Epstein on Dept. of Education, Sports, and Disability

Another Misadventure from the Department of Education
Richard A. Epstein
January 25, 2013

Since 1973, a variety of federal laws banned federal aid to any state whose school systems discriminate against certain individuals on grounds of their disabilities. I have always been opposed to the general operation of these laws on multiple grounds. The unbridled use of federal power leaves too much discretion in the hands of government officials to define what counts as discrimination, without bearing any direct financial responsibility for the requirements that they impose.

Just this unfortunate dynamic is at work again in the latest publication from the Department of Education, which requires all schools to open all sports programs to persons with disabilities, or to create alternative programs in which they can participate. The DOE’s latest offensive begins with the usual puffery from Secretary of Education Arne Duncan, who exults:

Sports can provide invaluable lessons in discipline, selflessness, passion and courage, and this guidance will help schools ensure that students with disabilities have an equal opportunity to benefit from the life lessons they can learn on the playing field or on the court.

His announcement is then followed by heartfelt endorsements from the various groups that have championed this venture. What is wholly lacking is any well-rounded examinations of the pros and cons of these newest adventure. That lack of balance is no accident, but is in large measure a function of the dubious procedures used to make this announcement—procedures that have become a regrettable hallmark of the modern administrative state.

Richard A. Epstein