grant aid.96

1. Total Special Education Spending vs. Total Spending to Educate a Student with a Disability

Total special education spending consists of amounts used to employ special education teachers, related service providers, and special education administrators, as well as spending on special transportation services and non-personnel items (e.g., materials, supplies, and technological supports) purchased under the auspices of the special education program.97 Portions of special education spending are used for instructional services usually provided as part of the regular education curriculum offered to general education students.98

Contrary to total special education spending, total spending to educate a student with a disability covers all school resources, including both special and regular education and other special needs programs, used to provide a comprehensive educational program to meet student needs.99 The majority of disabled students spend considerable amounts of time in the general education classroom program and gain from the same administrative and support services as all other students.100

Using this distinction, the calculation is the actual cost to educate a special needs student, without any judgment as to what this could or should cost.101 The notion of additional expenditure highlights that what is

92 Funding Distribution, supra note 88. 93 20 U.S.C. 1411 (2012); Funding Distribution, supra note 88. 94 Funding Distribution, supra note 88. 95 Id. 96 Id. 97 Special Educ. Expenditure Project, What Are We Spending on Special Education Services in

the United States, 1999-2000?, CTR. FOR SPECIAL EDUC. FIN. 1 (June 2004), available at

http://www.csef-air.org/publications/seep/national/AdvRpt1.PDF. 98 Id. 99 Id. 100 Id. 101 Id. at 4 (calculating the additional expenditure attributable to special education students


being measured is a reflection of actual spending patterns on special and regular education students and not a reflection of some ideal concept of what it should cost to educate either student.102

2. Calculating the Excess Cost of Educating Disabled Students

When IDEA was first enacted, it was estimated that disabled students cost roughly twice as much to educate compared to nondisabled students.103 Congress took that estimate into account when it set the maximum federal contribution at 40% of the national average per pupil expenditure (APPE).104 Estimates of excess costs have remained generally the same since then.105

A study, using data from the 19992000 school year, revealed that schools spent 1.9 times more in total expenditures and 2.08 times more in current operating expenditures on students with disabilities.106 The spending increase is largely attributable to the expanding student population identified as disabled, rather than a disproportionate increase in the cost of special education services.107

II. The Problem Flowing from Special Education Legislation and Case Law Is Cost

Disability is a natural part of the human experience and in no way diminishes the right of individuals to participate in or contribute to society. Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent

is measured by the difference between the total spending to educate a student with a

disability and the total spending to educate a general education student). 102 Id. at 1. 103 LORRAINE M. MCDONNEL ET AL., COMMN ON BEHAVIORAL & SOC. SCI., & EDU., NAT.

RESEARCH COUNCIL, EDUCATING ONE & ALL: STUDENTS WITH DISABILITIES AND STANDARDS-

BASED REFORM 48 (1997). 104 See IDEA Funding for FY2009 & Beyond, AM. SPEECH-LANGUAGE-HEARING ASSN 3,

available at http://www.asha.org/uploadedFiles/advocacy/federal/idea/IDEAFundingBrief

WithTalkingPoints.pdf [hereinafter IDEA Funding for FY2009 & Beyond]; see also IDEA Funding:

Time for Congress to Live Up to the Commitment: Mandatory Funding Proposal, IDEA FUNDING

COAL. 2 (Mar. 2006), available at http://www.nassp.org/portals/0/content/53654.pdf [hereinafter

IDEA Funding: Mandatory Funding Proposal]. 105 Funding Distribution, supra note 88. 106 Special Educ. Expenditure Project, supra note 97 (during the 19992000 school year, the

fifty states and the District of Columbia spent approximately $50 billion on special education

services, amounting to $8,080 per special education student). 107 Id.; Funding Distribution, supra note 88.


living, and economic self-sufficiency for individuals with disabilities.108

In order to protect these rights, Congress passed the EAHCA in 1975, but the law was not without its critics.109 President Gerald R. Ford reluctantly signed this law, which was facing a veto,110 as evidenced by his opening words: Unfortunately, this bill promises more than the Federal Government can deliver, and its good intentions could be thwarted by the many unwise provisions it contains.111 President Ford thought the bill would be too costly, interfere with state responsibilities, and disrupt the balance of relationships between parents and local schools.112 President Ford could not have been more accurate.113 This Act, now known as IDEA, was designed to promote the education of disabled children and to provide federal money to assist state and local agencies in implementing this objective.114 IDEA does not specifically address the significance of cost in special education cases, but its legislative history made clear the intention to incorporate the following language from the Mills consent agreement:

If sufficient funds are not available to finance all of the services and programs that are needed and desirable in the system then the available funds must be expended equitably in such a manner that no child is excluded from a publicly funded education consistent with his needs and ability to benefit therefrom.115

However, this law was enacted almost forty years ago, and has now

108 20 U.S.C. 1400(c)(1) (2012) (describing findings stated by Congress in the Individuals

with Disabilities Education Act). 109 See Education for All Handicapped Children Act of 1975, Pub. L. No. 94-142, 89 Stat. 773

(1975); see also Education of the Handicapped Act Amendments of 1990, Pub. L. No. 101-476,

104 Stat. 1103, 114142 (1990) (renaming the EAHCA as the Individuals with Disabilities

Education Act). 110 See Michelle R. Davis, Special Education Law Was Signed by Ford, Despite Reservations:

Measure Had Unrealistic Goals, He Feared, EDUC. WK. 21 (Jan. 9, 2007), http://www.edweek.org/

ew/articles/2007/01/10/18featureford.h26.html. 111 President Gerald R. Ford, Statement on Signing the Education for All Handicapped

Children Act of 1975 (Dec. 2, 1975) (transcript available in the Presidential Library and

Museum), available at http://www.ford.utexas.edu/library/speeches/750707.htm. 112 Martin et al., supra note 24, at 25, 30 (citing President Gerald R. Ford, Statement on

