Is Special Education Fair?
©2000 Robert W. Culp

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Is special education immoral?


The breadth and scope of rights afforded special education students in America's public schools have been steadily growing for the past thirty years. Parents of regular education students, teachers, and administrators are reporting that this trend is causing an imbalance of equity between regular education and special education students. This imbalance, or paradox, is generating controversy and disrupting the educational process in practically every school across the country. The sources of controversy are two pronged. First, there is the issue of whether special education students are entitled to a disproportionate share of financial, administrative and personnel resources. Second, there is the issue that students with disabilities are enjoying legal rights of due process that regular education students do not. The growing concern is that this double legal standard is contributing to unsafe schools.

While the original intention of the Individuals with Disabilities Act (IDEA) was to prevent discrimination based upon a person's physical, intellectual and emotional limitations, the result of implementing IDEA has created a reverse discrimination effect. An inordinate amount of financial and personnel resources are being afforded to special education students as mandated by state and federal law. The workload that special education is imposing on schools is prodigious; administrators, teachers, counselors and aids are all feeling the pressure of due process hearings, IEP meetings, CER evaluations, functional behavioral assessments, manifestation determinations, requests for evaluation and MDT meetings. The result, paradoxically, is that less and less time, money and resources are available for regular education students because of the drain special education laws are imposing on the system. What is equal under the law for the special education student has become inequitable in practice for the regular education student.

Students with disabilities are also enjoying a double standard in terms of discipline and overall accountability for their behaviors in school. In instances where the special education classification indicates a behavioral disability, special education students do not receive the same treatment as regular education students in matters of drug possession, violence, or other behavioral issues. Because the procedural difficulties involved in holding special education students accountable are arduous and extremely difficult to understand, many school districts compromise safety for the sake of accountability. Simply put, no one wants to get sued. The unfortunate result, however, is that schools are forced to make educational policy decisions based on legal mandates. The current trend is that special education lawyers and advocates are holding school districts to the letter of the law and are successfully litigating. Consequently, school policy is being written by lawyers and judges rather than educational leaders.

Where did these laws come from and why have we reached a point where the rights of the minority seem to be more important than the rights of the majority?

A Historical Perspective

The Age of Departmentalization

While changing their name at the 1901 NEA convention from the Department of Deaf and Dumb, Blind, and Feeble-Minded to the Department of Special Education was but one indication that "backward" and "mentally deficient" children were on their way to being recognized as "children demanding special means of instruction", more importantly, the name change was also indicative of the specialization movement taking place in education around the turn of the century (Perkinson, 1995, p. 70). The teaching profession was moving out of the "jack-of-all-trades" era and evolving toward the Departmentalization Age of instruction. That is, instead of the "lock step", or mechanical education that geared instruction toward average students, school teachers developed into music, drawing, physical culture, domestic science, manual training and special education experts (Perkinson, 1995). From as early as 1916, "some 118 American cities had organized school classes for the segregation and training of "retarded" children (Perkinson, 1995, p. 70).

While departmentalization served the special education student by addressing their unique cognitive, affective and kinesthetic needs, it also facilitated their segregation from society for the next sixty years or at least until television became readily available to most Americans. According to Perkinson(1995):

With the coming of television, then, the disabled came increasingly to view themselves as a persecuted minority, victims of social injustice. Like blacks, women, and other groups who saw themselves as victims in the 1960's, the disabled...formed organizations, coalitions, councils, and associations to fight for equality and social justice. (pp. 177-178)

The situation improved somewhat by 1970 as a result of public information campaigns and lobbying groups, however, the crux of change for individuals with disabilities occurred in 1971

where the advocates for the disabled won PARC v. State of Pennsylvania. Perkinson (1995) writes, "Here, parents affiliated with the Pennsylvania Association for Retarded Children successfully sued the state for failing to provide an education for retarded children, thus establishing that education for the disabled is a right, not a privilege." (p. 179)

Mainstreaming and the Egalitarian Society

A direct result of PARC v. State of Pennsylvania was the mandate that special education students be integrated or "mainstreamed" with regular education students. This came on the heals of other compensatory education movements which were inaugurated by equal opportunity programs such as Project Head Start and Upward Bound in the late 1960s (Feinberg & Soltis, 1992). Because individuals with disabilities had been denied access and imposed upon to "fit in" with able-bodied persons for the last sixty years, advocates for the disabled argued that there had been a historical impediment imposed on them and that they were no longer willing to let the able-bodied socialize them to be "normal" (Feinberg & Soltis, 1992; Perkinson, 1995). Rather, individuals with disabilities insisted that society accept them for whom and what they were. Individuals with disabilities needed a venue by which they could change the attitudes of the able-bodied while not alienating themselves too much from those in power and authority. Mainstreaming, consequently, was that venue. Perkinson (1995) writes that the integration of disabled children into regular classrooms or mainstreaming served two purposes; "first, the disabled children could learn how to participate in the "normal" world by participating in it; second, the able-bodied children could learn about the capabilities and the needs of the disabled from daily interaction with them." (p.179)

