In May 2020, a fifteen-year-old Michigan student named Grace was incarcerated after she was “found guilty on failure to submit any schoolwork and getting up for school” when her public school switched to remote instruction during the COVID-19 pandemic.^[1] Grace—who has been diagnosed with ADHD and has an Individualized Education Plan (IEP)—reported feeling distracted and unable to keep up without the classroom supports she normally receives under the Individuals with Disabilities Education Act (IDEA).^[2]

Though incarceration is a particularly egregious response to a child’s disability-driven behavior, Grace’s story reflects the reality of many children with disabilities in this moment: obtaining the “free appropriate public education” (FAPE) the IDEA promises is next to impossible at home during a global pandemic. But their prospects at school are often not much better. Children with disabilities face physical and verbal abuse, restraint and seclusion, and referral to severe disciplinary actions at significantly higher rates than their non-disabled peers. They have long been the canaries in the coal mine for our public education system’s toxic inequities with which we have now come face-to-face. As low-income school districts attempt to meet these inequities with printed work packets accompanied by no meaningful teacher-led instruction and strategically placed WiFi-equipped school buses, the future of students covered by the IDEA is even more uncertain. Now is the time to fully fund the IDEA; today’s political climate and pandemic demand it.

When the IDEA became law in 1975, Congress authorized federal spending to fund up to 40 percent of states’ average per-pupil expenditure required to satisfy the IDEA’s mandate that every child receive services necessary to guarantee a free appropriate public education.^[3] The federal government contribution, however, has consistently hovered around just 15 percent.^[4] President Trump’s education budget request for the 2021 fiscal year included a slight increase in IDEA funding, aiming to “mov[e] closer to Congress’ promise to fully fund” the services it requires.^[5] This $100 million increase does not keep pace with the ever-increasing number of students covered by the IDEA.^[6] Adjusted for that annual increase, the Trump budget covers only 13 percent of IDEA-associated costs—in effect, a cut.^[7]

There is, however, emerging momentum for the IDEA as a salient political issue. The IDEA funding deficit entered the limelight in the 2020 Democratic presidential primary race, when former special education teacher Elizabeth Warren pledged to advocate for full funding of the IDEA.^[8] Her competitors followed suit, including New Jersey Senator Cory Booker, Minnesota Senator Amy Klobuchar, Vermont Senator Bernie Sanders, former Secretary of Housing and Urban Development Julián Castro, and now-presumptive nominee former Vice President Joe Biden.^[9]

Biden’s IDEA funding plan assumes a ten-year phase-in period and would cost an estimated $100 billion over that period.^[10] The ten-year phase-in accounts for both the drastic jump in funding and the fact that many states lack the special education infrastructure to quickly distribute these funds in the short run.^[11] This plan is not novel or even uniquely Democratic: similar bills with Republican co-sponsors have been introduced in both the House and Senate during the Trump administration, but to no avail.^[12]

The Democratic National Committee (DNC) will likely cement the party’s commitment to children with disabilities when it adds IDEA funding to the party platform at the August 2020 convention. On July 21, 2020, the DNC released a draft platform pledging to fully fund the IDEA to “provide school districts with additional resources to better serve students with disabilities and fully implement the law’s least restrictive environment requirement.”[13] There was no mention of the IDEA or special education in either the 2016 Republican or Democratic party platforms.^[14] The Democratic primary evidenced party-wide support of the issue, as Democrats of all ideological stripes supported full funding. Special education and disability issues have also been shown to appeal to moderate and conservative voters.^[15] Though the Trump administration has not in fact moved closer to fully funding the IDEA, its claim to do so reflects a recognition of the issue’s universal resonance. Whether Donald Trump or Joe Biden sits in the White House in February 2021, voters have unprecedented leverage to demand full funding of the IDEA.

Further, the case for fully funding IDEA has been strengthened as the United States continues its battle against COVID-19. The pandemic has forced schools across the country to provide strictly virtual instruction for at least one, and in many places, two semesters.^[16] Students with disabilities often require intensive individualized instruction from trained professionals and receive psychological and behavioral services that are difficult to administer virtually. For students who are non-verbal or who struggle with communication, the online classroom is effectively no classroom at all. Some students with disabilities rely on assistive communication devices or physical cues that are difficult to interpret absent a setting that is consistent with the educational routine they know.^[17] The limitations of learning in a pandemic will undoubtedly widen existing educational deficits between disabled and non-disabled students.^[18]

When schools reopen, teachers will scramble to make up for lost time, and it is reasonable to expect the return to school will be accompanied by a surge of student behaviors consequent of pandemic-related trauma.^[19] This trauma and educational loss must be met by increasing access to services for more students; yet, schools are constrained by limited funding for children with disabilities under the IDEA. Further, as IDEA funding fails to keep pace with need, states are increasingly forced to shift scarce education resources toward IDEA fulfillment and away from programs that benefit both disabled students and non-disabled students alike.^[20] In a time when remedial education will be needed more than ever for all students, the case for fully funding the IDEA is clear—and the political window is wide open. We must not let it close.

