What does “all” mean? Didn’t we settle this a long time ago?

In 1989, the 1st Circuit Court of Appeals told us that “all” means what it says. The context was a severely disabled child in New Hampshire, and whether or not he was eligible to receive special education services.  You might think it obvious that a child with severe and permanent disabilities was eligible. But the argument here was that the child was so low functioning that nothing that could be done for him came under the banner of “education.”  Certainly he needed medical care, love, and support….but he would not benefit from any educational services.

The 1st Circuit rejected that argument, citing the law’s simple mandate to provide a Free Appropriate Public Education to ALL children “regardless of the nature or the severity” of the disability.  That case is Timothy W. v. Rochester, N.H. School District, 875 F.2d 954 (1st Cir., cert. denied, 1989).

Now the issue has resurfaced in a school finance case. That’s right—a school finance case.  The plaintiff in the case is the Connecticut Coalition for Justice in Education Funding, Inc.  The plaintiff  asserts that Connecticut’s system of school finance is unconstitutional.  In September of 2016, the trial court issued a sweeping order in favor of the Coalition giving the state 180 days to develop a better plan. The case is on appeal to the state Supreme Court.

In its discussion of special education, the trial court says many things that I have heard people whisper quietly.  Here’s a sample:

*The state’s program of special education spending is irrational.

*Congress and the General Assembly have ordered school districts to bear immense financial burdens in the name of special education without giving them much help shouldering them.

*The cost of special education is staggering.

*The reason so much is spent is because someone has to take responsibility for saying that it shouldn’t be, and no one is willing to do it.

*Special education identification and intervention is unquestionably individualized, but that doesn’t mean it has to be chaotic.

The court’s opinion repeatedly puts the word education in bold font, by way of emphasizing that there are some kids who can’t benefit from anything a rational person would describe as education.  This is exactly the conclusion that the 1st Circuit rejected 28 years ago.

This is why the Department of Education was asked to weigh in on this issue.  In Letter to Wentzell, the Office of Special Education and Rehabilitative Services expressed its views on the Connecticut case:

Therefore, we are concerned with those portions of the [trial court’s opinion] that suggest that a school district need not provide programming or services to all IDEA-eligible children in all areas of need.

This one has a long way to go.  Furthermore, that OSERS letter came in the waning days of the Obama Administration. We don’t know if the Trump Department of Education will take the same view.

Stay tuned.  The Letter to Wentzell was issued on December 7, 2016 and can be found at 69 IDELR 79.  The trial court’s opinion in Connecticut Coalition for Justice in Education Funding, Inc. v. Rell was issued on September 7, 2016. It’s at 2016 WL 4922730.


 File this one under: SPECIAL EDUCATION