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EDUCATIONAL JUSTICE FOR STUDENTS WITH COGNITIVE DISABILITIES*

Published online by Cambridge University Press:  30 December 2014

Jaime Ahlberg
Jaime Ahlberg*
Affiliation:
Department of Philosophy, University of Florida
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Social Philosophy and Policy , Volume 31 , Issue 1 , January 2014 , pp. 150 - 175
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Copyright © Social Philosophy and Policy Foundation 2014 

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Footnotes

*

I would like to thank the other contributors to this volume for valuable feedback on an earlier draft of this essay, particularly Harry Brighouse and Gina Schouten. I would also like to acknowledge helpful remarks from an anonymous reviewer at Social Philosophy and Policy, and from Meira Levinson and Sarah Hannan. All remaining errors and deficiencies in the essay are mine alone.

References

1 I use “profoundly cognitively disabled” to refer to those persons who have historically been identified as seriously “mentally retarded,” “exceptional,” or more recently, “intellectually disabled.” These are all problematic terms: it is not obvious that they indicate purely natural categories; nor is it obvious how, or whether, children ought to be identified as disabled for educational purposes. For my intentions here, I set categorization and identification issues aside. Assuming that students can enter educational environments with capacities like Dinah’s, my interest is in how to ground their claims to educational goods in justice.

2 I thus bracket the more practical matter of what we should assume regarding the abilities of these students when designing school policies and practices. Certainly, when young children enter school we have little information about the real nature and extent of their capacities, and it is wise to refrain from making hasty judgments about those capacities when doing so will irrevocably limit their educational opportunities. But there are theoretical and practical reasons for locating Dinah’s justice-based claim(s) to educational provision. If certain of our educational aims do not identify or adequately respond to Dinah’s interests in educational goods, we should be suspicious about whether those are the correct, or only, aims. Further, under conditions of resource scarcity, and/or when children’s educational needs conflict, judgments will need to be made about adjudicating trade-offs. Only a full understanding of our educational goals for all children, and the relative weight of those goals, can assist us in providing justification for making some trade-offs over others.

3 This is not to deny that for some students who have been labeled profoundly mentally retarded there may be an economics-based argument in favor of educational provision over their lifelong institutionalization, under the assumption that the children in question can become somewhat self-sufficient and can secure some form of employment. Dinah represents the group of children who cannot be expected to produce such economic returns given the current structure of the labor market.

4 See Pennsylvania Association for Retarded Children (PARC) v. The Commonwealth of Pennsylvania, 343 F. Supp. 279 (1972), for a statement of “mentally retarded” children’s rights to due process and equal protection, and an argument for the presumption in favor of mainstreaming all disabled students. PARC emphasizes the unique potential schools have to initiate social stigmatization of children identified as disabled, and refers to arguments made in Brown v. Board of Education, 347 U.S. 483 (1954) as supplying reasons against the exclusion of any children from public education. Famously, Brown argued that “separate educational facilities are inherently unequal” when sanctioned by law because segregation deprives children of some of the benefits of a (racially) integrated school environment, including self-esteem. See also Mills v. the Board of Education of District of Columbia, 348 F. Supp. 866 (1972), for a legal argument that school-age children are owed a public education regardless of their disability status. See Skrentny, John D., The Minority Rights Revolution (Cambridge, MA: Belknap Press, 2002)CrossRefGoogle Scholar, chap. 9 for a historical analysis of the development of disability rights policy in the 1970s.

5 The 1975 Education for All Handicapped Children Act’s (EAHCA) mandate for equal protection, due process, and “free and appropriate education in the least restrictive environment consistent with handicapped children’s needs” is a good example here. Mainstreaming disabled children was part of the Act’s “least restrictive environment” requirement. EAHCA was reauthorized and later renamed as the Individuals with Disabilities Education Act (IDEA) in 1990.

6 I set aside (informed) desire-satisfaction, preference-satisfaction, and mental state conceptions of well-being in favor of an objective list view, for the purpose of this discussion.

7 Contextual information is essential for articulating the purposes of education. In our society, for example, education is extremely instrumentally important for labor market success. If society-wide principles of justice demand that economic inequality not reflect class privilege, that would plausibly have implications for the distribution of educational opportunity in a society in which education plays this instrumental role. In a different society it might be otherwise; material gains, or opportunities for meaningful employment might not be so dependent upon the attainment of higher education. Even under the same society-wide principles of justice, in that alternative society the aim of education need not attend to the credentialing effects of educational achievement on labor opportunities.

