Do Court Decisions Shape Special Education? Part II

In the first installment in this series I described a fascinating recent paper by Professor Samuel R. Bagenstos of the Washington University School of Law that concludes that courts do not have much of a role in shaping special education. The paper is available here: http://www.aei.org/docLib/20081010_Bagenstos3.15.08.pdf

His study finds that from 2000 to 2007, an average of only 374 federal lawsuits involving special education were filed per year in the United States. Considering that there about 6.6 million children receiving 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. I'm not sure that the comparison holds even though the disparity is huge. Because I have been a hearing officer for both kinds of cases, I think there are some problems with the direct comparison. First, there are a lot more employees with jobs than there are kids eligible for special ed. All employees have a race and a gender and a national origin. Many others have a religion, are over 40 or have a disability. All of these folks can claim discrimination. It should be expected that there are more opportunities for employees to file a lawsuit. It would be good to see a comparison between the percentage of employees who file and the percentage of special ed parents who file.

Second, those who file an employment discrimination claim with the federal agency, the EEOC, there is an investigation followed by a probable cause finding. Every claimant, whether probable cause is found or not, then gets a letter entitled RIGHT TO SUE with very specific instructions as to how to pursue the claim further in federal court. Special ed parents get no similar notice. Thus the comparison may be flawed because of the instructions to the potential plaintiff after step one.

Despite these differences, however, the numbers found by Professor Bagenstos still are very fascinating. We will discuss further the issues raised by this thought provoking article in future installments.