Take action to support students with disabilities and fulfillment of the IDEA by visiting the National Center for Learning Disabilities at https://www.ncld.org.

 

^[1] A Teenager Didn’t Do Her Online Schoolwork. So a Judge Sent Her to Juvenile Detention, ProPublica Illinois (July 14, 2020), https://www.propublica.org/article/a-teenager-didnt-do-her-online-schoolwork-so-a-judge-sent-her-to-juvenile-detention.

^[2] Id.

^[3] See IDEA Series, Broken Promises: The Underfunding of IDEA, Nat’l Council on Disability, at 9 (Feb. 7, 2018), https://ncd.gov/sites/default/files/NCD_BrokenPromises_508.pdf. The IDEA funding level for each state is calculated based on the average per-pupil expenditure in the United States, and then multiplied by the number of qualifying students with disabilities in that state. The average per-pupil expenditure figure takes into account all students, not only those with disabilities. Id.

^[4] Id. at 21.

^[5] Press Release: President Trump Proposes Transformative, Student-First Budget to Return Power to States, Limit Federal Control of Education, U.S. Dep’t of Educ. (Feb. 10, 2020), https://www.ed.gov/news/press- releases/president-trump-proposes-transformative-student-first-budget-return-power-states-limit-federal-control- education.

^[6] See Statement on the Trump Administration’s Proposed 2021 Education Budget, Nat’l School Bds. Ass’n. (Feb. 11, 2020), https://www.nsba.org/News/2020/Proposed-FY2021-Statement.

^[7] Id.

^[8] Evie Blad, Special Education Funding Gets Moment in Spotlight at Democratic Debate, Education Week (Dec. 19, 2019), https://blogs.edweek.org/edweek/campaign-k-12/2019/12/fully-fund-idea-debate.html; A Great Public School Education for Every Student, ElizabethWarren.com, https://elizabethwarren.com/plans/public-education.

^[9] See Blad, supra note 8.

^[10] Joe Biden’s Preschool and K-12 Education Plan, Comm. for a Responsible Fed. Budget (Jan. 14, 2020), http://www.crfb.org/blogs/joe-bidens-preschool-and-k-12-education-plan.

^[11] Id.

^[12] See H.R. 1878, 116th Cong. (2019-2020); S.886, 116th Cong. (2019-2020).

[13] 2020 Democratic Party Platform Draft at 59, 2020 Democratic National Convention (July 21, 2020), https://www.demconvention.com/wp-content/uploads/2020/07/2020-07-21-DRAFT-Democratic-Party-Platform.pdf.

^[14] See generally 2016 Republican Party Platform, https://prod-cdn-static.gop.com/static/home/data/platform.pdf; 2016 Democratic Party Platform: Provide Quality and Affordable Education, https://democrats.org/where-we-stand/party-platform/provide-quality-and-affordable-education/.

^[15] National Education Polling Results, Benenson Strategy Group at 2 (Oct. 2019), http://dfer.org/wp- content/uploads/2019/10/Interested-Parties-Memo-October-2019.pdf.

^[16] Cathy Li and Farah Lalani, The Covid-19 Pandemic Has Changed Education Forever. This is How., World Econ. Forum (Apr. 29, 2020), https://www.weforum.org/agenda/2020/04/coronavirus-education-global-covid19- online-digital-learning/.

^[17] Faith Hill, The Pandemic is a Crisis for Students with Special Needs, The Atlantic (Apr. 18, 2020), https://www.theatlantic.com/education/archive/2020/04/special-education-goes-remote-covid-19-pandemic/610231/.

^[18] Beth Tarasawa, COVID-19 School Closures Could Have a Devastating Impact on Student Achievement, Northwest Evaluation Ass’n (Apr. 9, 2020), https://www.nwea.org/blog/2020/covid-19-school-closures-could- have-devastating-impact-student-achievement/. Some members of Congress have already launched efforts to respond to the disproportionate negative impact COVID-19 closures will have on students with disabilities. See Julia Werth, Bipartisan Efforts in the Senate Address Shortfalls in Special Education in Wake of Coronavirus, Connecticut Examiner (Apr. 23, 2020), https://ctexaminer.com/2020/04/23/bipartisan-efforts-in-the-senate- address-shortfalls-in-special-education-in-wake-of-coronavirus/.

^[19] See Tarasawa, supra note 18.

^[20] IDEA Full Funding: Why Should Congress Invest in Special Education?, Nat’l Center for Learning Disabilities, https://www.ncld.org/news/policy-and-advocacy/idea-full-funding-why-should-congress-invest-in-special-education.