Another Misadventure from the Department of Education

Since 1973, a variety of federal laws banned federal aid to any state whose school systems discriminate against certain individuals on grounds of their disabilities. I have always been opposed to the general operation of these laws on multiple grounds. The unbridled use of federal power leaves too much discretion in the hands of government officials to define what counts as discrimination, without bearing any direct financial responsibility for the requirements that they impose.

Just this unfortunate dynamic is at work again in the latest publication from the Department of Education, which requires all schools to open all sports programs to persons with disabilities, or to create alternative programs in which they can participate. The DOE’s latest offensive begins with the usual puffery from Secretary of Education Arne Duncan, who exults:

Sports can provide invaluable lessons in discipline, selflessness, passion and courage, and this guidance will help schools ensure that students with disabilities have an equal opportunity to benefit from the life lessons they can learn on the playing field or on the court.

His announcement is then followed by heartfelt endorsements from the various groups that have championed this venture. What is wholly lacking is any well-rounded examinations of the pros and cons of these newest adventure. That lack of balance is no accident, but is in large measure a function of the dubious procedures used to make this announcement—procedures that have become a regrettable hallmark of the modern administrative state. 

In this instance, as in so many others, DOE’s publication takes the form of an administrative “guidance,” which in and of itself does not have the force of law, but which is intended–so we are told–to assist institutions in complying with the law and to make clear the intentions of the Department of Education.

I have always taken strong exceptions to the use of the velvet fist, because of the manifest threat that it poses to the rule of law. There is no opportunity for any opposing party to comment on the content of the guidance before it is released, but every opportunity for DOE to selectively consult with its allies before releasing the report. All the routine safeguards that surround the use of delegated authority by administrative actors are quickly brushed aside, as the publication of the report becomes a departmental fait accompli. Yet bold is the school district that would treat this guidance just as friendly advice from a government agency.  The consequence of violating the stated norms is the same kind of DOE investigation that might be appropriate for the violation of any standard legal rule with the force of law.

The use of these procedural shortcuts are not without mischievous, substantive consequences.  In this instance, the DOE statement contains no reasoned discussion of the pro or cons of the proposed ruling. Instead, in mock-heroic fashion, it touts all the benefits of the proposed rules without saying a word about the possible costs and dislocations that it imposes. There is not a word in the report about the financial support that DOE will grant to schools that are impacted negatively by this program, for the simple reason that the federal government will not contribute a single dime to the costs of compliance. 

Nor does the report mention potential tort liability to students, disabled or not, who may be injured by the participation of a disabled student in the program. After all, that’s a problem that the school has to work out with its insurance carrier, which might take a dim view of the added risk from the participation of disabled students in athletics under the new federal mandate. Nor, of course, does the guidance take into account the diminution in the quality of the experience of other students who may now be forced to make the “reasonable accommodations” that are required under these disability statutes.

Instead of reasoned discussion, we are reminded once again that DOE frowns all generalizations, no matter how accurate, as stereotypes that are worthy of no respect. Individual determinations, always frightfully expensive, now become the order of the day. This is not small matter because the DOE insists that schools must sometimes make modifications in their athletic programs to get into compliance.

But which ones?  Try this one on for size:

If the modification is necessary, the school district must allow it unless doing so would result in a fundamental alteration of the nature of the extracurricular athletic activity.

Put the metaphysics to one side –  the sum and substance of this guidance is that big changes need not always be made, but smaller ones may often be required. The endless variations on simple themes are not answered by the declaration that you do not have to add an extra base to a baseball diamond, which leaves open whether the disabled batsman gets four strikes before he is out.

Indeed, what is so characteristic of the DOE’s method is its foolish use of particular examples that in reality afford no guidance at all. Here are the two prominent ones in the so-called Guidance.