Signing the Education for All Handicapped Children Act of 1975, (Dec. 2, 1975)). 113 See infra notes 116119. 114 Miriam Kurtzig Freedman, Special Education: Its Ethical Dilemmas, Entitlement Status, and

Suggested Systemic Reforms, 79 U. CHI. L. REV. 1, 23 (2012) [hereinafter Freedman, Special

Education]. 115 Mills v. Bd. of Educ. of D.C., 348 F. Supp. 866, 876 (D.D.C. 1972).


outlived its purpose.116 Special education legislation and case law still follows an aging input- and rights-driven approach, as opposed to a modern outcome- and accountability-driven approach.117 In other words, the laws incentives focus on rights, not education; inputs, not outcomes; the needs of the one, not the many; conflict, not collaboration.118 Special education costs, and the unintended consequences from IDEA, distract educators from teaching and students from learningtheir primary mission.119

IDEA provides states with funding to educate 6.48 million students a year.120 IDEA was intended to educate 10% of disabled students, but now educates 14% of all disabled students nationwide.121 Remarkably, during the twenty-five year period between 19802005, general education students grew by 20%, while special education students grew by 37%.122 Special education costs roughly $110 billion per year and consumes 21% of all education spending across the nation.123

Still, these high numbers fail to convey just how much money is spent on students with disabilities.124 Most disabled students are in inclusive settings and receive general education services and resources, along with special education services.125 Non-special-education funding must be

116 Freedman, Special Education, supra note 114, at 1. 117 Id. 118 Miriam Kurtzig Freedman, Fixing Special Education12 Steps to Transform a Broken

System, EDUC. UPDATE ONLINE (Sept. Oct. 2010), http://www.educationupdate.com/archives/

2010/SEP/html/speced-fixing.html. 119 Freedman, Special Education, supra note 114, at 12; Miriam Kurtzig Freedman, 4

Common-Sense Proposals for Special Education Reform, ATLANTIC (Apr. 27, 2012, 11:36 AM),

http://www.theatlantic.com/national/archive/2012/04/4-common-sense-proposals-for-special-

education-reform/256435/. 120 See Janie Scull & Amber M. Winkler, Shifting Trends in Special Education, FORDHAM INST.

(May 2011), available at http://files.eric.ed.gov/fulltext/ED520416.pdf. 121 See Fed. Educ. Budget Project, Background & Analysis: Individuals with Disabilities

Education ActCost Impact on Local School Districts, NEW AM. FOUND. (July 10, 2013, 3:47 PM),

http://febp.newamerica.net/background-analysis/individuals-disabilities-education-act-cost-

impact-local-school-districts [hereinafter Cost Impact]; Thomas D. Snyder & Sally A. Dillow,

Digest of Education Statistics 2010, U.S. DEPT OF EDUC. (Apr. 2011), http://nces.ed.gov/

pubs2011/2011015.pdf. 122 Cost Impact, supra note 121; see discussion infra Part III.A. 123 Scull & Winkler, supra note 120, at 12; see Catherine Boudreau, Connecticut Budget Cuts

Place Burden on School Districts for Special Education Costs, NEW HAVEN REGISTER (Nov. 11, 2013,

11:01 PM), http://www.nhregister.com/social-affairs/20131111/connecticut-budget-cuts-place-

burden-on-school-districts-for-special-education-costs. 124 See Freedman, Special Education, supra note 114, at 5. 125 Id.


added to what is already spent on their education to determine the actual cost of educating a disabled student.126 Alas, we lack national studies, and a 2009 California report cited this sizeable non-special-education funding as an encroachmentthe deficit between added spending on disabled students and special education aid.127

The lack of national studies has been reported as scandalous because we still do not know how much is spent to educate disabled students.128 Accurate accounting of spending on the state, district, and school level for special education does not exist.129 In a time of tight resourcesand special-education expenditures surpassing $110 billion per annumtheres an increasing need for reliable financial data at all levels.130 It is unacceptable for such large portions of state and district funding to go unmeasured and unreported.131 Moving forward, we must not view these as untouchable expenditures.132 Special education services for disabled students account for roughly 20% of school budgets.133 In 2004, roughly 143 times more was spent on special education than on education for gifted and talented students.134 How could special education add up to such a colossal amount and cause such a deficit for local school districts?135

ANALYSIS

Federal law requires that school districts pay for a large portion of

126 Id. 127 See id.; see also STEPHEN LIPSCOMB, SPECIAL EDUCATION FINANCING IN CALIFORNIA: A

DECADE AFTER REFORM, PUB. POLY INST. CAL. 9 (2009), available at

http://www.ppic.org/content/pubs/report/R_809SLR.pdf. 128 Scull & Winkler, supra note 120, at 12, 15.

Yet we know precious little about how this money is spent at the state or

district level. Indeed, state special-education expenditures are not easy to

obtain; states are not required to report these data to the federal

government, and few volunteer to disentangle their special-education

expenditures from their reported general-education expenditures.

Id. 129 Id. at 15. 130 Id. 131 Id. 132 Id. 133 Cost Impact, supra note 121. 134 JAN DAVIDSON & BOB DAVIDSON, GENIUS DENIED: HOW TO STOP WASTING OUR

BRIGHTEST YOUNG MINDS 16 (2005). 135 See discussion infra Part III.


special education programs and services.136 Because these services are federally mandated, they cannot be cut or altered in any way, unlike all other programs for the rest of the student population.137 Additional care is necessary for students with disabilities who must be accommodated.138 Nevertheless, many are unaware of the funding and spending details on this issue.139 The state and federal statutes require schools to provide a FAPE for special education students.140 However, contrary to what one might logically think, local school districts are responsible for the FAPE.141 In reality, IDEA 1400(c)(6) reveals that states and local education agencies are responsible for providing education for disabled students, and the federal government will assist them.142

