March 6, 2023
Who would say no to a billion dollars?
Republican lawmakers in some states are considering it. Tennessee House Speaker Cameron Sexton believes the state should forfeit well over a billion dollars in education aid to dodge federal regulations, and plans to push the issue this legislative session. Oklahoma Senator David Bullard has already filed a bill that would order the state Department of Education to phase out all federal dollars. South Carolina’s newly elected State Superintendent of Education Ellen Weaver has also voiced her interest in the idea of rejecting federal support for the state’s schools.
Of course, this would amount to a huge loss of funds for schools in all these states. Oklahoma schools are already among the lowest-funded in the nation, and South Carolina also spends on education at below-average levels. In Tennessee, forfeiting these dollars would wipe out the much-celebrated investment the legislature just made in public education. But the loss would not affect all students in these states equally. Most federal education aid is meant to support specific groups, and those students would be hurt most–including students in poverty, English learners, students from military families, Indigenous students, and students with disabilities.
It is perhaps this last group, students with disabilities, that most depend on the protections that Speaker Sexton dismisses as “federal government interference.” In 2020, the federal government paid out $11.6 billion for the support of students with disabilities. Attached to this and other funding are a host of safeguards that ensure these students have equal access to public education. If states begin to forfeit federal dollars for education, students with disabilities will be left without the defenses written into these laws.
Let’s start with the IDEA. The Individuals with Disabilities Education Act (IDEA) is the backbone federal education law for students with disabilities. Under IDEA, the federal government provides funding to states to support the provision of free, appropriate public education for children with disabilities, and it distributes funding to assist states in providing early intervention services for infants and toddlers. IDEA also sets out the rights of children served under the law.
When a school-aged student is identified as having a disability within one of IDEA’s 13 categories, a team made up of educators, administrators and the student’s parents come together to create an Individualized Education Program Plan, a written document that details the goals for that student and the specific supports and services they will be receiving. Supports may include special education, assistive technology and related services (like speech therapy or counseling) that meet their specific needs. Students receive services at no cost to their families. In the event that a student’s IEP is not being followed and their family is unsuccessful in informally addressing it with the school, IDEA provides due process requirements for making sure that student’s rights are not violated and they receive the required education and accompanying services.
In the absence of IDEA funding, the law’s guarantees and protections would lose all force. Financially strapped school districts may start to economize on the back of students with disabilities.
If a state were to reject all IDEA funding, the law would cease to apply in that state. Most immediately, Tennessee, Oklahoma, and South Carolina would be losing funds–depending on the state, as much as $1,800 per eligible student each year. Either the states would have to step up with a much larger financial commitment to fill the gap (hardly a practical option in every budget year, especially given the poor budget forecasts many legislatures are facing) or students would lose needed supports. This second outcome is more likely, not only because of financial constraints but also because in the absence of IDEA funding, the law’s guarantees and protections would lose all force. Financially strapped school districts may start to economize on the back of students with disabilities.
Section 504 of the Rehabilitation Act, though it is not specific to education, also protects people with disabilities from discrimination in “any program or activity receiving federal financial assistance”—including students in public schools. When a school-aged child meets the requirements for having a disability under Section 504, states and localities are responsible for providing them with services through a 504 plan. While this law includes fewer specific requirements for schools, and the due process requirements it affords to families are less strict than under IDEA, Section 504 does require that school districts accepting federal financial assistance provide free, appropriate public education to students with disabilities.
If a state were to reject funds by the Department of Education but its schools still received funds from any other federal agency, IDEA might be unenforceable, but Section 504 would still apply. Policymakers in Tennessee, Oklahoma, South Carolina, and others should take note of past litigation. In 1975, before New Mexico received federal special education funding, a lawsuit was filed asserting that the state’s special education programs were underfunded and insufficient, and were therefore in violation of Section 504. Noting that Section 504 is patterned after the anti-discrimination language of Title VI of the Civil Rights Act of 1962, and citing the 1974 English-learner language discrimination case of Lau v. Nichols, the Tenth Circuit sided with plaintiffs, finding, “Section 504 regulations unambiguously require that elementary and secondary schools receiving federal funds provide handicapped students with appropriate education services suited to their unique needs.” This precedent shows that students with disabilities in any state rejecting just Department of Education funds would still be entitled to the aids or services needed for a disabled student’s educational needs to be met at the level of non-disabled students. The extra costs to meet these needs and provide services, however, would have to be made up entirely by the state or school district–not an easy task, and one likely to result in cut corners.
In states refusing all federal funding–not just Department of Education funding–for schools, even Section 504 would no longer apply, leaving students with disabilities with few guarantees. While the Americans with Disabilities Act (ADA) hasn’t been used as much as other laws as the basis for special education litigation, it would become much more important absent IDEA and Section 504. Title II of the ADA provides that all state and local governments (including public school districts) are prohibited from discriminating against persons with disabilities. Since the nondiscrimination standards for Title II are generally the same as in 504, Title II would step in as the primary federal basis for schools’ duties to students with disabilities. However, the ADA offers little direction on how best to serve these students, and they and their school districts would find themselves stuck for years in a messy process of trial and error.
Having wriggled out of the specific constraints of IDEA and Section 504, states may be subject to fewer prospective regulations–but school districts will still find themselves mired in unending lawsuits.
IDEA was a huge advance for disabled students who, 50 years ago, did not have a right to attend school with their peers. Without IDEA, the remaining laws, 504 and the ADA, offer some protections, but they are non-discrimination statutes, not guides to serving students well. And in the event that states reject all federal funding for schools, the more limited rights guaranteed by 504 would be lost as well, along with the rest of the education infrastructure for students with disabilities. All that would remain would be the ADA, which does not impose affirmative obligations on schools. In a system with no federal funding, families of students with disabilities would have to wait until their children are harmed to be able to act, and without the due process guarantees of IDEA, they will have to do so through the courts. Having wriggled out of the specific constraints of IDEA, and perhaps of Section 504, states may be subject to fewer prospective regulations–but school districts will still find themselves mired in unending lawsuits.
Meanwhile, students with disabilities aren’t going to disappear along with IDEA. Without that federal money, states will be forced to fully fund their own special education infrastructure. It will not be cheap or easy to fill the gap. Republicans may want to be “free” of obligations like those in IDEA, but that change would come at a huge cost to students with disabilities–while still subjecting the state to expensive obligations and an onerous legal mess.
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