Monday, November 11, 2013
C.G. v. Pennsylvania Dept. of Educ. 2013 WL 5912054 (3d Cir. 2013) is an intriguing case with an ambitious theory. The plaintiffs challenged the Pennsylvania special education funding formula, which takes the total amount of state supplementary money for special education and divides it up on the basis of the membership of each school district, acting on the assumption that 16% of the students of each district have disabilities. The plaintiff class consisted of students with disabilities attending schools with a 17% or greater enrollment of children with disabilities and limited taxing capacity. The average per-special education student state subsidy amounted to $3327 for children in the class, but $4108 for children with disabilities not in the class. Originally, plaintiffs said the formula violated the Individuals with Disabilities Education Act, the Rehabilitation Act, and the ADA. They lost at trial, and appealed the decision regarding the Rehab Act and the ADA claims.
The court of appeals accepted the proposition that there could be a violation of the Rehab Act and the ADA even if there is no violation of IDEA, and it agreed that discrimination against a subgroup of people with disabilities could violate the Rehab Act and the ADA. But the court said the plaintiffs did not show that, on the basis of their disability, they were deprived of a benefit or opportunity given to non-disabled students or a group of students with some other category of disability. The court assumed that the funding formula had an adverse impact on the class, but said not all adverse impacts are prohibited by the Rehab Act and the ADA. Instead, drawing an analogy to Alexander v. Choate, 469 U.S. 287 (1985), the court looked to whether the class members had been denied meaningful access to a benefit to which they were entitled. Although the students in the class were in districts where students with disabilities scored more poorly on standardized tests and had lower graduation rates than in other districts, the court said evidence was lacking about a relationship between funding levels and special education student performance, and it said there was no showing any student was deprived of any given service because of the funding formula.
That outcome is not entirely surprising. Michael Stein and Michael Waterstone have written about the difficulty in persuading courts to apply disparate impact reasoning in ADA cases, even in employment cases where it is explicitly provided for in the statute, and Cheryl Anderson has provided a telling critique of the barriers plaintiffs may face in establishing causation in disability cases. As a general matter, the ADA’s legislative history shows an intention to codify Alexander v. Choate. Choate says some negative impacts, but not all, violate the Rehab Act. Although education may be an area where an impact could violate the Rehab Act and the ADA, Choate itself, which upheld Medicaid cuts that it assumed disproportionately harmed people with disabilities, displays a reluctance to cause a major reordering of public resource allocation decisions.
With regard to special education, there are a variety of methods that states use to distribute state – as opposed to federal – special education money. Some authorities express concern that special-education-headcount-based formulas provide an incentive to find too many children eligible for special education. Systems similar to Pennsylvania’s try to avoid this problem, but do so by treating districts alike, even when districts may simply have high concentrations of children with disabling conditions. In some ways, Pennsylvania mimics the way the federal government distributes special education money for increases over the base amount after passage of IDEA 1997 – a headcount of all students in the district, disabled and not, with a modest upward tick for the fraction of students in poverty. The 1997 change was intended to diminish incentives to over-identify. It is true that over-identifying children may cause harm. Labels can hurt, and it’s hardly unusual for expectations to sink once a child is considered a special education student. However, I would rather see the attention focused on getting services to all students who need them, and addressing stigma, separation from the mainstream, and low expectations directly, rather than imposing arbitrary disincentives to designating students as IDEA-eligible when they may really need the help.