III. Discussion: Unraveling and Understanding the Cycle of Why Special Education Is Unjustifiably Costly and Inequitable to Local School Districts

A. A Place to Start: Schools Must Stop Over-Diagnosing Students

The number of students receiving special education services skyrocketed after the enactment of EAHCA in 1975.143 Naturally, the costs of those services has skyrocketed as well.144 Congress noted that at the time the law was implemented, there would be a drastic increase in students receiving special education; millions of students with disabilities were being excluded from school or were receiving education services that did not meet their needs.145 Nonetheless, the law was executed in many states,

136 Ericha Parks, Special Education Funding, or Lack Thereof, Force School Districts to Suffer,

EXAMINER (May 13, 2009), http://www.examiner.com/article/special-education-funding-or-

lack-thereof-force-school-districts-to-suffer. 137 Id. 138 Id. 139 Id. 140 See 20 U.S.C. 1414 (2012). 141 See 20 U.S.C 1400(c)(6) (2012). 142 Id. 143 See Juan Diego Alonso & Richard Rothstein, Where's the Money Been Going?: A

Preliminary Update, ECON. POL'Y INST. 5, 7 (Briefing Paper No. 281, Oct. 28, 2010), available at

http://www.epi.org/page/-/pdf/bp281.pdf. 144 See id. (reporting statistics from a nine-district study that found the proportion of school

district budgets for special education services rose from 3.7% to 17.3% from 1967 to 2005 and

that expenditures for special education rose 1,539% during that same time period). 145 See Education for All Handicapped Children's Act, Pub. L. No. 94-142, 89 Stat. 774 (1975)

(codified as amended at 20 U.S.C. 140020 (2012)). Congress specifically stated in the

Statement of Findings and Purpose section of the original Act that:


including Connecticut and New York, and the result was twofold: (1) many disabled students previously excluded or underserved were given the services they required, and (2) many students better served by an appropriately-supported general education were instead placed into special education programs.146

Among the fifty states, Rhode Island, Massachusetts, and New York have the highest proportion of students receiving special education services.147 New York has 17.36% compared to the national average of 13.14%.148 This high incidence of special education placements significantly raises overall costs, since APPE spending for students in special education is at least double the APPE spending for students in general education.149 Reducing this number to the national average is estimated to save New York state school districts $800 million per year.150

Certainly [t]his does not mean . . . that the state should now order local school districts to reduce their incidence of special education referrals to approximate the national average.151 A state mandate imposing referral quotas, without regard to student needs, would be illegal.152 Instead, the state should analyze why such a large number of students are being

[O]ne million of the handicapped children in the United States are

excluded entirely from the public school system and . . . there are many

handicapped children throughout the United States participating in

regular school programs whose handicaps prevent them from having a

successful educational experience because their handicaps are

undetected.

20 U.S.C. 1400(c) (2012). 146 Jacob Hibel et al., Who is Placed into Special Education?, 83 SOC. EDUC. 312, 31213 (2010)

(citing U.S. Dep't of Educ., History: Twenty-Five Years of Progress in Educating Children with

Disabilities Through IDEA 1 (2005), available at http://www2.ed.gov/policy/speced/leg/idea/

history.pdf). 147 See Scull & Winkler, supra note 120, at 7. 148 See id. 149 See Needed Mandate Relief on the Way?, CITIZENS BUDGET COMMN (Nov. 2, 2011),

http://www.cbcny.org/cbc-blogs/blogs/needed-mandate-relief-way (stating the average cost of

instruction per student in special education was 2.4 times the average cost of students in

general education in 20082009). 150 Stephen Frank, Dir., Educ. Res. Strategies, Transformation or Decline: How Can States

Promote Restructuring in Tough Times?, N.Y. STATE AID F. (Sept. 13, 2011), available at

http://www.p12.nysed.gov/mgtserv/docs/SchoolFinanceForHighAchievement.pdf. 151 Michael A. Rebell, Safeguarding the Right to A Sound Basic Education in Times of Fiscal

Constraint, 75 ALB. L. REV. 1855, 1934 (2012). 152 See id.; see, e.g., Jose P. v. Ambach, 557 F. Supp. 1230, 123738 (E.D.N.Y. 1983) (ruling the

pattern and practice of teacher referrals being denied or delayed by principals and special

education administrators to be in violation of federal law).


evaluated and provided special education services when many of them might be more appropriately served by much less costly general education programs.153 Essentially, one way to efficiently deal with cost is to ensure that those receiving the services actually need them and receive the right services.154

In Campaign for Fiscal Equity v. State, the court recognized that the high costs linked with special education resulted, in large part, from the fact that in a resource-starved system, parents and teachers who are concerned about underperforming students may refer these students for federally-mandated special education services.155 This is because other less intensiveand less costlyoptions were simply not available.156 The primary causes of overreferral and overplacement in restrictive settings are a lack of support services in general education and State aid incentives that . . . encourage restrictive placements.157 School districts must realize that at times, over-referral and over-placement are not the most appropriate solution for underperforming students.158 Referrals and placements are problematic, but an effective solution is to keep certain students in general education if appropriate supports and services could be provided.159

B. An Appropriate Education Is Not Always so Appropriate

Although Congress specified under IDEA that the education provided to the disabled student must be appropriate to his or her needs, that standard has been incorrectly applied.160 The standard is difficult to define because the special education population is so diverse.161 In most cases, the criterion for judging appropriateness is whether the students educational program is: (1) related to the childs learning capacity, (2) specially designed for the childs unique needs and not merely what is offered to others, and (3) reasonably calculated to confer educational

153 Rebell, supra note 151. 154 Office of Innovation and Improvement, Process Improvements, U.S. DEPT OF EDUC.,

https://www.ed.gov/edblogs/oii/process-improvements/ (last visited Apr. 9, 2015). 155 719 N.Y.S.2d 475, 538 (2001). 156 See id. 157 Id. 158 See Rebell, supra note 151, at 1934. 159 See id. 160 Martin et al., supra note 24, at 34. 161 See Gary L. Monserud, The Quest for A Meaningful Mandate for the Education of Children

with Disabilities, 18 ST. JOHNS J. LEGAL COMMENT. 675, 70810 (2004).


