Challenging Connecticut Judge’s ignorant statements about “disabled” children

In an extremely powerful Hartford Courant commentary piece, Andrew Feinstein, a special education expert and advocate, addresses the “dark poison” contained in Judge Thomas Moukawsher’s recent ruling in the CCJEF v. Rell case. (See Wait, What? post entitled, Inside school funding “victory,” CT Judge apparently seeks to set special education services back 40 years).

Attorney Feinstein writes;

“…Judge Moukawsher proposed that certain children with severe disabilities be denied a public education. He says, “The call is not about whether certain profoundly disabled children are entitled to a ‘free appropriate public education.’ It is about whether schools can decide in an education plan for a covered child that the child has a minimal or no chance for education, and therefore the school should not make expensive, extensive, and ultimately pro-forma efforts.” He claims, inaccurately, that “no case holds otherwise, and this means that extensive services are not always required.”

This triage proposal is at odds with what the litigants argued in the case and diametrically opposed to federal civil rights law. The judge proposes discriminating against the severely disabled. Yet, discrimination based on the severity of disability violates the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. Judge Ellen Bree Burns addressed this issue head-on in Messier v. Southbury Training School. Federal ADA regulations provide that a public entity, such as a school board, may not provide different benefits or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with benefits or services that are as effective as those provided to others.

Judge Burns wrote that courts have repeatedly held that the Americans with Disabilities Act and Section 504 of the Rehabilitation Act prohibit discrimination based on the severity of disability. Specifically, she held that the state violated the ADA by failing to provide profoundly or severely disabled individuals with the same array of services as those provided to other less handicapped individuals, thereby discriminating solely on the degree of disability.

Subsequently, the United States Supreme Court came to the same conclusion. The question of whether ADA covers discrimination among disabled individuals was clearly confronted in Olmstead v. L.C. Indeed, Justice Clarence Thomas, in his dissent, criticized the majority for finding that “discrimination occurs when some members of a protected group are treated differently from other members of that same group.” Responding to this allegation, the Supreme Court majority called Justice Thomas’ contention “incorrect as a matter of precedent and logic.”

Numerous other federal courts and the U.S. Department of Education have held that it is illegal to discriminate against the most disabled. This policy is not only mandated by the language of the Individuals with Disabilities Education Act, it is also sound, just and humane. For years, individuals with disabilities have been shunned, segregated and placed out of sight in institutions. By deeming the disabled as the other, we strip them of their humanity and feel free in removing their basic human rights.

Judge Moukawsher deems it economically infeasible to provide comprehensive special education services to those with severe disabilities. He decides that they are hopeless or worthless, and certainly not worth the expenditure of public resources. The judge has no idea what thoughts, dreams, hopes and loves reside in the heart of an individual who cannot speak or who cannot control his or her physical movements. Yet, ignorant of the basic humanity of an individual with a severe disability, he wants to deprive them of educational services. Shame on him.

Equally frightening is the underlying notion that the level of societal expenditures on an individual ought to be based on that individual’s potential contribution to society. We cannot, of course, predict with any accuracy what an individual may offer to the world. Beyond that, this notion could lead to a termination of benefits for the elderly, as well as the disabled. It is a notion out of the selfish and stern philosophy of Ayn Rand.

We must, as a society, reject such an approach. We need to focus on unlocking the potential of all our citizens. We need to focus on the contributions made by each of our neighbors. Only by helping those most in need can we create a just society.

You can read and comment on Andrew Feinstein’s commentary piece at: http://www.courant.com/opinion/op-ed/hc-op-feinstein-ct-ruling-hurts-disabled-0911-20160909-story.html

  • Tom Burns

    Thanks again Jon–for all you do –great article–T

  • R.L.

    “Yet school officials never consider the possibility that the education appropriate for some students may be extremely limited because they are too profoundly disabled to get any benefit from an elementary or secondary school education….It is about whether schools can decide in an education plan for a covered child that the child has a minimal or no chance for education, and therefore the school should not make expensive, extensive, and ultimately proforma efforts..”

    I have to say that I agree with the judge on this one to a large degree. I have a very large percentage of SPED students in my classroom, always. Many of these students are in way over their head and, frankly, shouldn’t be in the class. They should be learning the math of how to balance a checkbook or they should be learning how to interact in an acceptable manner with others. Some people will never “master” algebra II. In Hartford we have to teach to the level of the child, not the expectations of the class. That is the directive. How can you give a kid credit for learning how to add in an algebra class and give them credit for the algebra class? That is the absolute norm in Hartford. That is why our graduates are so deficient. When you teach a full class with generally 50% (it would be more if the district wasn’t afraid of over-identifying) of the class being either ELL, SPED, or both with little to no “push in”, the other students are absolutely being denied their right to a free and public education. At least to the level of what would be considered a “quality” education. The curriculum becomes irrelevant. Throw in those who are behaviorally dysfunctional and are in need of serious psychological support, and you have a zoo. Hence, you have your poor schools throughout the country in crisis. I’m not saying that resources shouldn’t be allocated to help those at a disadvantage to be able to learn to a point where they can achieve some sort of personal success. What I’m saying is that those who are on, or could be on, a more academic track (YES I SAID TRACK, tracking works!) should not be denied simply because we want to pretend everyone has the same capacity for learning. Full inclusion is a disaster! Why do you think charters and magnets sound good to people? They aren’t escaping a bad school necessarily, they are escaping a dis-eased portion of their community. The dis-ease being poverty and the actual physiological effects it has on the brain. People look to charters and magnets because they discriminate against those who have IEPs or don’t speak English. It’s systemic tracking.
    Fixing education would not be so hard. Everyone should have the opportunity. However, those who desire the opportunity should not be sacrificed to those who refuse the opportunity and are put into the same classrooms. Those who need services should be provided those services, but not at the expense of those who don’t require services. Anyone should be able to take any class, just pass the prerequisite. I believe this is more of the way it was before the dark days of Adamowski. A comprehensive high school offers much more choice than a smattering of small academies and magnets offering classes based on a theme. All of those new school buildings must have been very expensive. I bet we lost a lot of our services to them.