Your child’s special education services aren’t going away, despite the recent executive order

Education Policy
Written By Mischa McManus
Schoolhouse rock education funding

Schoolhouse Rock. (2014, August 18). I’m Just a Bill [Video]. YouTube

If scrolling through your social media feed lately has felt like watching a scary movie, then I’m glad you found me. Go ahead and pull that blanket off your head—unless you’re more comfortable that way. What you’ll find here is good information on how this executive order actually impacts special education and some clarity in a storm of confusing, often conflicting, news.

If there’s anything I want you to take from this post, it’s these facts:

  1. The laws protecting your child’s education are here to stay: The civil rights disability laws that ensure your child receives their special education services aren’t going away—they have stood the test of time.

  2. We’ve faced challenges before: These laws have survived deregulation attempts, underfunding, and amendments intended to weaken their protections.

  3. The disability community and its allies are as strong as ever: Disability advocates and their allies have held the line for decades and will continue to do so.

Why do I think we’re going to be ok? Because the special education community is resilient. Also because it would take an act of Congress to actually close the Department of Education.

What does the recent executive order actually do?

Let’s take a closer look at this most recent executive order, the departments it affects, and the laws it can’t touch. The Executive Order:

  • Does not eliminate disability civil rights laws

  • Does not directly cut off access to or funding for special education services

Ok, you may be wondering, “What does the Department of Education do?” You’re not alone. For the first time in the fifteen years I’ve worked in special education, my friends and family are texting and calling with similar questions.

In a nutshell, the Department of Education plays a critical role in ensuring access, support, services, and resources remain available across school districts and other educational agencies or programs through funding and monitoring compliance with existing disability civil rights laws.

The Office of Civil Rights enforces existing laws through investigations and litigation on behalf of complaints filed by individuals with disabilities and/or their families.

Together, they provide a one-two punch to any individuals or organizations threatening students with disabilities’ equitable access to educational programs, services, and activities. Unfortunately, this powerful combination loses some of its potency when the people doing the ensuring and enforcing are being laid off.

Which federal laws have provided protection in the past?

But, I promised this wasn’t going to be scary. In an effort to soothe any remaining frayed nerves, let’s review some important federal laws. Laws that have protected students with disabilities and their families for decades in this country. Laws that have overcome past political challenges and continue to provide important protections today.

The Rehabilitation Act of 1973 (Rehab Act)

The Rehab Act was the first law of its kind, and it kicked open the door for other foundational civil rights disability laws to follow. This pioneer law directly addressed discrimination against the disability community. Most notably, Section 504 provided protections ensuring equal access to educational programs and services for students with disabilities.

The Americans with Disabilities Act (ADA)

Like the Rehab Act, Title II of ADA directly impacts the world of special education. Since 1991, Title II has mandated requirements for students with disabilities to receive access to all available programs and activities—think school clubs and sports. Go team!

The Individuals with Disabilities Education Act (IDEA)

IDEA specifically protects equal access to individualized special education services—a Free and Appropriate Public Education (FAPE) for students with disabilities. This law has been a touchstone in the structure of legal mandates for the disability community for 50 years and continues to provide critical protections today!

Schoolhouse Rock. (2014, August 18). I’m Just a Bill [Video]. YouTube

What protections do we still have?

Hopefully that quick review of the federal laws that offer protections for our students helped you to feel less stressed. Or I’ve lost you to a nap. Either way, the truth is, we’ve had the protections provided by civil rights disability laws—and the agencies that enforce them—for over fifty years, and they’re not going anywhere anytime soon.

So, what do we have now to act as a buffer against the possibility of the Department of Education closing?

Well, first of all, the Department of Education was established in 1980, which means the Office of Civil Rights, which opened in 1957, was holding down the fort—probably many forts—for 23 years before that. And, the Office of Civil Rights would not close, even if the Department of Education did. So, one of the two pillars enforcing disability laws would remain.

And, second of all, closing the Department of Education would require an act of Congress. This is not the first time the department has been at risk of closure. Just last year, Congress pulled together in a bipartisan effort to vote against a bill seeking to dismantle it.

Will members from across the figurative aisle join forces to defeat the newest call to close the department? Well, we don’t know yet, but you can count on my sharing an overly-researched and highly-optimistic post with you if that were to happen.

What political challenges have these laws faced before?

Let’s quickly revisit how these laws have faced—and overcome—serious challenges. Two quick takeaways from this section include:

  • For decades the disability community and its allies have done the work to keep these protections in place

  • Special education programs have never been fully funded, yet they have managed to support the individualized needs of students with disabilities

Early versions of the Rehab Act were actively challenged by politicians of the time. President Nixon vetoed its passing twice before signing it into effect in 1973. And, it wasn’t until 1977 that the protections provided by Section 504 were actually enforced by the Carter Administration. Before that, they only existed in writing, not in action.

The disability community fought hard for the Rehab Act’s passing and for its being enforced, because they collectively envisioned the positive impact it would have on the larger disability community.

ADA was—and still is—a landmark for individuals with disabilities. ADA was initially born out of a resurgence of the civil rights movement in the 1980s; a movement focused on keeping Section 504 of the Rehab Act from being deregulated. Politicians during that time called for significant changes meant to weaken Section 504’s protections.

Thanks to an outpouring of effort from within the disability community, the mobilization of a large-scale civil rights movement on behalf of the disability community, and politicians who became strong allies, attempts to deregulate Section 504 were stopped, and additional protections were secured with the passing of Title II of ADA.

IDEA remains an active support for individuals with disabilities and their families. And though IDEA has long been plagued by underfunding, it has stood the test of time—and faced a number of obstacles. The biggest obstacle being a lack of funding. When IDEA was reauthorized in 2004, Congress promised full funding for programs and services by 2014. But, that never happened.

The promised “full funding” was supposed to cover 40% of the total cost to provide individualized special education programs and services, but 20 years later funding remains at only 10% per student. A lack of funding has never stopped IDEA from providing access to much-needed individualized programs and services.

Where does this leave us now?

Yes, the world of education currently stands on shaky ground. While the laws that have provided protection for several decades remain in effect, the individuals who work to ensure and enforce those protections are facing serious budget and workforce cuts. And, the impact of these executive orders and potential department closures may eventually hit closer to home, but we still have protections in place.

These protections include:

  • The combined legislative power of IDEA, Title II, and Section 504

  • The Department of Education and the Office of Civil Rights—even with diminished capacity—overseeing the implementation of disability rights laws

  • Continued Federal funding for educational programs and related services

  • Educators, service providers, and administrators who continue to protect and uplift the rights of students with disabilities and their families

  • The disability community and their allies—who have faced challenges before

I hope you’ll join me here as I share stories and resources with you each week, and if you find yourself needing more support, more tools, or more detailed information about the complex landscape of special education laws (seriously!), we can find a time to connect and chat.

Stay centered out there, friends.

Mischa



References and Resources

Mischa McManus
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