benefit.162 The entitlement, however, is not open-ended: the student is not entitled to every service that could conceivably offer a benefit.163

The Supreme Court first interpreted the requirements of appropriateness in Board of Education v. Rowley.164 Amy, a deaf six-year-old girl, had an IQ of 122 and her parents were concerned that Amys energy and eagerness were not spent in attainment, but rather were used to compensate for her disability.165 The Court held that the whole package of services provided to Amy, which included an hour of tutoring each day from a certified teacher of the deaf, as well as three hours of speech therapy each week, was reasonably calculated to enable her to benefit from her education.166

The law does not require that the IEP be designed to achieve the maximum possible benefit to the student.167 The Court concluded that the basic floor of opportunity provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.168 Furthermore, IDEA leaves to the States the primary responsibility for developing and executing educational programs for handicapped children within the broad requirements of IDEA.169

However, other cases established that the school district must consider more than just the narrowly defined educational needs of the student.170 At times, socialization and mental health are legitimate and required goals to include in the IEP.171 In Howard S. v. Friendswood Independent School District, the district court found that Douglas, an emotionally disturbed teenager, enjoyed reasonable scholastic and personal achievement when enrolled in special education in junior high school.172 When Douglas entered high

162 Martin et al., supra note 24, at 34; see 20 U.S.C. 1412(a)(1) (2012). 163 See, e.g., Monserud, supra note 161, at 82834 (discussing the impact of when

Massachusettss legislature changed the standard for what special education and related

services must be provided for disabled students when the district was severely squeezed for

funds). 164 Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S.

176, 18687 (1982). 165 See id. at 18486. 166 Id. at 184, 210. 167 See id. at 201. 168 Id. 169 Id. at 183. 170 See, e.g., Howard S. v. Friendswood Indep. Sch. Dist., 454 F. Supp. 634, 635, 639 (S.D.

Tex. 1978). 171 See, e.g., id. 172 Id. at 635.


school, he began to manifest behavioral problems.173 The school chose to treat Douglass behavioral problems as a disciplinary matter and refused the parents requests for an evaluation of Douglass special needs.174 The court was influenced by testimony showing that without appropriate behavioral programming, Douglas would likely develop a worsening behavioral problem.175 The court ultimately ordered the school district to provide behavioral programming and to reimburse the parents for the cost of a private school with a therapeutic program recommended by Douglass psychiatrist.176 When the law does not offer a clear, delineated standard, it is difficult for a school district to determine what is appropriate for each disabled student.177

The federal government always intended to play a critical role in creating, monitoring, and enforcing IDEA.178 Therefore, another efficiency solution is for Congress to offer a clear and delineated standard for school districts to utilize and abide by.179 Understandably, each disability case is unique, but if Congress creates a more focused and comprehensible legal standard, it will undoubtedly assist some of the cases.180

C. Disagreements Result In Costly and Unnecessary Litigation

Special education spending rose at a fast rate over the past few decades, for example, between 1996 and 2005, an estimated 40% of all new spending in education was allocated to special education services.181 Special education costs represent about 20% of public school funds, often upending school budgets, and do not include the additional regular education services that students with disabilities also receive.182 The costs . . . pit groups against each otherwithout any data to verify that this adversarial, bureaucratic, compliance-driven system either improves

173 Id. at 63536. 174 Id. 175 Id. at 635. 176 Howard S., 454 F. Supp. at 64143. 177 See, e.g., id. at 635; Change of Placement: Is it or isn't it? Guidelines for Special Educators,

SPECIAL EDUC. L. Q. (Jan. 2002), http://wea.uwctds.washington.edu/HTML%20Bulletins/

Bulletin4.html (listing a variety of factors to consider each year in determining whether a

disabled child needs a change of placement). 178 IDEA Compliance Report, Back to School on Civil Rights, WRIGHTSLAW,

http://www.wrightslaw.com/law/reports/IDEA_Compliance_1.htm (last visited Apr. 9, 2015). 179 See id. 180 See generally id. (explaining congresss motivation in passing IDEA). 181 Scull & Winkler, supra note 120, at 12. 182 See id.; Cost Impact, supra note 121; US K12 Facts, CTR. FOR EDUC. REFORM (2010),

available at www.lwvbellinghamwhatcom.org/files/general_us_k-12_data_qr.pdf.


student learning or is fair to all students and parents.183 IDEA makes parents its enforcers.184 This adversarial system is built on the premise that parents and schools are not on the same page, working cooperatively, for the benefit of children.185 The law presumes that parents need to be protected from, and advocate against, their childrens schools.186 And more often than not, litigation or the threat of litigation permanently damages the relationship between school and home.187

Disagreements about the meaning of and entitlement to a FAPE in the LRE have led to more than thirty-five years of lawsuits.188 Parents and school districts still argue about the meaning of a FAPE, what is appropriate, and what the Supreme Court meant by a basic floor of opportunity.189 The laws built-in tension creates disputes as parents generally want what is best for their child while schools are only obligated to provide what is appropriate.190 These pricey battles leave parents, students, and schools enraged and discouraged.191

[T]he nations special education system is the most heavily regulated and underfunded of all federal education mandates.192 The threat of a

183 Freedman, Special Education, supra note 114, at 15; Nathan Levenson, Something Has Got

to Change: Rethinking Special Education, FUTURE OF AM. EDUC. PROJECT 1, 19 (June 14, 2011),

available at http://www.aei.org/wp-content/uploads/2011/06/AEI-Working-Paper-Rethinking-

Special-Education.pdf; see also Wade F. Horn & Douglas Tynan, Time to Make Special Education

Special Again, in RETHINKING SPECIAL EDUCATION FOR A NEW CENTURY 23, 4748 (Fordham

Found. & Progressive Poly Inst., 2001), available at http://edex.s3-us-west-2.amazonaws.com/

publication/pdfs/special_ed_final_7.pdf. 184 Freedman, Special Education, supra note 114; see 20 U.S.C. 1415(a)(b) (2012). 185 Freedman, Special Education, supra note 114, at 16. 186 Id. 187 Levenson, supra note 183, at 19 (advising the acceptance of clear eligibility

requirements and standards, because as it stands now, the IDEA has created an adversarial

environment between parent and district, which in turn places a premium on fighting for

more services and procedural compliance rather than raising achievement and reducing

costs). 188 Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S.

