President Kennedy’s address to the delegates of the eighteenth regular session of the United Nations General Assembly Plenary given on September 20, 1963 extended Learned Hand’s argument to include peace. Paraphrasing the“Spirit of Liberty” address President Kennedy asserted that those human rights, constitutional freedoms and privileges enjoyed by Americans are the children of peace and liberty. The President averred that peace treaties and other accords aimed at achieving sustainable peace within the international community were and are Imperfect attempts to manifest concretely the perfect abstract ideal that is peace. He, like Judge Hand before him, maintained that the ideals of peace and liberty in their most perfect forms reside within the conscience of the individual, Id: (Kennedy 1963).
The manner in which an individual chooses to exercise his rights to life, liberty, and to ultimately pursue happiness is a function of the freedom of choice bestowed by God upon humankind. Thomas Aquinas maintained that God endowed humankind with a rational mind comprising the intellect and will and a spiritual soul made manifest through the conscience. The combination of these elements, permits humankind to exercise their freedom of choice, (Aquinas, Sum I, Q. 83, Art. 1). Aquinas defined freedom of choice as the capacity to react positively or negatively to the abstract and immaterial universal. The ability to react either in a positive or a negative way constitutes the action of the will as instituted and moved by the intellect Id: (Aquinas, Sum I, Q. 82, Art. 4). Consequently, humankind has been rendered subject to the choices that they make, the only qualification being that an individual cannot act in a manner that is discordant with his intellect and will because, to do so is unnatural. Every act undertaken by an individual is weighed and adjudged to determine the permissibility and imputability. It is this freedom of choice that enables humans to order their world, and to engage in the decision making processes that characterize everyday life. The freedom to choose the manner of our existence permits a person to develop his own system of ethics; one that accounts for his own cultural inheritances and personal experiences.
In Brown v. Board of Educ., 347 U.S. 483; 74 S. Ct. 686, 98 L. Ed. 873, (1954) hereafter (Brown), Chief Justice Warren characterized education as being necessary because it prepares a person for the responsibilities and duties of citizenship. As such he argued that development and maintenance of educational systerms were among the obligations entrusted to state and local governments.
Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms, Brown v. Board of Educ., 347 U.S. 483, 493 (1954).
A generation removed from the decision in Brown, the federal courts extended the holding in Brown to cover individuals with disabilities. In 1972 the Federal District Court for the District of Columbia held in Mills v. Board of Educ., 348 F. Supp. 866, ( D.D.C. 1972) hereafter (Mills) that a school district could not exclude or otherwise deny disabled students access to a free and appropriate public education on the basis of the disability. Additionally, the court held that a school district cannot plead insufficient funding as a reason for excluding a student, excluding a student on the basis of disability ran contrary to the express purposes of the Education of the Handicapped Act of 1970 (EHA), Pub. L. 91-230, April 13 1970, 84 STAT 121 (1970).
The District of Columbia shall provide to each child of school age a free and suitable publicly-supported education regardless of the degree of the child's mental, physical or emotional disability or impairment. Furthermore, defendants shall not exclude any child resident in the District of Columbia from such publicly-supported education on the basis of a claim of insufficient resources, Mills v. Board of Educ., 348 F. Supp. 866, 878 ( D.D.C. 1972).
The EHA and its progeny the Education for All Handicapped Children Act of 1975 (EAHCA) Pub. L. 194-142, November 29, 1975 89 STAT.773 (1975); and the Individuals with Disabilities Education Act of 1990 (IDEA), Pub L. 101-476, October 30, 1990, 104 STAT. 1142 codified as 20 U.S.C. § 1400 et seq., (2017) provide legal framework to ensure that the holdings of Brown and Mills decisions requiring a free appropriate public education be made available to students with disabilities. The mandate enshrined within the EHA and enhanced by its successors the EAHCA and the IDEA governing the development and regulation of special education regimes has been lauded as being a successful exercise in concurrent federalism in the main.
Under the auspices of the IDEA , the federal government works in tandem with the individual states to create educational frameworks for the disabled. The federal government entrusts the responsibility of creating the educational systems to the states; but it enacts regulations and guidelines to ensure that the systems developed by states are consistent with the federal mandates established under auspices of the enabling legislation and relevant legal precedent. Justice O’Connor emphasized this point in the majority opinion that she authored in the case of Schaffer v. Weast, 546 U.S. 49 (2005).
IDEA is “frequently described as a model of ‘cooperative federalism.’ ” Little Rock School Dist. v. Mauney, 183 F.3d 816, 830 (CA8 1999). It “leaves to the States the primary responsibility for developing and executing educational programs for handicapped children, [but] imposes significant requirements to be followed in the discharge of that responsibility.” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 183 (1982). For example, the Act mandates cooperation and reporting between state and federal educational authorities. Participating States must certify to the Secretary of Education that they have “policies and procedures” that will effectively meet the Act’s conditions… Schaffer v. Weast, 546 U.S. 49, 52 (2005).
