Rutgers Journal of Law & Public Policy

Autism and the Permissible Underachieving Education System

By Lauren Martinez[1]
January 7, 2013
Autism Spectrum Disorder is a lifelong condition, and the lifetime costs associated with treating it are as high as $3.2 million for each individual.[2] The high costs of treatment and educational services, along with the growing incident rate, are placing enormous burdens on service providers and families throughout the United States. Effective autism treatment programs often require 40 hours per week of individual instruction, which adds up to annual costs exceeding tens of thousands of dollars.[3] As a result, there is a disproportionately low amount of services offered by school districts on tight budgets. Currently, a majority of the educational system fails to effectively incorporate high functioning autistic individuals into society. Additionally, families without adequate financial resources cannot afford to pay for additional therapy or petition their school district to provide necessary services. Despite many complications, there are multiple solutions to the nation’s inadequate special education system.

A. Legal Mandates for Education
One of the many laws regarding educational services is the IDEA Act. The Act guarantees all school-age children with learning disabilities (including autism) a "free and appropriate public education.”[4] The Act also requires that school districts draw up an individualized educational program (IEP) for each child and specify a student's specific educational services to be paid for by the school district.[5] Under the Act’s provisions, schools are only required to give students the chance to make educational progress. This law does not mandate that these children are educated to their maximum potential.
The limits on a disabled child’s potential growth are demonstrated in the landmark Supreme Court decision, Board of Education of Hendrick Hudson Central School District v. Rowley. The Court held in Rowley that the lower court erred when they required the state to maximize the potential of each handicapped child. The Court also held that a “free, and appropriate public education," was satisfied by “sufficient support services to permit the student to benefit educationally” from that instruction.[6] Many critics of both Rowley and the IDEA Act agree with the dissent[7] in Rowley: “the purpose of the Act was described as tailoring each handicapped child's educational plan to enable the child "to achieve his or her maximum potential."[8]
The Supreme Court in Rowley established that IDEA has no additional requirement to maximize a disabled child's potential "commensurate with the opportunity provided other non-handicapped children.”[9] Even if Congress intended to maximize a student's potential under this Act, Congress did not "successfully impose that burden upon the States."[10] Beyond the procedural safeguards outlined in Rowley, courts are not allowed to impose a higher burden.[11] As a result, when parents argue for a special education program that would "maximize" their child's potential, parents almost invariably lose.[12] This creates an enormous burden on families, discussed below.
B. Burdens on Families
In order to cut costs relating to medical services, educational agencies have drawn a distinction between medical and educational services for autistic children, and have offered to pay only for the latter.[13] Therefore, there is a burden on families to pay for occupational therapy, physical therapy, and addition medical services such as hearing and vision devices. Also, families with lower incomes or limited education have more difficulty entering the early intervention system.[14] Significant racial/ethnic disparities exist in the recognition of autism spectrum disorders,[15] and there are systemic barriers to bringing IDEA entitlements to full potential for school-aged children with autism in low-income districts.[16]
Many times, an autistic child can be placed in an inadequate inclusion program with neuro-typical peers. Currently, when disputes regarding a child's capacity for integration arise, the initial placement recommendation is made by the educational agency. Parents who can afford a private placement have the option of rejecting the agency's proposal. Parents who cannot afford a private placement do not have this option. They have no choice but to accept the public placement while utilizing the due process procedures of the Act to obtain a determination that the proposed placement was not educationally appropriate.[17] Families of lower socioeconomic status cannot afford to litigate this issue.
It is not clear how much time autistic children should spend integrated in regular classrooms with neuro-typical peers, as compared to special education classrooms.[18] This sort of discrepancy often revolves around the judicial interpretation of the Least Restrictive Environment (LRE) standard, which requires that children in special education programs spend a maximal amount of time within the mainstream of general education.[19] This standard was originally created to counteract the historical isolation of students with disabilities. However, considering modern advances in clinical effective therapy, it makes no sense for those children with autism who can only learn by individual instruction to be in a large classroom with neuro-typical peers. Often, autistic individuals have sensory systems that are too sensitive to cope with such classrooms.[20]
C. Educational Solutions

The economy and future of our nation depends on proper education and programs to enrich every individual with autism beforehand, not on programs that compensate for the lack of programs as an afterward thought. There are three possible solutions to maximize education for autistic children: 1) States must impose higher burdens for their standard of education at their own will, 2) Government funding must increase for various educational programs, (including early intervention and after-school programs) and 3) Both Congress and State legislatures must revisit the IDEA Act’s provisions to enforce higher educational standards. Given the current landscape of politics, many wonder whether it would be possible to pass an entitlement statute like the IDEA Act today.[21] Partisan politics must be shifted aside in order to advance educational opportunities for our nation’s most deserving of students.

[1] Lauren Martinez is a May, 2014 J.D. Candidate and a Staff Editor for the Rutgers Journal of Law & Public Policy.
[2] Michael Ganz, The Lifetime Distribution Of The Incremental Societal Costs Of Autism, 161 Archives of Pediatric Med. 343, 344 (2007).  
[3] Tom Shimabukuro, et. al., Medical Expenditures For Children With An Autism Spectrum Disorder In A Privately Insured Population, 38 J. Autism Dev. Disorder 542, 552 (2008).
[4] 20 U.S.C. § 1400(d)(1)(A).
[5] 20 U.S.C. §1401(9).
[6] Bd. of Educ. v. Rowley, 458 U.S. 176, 203 (1982).
[7] Justice White argued in Dissent that: “The Act details as specifically as possible the kind of specialized education each handicapped child must receive. It would apparently satisfy the Court's standard of "access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child," for a deaf child such as Amy to be given a teacher with a loud voice, for she would benefit from that service. The Act requires more. It defines "special education" to mean "specifically designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child…” Supra note 5, at 215.
[8] See H. R. Rep. No. 94-332, at 13 (1975); 121 Cong. Rec. 23709 (1975).
[9] Supra note 5, at 198.
[10] Supra note 5, at 204.
[11] However, some states choose to impose a higher burden to maximize potential. New Jersey uses "best achieved success in learning standard" for students with special needs. See Lascari v. Bd. of Educ., 560 A.2d 1180 (N.J. 1989).
[12] Philip T. Daniel, Education for Students with Special Needs: The Judicially Defined Role of Parents in the Process, 29 J.L. & Educ. 1, 18 (2000).
[13] Daniela Caruso, Autism in the U.S.: Social Movement and Legal Change, 36 Am. J. L. & Med. 483, 486 (2010).
[14] Kathleen Hebbeler et al., Early Intervention for Infants and Toddlers with Disabilities and Their Families: Participants, Services, and Outcomes, Stan. Res. Inst. Int’l (Jan. 2007), available at
[15] See David S. Mandell et al., Racial/Ethnic Disparities in the Identification of Children with Autism Spectrum Disorders, 99 Am. J. Pub. Health 493, 496 (2009).
[16] Daniela Caruso, supra note 8, at 539.
[17] Martin A. Kotler, The Individuals with Disabilities Education Act: A Parent’s Perspective and Proposal for Change, 27 U. Mich. J.L. Reform 331, 357-8 (1994).
[18] See Anne P. Dupre, Disability and the Public Schools: The Case Against "Inclusion," 72 Wash. L. Rev. 775 (1997).
[19] Bryna Siegel, The World of the Autistic Child, 226 (1996).
[20] Caruso, supra note 8, at 517.
[21] Terry J. Seligmann, Sliding Doors: The Rowley Decision, Interpretation of Special Education Law, and What Might Have Been, 41 J.L. & Educ. 71, 89 (2012).