176, 17677, 205 (1982) (choosing not to define the substantive nature of a FAPE). In the

subsequent thirty years, Congress has not done so either. See IDEA Compliance Report, supra

note 178. 189 See Rowley, 458 U.S. at 201. 190 Freedman, Special Education, supra note 114, at 16. 191 Id. 192 Priscilla Pardin, Special Education: Promises and Problems, 16 RETHINKING SCHOOLS (2002),

available at http://www.rethinkingschools.org/restrict.asp?path=archive/16_03/Prom163.shtml;

see Federal Court Rulings Involving State, Local, and Tribal Governments; Calendar Year 1994: A

Report Prepared under Section 304; Unfunded Mandates Reform Act of 1995, ADVISORY COMMN ON


hearing is an unfortunate component in the relationship between parents and school districts because it raises the stakes in disputes over placement.193 Constant fear of litigation entangles schools in procedural nightmares and drives dysfunctional decision-making.194 In turn, educators document every interaction they have with disabled students.195 Time and energy are spent on compliance rather than focused on the educational needs of students with disabilities.196 The system takes teachers and students away from teaching and learning, which may be the most damaging consequence.197 There are precious few hours in the school day, and too often that time is wasted.198

D. The Least Restrictive Environment Is Too Costly and Not Appropriate

As a result of the Supreme Courts lack of guidance regarding the LRE provision of IDEA, circuit courts have been called on to offer their own understandings and interpretations.199 Consequently, the courts have failed

INTERGOVERMENTAL RELATIONS 4347 (July 1995), http://www.library.unt.edu/gpo/acir/

Reports/information/m-196.pdf (being the fourth most litigated federal civil statute in 1994);

see also Walt Gardner, Special Education Abuses (1 Letter), N.Y. TIMES (Apr. 25, 2007),

http://www.nytimes.com/2007/04/25/opinion/l25literacy.html; Walt Gardner, When Special

Education Creates Special Issues, EDUC. WK. (May 5, 2010, 6:22 AM), http://blogs.edweek.org/

edweek/walt_gardners_reality_check/2010/05/when_special_education_creates_special_probl

ems.html. 193 Thomas Hehir & Sue Gamm, Special Education: From Legalism to Collaboration, in JAY P.

HEUBERT, LAW AND SCHOOL REFORM: SIX STRATEGIES FOR PROMOTING EDUCATIONAL EQUITY

205, 215 (Yale Univ. Press 2000). 194 Freedman, Special Education, supra note 114, at 18. 195 Id. 196 Presidents Commission on Excellence in Education, A New Era: Revitalizing Special

Education for Children and Their Families, U.S. DEPT OF EDUC. 11 (July 1, 2002), available at

https://education.ucf.edu/mirc/Research/President's%20Commission%20on%20Excellence%20

in%20Special%20Education.pdf. 197 See Marissa L. Antoinette, Examining How the Inclusion of Disabled Students into the

General Classroom May Affect Non-Disabled Classmates, 30 FORDHAM URB. L.J. 2039, 2053 (2003)

([I]ncreasing the demands on a general teacher's time can decrease the quality of education

for all students. They explain that teachers simply cannot teach a general education class

effectively while simultaneously offering the intensive, focused, relentless instruction needed

by many disabled students.) (quoting Anne Proffitt Dupre, Disability and the Public Schools:

The Case Against Inclusion, 72 WASH. L. REV. 775, 84849 (1997)). 198 Freedman, Special Education, supra note 114, at 18. 199 Tim Bode, A Bright IDEA: The Need For Congress to Adopt Uniform Guidelines for

Determining the Least Restrictive Environment, 2013 LOY. U. CHI. CHILDLAW & EDUC. INST. F. 2

(2013), available at http://www.luc.edu/media/lucedu/law/centers/childlaw/childed/pdfs/2013


to clearly interpret how far Congress intended inclusion to extend, which has led to costly disputes, fractured trust, and confusion.200 IDEA promotes inclusion as a civil right, despite very weak data supporting it as a best practice for many students with disabilities.201

Numerous circuits have established factor-based tests for determining whether a disabled student should be integrated into a general classroom.202 In Sacramento City Unified School District, Board of Education v. Rachel H., the Ninth Circuit adopted a slightly different standard.203 The court defined four factors to be considered in determining whether to include a disabled student in the general classroom.204 If construed incorrectly, the third and fourth criteria could pose a threat to the spirit of IDEA.205 The effect of the disabled student on the other students in the classroom should be a concern only if the disabled student is so disruptive or requires so much of the teachers time that the teacher is unable to teach.206

In order to make inclusion work, schools provide one-to-one paraprofessionals (also known as one-to-one aides), accommodations or

studentpapers/bode.pdf. 200 Kathryn E. Crossley, Note, Inclusion: A New Addition to Remedy a History of Inadequate

Conditions and Terms, 4 WASH. U. J.L. & POLY 239, 25354 (2000). While courts have not yet

adopted the doctrine of full inclusion, recent appellate court cases have applied standards,

which put social benefits of an inclusive classroom equal to or above the individual academic

needs of the disabled child. Tamera Wong, Note, Falling Into Full Inclusion: Placing

