Creating Substantive Rights for Children With Disabilities

Bartholomew A. Seymour, III

Georgetown University Law Center; Class of 1996

The United States has a history of neglecting the educational needs of its disabled children, and this disturbing history continues to the present. Federal efforts to address this alarming problem have been largely ineffectual, including the recently enacted Individuals with Disabilities Education Act ("IDEA") of 1990, which provides funding to states to educate disabled persons.

Despite IDEA (and its previous incarnations), disabled children still face many obstacles when seeking public education. IDEA does not create a substantive right to public education for the disabled as a constitutional protection would. Indeed, the Supreme Court has been reluctant to guarantee free and appropriately tailored public education to disabled children because of federalism concerns. State courts, however, are unburdened by federalism issues, and are more likely to recognize equal protection claims brought under their state constitutions. In so doing, state courts may create substantive constitutional rights for disabled children. Such equal protection approaches offer a compelling alternative to the inadequate provisions of IDEA.

Vol. III, No. 2, p. 183 (1996)

 

Revised July 17, 2003 (MD)