Asperger’s Syndrome and Eligibility under the IDEA: Eliminating the Emerging "Failure First" Requirement to Prevent a Good IDEA from Going Bad
Establishing a child’s eligibility for services and protections under the Individuals with Disabilities Education Act (IDEA) requires “a difficult and sensitive analysis.” This is particularly true when a child’s family and her school agree that she has a disability that could qualify her for special educational benefits under the Act, but disagree about whether that disability in fact renders her eligible for those benefits. Such disagreements highlight a gap in the federal law that several circuit courts of appeal recently filled with a requirement that children with disabilities who also receive passing grades in school, like many children with Asperger’s Syndrome, “fail first” academically before they may qualify as “a child with a disability” eligible for services and protections under the Act.
This Article is among the first to consider the Asperger’s Syndrome example in the context of these decisions. It argues that recent restrictive constructions of regulatory definitions of IDEA-eligible disabling conditions frustrate the purpose of the IDEA, create an unnecessary constitutional vulnerability in the Act, and fly in the face of public policy supporting preparation of “all children with disabilities” not only to get good grades in school, but also for “employment and independent living” as productive citizens in their communities. It also proposes a more inclusive understanding of the phrase “child with a disability” under the IDEA to better serve the statute’s expressed educational and societal goals.