8 In the disability studies and special education literatures, scholars have distinguished between justice as distribution and justice as recognition, and have often preferred the recognition paradigm to respond to the ways in which difference characterizes the experiences of the disabled (rather than the universality of moral standing that characterizes the distributive paradigm). See Martha Minow’s important book on so-called “dilemmas of difference,” Making All the Difference: Inclusion, Exclusion, and American Law (Ithaca, NY: Cornell University Press, 1991). For reasons I cannot elaborate here, I think distributive theories can, in principle, identify many if not all of the morally significant aspects of concerns about difference, so I am going to bracket discussion of recognition-oriented principles of justice for the purposes of this paper.

9 Meira Levinson labels this as the distinction between education within a democracy and education for democracy, respectively, in No Citizen Left Behind (Cambridge, MA: Harvard University Press, 2012), 259.

10 Amy Gutmann is interested in this at some points in Democratic Education (Princeton, NJ: Princeton University Press, 1987).

11 See, for instance, Gutmann, Democratic Education, 136; Anderson, Elizabeth, “Fair Opportunity in Education: A Democratic Equality Perspective,” Ethics 117, no. 4 (2007): 595–622:CrossRefGoogle Scholar Satz, Debra, “Equality, Adequacy, and Education for Citizenship,” Ethics 117, no. 4 (2007): 623–48.CrossRefGoogle Scholar

12 Adequacy standards for educational opportunity have often been politically successful in practice because they are compatible with directing very minimal resources to the poor and otherwise disadvantaged, so long as the threshold of adequacy is set low enough. Philosophical theorists have acknowledged this practical reality while arguing that this need not be the case in principle; the demandingness hinges on the nature of the threshold.

13 William Galston argues, for instance, that civic education in representative democracies like our own requires mainly that citizens be able to select and evaluate representatives wisely. See his “Civic Education in the Liberal State,” in Liberalism and the Moral Life, ed. Nancy L. Rosenblum (Cambridge, MA: Harvard University Press, 1989), 94.

14 Amy Gutmann describes democratic education as “conscious social reproduction,” which involves students’ deliberation about different conceptions of the good life, and different conceptions of good society (Gutmann, Democratic Education, 136).

15 See an account of training in reasonableness as central to citizenship education by Laden, Anthony, “Learning to Be Equal: Just Schools as Schools of Justice,” in Education, Justice, and Democracy, ed. Allen, Danielle and Reich, Rob (Chicago: University of Chicago Press, 2013), 62–79.CrossRefGoogle Scholar

16 For Eamonn Callan, the emotional commitment that citizens feel toward each other is central to the justice of democracies like our own. Creating Citizens: Political Education and Liberal Democracy (Oxford: Oxford University Press, 2004). See especially chapter 4.

17 Meira Levinson’s definition of “civic education,” for example is taken from The Civic Mission of Schools, which defines a civic education as one that fosters the skills, knowledge, and attitudes that will prepare children to be “competent and responsible citizens throughout their lives.” The definition then goes on to offer standards for competency and responsibility. See Levinson, No Citizen Left Behind, 43–44.

18 Anderson, “Fair Opportunity in Education,” 596. Anderson’s project is thus not fundamentally geared toward fostering democratic character in each student, but in using educational experiences to shape the wider social environment such that it provides each person with the social conditions necessary for equal citizenship.

19 Ibid., 614.

20 See Satz, “Equality, Adequacy, and Education,” 636–38.

21 Notice that this usage of the concept “leveling down” does not follow the typical usage in the egalitarian literature. In Satz’s sense, to level down is to decrease the educational prospects of the advantaged, which is consistent with the prospects of the disadvantaged being improved as a result, or not. The charge that (at least some) egalitarians are committed to leveling down in the egalitarian literature, however, amounts to the charge that egalitarians could in principle be forced to favor policies that worsen the better off while bettering no one, just for the sake of achieving equality. See, for example, Parfit, Derek “Equality or Priority?” in The Ideal of Equality, ed. Clayton, Matthew and Williams, Andrew (Basingstoke, UK: Palgrave Macmillan, 2002).Google Scholar

22 Interestingly, this constraint builds in considerations concerning the value of education that go beyond the motivating value of democratic equality. Otherwise, there would be no case against limiting educational opportunity to the advantaged so long as doing so brought the disadvantaged to the threshold of equal citizenship. While Satz does not explain what she takes these considerations to be, one is tempted to identify the direct contribution educational experiences can make to well-being as the motivating factor here.

23 Satz, “Equality, Adequacy, and Education,” 636.

24 Anderson, “Fair Opportunity in Education: A Democratic Equality Perspective,” 622 (my emphasis). Satz does not defend her adequacy view in this way. She does, however, present it as a “framework,” and alternatively a “paradigm,” and one which has strong advantages over other educational frameworks (equality frameworks, in particular), suggesting that her view on the aims of education is unified by the democratic purpose. See her “Equality, Adequacy, and Educational Policy,” Education Finance and Policy (2008): 424–43.