In addition to providing special education students with a least restrictive learning environment, the PARC v. State of Pennsylvania decision also opened the floodgates of due process rights availed special education students by mandating schools to involve parents in any decision relating to their child (Perkinson, 1995). Subsequent cases set precedent for state legislation and state departments of education where laws were passed and policy regulated to mandate education of the disabled. School districts across the nation had trouble keeping up with the financial burden of educating the disabled and in many instances were forced to divert funds away from regular education programs, which was highly unpopular, in order to finance the new laws and policies. In response, Congress passed PL 92-142, the "Education for All Handicapped Children Act" (Perkinson, 1995). According to Perkinson (1995), however, "Federal funding for the education of the disabled never reached the levels expected, or promised" and school districts were stuck with the burden of funding special education. (p.180)

The trend toward mainstreaming continued for the next twenty years and as a result Section 504 of the Rehabilitation Act of 1973, the American with Disabilities Act and more importantly the Individuals with Disabilities Education Act were passed. These laws have profoundly impacted special education in recent years to date.

Special Education: Issues of Equity, Fairness and Equal Opportunity

It is no mystery to those in the public sector that special education has become inextricably complicated to manage. An inordinate amount of school resources, time, personnel and energy is dedicated to making sure that the law is properly dispensed even if that means short changing regular education students. Is this fair and equitable? By what standard do we determine what is fair and equitable? Let us consider the principal of equal treatment in addressing these questions (Strike, K. A., Haller, E. J., and Soltis, J. F.,1988). According to Strike et. al. (1988), the principal states.

In any given circumstances, people who are the same in those respects relevant to how they are treated in those circumstances should receive the same treatment. A corollary of this principle is that people who are relevantly different should be treated differently. (p. 54)

In other words, where we have student X and student Y and student Y demonstrates an educational need beyond that of student X, student Y is thereby relevantly different from student X and consequently should be treated differently. The criteria by which student Y demonstrates exceptional need is key to determining the relevancy of the claim that student Y needs more than student X. We will assume the efficacy claim that special education testing is valid and produces desirable outcomes in providing the appropriate educational program for each student tested, (or conversely finds that the student tested in not in need of special educational services). According to this argument, therefore, special education students should have more educational opportunity because they have demonstrated a need above and beyond that of regular education students. Is this fair and equitable treatment though?

According to the functionalist school of thought, the answer is "yes". Especially when teamed with the argument that there has been a historical impediment imposed upon students with special needs. Prior to PARC v. State of Pennsylvania, the social prejudice and historical injustice perpetuated by the dominant, able-bodied majority had culminated in the discrimination and ultimately the under-representation of "special" populations. The PARC v. State of Pennsylvania decision served to stop that movement dead in its tracks. Instead, the courts implicitly communicated to society that people with disabilities are entitled to compensation for years of neglect. Feinberg and Soltis (1992) say that compensatory programs "have often been justified on the strictly ethical ground that fairness dictates that handicaps be compensated if a just society is to be achieved" (p. 31). The implication here is that the degree of compensation matches the degree of need, or in this case, the degree of educational opportunity. But what if the need of the minority is well beyond that of what others in the majority need in a given society? To what extent and at what cost do we compensate for those needs?

Student Discipline

Let us address the area of student discipline in considering this last question. Dr. Case, principal of Pinebrook Elementary School, was presented with the dilemma of sending Anthony, a special education student, to an alternative school or keeping him at Pinebrook (Feinberg and Soltis, 1992). Anthony was extremely disruptive in class, insubordinate with teachers and oppositional with peers on a daily basis. However, while Anthony was labeled as having an emotional handicap, his cognitive abilities were above average. Anthony's father and case worker maintained that he was receiving a fine education and, despite his behavioral problems, was improving. The complaints from Anthony's teachers and peers, however, had steadily increased over the past few years and the severity of his behavior had become serious. Anthony fought often, stole toys and money, destroyed school property, was increasingly defiant, and would not do any school or class work (Feinberg and Soltis, 1992). How do we place a value on the needs or rights of teachers and students to be safe in school and still address the educational and emotional needs of someone like Anthony?

It may be helpful to use the principal of benefit maximization at this point to help Dr. Case make his decision (Strike, K. A., Haller, E. J., and Soltis, J. F.,1988). This concept allows us to trade fundamental rights of some (or in this case Anthony) for the welfare of others. According to Strike et. al. (1988), "The principal of benefit maximization requires that we look at the problem in terms of the maximization of some good." (p. 55) According to Anthony's father and case worker, Anthony is benefitting from his educational opportunity at Pinebrook thus the principal of benefit maximization demonstrates that some good is being maximized. More compelling, however, is the fact that more bad than good has progressively been maximized instead. That being Anthony's behavior and the effects of the behavior on all those who teach and attend Pinebrook Elementary. Crucial to the principal of benefit maximization is the premise that there must be an exchange between the welfare of one group and the welfare of others so long as the average welfare increases (Strike et. al.,1988). At Pinebrook Elementary, the welfare of one group (Anthony) has been maximized yet the average welfare of the rest of the school has been proportionally minimized as a result of his presence. The principal of benefit maximization, therefore, would support the decision that Anthony should not be mainstreamed and consequently removed from that environment despite the fact that his educational and emotional needs are being met.

