Tuesday, August 30, 2016

New Special Education Funding Settlement Highlights Troubling Differences between Federal and State Rights

The U.S. Department of Education  and the South Carolina Department of Education have finally reached a settlement in regard to South Carolina’s failure to properly fund special education services. The U.S. Department of Education’s Office of Special Education and Rehabilitative Services found that that South Carolina was underfunding its special education programs to the tune of $51 million in 2010, with continuing shortfalls in subsequent years.  The U.S. Department of Education emphasized that:

Under IDEA, a state must make available at least the same amount of financial support for special education and related services for children with disabilities each year as it did in the prior year. The consequence for failing to maintain financial support is a mandatory reduction in a future year’s IDEA allocation by the amount of the shortfall.

“This settlement is a victory for children with disabilities in South Carolina,” said Sue Swenson, Acting Assistant Secretary for the Office of Special Education and Rehabilitative Services. “Our Administration is committed to ensuring that schools have the resources they need to provide necessary supports and services to children with disabilities to ensure that they can leave school ready for college and career. We look forward to working with the South Carolina Department of Education to fully and effectively implement the terms of this agreement.”

Under the agreement, the U.S. Department will leave South Carolina's federal funding in place in exchange for South Carolina "appropriat[ing] additional state funds, above the amount required to maintain financial support under the IDEA, for special education and related services in the amount of $51,336,578."  These funds are to be used  over the next four years "to implement programs and initiatives focusing on increasing reading proficiency for children with disabilities."  Get the full agreement here.

The settlement is a major victory for special education students in South Carolina, but it also begs questions in regard to South Carolina's overall education budget.  Under the Elementary and Secondary Education Act, similar maintenance of effort standard apply to general education funding as well.  If the state had failed in regarding to maintaining federal education funds, there is a strong chance it did so in regard to other education funds as well.  Based on inflation adjusted calculations, South Carolina's education funding in 2014 was still 10 percent below 2008 levels.  In other words, the cuts that were imposed during the recession had not been restored once the economy recovered.  General maintenance of effort standards, however, are notoriously difficult to enforce and I do not expect forthcoming action on this front.  And in fairness to South Carolina, it is not alone.  More than half of the states fall into this category.

To put the matter in even more stark relief, the state supreme court declared the state's education funding system unconstitutional in 2014.  Since then, however, the state has not taken any significant action to remedy various deficiencies outlined in the court's opinion.  In other words, while the federal government has been able to prod the state into action for statutory violations, the court has been unable to do the same for constitutional violations.  But again, South Carolina is not alone.  A troubling trend has developed whereby states have flaunted their state constitutional obligations.  This reality may signal the need to more seriously consider what role the federal government can and should play in ensuring funding equity and adequacy in the future.  I hope to post a new paper on this topic in the next week or so.

https://lawprofessors.typepad.com/education_law/2016/08/south-carolina-agrees-to-close-funding-gaps-in-special-education-but-overall-constitutional-violatio.html

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