First, it is now improper to give visual cues on the start of a race to deaf runners (assuming that these are needed in any event). Second, no coach  can deny a lacrosse player with learning disabilities the opportunity in play in competition because he thinks that she cannot stand up to the stress of actual competition. What coach would not give her a chance for at least a few minutes in the closing minutes of a one-sided game?

What the DOE never explains is why its massive initiative is needed to deal with cases like these, which are handled every day at the local level in far less intrusive and costly ways.  Yet note what is left out. DOE does not ask the question of what should be done if the lacrosse player does suffer from serious disorientation that can be corrected only with expensive  counseling. 

These pointless examples are just useless distractions from the central question of federal authority. The issue for DOE is not whether disabled students should be integrated in school athletic activities. That is surely a fair question to ask, and it should be asked at the school level, where there is at least an opportunity to experiment with different approaches without an overzealous DOE breathing down its neck. 

Rather, the fundamental question is the huge institutional imbalances that arise when federal power is divorced from federal responsibility. One ill-considered initiative can impose huge and expensive obligations on state and local governments, whose own moral sensibilities may well be more informed than those of the aggressive bureaucrats who walk the halls of the Department of Education.

  1. Trace

    Two questions:

    1) Is this not a dreaded “unfunded mandate?” The principal and perennial objection to the No Child Left Behind requirement that students actually learn something?

    2) Isn’t the Department of Education required to assess the prospective cost of this rule and isn’t the Office of Management and Budget obliged to review their math and weigh in if necessary? 

  2. Pilli

    What would happen if a school district told the DOE to “stuff it”?

    I can imagine that the DOE would withhold federal funds from that district. Maybe the district says, “We don’t want it.”   Then what?  Could get interesting.

  3. Nick Stuart

    At the risk of being tedious, since this is the comment I leave on virtually every post about public education.

    Public education is irremediably screwed up. It cannot be reformed, or even improved except in the tiniest ways for the most minute fraction of students.

    Doctors bury their mistakes. Teachers graduate theirs.

    Picture you’re walking along the seashore at low tide. You walk out on the breakwater and there on the rocks are years worth of tangled lines, rusty fishhooks, dead fish, seaweed, and unidentifiable drek of every description. Now picture a supertanker whose hold is crammed to bursting with this detritus. Reforming public education would be like completely untangling that giant ball of garbage, reconditioning everything of value, and properly recycling the remainder.

    Not. Going. To. Happen.

    Parents should get vouchers, or at a minimum a full rebate of that portion of their property tax that goes to fund their local government school to enable them to control the education of their children by sending them to the school of their choice.

  4. Larry3435

    I’m not sure if being white (i.e., I can’t jump that well) and only 6 feet tall is a disability, but I have always felt that basketball would be a much better game if the basket was 8 feet high instead of 10.  After all, they changed all the rules when Wilt came along, so that everyone else would have half a chance.  If they had just taken it a little further, I could have played varsity.

  5. Margaret Sarah

    I know a case like this, related to ADA rules for schools (rules, not guidances). The parents of a severely handicapped child refused to send her to the local special district. They insisted she stay in the regular elementary school, with a full-time nurse and a full-time special education teacher to work with her. As a result, the small district (2 elementary schools, 1 middle school, 1 high school) had to eliminate all foreign languages and extracurricular drama.

    Another example: Chicago Public Schools a few years ago ruled that blind students had to study for and take the written drivers license test. The students were very unhappy at being made to feel their disability so intensely.

  6. John Murdoch

    I’m disappointed by Professor Epstein’s mischaracterization of the Dept. of Education’s letter.

    This is a standard Dept. of Education letter–similar to the IRS private letter ruling. It clarifies existing law, so that school districts are aware of their responsibilities. Section 504 of the Individuals with Disabilities Act has been law since at least 1991–and this requirement isn’t new. Or news.

    This does not require four bases in baseball, or that the kid with Down syndrome get four strikes at bat. I’m extremely disappointed that Prof. Epstein would stoop that low for a cheap bit of witticism. It is beneath him, and beneath Ricochet.

