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.
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