Responses: The Disability Integration Presumption
posted by University of Pennsylvania Law Review
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As the legal wrangling over the cost of disability education rages on, Professors Samuel R. Bagenstos and Mark C. Weber each provide unique responses to Professor Ruth Colker’s 2006 article, The Disability Integration Presumption: Thirty Years Later.
Professor Bagenstos writes in Abolish the Integration Presumption? Not Yet, that while Professor Colker’s arguments are compelling, “[h]er article fails to establish that the IDEA’s individualized integration presumption imposes significant costs, and . . . downplay[s] significant benefits of that presumption.” He concludes that the “supposed failure[s] of integration . . . reflect [more on] the education system’s refusal to provide true integration” than on the presumption’s validity.
Professor Weber, in A Nuanced Approach to the Disability Integration Presumption, applauds Professor Colker for attempting to look at the integration presumption in a new way, but worries that her stance on the presumption is misplaced. Rather than abandoning the presumption, Professor Weber argues that integration can work well as long as educators focus on “which services and protections are being offered to educate a child within general education. . . . The way to equality is to provide extra services, technology, and accommodations in regular classes so that the children with disabilities do not fall behind.”
As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review’s print edition articles.
October 27, 2007 at 2:31 pm
Posted in: Law Rev (Penn), Law Rev Forum
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Responses (1)
Ray Fuller - October 28, 2007 at 8:04 am
To paraphrase Chief Justice Roberts, the only way to end discrimination AGAINST students with disabilities is to end discrimination IN FAVOR OF students with disabilities. Such a cute formulation is just as simplistice, absurd and insulting in the context of justice for the disabled as it is in the context of justice for blacks, the original intended beneficiaries of affirmative action. (The Chief Justice’s opine kind of reminds you of Marie Antoinette’s pre-French Revolution dismissive anti-poverty slogan for her starving subjects, begging for bread,”Let them eat cake”, doesn’t it?)
Yet there are glaring injustices in racial affirmative action and educational disability integration programs that give ammunition to their critics, and undercut their rationales and proper justifications. For example, affirmative action was conceived as a restorative justice measure to ameliorate historic legal and social discrimination against black Americans, and to cure the badges of slavery, including segregated schools and inadequate educations for their students. Yet, today, all too often the greatest beneficiaries of affirmative action in higher education (other than women as a whole) have been “upper class” black Americans coming from wealthy and socially prominent families, and black non-Americans coming directly from the Caribbean and Africa. The black American living in the “ghetto”, in poverty, and/or in a truly dysfunctional elementary and secondary rural or urban school system, does not proportionately share in the benefits of affirmative action in higher education, even after four decades of efforts. Undergraduate and graduate schools should rededicate themselves to returning to the original, defensible purpose of affirmative action, namely to offer a helping hand to marginalized black American students (the truest descendants of slavery). Noteworthy, a “helping hand” should not stop at admission, but must be effectualized to include true academic supportive services and real financial aid to maximize the opportunity for these damaged (i.e., “socially disabled”) students to succeed academically and in life. That would be an expensive proposition, in terms of time, money and commitment, though.
As for physically and mentally disabled students,IDEA all too often has been hijacked by “upper class” parents and students, and schools feel helpless to resist the injustice of devoting scarce public educational resources to assuage them and even subsidize them. Urban public schools (particularly NYC, I hear) have been notorious in caving in to demands from rich parents for free private school educations for their children, under the rubric of the best individualized disabled student integration (after all, private schools tend to have better quality supportive services as well as educations for the disabled and nondisabled alike). And children in public schools with mental problems, including a proclivity for dangerous violence, have been shielded from consequences or control, by invoking IDEA, usually with the assistance of high-paid lawyers for their wealthy clients. Our elementary and secondary schools cannot afford the cost of administrative and judicial proceedings, with little prospect of eventual success in the context of IDEA. So limited school resources are all too often diverted from more economically and often educationally “needy” (but “normal”) students, because of the perversion of a well-intentioned, but inflexible, law favoring disabled students. Social justice is again subverted, because no one dares or cares to fine tune IDEA to better serve its true purposes. It is obvious that much positive has been accomplished under that law, but too much is being lost in the interstices due to abuses.
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