Socialization Over Individualized Education, 5 U.C. DAVIS J. JUV. L. & POLY 275, 280 (2001); see,

e.g., Sacramento City Unified Sch. Dist. v. Rachel H., 14 F.3d 1398, 1404 (9th Cir. 1994); Oberti

v. Bd. of Educ., 995 F.2d 1204, 1216 (3d Cir. 1993); Greer v. Rome City Sch. Dist., 950 F.2d 688,

697 (11th Cir. 1991); Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 104748 (5th Cir. 1989);

Roncker v. Walter, 700 F.2d 1058, 1063 (6th Cir. 1983). 201 See generally John ONeil, Can Inclusion Work? A Conversation with Jim Kauffman and Mara

Sapon-Shevin, 52 EDUC. LEADERSHIP 7, 711 (1994) (discussing the potentials and pitfalls of

inclusion and noting that it remains controversial). 202 See, e.g., Rachel H., 14 F.3d at 140304; Oberti, 995 F.2d at 121718; Greer, 950 F.2d at 697;

Daniel R.R., 874 F.2d at 104850; Roncker, 700 F.2d at 1063. 203 Rachel H., 14 F.3d at 1404. 204 Id.

(1) an assessment of the educational benefits of the inclusion; (2) an

assessment of the non-academic, social benefits of the inclusion; (3) the

financial costs of inclusion (for example, supplemental aides and

services); and (4) the effects the disabled student has on the teacher and

non-disabled students in the classroom.

Id.; see also Anotinette, supra note 197, at 204344. 205 See supra text accompanying note 204. 206 Rachel H., 14 F.3d at 1401; Antoinette, supra note 197, at 2044.


modifications, co-teaching, and other approaches to maintain the student in the classroom.207 These practices occur far too often considering that there is little evidence showing that they actually improve learning for students with disabilities and are not detrimental to other students.208 Thus, if inclusion is vital, why do parents most frequently litigate to remove their child to a private special education school that educates only students with disabilities and offers no inclusion?209 Schools are modifying general education classrooms, hiring and training paraprofessionals, and overusing accommodationsall at a high cost.210 Then when parents litigate to have their child removed, arguing all those services are still not appropriate, local school districts are finding it financially burdensome to outplace the student.211 Why? Because after the school district offered all those services listed above, there is not enough money to outplace that student to a private special education school.212 The federal government mandated such strict codes for special education, yet it leaves local school districts to oversee, manage, and fund these programs.213 This funding issue must be remedied before local school districts go bankrupt.214 The first solution is to hold Congress accountable for its inactions.215

207 Freedman, Special Education, supra note 114, at 12 n.74.

Accommodations are changes in programming or standards that the

student needs in order to learn and have access to school programs that

do not lower standards or fundamentally alter them. Modifications do

lower standards or fundamentally alter them. . . . [T]his distinction is not

clearly articulated by many educators, parents, IEP teams, and policies,

and as a result, schools often provide too many accommodations and

modifications.

Id. 208 See Michael F. Giangreco et al., Helping or Hovering? Effects of Instructional Assistant

Proximity on Students with Disabilities, 64 EXCEPTIONAL CHILD. 7, 1314 (1997). 209 See James R. Newcomer & Perry A. Zirkel, An Analysis of Judicial Outcomes of Special

Education Cases, 65 EXCEPTIONAL CHILD. 469, 478 (1999). 210 See Freedman, Special Education, supra note 114, at 13; see also Giangreco et al., supra note

208, at 17. 211 See, e.g., Julie Rawe, Who Pays for Special Ed, TIME MAG. (Sept. 17, 2006),

http://content.time.com/time/magazine/article/0,9171,1535854,00.html. 212 See id. 213 Parks, supra note 136. 214 See, e.g., Kristi L. Bowman, Before School Districts Go Broke: A Proposal for Federal Reform,

79 U. CIN. L. REV. 895, 930 (2011). 215 See discussion infra Part III.E.


E. Congress Has Not Fully Funded the 40% Like Promised

When IDEA was enacted in 1975, Congress understood that it would have significant financial impacts at the state and local level.216 Congress committed to paying for the excess costs of educating a student with a disability compared to a general education student.217 The 2004 reauthorization of IDEA authorized specific funding levels to allow the federal share of special education funding to grow from 17.73% in 2004 to 40% by 2012.218 It is unacceptable that Congress did not appropriate enough funding to match the levels specified in the law; and it is unacceptable that local and state budgets are forced to absorb the shortfall Congress created.219

For fiscal year (FY) 2014, IDEA federal funding covered 16% of the estimated excess cost of educating students with disabilities.220 This was less than FY 2008, when federal funding covered 17% of the cost, and well below FY 2009, when additional funding through the American Recovery and Reinvestment Act covered 33% of the cost.221 Full funding for FY 2014 amounted to $28.33 billion$16.95 billion more than was actually appropriated, or a 40% deficit.222 New federal funding is not keeping pace with increasing special education costs at the local level.223 Had IDEA been fully funded between 1975 and 2006, schools would have received an additional $381.8 billion to spend on things like teacher quality and compensation, additional services, new computers, or updated textbooks.224

Districts that are heavily impacted with unequal numbers of high-need, high-cost disabled students are struggling most, especially if the district is small or rural.225 Out of all disabled students in America, roughly 0.5%, or about 330,000 students, need more than $100,000 in special education services per year.226 These are students like Sarah.227 Districts

216 IDEA Funding: Mandatory Funding Proposal, supra note 104. 217 Id. 218 Id. (accomplishing full funding by 2012, meeting commitment of 2004 IDEA

Reauthorization). 219 IDEA Funding for FY2009 & Beyond, supra note 104. 220 Funding Distribution, supra note 88. 221 Id. 222 Id. 223 IDEA Funding: Mandatory Funding Proposal, supra note 104. 224 Id. (noting that the federal government shortchanged states and local districts by $13.2

billion in FY 2006). 225 Cost Impact, supra note 121. 226 Id.