25 This is a general concern for sufficientarian principles of justice, and not a function of the democratic nature of the principle. If democratic theorists were to endorse a different type of distributional principle, this worry may well dissolve.

26 See again examples in the previously cited works of Amy Gutmann, William Galston, Anthony Laden, Eamonn Callan, and Meira Levinson. These theorists are not explicit that they take the democratic aims of education to be the exclusive educational aims. Levinson, for instance, argues for a more expansive set of educational goals in The Demands of Liberal Education (New York: Oxford University Press, 1999), including the goal of developing in children a capacity for autonomy. Nevertheless, these theorists emphasize the centrality of the democratic framework in such a way that makes it unclear how alternative (and potentially conflicting) aims could exist alongside them. We would want arguments regarding the content of other educational goals, and discussion of whether, or when, democratic pursuits might be suspended for the sake of those other goals.

27 See Rawls, A Theory of Justice, rev. ed. (Cambridge, MA: Belknap Press, 1999), part III, and Amy Gutmann Democratic Liberalism, 61–63. Eamon Callan describes public virtue as a “constellation of psychological traits,” including: a lively interest in what makes life truly good, a willingness to discuss that with others, active commitment to the good of the polity, confidence and competence in how that good should be advanced, respect for fellow citizens and a sense of shared fate, Creating Citizens, p. 3. The Civic Mission of Schools, cited by Meira Levinson, recognizes the relevant moral and civic virtues as concern for the rights and welfare of others, social responsibility, tolerance, and respect, and belief in the capacity to make a difference (cited in Levinson, No Citizen Left Behind, 44).

28 Of course, the “cognitive deficits” of the elite with respect to cognitive disability cannot be ameliorated by way of social integration, as Anderson prefers, because the elite body cannot be partly comprised of people who are themselves profoundly cognitively disabled. Integrating the cognitively disabled into the physical spaces of nondisabled children provides a nice alternative mechanism, however, for going some distance toward closing the gaps in understanding that people have about the cognitively disabled.

29 The extent to which mainstreaming actually does any of this is contested. I merely intend to observe at least one way in which providing educational resources for cognitively disabled students could advance democratic, educational aims regarding non-cognitively disabled children.

30 I take this constraint to be uncontroversial. Further, a democratic education that attempted to inculcate virtues of respect and understanding while simultaneously using children as mere means for that end would appear to be self-defeating in important ways.

31 Of course, the extent to which these considerations justify the inclusion of cognitively disabled students into classrooms, curricula, or other kinds of educational participation all things considered, depends upon other values at stake and will vary considerably with context.

32 Perhaps such accounts are identified by Richardson, Henry S., “Rawlsian Social Contract Theory and the Severely Disabled,” The Journal of Ethics 10, no. 4 (2006 Google Scholar), or Buchanan, Allen, “Justice as Reciprocity versus Subject-Centered Justice,” Philosophy and Public Affairs 19, no. 3 (1990).Google Scholar One might even argue that Elizabeth Anderson must have a way of developing such an account, given her arguments for affording special moral status to all human beings. She writes, for example, that “what matters for moral claims is not equivalent capacities but equally important interests.” See Anderson, Elizabeth “Animal Rights and the Values of Nonhuman Life,” in Animal Rights: Current Debates and New Directions, ed. Sunstein, Cass and Nussbaum, Martha (New York: Oxford University Press, 2005), 281–82.Google Scholar

33 Presumably this is a benefit that most students accrue over their years in standard schooling environments. Having a diverse set of teachers and school administrators pay attention to one’s interests (and even better, care about those interests being met), can help one’s life to go better than it otherwise would, in numerous ways.

34 Harry Brighouse and Adam Swift, “Putting Educational Equality in its Place,” Education Finance and Policy (2008), 447, my emphasis. It is worth noting that this principle is not always stated negatively. See Swift, How Not to Be a Hypocrite: School Choice for the Morally Perplexed Parent (London: Routledge, 2003): “The kind of equality of opportunity we’re talking about is meritocratic: people with the same level of merit — IQ + effort — should have the same chances of success” (24).

