Debunking the Federal Share Alibi Part 2

In our last post, we discussed some of the alibis that are used to justify the legislature's failure to fully fund the state mandated costs of special education.   In that post, we debunked the claim that the issue needs more study (it does not), and that it would be somehow easier to solve the problem if we didn't solve it until 10 years from now.  

At the end of that post, we promised to examine another alibi, which I call the "federal share alibi."  The idea behind this alibi is that Congress has an obligation to fund part of the cost of special education, because supposedly decades ago, Congress "promised" to pay more, and has not kept that promise.   It follows, the alibi goes, that the state shouldn't have to pay for the amount that the federal government supposedly promised to pay, the so called "federal share."  The alibi asserts that this breach of promise suspends somehow the state constitution, and justifies the shifting of the federal share as a kind of tax on students, diminishing their education to make up for the federal government's failure. 

The "federal share" alibi is based on a series of erroneous assumptions.   The first erroneous claim is that the state of Minnesota has no obligation to provide a free education to students with disabilities, and that the obligation arises only because the federal government passed IDEA legislation.   So, we'll here spend some time debunking that incorrect claim.   The second erroneous claim is that when Congress passed the IDEA legislation it made a legally binding promise to pay a fixed percentage of every state's special education expenses, and therefore the feds are breaking the law when they don't pay their "share" as promised.  We'll also spend some time showing that this claim is patently false. The Federal Government and  Congress have never appropriated the missing federal share, and certainly never promised to do so.    

The third deeply flawed assumption seems to be that, the Minnesota Constitution contains an unwritten exemption for unpaid federal shares, so that the legislature can stick local school districts with the federal share, and make them take the federal share out of money needed for the education of all students.    So, in the third of these three posts we'll use remind that the Supreme Court has twice held that the state has an obligation to provide funds to pay for an education that meets all state standards.
  (1) Special Education is A State Obligation 

Under our federal system,  education of our children is a State Responsibility.  Minnesota's own constitution places the obligation to provide and fund education squarely on the state.  There is no federal constitutional or federal statutory right to federal funding for education.  The federal special education mandate arises from the fact that federal law says that if a state wants to accept federal financial assistance, the state must agree to comply with IDEA.  One author explains:

It is important to understand that states are not required to participate in the IDEA. In the case of Smith v. Robinson,  the Supreme Court explained that the IDEA is “a comprehensive scheme set up by Congress to aid the states in complying with

their Constitutional obligations to provide public education for children with disabilities,” not a legislatively created mandate to serve children.

The choice offered to states under IDEA is more complicated than it appears on the surface.   As we shall see, the 14th amendment guarantees students with disability a right to free appropriate education, whether IDEA existed or not.  IDEA says, you may meet your obligation with some federal help, but if you want the help that we, the feds, decide to give you, then you must do it to IDEA standards.

In return for this deal, the state receives whatever sum of money that the Congress decides to appropriate.   The fact that the federal government doesn’t appropriate the amount authorized does not excuse the state from meeting its statutory obligation to provide education, nor does it excuse compliance from its own constitutional obligation. 

It is deeply false to claim that there is no right to special education apart from the Federal IDEA legislation.   The Right to Special Education Arises from the State’s Obligation to provide Equal Protection of the Law to Children with Disabilities and from Minnesota statute.  One scholar explains that the suggestion that the obligation to serve students with disabilities is a federal obligation is an invention, a fiction.

Although it is widely assumed that a federal statute (Public Law 94–142, now named the Individuals with Disabilities Education Act, or IDEA), created educational rights for children with disabilities, in fact some of these rights were first established in state statutes (although not [fully] implemented) and also grew out of federal court cases based on the U.S. Constitution.

 Minnesota’s recognition of the rights of students with special needs dates largely from 1955, described by one author as “a turning point for special education in Minnesota.”  In that year, the legislature created the Interim Commission on Handicapped Children, and charged the group with making a comprehensive and detailed investigation of the problems of handicapped children.  The Commission was chaired by State Senator Elmer L. Andersen, who later became Governor. 