The continued sustainability and viability of the IDEA and its directives is of particular interest on a personal level not only as a concerned citizen but, as an individual born with a disability. Shortly after my birth I went into cardiac arrest. During the resuscitation process one of my lungs collapsed briefly depriving my brain of oxygen. The damage resulting from the disruption of the oxygen flow to my brain manifested itself in the form of Hypoxic Encephalopathy. Outwardly, my condition is characterized by an irregular gait and speech patterns, accompanied by slight diminishment of my reflexes, and coördination. Despite these physical deficits my disability has had no discernable effect upon my autonomic functions or on my mental and intellectual capabilities.
My intellectual capabilities and the quality of my education is attested to by my memberships in the following societies: the Order of the Sword and Shield; the Golden Key International Honours Society; American Public University’s pre law chapter of Phi Alpha Delta; Sigma Iota Rho, national honors society for international relations students; Pi Gamma Mu, graduate level national honors society for the social sciences; and the National Association of Legal Assistants.
Neither my education, nor any of my achievements would have been possible without EAHCA and IDEA. These congressional acts together with the Vocational Rehabilitation Act of 1973, Pub. L. 93–112, §2, as added Pub. L. 105–220, title IV, §403, Aug. 7, 1998, 112 Stat. 1095 codified as 29 U.S.C. §701 et seq. (2017), ensured my access to a free appropriate public education tailored to meet my needs through the employment of a carefully crafted Individualized Educational Plan (IEP).
I do not dispute the authority of Secretary of Education of the United States to authorize and implement changes to policy as the changes in law and circumstance dictate to keep pace with the evolutionary transformations of the Republic. The recent decision taken by the Secretary of Education of the United States of America, Elisabeth Dee DeVos to rescind or otherwise abrogate seventy-two policy documents with a single order troubles me greatly for three reasons. First, among the many documents rescinded were texts that provided information on the substantive due process rights afforded to parents and their disabled children under the IDEA including the right to tape record meetings of the IEP planning committee. Other eliminated documents provided guidance about the development of IEPs, and a document outlining the minimum qualifications required of special education teachers. Second, although the process by which these papers were annulled complied with the letter of the provisions set down in 20 U.S.C 1406 (2017) and 5 U.S.C. 553 (2017) concerning the federal regulation process, it could be argued that the method employed to effect the retraction of these policy documents violated the spirit of transparency underlying both 20 U.S.C 1406 (2017) and 5 U.S.C. 553 (2017). Lastly, the failure to provide substantive assurances that the nullified documents would be replaced with newer documents that maintained the existing framework could portend a concerted effort by the Executive Branch of government to overturn almost a century of legal precedents founded upon the The Smith-Sears Act of 1918 which was repealed and reenacted by the Veterans Rehabilitation and Education Amendments Act of 1980, Pub. L. No. 96-466, October 17, 1980 94 Stat. 2172; and originally codified in 1980 as 38 USCS § 1500 (1980). In 1991 38 USCS § 1500 was re-designated as 38 USCS § 3100 et seq. by the Department of Veterans Affairs Codification Act of 1991, Pub. L. No. 102-83, 105 Stat. 378; (current version at 29 U.S.C. § 3100 et seq. (2017)).
The alterations made by Secretary deVos have the potential to negatively impact the ability of disabled Americans regardless of race, gender, or age to pursue the American dream and to seek those inalienable rights set forth in the Declaration of Independence by depriving them of the legal tools necessary to ensure that they can become productive Americans capable of enhancing the patrimony of the Republic and strengthening the democratic ideals of our nation. There are many people with disabilities that desire to obtain gainful employment of this kind that is both productive and fulfilling. However, many people with disabilities are rarely afforded an opportunity to demonstrate their knowledge and skills in the workplace. I am a prime example because, although, I have many intellectual gifts; I have spent the better part of the last two decades actively seeking gainful employment. Generally the responses of hiring managers has fallen into two categories. Either they find my academic qualifications too advanced for a given position; or I lack sufficient work experience to be afforded serious consideration. In essence I am caught in a classic Catch-22 situation because, I am academically over qualified and, yet I cannot find anyone willing to hire me so that I can acquire practical experience. Furthermore, during those brief periods during which I have been employed I have been forced to address their unwillingness to permit me reasonable accommodations under the Americans with Disabilities Act of 1990 Pub. L. 101–336, §1(a), July 26, 1990, 104 Stat. 327 codified as 42 U.S.C § 12191 (2017), and the ADA Amendments Act of 2008 Pub. L. 110–325, §3, Sept. 25, 2008, 122 Stat. 3554 codified to 42 U.S.C § 12191 (2017).