The Legal Imperative

But there are Anthonys in every elementary, middle and high school across the country; wreaking havoc on faculties, administrators and fellow students without any portent of being removed from those schools whatsoever. If the impact of the few so greatly affect the welfare of the many, why does the system allow them to stay? By what authority does this happen? Remember that special education was borne of the departmentalization movement and matured under the tutelage of legal mandates. The legal system is the authority by which students with disabilities are staying put. In this regard, decisions about what is good for the school are not being made by educational leaders but instead by lawyers and judges. Is the legal imperative what we want determining how our schools function? Let us explore the process by which legal interpretation is validated in an effort to answer this question. It is important to remember that any law has numerous interpretations which are based on facts of the particular case being heard, the body of previous interpretations of the law and the actual law as it was written and applies to a particular situation. Legal issues are argued on the basis of what previous judges have decided. Judges thereby use these interpretations in making judgements about their cases. Through this process, a body of interpretations will stand to represent a culminating outcome or application of the law. This process is referred to as a hermeneutic circle and, according to Feinberg & Soltis, (1992), is what every good interpretist believes to be needed in making "good" legal interpretations and provide for a sensitive social science.

Did the writers of the American with Disabilities Act or the Individuals with Disabilities Act intend for their laws to result in unsafe schools? Did they wish for an inequitable balance between special education and regular education students? Probably not. Unfortunately, however, the legal imperative prevails by way of the hermeneutic circle process and the result has been unsafe schools and inequity. Basing school policy on the hermeneutic circle process is therefore illogical and produces bad results.


We have explored how the laws governing special education originated, why the laws were developed, who has been affected as a result, and what has been the outcome of special education law in terms of educational policy decisions. It has been established that there has been a historical impediment imposed upon students with disabilities and per the concept of compensatory education, special education students are entitled to an inordinate amount of opportunity to educational programs. The principal of equal treatment reinforces this concept by saying that since special education students are relatively different from regular education students, they may benefit more as a result. In answering the question of how much more special education students should be compensated, the principal of benefit maximization says that as long as the average welfare of a particular society is increased there can be an exchange between the welfare of one group and the welfare of others. It has been demonstrated that there are situations where special education students impose burdens on schools which decrease the average welfare of the majority, thereby serving as criteria by which special education students should be limited in their benefit realization. The legal imperative, however, confounds this logic by imposing its hermeneutic circle process on schools thus deciding what is right and wrong based on interpretations of the law rather than intrinsic moral principal.


As stated earlier, the burden special education is imposing on the educational system is perpetuating a phenomenon of reverse discrimination. Schools are justified in our society on the basis of providing social benefits (Rozycki, 2000). These benefits must be indivisible. That is, justice only exists when it affects everyone and if some benefit at the expense of others, there is an injustice. At that point, the benefit distribution is deemed to be divisible. It has been demonstrated that special education is currently a divisible benefit where those anointed as "special" receive an inordinate amount of benefit at the expense of regular education students. Therein lies reverse discriminatory practice. Who is to blame for this? Rather than asking who is to blame, perhaps we should be asking what is to blame for this. Certainly, the interpretive nature of how laws are implemented play a major role in setting the stage for inequity in our schools. On a larger scale, however, I would like to suggest that a phenomenon of cultural relativism is to blame. Our culture makes moral assumptions about the legal system which are inaccurate and untrue. We have placed an extremely high value on it's function and purpose based solely on the perception that it is morally motivated. It is not. The legal system is based on winning cases and following the law. In that regard, the legal system functions on a deontologic level (Rozycki, 2000). That is, as long as they follow the rules of the system, justice is being served. Why is an extrinsically motivated system like the courts telling schools, an inherently intrinsic system, what to do in terms of educating kids? This should not be happening.

It is paradoxical that special education has become the very thing it fought against in the 1960s; treating people unfairly. It will be interesting to see where we go from here. I believe that the pendulum will start its swing back as a result of some very bad thing happening in the schools. I think Columbine nudged the collective consciousness a little, however, we are dangerously close to something far more tragic happening as a result of letting the courts mandate special education policy.


Feinberg, W., & Soltis, J. F. (1992). School and society. New York, N.Y.: Teachers College Press.

Perkinson, H. J. (1995). The imperfect panacea: American faith in education. Boston, MA: McGraw-Hill.

Rozycki, E. G.. (2000). Lecture: Benefits/costs distribution. Widener University: Governor Mifflin High School. February 17.

Strike, K. A., Haller, E. J., and Soltis, J. F. (1988). The ethics of school administration. New York, N.Y.: Teachers College Press.