The Individuals with Disabilities Education Act (IDEA) guarantees students with disabilities a free public education appropriate to their needs, but students must meet the definition of “child with a disability” to be eligible for that entitlement. The law governing special education eligibility, however, is charitably characterized as a mess. There are several sources of the current eligibility confusion. First, recent court cases have reached conflicting conclusions about how much adverse educational impact the child’s disabling condition must have, what constitutes a sufficient need for special education, and when children with emotional disabilities are eligible. Second, long-established methods for assessing learning disabilities have withered under criticism from educational experts, and a new method of approaching learning disabilities, response-to-intervention, is being touted by the United States Department of Education. Nevertheless, that innovation remains largely unproven and may be impossible to implement at scale. Third, Congress and others have focused long-overdue attention on the disproportionate percentage of African-Americans who are found eligible for special education under the disability categories of mental retardation and emotional disturbance, but neither Congress nor anyone else appears to have a promising idea about how to address the situation. This Article analyzes and critiques the recent cases, describes and comments on the new learning disability assessment methodology, and evaluates competing ideas about how to respond to ethnic disproportion. It concludes that the solution to the entire set of problems is not a redefinition of special education eligibility under IDEA, but rather a renewed attention to the actual terms of the statute and the goal of full educational opportunity. This step will promote what might be called “not-quite-so-special education,” that is, an entitlement for a broad class of children to high quality special education supports provided in the regular educational environment.
Mark C. Weber, The IDEA Eligibility Mess, 57 Buff. L. Rev. 83 (2009).