with an abundance of high-need students have considerably more spending obligations because the federal and state funding formulas do not take into account the allocation of high-cost disabilities.228

One solution to this problem already failed.229 One goal of the 2004 IDEA reauthorization was to ease fiscal tensions by allowing states to reserve 10% of their Part B other state-level activities funds for risk pools, or pools of spending exclusively set aside for the services of high-need students.230 This solution allowed states to redistribute funds from risk pools to regions with high-cost students.231 Additionally, while some states have formed their own extraordinary cost accounts to provide additional support to heavily impacted districts, these accounts are unsteady and often cut or eliminated in the case of a budget shortfall.232

A different solution to this ever-growing problem is to make IDEA funding mandatory rather than discretionary.233 This solution is possible because not only are IDEA services federally mandated, but persons with disabilities are a protected class.234 Over the next six years, this mandatory expenditure proposal will be funded by annual funding increases.235 Funding for IDEA would be moved out of the discretionary portion of the budget and into mandatory spending, keeping the roughly $11 billion base under the appropriators control.236 If IDEA funding is shifted to mandatory spending, generally, the discretionary budget cap for education ought not be reduced.237 In effect, the discretionary funding will be freed

227 See supra notes 117 and accompanying text. 228 Cost Impact, supra note 121. 229 Id. 230 Id. (noting that other state-level activities fund makes up roughly 1% to 1.05% of the

total grant). For other state-level activities, after FY 2006 the maximum set-aside will be the

maximum FY 2006 amount (up to 10% of the FY 2006 grant), adjusted by inflation each year.

Id. 231 Id. 232 Id. 233 IDEA Funding for FY2009 & Beyond, supra note 104, at 2. 234 IDEA Funding: Mandatory Funding Proposal, supra note 104, at 4. 235 Id. 236 See Jason Delisle & Clare McCann, Federal Education Budget Update: Fiscal Year 2014

Appropriations, NEW AM. FOUND. 1, 11 (Feb. 2014), available at http://education.new

america.net/sites/newamerica.net/files/policydocs/NewAmerica-2014AppropriationsBrief-

Final_0.pdf 237 IDEA Funding Coalition Offers Proposal: Plan Would Make Funding Mandatory, NATL

EDUC. ASSN, http://www.nea.org/home/18750.htm (last visited Apr. 9, 2015) [hereinafter

IDEA Funding Coalition Offers Proposal].


up for other programs.238 Appropriators will have more liberty to fund other vital education programs as the pressure to increase IDEA funding lessens each year.239 All students, including disabled students, will benefit from increased funding for other education programs if IDEA is modified to mandatory funding sources.240

IDEA allows school districts a flexibility exception to the local maintenance of effort, supplement not supplant and excess cost requirements of IDEA.241 Expressly, the law and its implementing regulations state that for any fiscal year in which the appropriation for Part B state grants exceeds $4.1 billion (as it has since 1999), a school district may use up to 20% of the annual increase for local education expenditures.242 However, the cost of IDEA is increasing so quickly that many local districts are not able to take advantage of the flexibility.243 When IDEA funding nears the 40% commitment, schools will ultimately be capable to free up resources for other educational purposes.244

Mandatory full funding of IDEA already has broad bipartisan support.245 More than fifty-five national organizations, including the National Conference on State Legislatures, the National Association of Counties, and the National League of Cities, along with all the education groups that are part of the IDEA Funding Coalition, strongly support this guaranteed full funding.246

Another approach is for Congress to increase funding, contingent upon states adopting certain efficiency plans.247 Congress has failed to provide full funding for thirty-one years, effectively preventing local school districts from providing quality educational services for all students.248 The fact that school districts and states are saddled with a tremendously large cost-burden to make up for the federal shortfall is unjustifiable.249

F. Connecticut Budget Cuts Place the Burden on School Districts for

238 Id. 239 Id. 240 Id. 241 Id. 242 20 U.S.C. 1413(a)(2)(C) (2012); 34 C.F.R. 300.233 (1999). 243 IDEA Funding Coalition Offers Proposal, supra note 237. 244 Id. 245 IDEA Funding: Mandatory Funding Proposal, supra note 104. 246 Id. 247 See discussion infra Part III.G. 248 IDEA Funding: Mandatory Funding Proposal, supra note 104. 249 See discussion infra Part III.F.


Special Education Costs

From the 20052006 to the 20092010 school years, overall education expenditures rose by nearly 17% while special education spending increased by 66% in Connecticut.250 Special education spending continues to absorb roughly 20% of the overall Connecticut state budget each year.251 Kevin Chambers of the Connecticut Department of Educations budget office expects education expenditures will continue to rise by approximately 5% each year thereafter.252

The increase in expenditures and costs are attributed to several factors, such as more personnel and training, a rise in special in-district programs and the out-placement of students.253 But in Connecticut, where the state is attempting to address its budget deficit, the rise of special education costs place a financial strain on all involved.254 As mentioned previously, school districts obtain funding for special education from both the federal government and the state.255 IDEA Part B, which is the federal special education grant, is distributed to school districts through the state Department of Education and is controlled by a federal formula.256 The state compensates school districts through a special education excess cost grant that districts apply annually.257

1. The Special Education Excess Cost Grant Is Ineffective If the State Does Not Fully Fund It

The special education excess cost grant reimburses school districts for: (1) the reasonable costs of special education for a student who lives in the district that exceed 4.5 times the districts APPE for the preceding year258 and (2) 100% of the cost of special education for any student placed in the district by a state agency and who has no identifiable home district in the state.259 Reimbursable costs include those for special education instructional personnel, equipment and materials, tuition, transportation,

