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©2000 Thomas C. Burnheimer
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Two conceptions of Justice
ABSTRACT
Special Education is governed by federal and state regulations that entitle any student with a disability to a free and appropriate public education in the least restrictive environment. Meanwhile, the local public generally attempts to resist tax increases to fund education. These stakeholders in public education continue to be concerned about the imbalance in the allocation of educational resources between the regular and special education populations. When comparing costs on a per pupil basis, it often is the case that the student requiring special education services will need financial, personnel and administrative resources that will cost the district more than those necessary to educate the student in the regular education program. This paper will attempt to analyze this controversy and examine some of the different philosophical perspectives regarding "fairness" in the provision of resources to special education programs.
OUTLINE
HISTORICAL BACKGROUND
With the signing by President Ford of the Education for All Handicapped Children Act of 1975 (Education for All Handicapped Children Act of 1975, 20 U. S. C. §1401 et seq., 1974), the federal government first put upon states the responsibility of providing an appropriate public education for children with disabilities. This was the first time funds were made available to states to assist in the development of educational programs for handicapped students.
Prior to the passage of the Education of the Handicapped Act, children with disabilities, when they were allowed to attend public schools often were provided with an education that was not appropriate to their unique needs. Frequently students with special education needs were removed from the regular education classroom and educated separately, often in separate schools (Zenick, 1999).
Recognizing the need for a national solution, Congress enacted the first legislation that attempted to address educational issues for children with disabilities, the Education for All Handicapped Children Act (Education for All Handicapped Children Act of 1975, 20 U. S. C. §1401 et seq., Public Law 94-142, 1975). This law guaranteed all children with disabilities, ages 3 through 21, the right to a Free, Appropriate Public Education (FAPE) in the least restrictive environment.
While there are many ways to consider the purposes of public education, Feinberg and Soltis (1992) discuss a Functionalist perspective, which holds that role of the school is to prepare students for adult participation in the social, political and economic institutions of society. Examining purpose from a Marxist perspective, schools are one of the vehicles by which the privileged class is able to maintain status and control over subordinate groups. The 1954 Brown v. The Topeka Kansas Board of Education United States Supreme Court decision became the starting point of special education law. Although the Brown decision addressed practice of segregating students by race, rather than by some type of disabling condition, Howe and Mirmanotes (1992) report that the court did emphasize that "among the important goods to be justly distributed in a modern society is education, largely because it serves as the gateway to other goods such as income, employment and self-respect" (p. 36).
ANALYSIS OF THE CONTROVERSY
As discussed in Clabaugh and Rozycki (1997), when analyzing a controversy, one must consider whether or not the dispute is fundamental. In other words, can the controversy be framed in a question that will have a yes or no answer? In this particular controversy, the question to be answered is "Should proportionally more resources be dedicated to special education students than are dedicated to regular education students?" Teachers, parents, administrators, legislators and advocates have been concerned for a number of years about the imbalance between regular education and special education with regards to disproportionate consumption of financial, personnel and administrate resources. These different factions are constantly in disagreement with each other as to the fairness regarding this distribution of resources. If money were no object, there would be no controversy, as the needs of all students could be addressed without hesitation.
Howe and Mirmanotes (1992) provide a view of special education from a Utilitarian point of view, holding that actions or policies are right when they maximize the total good. Others share the view of philosophers such as Gutmann (1987) who see it as the responsibility of the school to have each child reach a "threshold" of educational benefit. This perspective allows for unequal distribution of educational funds, but only until students acquire skills necessary to become citizens that contribute to society.
Following this same model, consideration needs to be given to the question of whether those in disagreement are members of the same community. In the educational community, those in disagreement could include teachers, administrators, board members, taxpayers, community members, legislators and advocates. In short, all who could be considered stakeholders in public education would be members of the community in disagreement.
Another point from Clabaugh and Rozycki to be considered is that the disputants recognize the same authority as the sources of fact (page 98). In this controversy, the authorities are the federal and state laws to which all are held accountable. The laws written were derived from public testimony held by congress at the time special education laws were being developed in the early 1970's.
The third point to consider is if the parties would consider the evidence against their own position. Groups on both sides of the controversy continue to consider their own views as the right one in terms of meeting the needs of students while at the same time realizing the allocation of dollars is a critical component of public education. The distribution of resources is a conflict between legal interpretations of statute and the philosophical argument of "what is right?"
Having examined these broad philosophical differences, the conclusion can be drawn that this controversy can best be defined as a problem of value. The community members as defined above do have the same broad values, wanting to ensure appropriate education, but may have different priorities when considering the distribution of limited resources. The distribution of resources question arises here as we ask to what degree resources must be used to ensure that a child with special education needs makes meaningful educational progress, which is the test of an appropriate public education.