The Commission’s report recommended “the establishment of a division of special education in the department of education to assist school districts in the development of special education programs, to establish standards for special education programs, to supervise the system of special education for exceptional children in local school districts, and to prescribe curriculum and courses of study for state operated residential schools. A series of Laws beginning with Ex l959 chapter 71 art 1 s 17; and 1961 chapter 559 s 2; 1961 c 690 s, led ultimately to section 120.17 of Minnesota Statutes (1969) providing for the education of what were called in those days handicapped children.    These laws predate IDEA, and if their were no IDEA, the obligation to meet students special education needs would still exist.

There is this misunderstanding among some in the education community that if the federal constitution protects state citizens right to equal protection under law, that somehow that suddenly means that the federal government must pay all or a portion of the cost.  The 14th amendment insists on equal protection, but the cost of assuring equal protection belongs to the state charged with that obligation. Several federal laws are designed to protect the constitutional equal protection right of students with to special education:  those laws got their impetus in part from a string of cases beginning with Pennsylvania Pennsylvania Association for Retarded Children (PARC) v. Commonwealth of Pennsylvania, 334 F. Supp. 1257 (E.D. PA 1971) and Mills v. Board of Education 348 F. Supp. 866 (1972).  By 1973, more than 30 federal court decisions had upheld the principles of PARC and Mills

To Repeat, Education is a State Responsibility.    IDEA was passed to assure that state's would not evade their responsibility to provide an education to students with disabilities.  If the federal government sues a state because black citizens aren't allowed to vote, that doesn't mean that the federal government has to pay for the cost of administering a part of the voting system.  Educating students with disabilities is a responsibility of the state legislature under the Minnesota Constitutional education clause and the Minnesota Constitutional Equal Protection provisions.  In addition, educating students with disabilities is protected by the federal 14th Amendment to the Constitution which requires equal protection of the laws.  When legislators say that they don't have to do their job because Congress didn't fund the "federal share" they are claiming that you only have to obey the Minnesota and federal constitution if the federal government pays you to do it.

There is no constitutional right to federal funding for education.  To reiterate, the federal special education mandate arises from the fact that federal law says that if a state wants to accept federal financial assistance, the state must agree to comply with IDEA.   In return for this deal, the state receives whatever sum of money that the Congress decides to appropriate.   The fact that the federal government doesn’t appropriate the amount authorized does not excuse the state from meeting its statutory obligation to provide education, nor does it excuse compliance from its own constitutional obligation. Minneapolis is obligated to provide special education not by the federal government, but by the state of Minnesota, which passed a law setting standards for the delivery of special education and enforces those standards as a matter of state law.

(2) Congress Has Never Guaranteed the "federal Share"     

To understand why the claim that there is a federal share is erroneous, we need to take a detour into basic civics.  The primary avenue for exercising Congress’s power of the purse is the authorization and appropriation of federal spending to carry out government activities.

The formal process consists of two sequential steps: (1) enactment of an authorization measure that may create or continue an agency, program, or activity as well as authorize the subsequent enactment of appropriations; and (2) enactment of appropriations to provide funds for the authorized agency, program, or activity.   Overview of the Authorization-Appropriations Process Bill Heniff Jr. Analyst on Congress and the Legislative Process November 26, 2012

When a congressional committee with authorization jurisdiction launches a new program, it does that in authorization legislation.   The legislation may authorize a department to administer the program; it sets the ground-rules for what the program may do. 
The legislation may also propose targets or guidelines for proposed future funding, but that legislation is not a promise, and it is certainly not an appropriation.   (There are exceptions to this general rule, and these exceptions are called entitlements, but federal assistance for state special education is not an entitlement). 

The original IDEA law "authorized" funding in accordance with a formula, a key variable of which is the average per pupil expenditure (APPE) for nondisabled students. The act authorized Congress to appropriate a sum equal to 5% of APPE in 1977, 10% in 1978, 20% in 1979, and 40% by 1980. Though the act authorized funding according to this formula, the actual dollars must come through the appropriations process.  This is what legislators call the federal share.   The most typical actual appropriation has amounted to 15%.  

Legislators and some governors have milked this old authorization legislation to the max.   It is a form of urban legend, really.  When we face an unpleasant difficulty, we all look for some rationalization that might help us get out of our responsibility.   And that is what this "federal share" alibi is.  It is, however, dismaying that even some educators and their representatives have begun to buy into this erroneous rationalization.  In the next post, we'll discuss this further. 

Debunking the Federal Share Part 1