American Law, Global Norms: The Challenge of Enforcing Children with Disabilities’ Right to a Free and Appropriate Education

Abstract

This essay critically analyzes the legal interpretation of the Supreme Court of the United States of what constitutes a “free and appropriate public education” for children with disabilities. Through the lens of a case study of an American child with communication disabilities, this essay examines why US law should instead be informed by a social model of disability embraced by the Convention of the Rights of Persons with Disabilities (CRPD). Related, the essay argues that American courts’ current interpretation of whether a student with disabilities has received an “appropriate education” relies too heavily on a medical model of disability, which requires a child first to demonstrate sufficient competence to merit related supports. Were the Supreme Court to adopt instead a social model of disability, however, it might advise public schools to presume the competence of students with disabilities. One implication of this essay is that even within the relatively robust legal framework for disability rights that presently exists in the US, judicial interpretation and enforcement of the law is too-often guided by judges’ ableist assumptions. For CRPD States Parties, the implication of this argument is that members of the judiciary should be trained not only in existing legal standards, but also in disability history and theory that can guide the interpretation of the legal standards. This essay critically analyzes the legal interpretation of the Supreme Court of the United States of what constitutes a “free and appropriate public education” for children with disabilities. Through the lens of a case study of an American child with communication disabilities, the essay examines why US law should instead be informed by a social model of disability embraced by the Convention of the Rights of Persons with Disabilities (CRPD). Related, the essay argues that American courts’ current interpretation of whether a student with disabilities has received an “appropriate education” relies too heavily on a medical model of disability, which requires a child first to demonstrate sufficient competence to merit related supports. Were the Supreme Court to adopt instead a social model of disability, however, it might advise public schools to presume the competence of students with disabilities. One implication of this essay is that even within the relatively robust legal framework for disability rights that presently exists in the US, judicial interpretation and enforcement of the law is too-often guided by judges’ ableist assumptions. For CRPD States Parties, the implication of this argument is that members of the judiciary should be trained not only in existing legal standards, but also in disability history and theory that can guide the interpretation of the legal standards. This brief essay proceeds in five parts. The first part sets forth a case study of a young American child’s attempts to secure an education despite his communication and physical disabilities. Th e second part sketches the legal framework, defining the standard for a “free and appropriate public education” in the United States. The third part elaborates the inherently illogical inconsistencies embedded in the current judicial standard in part by focusing on the case of pre-literate children with significant communication disabilities. The fourth part argues that a social model of disability would invite schools to presume the competence of students with disabilities and offer them related supports. The fifth part unpacks an implication of this case study for States Parties to the CRPD. Ensuring access to a quality education for children with disabilities matters. For the 15% of the world’s population with disabilities,8 the issue implicates nothing less than the core of pluralist democracies’ claim to legally accommodate and realize the needs, preferences and rights of diverse individuals.