PHILOSOPHICAL PERSPECTIVES
What, then, must be defined is the term "the total good." Strike, Haller & Soltis (1998) attempt to address this issue as they provide a definition of the principle of benefit maximization. This principle holds that the best and most just decision is one that provides the greatest benefit for the most people. If one would use this definition as a framework for deciding how to most efficiently use educational resources, it could be interpreted that this position would advocate that resources should be directed away from children with disabilities as their ability to contribute to society in a meaningful way is probably limited.
A non-consequentialist view, as discussed by Howe and Mirmanotes (1992) broadly defines the role of education to distribute resources in such a way that each child rises as close as possible to some threshold of competence. This distribution is based on a needs-based criteria. The issue becomes then, defining the threshold of competence and how responsible are the public schools for getting close to it and how do we manage the resources for this to occur. Strike, et. al. (1998) also consider the principle of equal respect which says we must consider that all humans have equal worth and that they must be given equal respect with regards to access to opportunities, which includes access to resources. This point of view requires that we believe that all humans have intrinsic worth and therefore, we must treat them accordingly. The principle of equal respect also acknowledges that this distribution of resources may not always be the most efficient way of distributing them.
Feinberg and Soltis (1992) note that those who view society from a functionalist perspective believe that in a given society there will be different members performing different tasks. In this perspective, the role of the school then becomes to provide equal educational opportunity so that all have equal chance to develop their talents and skills to perform these tasks. Educational resources can be viewed as a limited commodity. The public can only pay for so much education. One could consider that resources should be distributed via a principle of "fair share," meaning that no one group receive any more of a resource than another.
Rozycki (1999) is of the opinion that special education violates this principle of fair share as it forces resources to be dedicated to a particular group of students. Because of the legal issues involved in and surrounding the provision of special education, any discussion of its "fairness" must consider the relationship between ethics and legality. Howe and Mirmanotes (1992) characterize this relationship four ways; laws that exist are always subject to criticism based on the ethical principals that exist outside the laws. Second, laws are relatively general and not do wholly capture ethical deliberation. Their third point is that laws are always subject to legal interpretations and that the interpretation almost always has an ethical slant. Fourth, when an interpretation of a law is finally made, it presupposes an ethical commitment. They believe that because laws and regulations are general, they require ethical discussion for interpretations.
CONCLUSIONS
When Public Law 94-142 was signed into law 25 years ago, the promise of Congress was to fund 40% of the cost associated with providing special education to students with disabilities. This level of funding has never occurred and today stands at about 12%. For example, in the South Eastern School District, the special education budget for the 2000-2001 school year is $2,376, 358.00, which is nearly 11% of the district's total budget. In this school year, the district special education population is just about 6% of the total student population.
The issue with distribution of resources based on students realizing some threshold is deciding how this threshold is to be defined and by whom. By legal mandate, special education is to ensure the provision of a free and appropriate public education to students with disabilities. The courts, parents and educational institutions have interpreted this standard in a variety of ways. Determining how resources should be utilized to reach benchmarks becomes difficult when a definition of what its threshold should be does not exist.
I believe it is safe to assume that educators have a desire for all students to have the "best" education. With this desire comes the realization that the current funding structure will never allow this to occur. Given the lack of definition of what is "best," I don't see the possibility of disproportionate funding ever ending. When the possibility exists that spending just one more dollar may make a difference, no one person wants the responsibility of telling a particular group of students that they've been given enough.
REFERENCES
Brown v. Board of Education, (1954) 347 U.S. 483
Clabaugh, G. K. & Rozycki, E. G. (1997). Analyzing controversy: An introductory guide. Dushkin/McGraw Hill
Curren, R. R., (1994) Justice and the threshold of educational equality. [On-line paper] Available: www.ed.uiuc.edu/EPS/PES-Yearbook/94_docs/CURREN.HTM
Feinberg, W., & Soltis, J., (1992). School and Society (2nd ed.). New York: Teachers College Press
Gutmann A., (1987). Democratic Education. Princeton, NJ: Princeton University Press
Howe, K. R. & Mirmanotes, O. B. (1992). The ethics of special education. New York: Teachers College Press
Rozycki, E., G., (1999). The ethics of educational triage: Is special education moral? [On-line paper] Available: http://www.newfoundations.com/EGR/Triage.html
Strike K.A., Haller, E.J. & Soltis, J. F. (1998). The ethics of school administration (2d ed.). New York: Teachers College Press
Zenick, S. P. (1999). The evolution of case law that led to the least restrictive environment provision in the individuals with disabilities act. (Doctoral dissertation, Tennessee State University). ProQuest Digital Dissertations, AAT-9943853
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