In the town of Howell, Michigan, Andrea Lee has been trying to secure special education resources for her children through lawsuits. According to local reporting, she’s filed “more than two dozen complaints and four legal grievances over the Howell Public Schools’ treatment of her three children with disabilities.” Special education policy in North Carolina’s Cumberland County is also being determined by way of lawsuit: A new lawsuit claims that the county’s school district “systematically violated federal disability law by delaying special education evaluations for children who showed clear signs of needing help.”

The Individuals with Disabilities Education Act (IDEA), after all, makes it so that special education policy is essentially created lawsuit by lawsuit. It puts mandates in place and then, according to Miriam Kurtzig Freedman in the University of Chicago Law Review, sets up “an adversarial private-enforcement system for the rights it created.”

IDEA also ensures that special education starves school districts of funds. Districts in Wisconsin have to spend large amounts of money on special ed—but the state government won’t be reimbursing them fully for what they spend. Wisconsin school districts face a budget shortfall of $140 million this year. School districts must pay for special education, but neither the federal government nor the state governments need to reimburse them for this unfunded mandate.

IDEA’s legal requirement that states and Local Education Agencies (LEAs) provide adequate special education is neither funded nor explicitly defined. This has led to the provision of special education services determined ad hoc by lawsuit rather than consistent policy at the federal, state, or local level. Even if Congress converted current federal special education spending into a formula block grant to the states, they would retain IDEA’s unfunded mandates on the states and LEAs and its incentives toward government-by-lawsuit. They would also retain the perverse practical consequence of skewing special education payments toward better-off families since they are the ones who can afford to sue school districts.

Federal special education subsidies already provide an incentive for states and LEAs to define students as needing special education so that they can receive more federal money: As Judy Jankowski, head of Chesapeake Bay Academy, has noted, “In 1975, 8% of the school aged population was identified as having a disability as demonstrated by the number of students receiving Individualized Education Plans (IEP’s). In 2021-2022, 15% of students had an IEP.”

Fear of lawsuits has also led states and LEAs to expand special education spending. IDEA’s requirement that states and LEAs keep special education students in regular schools as much as possible—in the “Least Restrictive Environment”—compounds the costs it imposes. Providing special education in every school is far more expensive than providing it in a smaller number of specialized educational institutions. There is substantial evidence that special education funding is crowding out regular public education spending.

The federal commitment to special education must be reformed. This will require more than reforming the United States Department of Education (ED) or even eliminating ED and transferring special education to, say, the Department of Health and Human Services. Proper reform also requires revising the Individuals with Disabilities Education Act so that it no longer imposes unfunded and undefined mandates on state and local governments. The federal government must support special education properly—and not simply delegate responsibility for special education to the states and LEAs.

Project 2025 proposes transforming IDEA spending into portable individual savings accounts for parents of children with special education needs. This reform probably would entail removing the IDEA’s unfunded mandates to LEAs, but Project 2025 does not explicitly call for this measure. Miriam Kurtzig Freedman has called for removing the lawsuit portions of IDEA, which turns parents and school districts into adversaries.

The National Association of Scholars, more modestly, has called for delimiting IDEA’s unfunded mandates, and therefore limiting the financial burdens on states and LEAs.

IDEA currently commits the federal government to pay 40% of states’ average per-pupil special education expenditure. The federal government has never met this commitment. IDEA should be revised to require states and LEAs to match federal special education expenditures that they receive at a 3:2 ratio, but not to legally require them to spend more. The federal government’s current 40% commitment, in other words, should provide a cap to the mandate for special education funding.

All of these suggestions are broad outlines for IDEA reform. What they share is a realization that while education reformers should start in Washington, they must reform the aspects of IDEA that have turned state and local special education into a tangle of unfunded mandates, incentivized lawsuits, and turned parents, school districts, and states into courtroom and political adversaries.

Americans are a compassionate people who have rightly committed themselves to providing special education. But as it currently functions, IDEA is no kindness to anyone. Americans must reform IDEA to remove its myriad local fiscal, bureaucratic, and judicial dysfunctions. Common-sense reform of America’s system of special education is a task that must be addressed by our generation.