Right to Education for Students with Disabilities

The UN Convention on the Rights of Persons with Disabilities (CRPD) enshrines the right to inclusive education, marking an important development in the international human rights framework. Despite this legal protection, the committee charged with monitoring the CRPD’s implementation (“CRPD Committee”) recently recognized that millions of children with disabilities across the globe are denied this right. Among the CRPD Committee’s recommendations was a call for “a transformation in culture, policy and practice in all formal and informal educational environments to accommodate the differing requirements and identities of individual students,” as well as “a commitment to removing the barriers that impede that possibility.”

Transforming these systems is no easy task. In some cases, litigation will be necessary to help make the right to education a reality. For example, in the United States landmark cases, such as PARC v. Pennsylvania and Mills v. Board of Education, helped pave the way for laws and policies that arguably have indeed transformed public education for students with disabilities. At the same time, litigation alone will be insufficient to bring about the transformative changes presaged by the CRPD. Courts may “lack the institutional competence” to make substantive decisions on social policy, like inclusive education. As a practical matter, the expense of litigation makes it unreachable for many, and cases may drag on for years, costing students with disabilities lose precious learning time.

The recently decided Heather B. v. Houston Independent School District case illustrates some of these dynamics. Under the Individuals with Disabilities Education Act (IDEA) to eligible students with disabilities are entitled to special education services. Also, school districts have an affirmative “child find” duty to identify students who may be eligible for IDEA services. But when a private school blind student with multiple disabilities moved from Houston to Pearland, Texas in January 2016 and sought special education services in a Pearland public school, her parents emailed both the Houston and Pearland school districts to request services. Pearland ignored their request. Houston found her ineligible, despite having previously found her eligible before she enrolled in private school. However, the Fifth Circuit Court of Appeals ruled that neither district had violated its child find duty, because the parents never “followed up” with Pearland after it had ignored their request, and because Houston eventually found the student eligible in January 2017. By now, the parents have resettled in Massachusetts, where their school district not only found their daughter eligible for IDEA services right away, but also quickly agreed to fund a private placement given her complex needs.    

For many parents, the deck appears stacked against them when they pursue legal avenues to enforce their children’s educational rights. A Virginia lawsuit makes precisely this claim. Through public records requests, the plaintiffs learned that between 2010 and 2021 hearing officers throughout the state found school districts at fault for IDEA violations in only 13 out of 847 cases. Similarly, by the time Heather B. reached the Fifth Circuit, a federal investigation had revealed that Texas had for over a decade illegally capped students eligible for special education services at 8.5%. The cap pressured many districts to arbitrarily find students with disabilities ineligible for IDEA services. As HPOD and the Council of Parent Attorneys and Advocates pointed out in their amici brief, this cap was in place at the time when the plaintiffs’ child was determined ineligible, and may have influenced the two school districts’ failure to find her eligible within a reasonable timeframe. In fact, the Houston Chronicle exposé that triggered the federal investigation of Texas’ cap featured the same student whose parents brought Heather B.

The COVID-19 pandemic has added an additional layer of complexities that parents and students have had to navigate to protect their educational rights. Federal officials have expressed their concern that across the United States evaluations to determine if students with disabilities are eligible for IDEA services are being delayed. News outlets have also reported that some school districts have stopped conducting these evaluations, in addition to other delays or denials of services, prompting lawsuits and federal investigations. Indeed, HPOD and University of California, Los Angeles researchers found that school districts adopted uneven approaches to adapting to pandemic-related challenges to delivering IDEA-mandated services, despite federal guidance affirming that school districts were responsible for fulfilling their IDEA obligations during the pandemic. School districts’ uneven approaches to serving students with disabilities during the pandemic may have contributed to delays or denials of services.

Also, ever present in education litigation are ethical concerns. Lawyers aiming to bring strategic cases often must make tough choices when it comes to which groups of children with disabilities to represent in different cases, and which, when necessary, to exclude. While the goal of the disability rights movement is to ensure inclusive education for all, it is often impractical to press for a solution that supports all children with disabilities in a single case. Reflecting on strategic litigation against Bulgaria that focused on children with intellectual disabilities living in institutions, attorney and HPOD associate János Fiala-Butora observed:

“It was very difficult to explain to the other children and their representatives that they could not join the case. It is easy to evaluate in the abstract how the movement’s goals might be best pursued. It is much harder to convey to a person that they will not be supported because somebody else has a better chance of progressing the movement’s goals.”

Thus, while litigation may be an invaluable tool for advancing the right to education, its complexities and limitations only underscore the need for innovative programming. Forward-thinking organizations, such as Perkins School for the Blind, which works around the world to educate students who are blind and have multiple disabilities, will also be crucial in realizing the right to education. Beyond its direct service, Perkins’ Quality Indicators, for example, encourage and empower school systems to develop and to evaluate their own inclusive education programs and to identify how to improve their services. The Quality Indicators include resources like self-evaluation tables and self-education resources so that schools may design quality education programs for students with disabilities who in many countries are left behind.

While the CRPD Committee has called for States parties to ensure that legal avenues for parents and students to enforce their educational rights must be “independent, effective, accessible, transparent, safe and enforceable,” the Committee’s broader call for “a transformation in culture, policy and practice” will be unlikely to be answered by courts alone. Instead, litigants’ efforts must be combined with “partnerships and coordination between all stakeholders, including persons with disabilities through their representative organizations, different agencies, development organizations, non-governmental organizations and parents or caregivers.” Only through such coordinated action will it be possible to realize the CRPD’s vision of access to inclusive education for all.

Mackenzie Saunders is a Class of 2025 J.D. Candidate at Harvard Law School.