35 John Rawls Justice as Fairness: A Restatement (Cambridge, MA: Harvard University Press, 2001), 51 and 161.

36 Harry Brighouse, School Choice and Social Justice (Oxford: Oxford University Press, 2000), 117–18. See also Koski, William S. and Reich, Rob “When ‘Adequate’ Isn’t: The Retreat from Equity in Educational Law and Policy,” Emory Law Journal 56, Issue 3 (2006): 547–617.Google Scholar

37 Relatedly, Koski and Reich have argued that unequal distribution of education can inflict dignity harms on students (ibid., 606). The profoundly cognitively disabled cannot experience, from their own perspective, the sorts of dignity harms that Koski and Reich are concerned to describe. But it can still be true that the state would express unequal concern for its citizens with unequal educational distribution, and that in doing so the state would be failing to observe a basic requirement of its democratic legitimacy. Whether this is the case depends on whether there are justice-related reasons for doing so, and whether those reasons are publicly understood.

38 Satz, “Equality, Adequacy, and Education,” 630. Of course, Satz is narrowly concerned with student ability here, whereas my discussion is more broadly concerned with general flourishing.

39 Brighouse and Swift acknowledge the point.

40 Since the primary subjects of any principle of educational justice will be children, who have as yet undeveloped or undetermined levels of talent and motivation, proponents of the meritocratic view often advocate policies that aim for equal prospects for all children. Children with profound cognitive disabilities throw a wrench into this strategy, however, as it is sometimes clear that they will not have the same kind, or levels, of talent and motivation that are possible for non-cognitively-disabled children.

41 This idea is developed in Wolff and de-Shalitt, Disadvantage (Oxford: Oxford University Press, 2007). Consider also Christopher Jencks’s discussion of the view that genetic disadvantage and social disadvantage are equally morally arbitrary, in the context of deciding how to distribute educational resources: Jencks, Christopher “Whom Must We Treat Equally for Educational Opportunity to be Equal?” Ethics 93, no. 3 (1988): 522–24.Google Scholar And of course, the luck egalitarian literature expresses the idea that natural and social disadvantages are equally morally arbitrary when not the result of one’s free choices. See for example Dworkin, Ronald, “What Is Equality? Part 2: Equality of Resources,” Philosophy and Public Affairs 10, no. 4 (1981): 283–345.Google Scholar

42 Amy Gutmann provides an example of this sort of principle, without endorsing it of course, in Democratic Education, 128.

43 As an aside, I take it as a further advantage that the Meritocratic Equality Principle allows space for discussion about the possibility of providing gifted and talented programs. The programs may well enhance the flourishing of the gifted and talented (as children and as the adults they will become), but also allow for additional benefits to redound to the least advantaged, by the extra productivity of the gifted and talented when they receive special educational goods. A threshold distributional principle that demands that some level of educational goods be provided so that each person could achieve some threshold level of well-being, would not fare better than the Meritocratic Equality Principle because (i) it would still suffer from bottomless pit problems, and (ii) it would not be able to identify flourishing above the threshold as relevant from the perspective of justice, as in the case of the gifted and talented.

44 John Rawls, A Theory of Justice, rev. ed. (Cambridge, MA: The Belknap Press of Harvard University Press, 1999), 84. Further, congenital, profound disability is elsewhere described by Rawls as a natural limitation that is properly the subject of nonideal theory. See Rawls’s discussion, ibid., 215–20. See also helpful analysis of Rawls’s nonideal theory in Simmons, A. John, “Ideal and Nonideal Theory,” Philosophy and Public Affairs 38, no.1 (2010): 5–36.Google Scholar Under nonideal conditions, justice might make quite different demands than it does under ideal circumstances. With respect to the seriously cognitively disabled, for example, paternalist responses may be warranted when they would not be in cases of non-cognitively disabled adult citizens.

45 A good example is the debate between Martha Nussbaum and Henry Richardson. Martha Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership (Cambridge, MA: Belknap Press of Harvard University Press, 2007). Henry S. Richardson, “Rawlsian Social Contract Theory.”

46 Allen Buchanan “Justice as Reciprocity,” 230.

47 Interestingly, Buchanan describes Rawls as developing a subject-centered view.

48 Legal responsibility for the identification of a child’s disability, and the burden of defending children’s educational rights, has fallen on parents, giving them extensive influence over the distribution of educational opportunity to disabled children. See Education for All Handicapped Children Act 1975. Hendrick Hudson School District v. Rowley, 458 U.S. 176 (1982) emphasizes the role of parental involvement in protecting the educational interests of disabled children (in that case, a deaf child): “As this very case demonstrates, parents and guardians will not lack ardor in seeking to ensure that handicapped children receive all the benefits to which they are entitled by [EAHCA]” (section 5, para 31). See also Colin Ong-Dean, Distinguishing Disability: Parents, Privilege, and Special Education (Chicago: University of Chicago Press, 2009) for an analysis of how this placement of responsibility has led to inequitable results in educational provision for disabled children.