    Section 504 says that the disabled kids get a chance to try out, just like everybody else. What it also says is that coaches can’t prevent the disabled kids from trying out–or participating, if they have actual ability–simply because the coach doesn’t want to have to attend the kid’s IEP meeting.

    Is that intrusive federal bureaucracy? Yes. Does this represent any change to the law (or the DOE regulations) in the past twenty years (at least)? No.

  7. John Murdoch
    Margaret Sarah: I know a case like this, related to ADA rules for schools (rules, not guidances). The parents of a severely handicapped child refused to send her to the local special district…

    First: the Americans with Disabilities Act has nothing to say at all about student placement decisions. You are confusing the ADA with the Individuals with Disabilities Education Act (IDEA) which requires that students be educated in the Least Restrictive Environment (LRE)–and if the chosen LRE is not the child’s normal school, the IEP team (parents, teachers, school staff) has to document why not.

    Typically school districts push–hard–for students with significant disabilities to be “mainstreamed” in regular classrooms. That “full-time special ed teacher” and “full-time nurse” you refer to? They were probably a minimum wage aide (called a “one to one”), and a minimum wage nurse’s aide. (Personally, I’d bet it was one person–but by the time you heard the story it had morphed to two.)

    Districts fight like cats to keep from sending kids to “segregated” placements–it costs them far more money to do so.

    Districts then turn around and blame budget problems on the handicapped kids.

  8. John Murdoch
    Trace: Two questions:

    1) Is this not a dreaded “unfunded mandate?” The principal and perennial objection to the No Child Left Behind requirement that students actually learn something?

    2) Isn’t the Department of Education required to assess the prospective cost of this rule and isn’t the Office of Management and Budget obliged to review their math and weigh in if necessary?

    It is an unfunded mandate–called the Individuals with Disabilities Education Act. It was passed in 1972. It says that if you have handicapped children in your school district, they get to go to school just like everybody else. And if you offer extracurricular activities, the handicapped kids get to participate–within reason–just like everybody else.

    It does not say–and the section 504 letter Professor Epstein refers to does not say–that you have to provide four bases for the cripples, or let the retarded kid take four swings with the bat.

    This is nothing new–and for the life of me I have no idea why Professor Epstein chose to make an issue of this forty years after the act passed.

  9. Trace

    Thanks for the clarification John. This story struck me as fishy as well and I am happy to have your clarification. This is a constant trap our side falls into of becoming hysterical over the innocuous – it detracts from our credibility when there are legitimate outrages.

  10. Margaret Sarah

    John, thanks for the clarification on IDEA. Not the same law, but related.

    Large districts might favor least restricted placement because they have personnel. In this small district, the teacher was a certified special education teacher (full teacher’s salary), the nurse an LPN. I knew about the case in detail.

    YOu mentioned that the coach might not want to attend the student’s IEP meeting. Why–mean coach? Or, facing a host of suggestions from advocates for this child to make the activities accessible, whether these suggestions are practical or fair for the other students participating (who don’t get to have advocates).

    Special needs students are often treated inappropriately in “inclusion.” The drivers license test was just one example from that school. Three blind students were also took part in a “reading” class. While the other students read and took notes, these students’ aide read the material to them. When I asked when they had a chance to practice reading it–or anything–in Braille, the aide noted that since these were high school students, they wouldn’t be working on that, since the other high school students had already learned to decode.

  11. John Murdoch

    Margaret Sarah,

    I’ve been involved as a parent and activist for special needs kids; I work with seriously disabled adults and children in a therapeutic riding/driving program; I’ve also been heavily involved (both in curriculum and budgeting) with the local school district and school board.

    School districts large or small recognize that special ed kids come with big, fat state subsidies attached to them. And everybody long ago figured out that “inclusion” was a quick route to profit–put three kids with IEPs in the back of a regular ed classroom with a minimum wage aide (yes–she has a special ed teaching certificate; but she’s being paid as a teacher’s aide) and you can use all that profit to solve other budget issues.