250 Boudreau, supra note 123. 251 Id. 252 Id. 253 Id. 254 Id. 255 See discussion supra Part III.B. 256 See Funding Distribution, supra note 88 (describing distribution of IDEA Part B grants). 257 See discussion supra Part I.F. 258 CONN. GEN. STAT. 10-76g(b)(2)(B) (2013). 259 Id. 10-76g(a)(2).


rent for space or equipment, and consultant services.260 However, districts cannot be reimbursed for the regular education costs spent on a special education student.261

Connecticut has not fully funded the grant in seven of the last ten years.262 This is due to a limit placed on the excess cost grant in recent years.263 When the state share exceeds the appropriation, it proportionally reduces every districts grant.264 For example, in the 20122013 school year, the limit in Connecticut was $129 million, but districts were eligible for more than $150 million.265 As a result, the money provided to districts was proportionally lowered with the state funding only 73% of the grant.266 Using the example of an APPE, the district could receive less than $4,500 for the [student that lives in the district], depending on what other school districts spend.267 But grants for state-agency placements may not be reduced and must be paid in full.268

G. States Must Promote Efficiency and Cost Effectiveness Without Weakening Constitutionally-Required Student Services

The easiest solution to the cost problem would be for Congress to fulfill its 40% funding promise.269 However, Congress has never fully funded the mandate and it looks highly unlikely that Congress will fully fund it in the near future.270 States and local school districts should instead promote efficiency and cost effectiveness.271 Special education officials and other educators [must] find efficiencies, innovations, and alternative delivery methods if [the state wants] to continue to provide the services that [it is] legally mandated and morally committed to providing.272 Recommendations being made to Connecticut include implementing an

260 Id. 10-76f. 261 Judith Lohman, Special Education Excess Cost Grant, OLR RES. REP. (Jan. 3, 2007),

http://www.cga.ct.gov/2007/rpt/2007-R-0043.htm. 262 Boudreau, supra note 123. 263 Id. 264 Id. 265 Id. 266 Id. 267 Lohman, supra note 261. 268 See id. 269 See discussion supra Part III.D. 270 See discussion supra Part III.E. 271 TASK FORCE TO STUDY STATE EDUCATION FUNDING: STATE OF CONN., FINAL REPORT 11

(2013), available at http://www.cga.ct.gov/2013/rpt/2013-R-0064.htm. 272 Id.


innovative new service delivery strateg[y] and the need for better state coordination and monitoring of school district procedures.273

The U.S. Department of Education currently urges states and school districts to create efficiencies.274 Its Increasing Educational Productivity website offers a list of ten Innovative Approaches & Best Practices to help them in this endeavor.275 If Congress will not increase funding, it is up to the school districts to begin utilizing and executing these efficiencies.276

A more appropriate initiative that will appeal to all involved in the special education system would be for Congress to increase its funding, conditioned upon states and local school districts executing the above mentioned efficiencies.277 That way there is an incentive for Congress to increase its fundingless funds are being wasted on ineffective practices.278 And there is an incentive to states and school districts creating efficienciesmore funds will be available to ensure that each disabled student is receiving the proper services and supports.279

CONCLUSION

It is the states constitutional responsibility to provide an education for all students. The general constitutional rule that the financial burden entailed in meeting [constitutional requirements] in no way lessens the constitutional duty applies to the educational adequacy context.280

273 Id. at 1112. 274 See Increasing Educational Productivity, U.S. DEPT OF EDUC., https://www.ed.gov/edblogs/

oii/increasing-educational-productivity/ (last visited Apr. 9, 2015). 275 Id. The specific recommendations are: (1) Competency-based learning or personalized

learning; (2) Use of technology in teaching and learning; (3) New and alternative sources

of student support and funding; (4) Better use of community resources; (5) Process

improvements; (6) Pay and manage for results; (7) Flexibility to ease requirements and

mandates; (8) Organization of the teaching workforce; (9) Teacher professional and career

development; (10) Teacher compensation. Id. 276 See id. 277 See, e.g., Allison Quick, Legal Limits on Conditional Spending Including Recent Challenges to

No Child Left Behind, HARV. L. SCH. FED. BUDGET POLY SEMINAR, May 2006, 27, available at

http://www.law.harvard.edu/faculty/hjackson/NoChild_19.pdf (exemplifying the conditional

federal spending doctrine and its application to a Congressional mandate). 278 See, e.g., Dennis Murashko, Comment, Accountability and Constitutional Federalism:

Reconsidering Federal Conditional Spending Programs in Light of Democratic Political Theory, 101

NW. U. L. REV. 931, 94041 (2007) (exemplifying the incentives for Congress and states when

the conditional federal spending doctrine is used). 279 See id. 280 Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 208 (Ky. 1989) (citing Carroll v.

Bd. of Educ. of Jefferson Cnty., 410 F. Supp. 234, 238 (W.D. Ky. 1976), affd, 561 F.2d 1 (6th Cir.


Furthermore, all other financial considerations must yield until education is funded.281 Most state constitutions guarantee a sound, basic education as an affirmative obligation of state government and, in many state constitutions, public education is the only service that the Constitution definitively requires the state to provide.

Because states and local school districts cannot make up funding deficits, it is nearly impossible to give an appropriate education. School districts like Sarahs end up denying services to certain students because there is not enough funding to provide for all the disabled students needs. Schools end up prioritizing certain students and their needs, while others do not receive what is appropriate for them, in turn leading to unnecessary litigation by displeased parents. Budgets and special education are not topics that people are willing to discuss freely, making reform more difficult. Surely, special education programs and services are not to blame for this problem. This problem belongs directly on the desk of the federal government under the mandated IDEA laws.

1977)). 281 Campbell Cnty. Sch. Dist. v. State, 907 P.2d 1238, 1279 (Wyo. 1995).

Documents

Perna: Breaking the Cycle of Burdensome and Inefficient Special Education Costs Facing Local School Districts