WASHINGTON — The Education Department announced last month that it would transfer oversight of special education to the Department of Health and Human Services. The Department of Justice's Office of Legal Counsel issued a memo in June challenging the Supreme Court's 1999 Olmstead v. L.C. decision, which mandated disability services be provided in the most integrated setting possible.

Robert F. Kennedy Jr. leads the Department of Health and Human Services. Last year, Kennedy stated that children with autism would never write a poem, pay taxes, or hold a job. He later clarified that he was referring to people with "severe autism" or those who are nonverbal. Earlier this year, Kennedy criticized home and community-based services as subject to fraud during testimony to lawmakers.

Selene Almazan, legal director for the Council of Parent Attorneys and Advocates, commented on the transfer of oversight, calling it "a direct, frontal assault on the rights of people with disabilities to live their lives the way that people who nondisabled live their lives." Almazan added, "I can't imagine that as a country, that would be something that we would agree we should go back to." Zoe Gross, director of advocacy at the Autistic Self Advocacy Network, noted, "Many of the things he said autistic people will never do, (special education) is in charge of making sure students with disabilities have the opportunity to do." Gross asked, "Will he execute that faithfully, or does he consider disabled students a lost cause until we find some medical cure?"

The Justice Department memo, issued following a White House initiative regarding homelessness, argued that neither the Americans with Disabilities Act nor Section 504 requires states to provide services in the most mainstream setting. The memo acknowledged that its interpretation of the Olmstead decision is "out of step" with the common understanding. The department stated that legal challenges would likely follow if a state began to provide services in institutional settings. President Donald Trump issued an executive order on homelessness last year that endorsed civil commitment, which involves court-ordered involuntary hospitalization or treatment programs. Trump also directed the Department of Health and Human Services to reduce barriers to institutionalizing people with mental illnesses.

Claudia Center, legal director at the Disability Rights Education and Defense Fund, characterized the memo's implications as "It's dark, and it's awful." Center added, "And I think it's contrary to the majority view in our country. ... It's out of touch with where our society is."

Why It Matters

The transfer of special education oversight and the Justice Department's memo represent shifts in policy regarding the inclusion of people with disabilities. Since the 1960s, legislation and court decisions have aimed to expand support for people with disabilities to attend school with nondisabled peers. Before this period, individuals with mental illnesses or developmental and intellectual disabilities were largely confined to institutions. The 1999 Olmstead v. L.C. Supreme Court ruling determined that segregating disabled individuals who could live in their communities with proper support constituted discrimination and required government agencies to provide services in the most integrated setting possible.