A recent paper by Professor Samuel R. Bagenstos of the Washington University School of Law challenges this argument. Among his conclusions are what he calls an empirical finding that courts do not have much of a role in shaping special education. The paper is available here:
The study finds that from 2000 to 2007, an average of only 374 federal lawsuits involving special education were filed in the United States. Considering that about 6.6 million children with disabilities receive special education nationwide. This number is remarkably low. By way of contrast, the author states that during a one year period ending on March 31, 2007, nearly 14,000 employment discrimination cases were filed in federal courts. As a result, the author concludes that the courts have little effect upon special education. He does mention the possibility of indirect effects, such as, the impact of school officials knowing that hearing officers and courts may be looking over their shoulders, but he concluded that the total effect is minimal.
I find this article fascinating for a number of reasons. I look forward to your response. This is the first of a series discussing some of the issues and concerns resulting from this article.