Amy Rowley is not, after all, entitled to some education assistance she thought Congress had mandated. But her case is educational, teaching how courts routinely serve as second-stage legislatures. Courts say what Congress has said, or meant, about particular entitlements.
In 1975, Congress passed the Education for All Handicapped Children Act, conditioning federal money on state compliance with certain goals and procedures to assure handicapped children "free appropriate public education." What did Congress mean?
Three Supreme Court justices think it meant that Amy, who is deaf, has a right to have a sign-language interpreter in all her classes. But six justices say that if Congress meant to mandate anything that expensive, it would have said so, unambiguously. Therefore, Congress (it may be interested to learn) did not mean what Amy, a lower court, and three Supreme Court justices say it meant.
The court majority went excavating in the legislative history of the act, searching for Congress' intent. The majority noted that the committee report on the bill emphasized that in the early 1970s most handicapped children were totally excluded from schools or were idling away years in classrooms until they were old enough to drop out. Congress mandated "mainstreaming" --educating handicapped children with nonhandicapped "to the maximum extent appropriate." The ringing word "maximum" is muted by the word "appropriate." What, precisely, did Congress mean? Very little, precisely.
Amy's school in an affluent New York suburb sent several staff members to sign-language classes, and installed a teletype machine in the office to facilitate communication with Amy's parents, who are deaf. Amy was given special tutoring and speech therapy. But the school balked at the demand for full-time sign-language interpreting.
A lower court noted that Amy is advancing nicely in school, outperforming the average child in her classes. But the lower court said she understands less in her classes than she would were she not deaf, and thus there is a disparity between her achievement and her potential. Hence the entitlement to "appropriate" education requires the interpreter.
But the Supreme Court majority says that Congress, although "cryptic," evidently was prompted by court cases in the early 1970s concerning basic access to education for handicapped children. So Congress established only an entitlement to education sufficient to "benefit" a child --not sufficient to "maximize potential."
The dissenters stressed the word "full" in Congress' reference to "full educational opportunity." They charged the court's majority with saying that any education that benefits a handicapped child satisfies the requirement of "appropriate" education.
There is a rhythm to the evolution of America's welfare state. Congress enacts an entitlement program in which crucial terms are, inevitably, somewhat undefined. During hearings and debates, congressmen and senators naturally express themselves generously regarding what they hope the law will accomplish. Later, activists look for promising cases to litigate, hoping that courts will construe the legislators' expressed hopes as the implied legislative intent. Then when a court defines (as the Supreme Court has done) a practical limit of Congress' intent, activists know where they need to seek to enrich the act in a second effort in Congress, or in litigation involving different particulars.
This is a process of overreaching in order to convince legislators that a group is underserved. But activists cannot control the process because they cannot control decisions to litigate.
Many activists in the field of education for the handicapped regretted the coming of Amy's case to the court. Compared with most handicapped children, Amy is well served. A more typical and sympathy-stirring case might have caused a court majority to construe the act more broadly. But litigation is most likely to arise from affluent, educated, competent, confident families who are not most in need. Activists energizing this dialectic between the legislative and judicial branches can argue that the welfare state must evolve this way, given the nature of legislative language.
Even were Congress composed of 535 Flauberts, with exquisite intuitions for just the right word, the language of many laws would be open-textured. Language must be, to wrap around particular cases. The 1975 act, for example, concerns handicaps varying from hearing impairment to severe retardation.
Courts are not supposed to be second-stage legislatures, but the U.S. welfare state, with its elaborate agenda of entitlements, has come to depend on courts playing that role. Someone once said: "How marvelous Wagnerian opera would be if all the characters went on strict diets and did not make such loud noise." But Wagnerian opera seems generally to involve fat, noisy people. And America's welfare state seems inseparable from a process whereby Congress legislates sentiments, and courts legislate details.