    A segregated special ed classroom is more expensive (and, more often than not, a better placement for the child). A private school placement typically is staggeringly expensive–far, far more expensive than a couple of aides. 

    It sounds like what you saw in Chicago is a different issue: the district taking advantage of parent or parents who can’t be bothered to come to the IEP meeting, or pay attention.

  12. John Murdoch
    Margaret Sarah: You mentioned that the coach might not want to attend the student’s IEP meeting. Why–mean coach?

    A section 504 letter, like Professor Epstein linked to, tries to provide some context to the rules. My guess is that some coach was just that–a jerk. He wasn’t going to put up with the dorky kid who comes to school in the little bus, and that was that.

    Here’s a story about a coach who’s a little bit better, as a man and a teacher.

  13. AZ Dude
    Section 504 of the Individuals with Disabilities Act has been law since at least 1991–and this requirement isn’t new….. This does not require four bases in baseball, or that the kid with Down syndrome get four strikes at bat. 
    John, regarding your first point, I think Richard is saying that the DOE’s published guidance has the effect of law without the oversight of the lawmaking process. To the second point, I think you misread the sentence about baseball: “The endless variations on simple themes are not answered by the declaration that you do not have to add an extra base to a baseball diamond, which leaves open whether the disabled batsman gets four strikes before he is out.” He is not saying that the letter or the law require four bases in baseball or that a kid with Down syndrome gets four strikes at bat. He’s saying that while three bases may be fundamental to “the nature of the extra-curricular activity,” it remains unclear whether something like the three strike rule is fundamental to baseball.
  14. John Murdoch
    Go Musicals Guy

    John, regarding your first point, I think Richard is saying that the DOE’s published guidance has the effect of law without the oversight of the lawmaking process.

    Had the professor opined on the conspicuous use of “reasonable” throughout the Americans with Disabilities Act (and the IDEA), and noted that “reasonable” can reasonably be interpreted to mean “reasonably likely to cause prolonged and lucrative litigation by a new branch of the plaintiff’s bar” I’d have cheered him on.

    But he went into specifics about a specific Section 504 letter–and went so far as to suggest that compliance with Section 504 might require giving the disabled kid four swings of the bat. Which it most emphatically does not.

    It was witty. It was not wise.

  15. AZ Dude

    John, I think Richard’s point is that the letter doesn’t adequately clarify what “reasonable” means, and that the examples it cites do not offer sufficient guidance. I don’t see him going into specifics at all… He gives the four strikes at bat thing as a hypothetical, one of the “endless variations on simple themes” that aren’t addressed in the letter. Can you point to something Richard said that is wrong? Or can you clarify how Section 504 emphatically precludes giving a disabled kid four swings of the bat? You may be right, but when it comes to RAE the presumption of correctness is extremely high lol.

  16. John Murdoch
    Go Musicals Guy: Can you point to something Richard said that is wrong? Or can you clarify how Section 504 emphatically precludes giving a disabled kid four swings of the bat?

    “Individual determinations, always frightfully expensive, now become the order of the day.”

    Read the section 504 letter–find the section he’s referring to above. It does not say that a “frightfully expensive” evaluation has to take place. It says that you have to make a reasonable modification to allow people with disabilities to participate.

    Look at my avatar. I’m a 4-H leader, and a longtime official at horse events. That picture is of a section 504 accommodation, permitting a girl with Down syndrome to participate in our county 4-H fair, which, technically, is a Penn State event. Precisely the kind of competition the letter refers to.

    Do we have kids with disabilities? Yes. Do we evaluate them, individually, to determine how best to let them participate? Yes. Do we sometimes make accommodations to allow them to safely participate? Yes. Do those accommodations cost money?

    Why yes–yes they do. About forty-four cents–for the extra ribbon we give to the child.

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