The U.S. Court of Appeals for the First Circuit is scheduled to hear oral arguments this week in a potentially far-reaching special-education case. The court, based in Boston, is being asked to reverse a lower court’s ruling that a school district need not serve a severely and profoundly handicapped boy because he is incapable of learning.
The case, Timothy W. v. Rochester, N.H., School District, starkly reveals the gaps and inconsistencies in our education, health, and social-service delivery systems.
Under the mandate of the federal Education of the Handicapped Act, Timothy’s advocates contend, the boy must be served. While insisting that Timothy can “benefit” from school services, they argue that the eha requires that he be aided in any event.
Judicial acceptance of this contention--the “zero reject” theory--would mean that the public-school system has primary responsibility for health-care services to “handicapped” children.
Certainly children like Timothy--who is so severely handicapped that doctors disagree about his ability to respond to stimuli--must receive the therapeutic services they need. But this support should be the financial and supervisory responsibility of health-care providers, not education agencies.
Timothy, now 13, has lived all his life in Rochester. He almost died following his birth because of intracranial hemorrhage. During the first three months of his life, he endured numerous problems: breathing difficulties, fluid on the exterior surface of his brain, seizures, hydrocephalus (enlargement of the cortical cavities of his brain, which contain spinal fluid), and elevated levels of bilirubin in his blood. A shunt was installed to drain excess fluid from within his skull, but it was already clear when he was discharged from the hospital that he was severely developmentally retarded.
Three months later, he was readmitted to the hospital because of an infection around the shunt and because of meningitis. When the shunt was removed, he experienced a second bout of hydrocephalus, which was relieved when a second shunt was installed.
The brain infections and recurrent hydrocephalus caused further damage to his central nervous system. A “bubble study” X-ray disclosed virtually no cortical tissue, or brain mantle. This is the tissue of the cerebral hemispheres--the two gray lobes we customarily visualize when we think of the brain--and it is required for all learned skills that develop after birth.
Timothy is legally blind and deaf, quadriplegic, and largely immobile. He has severe spasticity, which causes extreme muscular rigidity, and has contract joints, dislocated hips, scoliosis, and brain damage. He also suffers frequent seizures.
Timothy’s mother and her allies--including major disabilities-rights groups, members of the Congress responsible for special-education legislation, and, on behalf of the U.S. Education Department, the U.S. Justice Department--argue that the services Timothy needs must be provided by the Rochester schools. These services, supporters of the suit claim, constitute the “special education” to which he is entitled under the eha
This law--also known as pl 94-142--was enacted, they point out, “to assure that all handicapped children have ... a free appropriate public education ... .” One of its implicit tenets, in their view, is that every handicapped child, regardless of the severity of the handicap, is entitled to special education and related services designed to meet his needs. They insist that the law embraces a zero-reject philosophy--that no child shall be denied a public education on the ground that he is “uneducable.”
But the eha is read differently by the Rochester School District, the New Hampshire School Boards Association, and the National School Boards Association. Though concurring that Timothy should receive the services he requires, these groups dispute the view that the Congress intended those services to be provided under the aegis of the public schools.
They do not deny that nearly all severely and profoundly handicapped children are entitled to support under the eha But they interpret the law as requiring that the child be able to “benefit” from whatever instruction or services are provided. If the child has no educational potential, they argue, he is not entitled to such services.
In the last three decades, and especially since passage of the eha, the public understanding of exactly what constitutes “education” and who is entitled to it has broadened markedly; the notion that education encompasses more than academics is now widely accepted. Most special-education advocates maintain that whatever services a handicapped child needs should be supplied by the school--either as part of the child’s education or as a support service enabling the child to be educated.
An unparalleled opening of schoolhouse doors to handicapped children has accompanied this expansion of services. In large measure, this movement has occurred in reaction to the unjustified exclusion of substantial numbers of handicapped children prior to implementation of the eha And despite some disagreement about the extent to which all of these children can or should be “mainstreamed,” 96 percent of handicapped children receiving special education in fact attend regular schools, and more than half are in classrooms with nonhandicapped students for all or most of the day.
To assure the provision of all necessary education and support services, the eha places ultimate accountability in the state education agencies. But the original expectation was that these agencies would enter into agreements with other service providers, under which each group would contribute its proper share; the Congress intended other social-service agencies to bear some of the financial burden.
Unfortunately, the centralizing of supervisory authority in the education agencies has not worked. They have not been able to secure the cost-sharing anticipated by the eha as other providers, also operating under stringent fiscal limitations, have backed away from serving handicapped children. Most of the education agencies have received little support from either their own states or the federal government in obtaining this financial help.
And objections have been raised to vesting education agencies with the responsibility for making decisions about medical and psychological services. Educators have been fearful that they are not equipped for such a role.
Not surprisingly, then, local districts and schools have had to make a choice: either fund the services themselves or make the children do without them. The decision, if not the fulfillment, is easy for most. While some schools have refused to provide certain kinds of services--occasionally taking patently illogical postures--the more common response has been for the school to pay.
Timothy W.'s case is an extreme manifestation of these underlying problems. Conforming to traditional legal practice in their efforts to cover all corners, Timothy’s advocates argue both the facts and the law. Their factual argument is that Timothy is capable of “learning"--of responding to his environment--and therefore the services he requires should be provided by the education agency. But it is the potential law of the case--the stance that even if Timothy is incapable of learning, the eha requires that he be served--that may have the greatest impact.
The problem with this stance is that, at some point, it will undermine public understanding and challenge general principles of equity. Substantial resistance may mount to providing handicapped children with what are really medical services under the umbrella of “education.”
The financial demands made by some special-education cases already have strained public support. Even some advocates of the zero-reject philosophy concede, for example, that a comatose child is not able to benefit from educational services. On the other hand, if some level of functioning is required, then all does not mean all, and the question becomes who. The resulting dilemma--where to draw the line--is irresolvable and morally reprehensible, according to those who back services for all handicapped children.
But the dilemma can be avoided by requiring that the services be provided through the logical delivery system, and that medical and social agencies be adequately funded. A public that has countenanced the special-education revolution of the past decade is unlikely to refuse the additional support needed to bring it to fruition.
In this way, the lines drawn would separate not children but only service providers and their responsibilities. Rationalizing the system also circumvents the difficult, time-consuming, and inefficient steps required to secure services through the education system.
Given the conflicting evidence, the appellate court probably will decide that Timothy W. is entitled to services from the public schools. But whether that decision is grounded on the facts of Timothy’s particular circumstances or a ruling on the scope of the eha, new attention must be directed to the responsibilities of the public schools.
They possess neither the financial resources nor the professional expertise to provide or oversee the services that children like Timothy need. Requiring them to do so is an unrealistic diversion of resources and attention. Our public-education system, already severely strained, should not be expected to make up for the shortfalls in our social-services system.
