Consider the case of Rabbi Asher Bern and realize that his is a mirror image of myriad cases throughout the nation. Bern is a yeshiva teacher with a big family and very modest means. He has a young daughter, Golda, who suffers from spina bifida, a painful neurological disorder needing catheterization four times a day. By the religious choice of her parents, she attends school at Shalom Academy (Orthodox Jewish).
Bern was delighted to hear, in 1992, that, under a federal law, the Individuals with Disabilities Education Act (IDEA), Golda, as a private school student, could receive her treatments free from the local public school district. Bern asked the school district to provide, at Shalom, the needed IDEA help for Golda. The school district refused, though finding her qualified to receive the services she sought. It told Bern that church-state separation barred its serving her on religious school premises and that she should switch to the local public school if help was to be given her. This, to Rabbi Bern, was a cruel and senseless alternative to which his religious conscience could not submit.
But in 1993 came the dramatic news that the Supreme Court, in the Zobrest case, had held that the Constitution did not bar public school districts from furnishing IDEA services to children on religious school premises. Bern rejoiced. His rejoicing was short-lived. When he reapplied for the help he had sought for Golda, the school district again refused. It now said that while indeed it was constitutionally permitted to go on Shalom’s premises to help her, the language of the IDEA did not require it to do this—indeed to serve children on the premises of any private school. Moreover, services provided for private school pupils, under IDEA, if provided at all, did not need to be generally comparable to those that public school pupils would receive. A school district’s obligation to private school children would be essentially fulfilled if it offered them a program of help on public school premises. Bern is again outraged at what he deems is legalistic stonewalling by the school district. In mid-1998 his anger is felt nationwide by thousands of similarly situated parents.
These parents all share the pain of having children with handicaps, the determination to see them receive education, the conscientious choice of a private school for that purpose, and hot frustration over the exclusion of their children from meaningful enjoyment of a public benefit program. “Meaningful,” to these parents, means truly equitable participation in a program that they feel was specifically designed to help, not exclude, the private school child. Such parents had hence gone to court in several states, contending that IDEA’s provisions clearly called for that participation. These cases moved tortuously through the federal courts with varying results, some giving IDEA broad readings in favor of private school parents, others narrow and restrictive readings.
By last summer, two of these cases had reached the U.S. Supreme Court. On June 4, 1997, Congress amended the IDEA so as radically to reduce the funding of IDEA services to private school children. This, said a spokesman for the National School Boards Association, meant that public school districts aren’t required to provide any particular services in a private school. Public school spokesmen rejoiced over the savings in public school funds that would now ensue. The parents suing in the federal courts were astounded. Lacking an effective lobby in Washington, they feared that Congress had now pulled the rug out from under their cases. Their fears were justified. Immediately after June 4, the Supreme Court sent the parents’ cases back to the lower federal courts, ordering rulings in them in accordance with the IDEA amendment.
So Rabbi Bern’s legalistic stonewallers were proved correct. A coalition, in Congress, of conservatives (Don’t spend more money), liberals (Don’t aid private education), and some conservatives and some liberals (Don’t aid private religious education) has won the day for the public school establishment. Or has it? Sorely disappointed parents of disabled children, who are actual or potential enrollees in private schools, believe that the now-confirmed virtual exclusion of those children from IDEA benefits violates the constitutional principle of equal justice under the law.
New cases challenging the IDEA exclusion on constitutional grounds will bring to light a conflict existing among conservative lawyers. Those espousing the familiar views of Justice Scalia, for example, will dismiss the parent challengers, saying that the real constitutional question here is whether there is really any constitutional question at all that the courts should entertain. They will say that Congress has spoken. And before we begin to disdain that democratic process, we should decry the notion that judges are law-makers—especially the nine unelected justices of the Supreme Court. Our freedoms depend not only on our rights but on the structure of our government, keeping each of its branches out of the others business. Yes, under our system, injustices can occur. Sometimes we are necessarily stuck with being stuck. The exclusion of private school children from meaningful IDEA participation is certainly an example of injustice. But courts can’t correct this; only Congress can. So goes one view.
Those of a different conservative view will point out that the protesting parents have no lobby that is capable of moving the Congress of the United States to revise the damaging IDEA amendment so recently enacted. They will point to the reality of the legions of children nationwide who are autistic, deaf, mentally retarded—disabled—in all the sad meanings of that word. These desperately need IDEA help for the schooling that will aid their survival. When, to this picture, are added the economic wants of the family, the command of conscientious school choice, and political powerlessness, is it imaginable, the parents ask, that our courts will not rule for them?
The equality argument centers on the aforementioned exclusion, now built into the IDEA, of a large class of disabled children. The discriminatory character of the June amendment is highlighted by its direct contradiction of IDEA’s stated purpose, to assure that all children with disabilities receive the medical, psychological or other services they need in order to receive specially designed instruction to meet their unique needs. Congress, in enacting the IDEA, specifically had found that there are more than eight million children with disabilities in the United States today. Probably a quarter of these are in private schools. While the parents argue that Congress (like any legislature) is free to select the beneficiaries of public welfare legislation, they also say that Congress could not make the classification created by the June amendment without showing some rational basis for that action. None whatever, they will argue, exists here.
They will be right. The IDEA as now amended is a legislative contradiction at once proffering help and denying help. It is harsh inequity. It represents a glittering triumph for the public education establishment, indeed, of secularism itself. But it poses no constitutional question. Our legislatures are constitutionally free to continue to give preference in public funding—even such an unfortunate preference as Congress gave by its IDEA amendment—to public institutions.
Mary Ann Glendon, in Rights Talk, has warned against our pursuit of the ideal of self-sufficiency or individual autonomy, stating that we thereby “systematically slight the very young, the severely ill or disabled, and the frail elderly.” She might have spelled out an opposite danger in the matter of the IDEA: that of Congress systematically slighting disabled children by exalting to a new extreme the power of the public school establishment. She is also critical of group rights that tend to pit group against individual, one group against another, and group against state, saying that what we need instead is a fuller concept of the human person and a more ecological approach to our social policy.
No words can better fit the pleas of parents whose children are excluded from real IDEA participation. These parents are not a group seeking power or pursuing destructive social antagonisms. Their point is simply that the human personhood of a large class of disabled children be recognized in public policy.