Framing the legal issues for students with disabilities in the United States
Society’s awareness and understanding about inclusive education is necessary to implement a good education framework, but the framework itself is structured by education law. This section reviews the legal issues under IDEA to illustrate why the United States does not have an inclusive legal framework in line with the CRPD. Notably, IDEA articulates the importance of reviewing each student on an individual basis in the same manner as called for by the CRPD. However, as the following discussion points out, issues have arisen and been fleshed out over the years in the American implementation of individual student review under the IDEA. These issues can provide important guidance to other countries as they develop inclusive education systems focusing on individual student needs.
One major issue to consider is that IDEA allows for children with disabilities to receive a Free Appropriate Public Education (FAPE) in general schools, but what constitutes an “appropriate” education is unclear. This question has been heavily debated in the United States. When a child is receiving average marks in school and progressing from grade to grade, does that constitute an “appropriate” education, or should a child with a disability receive every accommodation necessary to reach their full potential?
A parallel issue that arises under IDEA is the question of who qualifies under the law. The law names certain disability groups that may be eligible for the law’s protections if the child is otherwise qualified. The concept of “otherwise qualified” presents an issue for children who have one of the listed disabilities but receive passing marks in school. In one instance, a child with autism was not considered “otherwise qualified” despite the fact the child needed certain educational services to succeed in school. The particular child tested very well, but refused to do homework or in class assignments. Because of his high test marks the school district refused to provide an individualized education plan (IEP) for him, and thus he was not entitled to the protections and remedies afforded under IDEA. The school psychologist who evaluated him noted that one-on-one attention would greatly benefit him in school, but did not recommend an IEP. The child recently started to fail courses due to his lack of homework completion, and now the school must pay for the child to be evaluated by an independent evaluator. If IDEA was interpreted with a more inclusive education lens, the law would ensure all children with disabilities are provided the reasonable accommodations they need to not only get by in school, but to succeed both academically and socially.
There are also clear limitations built into IDEA’s enforcement mechanism. IDEA does not have any complaint mechanism allowing for systemic change, and the only means of redress is on an individual basis. This means if two or more children have the same grievance, there is no means to address the grievances collectively through a class action complaint. This is an interesting omission to consider, as the two cases that were catalysts for the law were both class action complaints alleging violations under the United States Constitution. When Congress drafted IDEA it provided for individual procedures and processes within the law, but this has led to disparity of services among students with disabilities for reasons Congress did not envision. Cases are reviewed on a case-by-case basis, which in theory makes sense, but in practice has serious shortcomings. For example, children who are blind in the United States often receive their books in accessible format weeks after school has started, and thus they are behind their classmates. While there have been numerous individual challenges to account for the disparity of services, it remain a major problem throughout the United States and there is no way to challenge this issue holistically under IDEA. The lack of systemic change makes it difficult to quickly transition from the current American education system to a more inclusive education system that provides all children with the accommodations they need to succeed in the general classroom with their peers.