Divesting handicapped American citizens of educational and vocational opportunities under the guise of streamlining regulations would be tantamount to consigning them to a perpetual state of involuntary servitude, in which, any hope of the security that disabled people possess would rest solely on alms granted to them by the able bodied members of society, thereby returnng the American disabled community to the nineteenth century. Such a movement would also make it more difficult for disabled individuals like myself to find employment,
As a reply to the narrow minded views of the Executive Branch, I would argue Americans with disabilities are capable of doing their part to sustain our society if given the right tools. Relegating people with disabilities to second class status is a gross injustice. Billings Learned Hand, Chief Judge of the United States Court of Appeals for the Second Circuit delivered an address at The Legal Aid Society's 75th anniversary celebration. In his speech Judge Hand averred that the greatest threat to the Republic and its democratic ideals is injustice. "If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice” (Hand 1951). The nation must strive to meet the ideal set forth by Justice Harlan in his dissent in Plessy v Ferguson, 163 US 537, 559 (1896).
But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved Plessy v Ferguson, 163 US 537, 559 (1896).
If the Republic is to endure the trials and tribulations occasioned by the current state of domestic and international affairs; we must eschew the washed out ideas that buttress the idea that the disabled and other minorities possess little that could benefit the nation requiring that they be relegated to a secondary or tertiary class. The nation must accept what they offer without hesitation for without them the Republic will ultimately fail.
Sources
Aquinas, Thomas. Summa Theologiæ. Aquinas Institute. ed. Rochester: The Aquinas Institute for the Study of Sacred Doctrine 2012. Internet resource. 24 Oct. 2017.
Aquinas, Thomas. Summa Theologiæ. Aquinas Institute. ed. Rochester: The Aquinas Institute for the Study of Sacred Doctrine 2012. Internet resource. 24 Oct. 2017.
Balingit, Moriah. " The Education Department phased out 72 policy documents for disabled students. Here’s why." Washington Post. Washington Post.com. October 23, 2017. https://www.washingtonpost.com/news/education/wp/2017/10/23/the-education-department-phased-out-72-policy-documents-for-disabled-students-heres-why/?utm_term=.dfb3c949a47a (accessed November 14, 2017).
Hand, Billings Learned. The Spirit of Liberty: The Papers and Addresses of Learned Hand. Third Revised Expanded Edition. Edited by Irving Dillard. Vol. One. One vols. New York: A.A. Knopf, 1960, p. 189-191.
Kennedy, John Fitzgerald. "Address before the Eighteenth General Assembly Plenary of the United Nations." New York City, New York, September 20, 1963.
Kroeber, Alfred Louis, Clyde Kluckhohn, Wayne W. Untereiner, and Alfred G. Meyer. Culture: A Critical Review of Concepts and Definitions. First Edition. Vol. One. One vols. New York City, New York: Vintage Books, 1952, p. 355 et seq., while not explicitly defining meta-culture as concept, Kroeber and his colleagues infer the existence and validity of such a phenomenon.
Office of Special Educ. Programs (OSEP), Office of Special Educ. and Rehab. Serv. (OSERS), U.S. Dep’t of Educ. Guidance on Procedural Safeguards and Due Process Procedures for Parents and Children with Disabilities (June 11, 2009). Available at http://www2.ed.gov/policy/speced/guid/idea/procedural-safeguards-q-a.pdf. See Also: Office of Special Educ. Programs (OSEP),
Office of Special Educ. and Rehab. Serv. (OSERS), U.S. Dep’t of Educ. OSEP Memo 88-17 Use of Tape recorders at IEP meetings (April 15, 1988). No link available.
Office of Special Educ. Programs (OSEP), Office of Special Educ. and Rehab. Serv. (OSERS), U.S. Dep’t of Educ. OSEP Memo 00-19 IEP guidance (June 30, 2000). No link available
Office of Special Educ. Programs (OSEP), Office of Special Educ. and Rehab. Serv. (OSERS), U.S. Dep’t of Educ. Questions and Answers On Highly Qualified Teachers Serving Children with Disabilities, (January 29, 2007). Available at http://idea.ed.gov/uploads/07-0006.HQT.pdf
O’Keefe, Martin D. Known from The Things That Are: Fundamental Theory of the Moral Life. First Edition. Vol. One. One vols. Houston: Center for Thomistic Studies, 1987, pp. 118-119.
The Education of the Handicapped Act of 1970 (EHA), Pub. L. 91-230, April 13 1970, 84 STAT 121 (1970).
The Education for All Handicapped Children Act of 1975 (EAHCA) Pub. L. 194-142, November 29, 1975 89 STAT.773 (1975).
The Individuals with Disabilities Education Act of 1990 (IDEA), Pub L. 101-476, October 30, 1990, 104 STAT. 1142 codified as 20 U.S.C. § 1400 et seq., (2017).