IDEAs That Provide a Solution When the Courts Have Disabled the System 69
that serve higher populations of English learners.225 In addition, the IDEA has never been fully
funded.226 It is impossible for Congress to expect children with disabilities to receive the
educational benefits they are entitled to if Congress does not choose to fully fund that entitlement.
Congress recently reauthorized the Elementary and Secondary Education Act through the
Every Student Succeeds Act of 2015.227 In doing so, it restructured how grant funding was
calculated, and it also restructured grant programs for schools.228 An additional resource of federal
money to local schools can be found in Title I, Title III, Title V, Title VI, Title VII, and Title IX
funding.229 This funding is used for schools in areas that serve an overwhelming majority of
children below the poverty line; children from reservations; public schools located close to military
bases; schools serving homeless populations; and schools that need resources for English
learners.230 The Federal Government provides this additional grant funding to schools because it
has recognized these categories as having additional resource needs, such as food over the
weekend, snacks after school, after school care programs, and higher demands for counseling and
Using these grant structures as an outline, Congress should create an additional category
of federal funding eligibility for schools who serve a particular percentage of children with
disabilities. While IDEA sub-b grants already provide funding for States to implement special
education services, this program has never been fully funded. Instead, Congress should include
funding mechanisms for states to serve students with disabilities in the ESSA, the legislation that
encompasses all of their other school grants. Including grants for special education in the nation’s
overarching legislation that governs how federal money goes to public schools will further promote
our societal values of educating all children.
In contrast, is the real problem that courts have refused to listen to the blueprint Congress
gave them regarding how much educational benefit was required under the IDEA? The IDEA
[a]lmost 30 years of research and experience has demonstrated that the education
of children with disabilities can be made more effective by—(A) having high
expectations for such children and ensuring their access to the general education
curriculum in the regular classroom, to the maximum extent possible, in order to—
( i) meet developmental goals and, to the maximum extent possible, the challenging
expectations that have been established for all children…232
Based on these Congressional findings, it sounds like the IEPs need to be tailored so that they set
the highest possible standards for the child and meet developmental goals.
225 See Klein, supra note 59 (ESSA made changes to testing requirements for children with disabilities, but there is no
mention of grant funding); see also Every Student Succeeds Act (ESSA), 114 Pub. L. 95, 129 Stat. 1802 (2015).
226 Kowal, supra note 66, at 837 (arguing that while Congress has increased the number of categories of disabilities
under the IDEA, they have not increased its funding).
227 Every Student Succeeds Act (ESSA), 114 Pub. L. No. 95, 129 Stat. 1802 (2015).
228 This is the author’s own knowledge from working with various stakeholders in Congress prior to the ESSA’s
229 ESSA, 114 P.L. 95, 129 Stat. 1802.
232 Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400(c)( 5) (2012), amended by Every Student Succeeds
Act, 114 Pub. L. 95, 129 Stat. 1802 (2015).