Thursday, December 4, 2008

Do Court Decisions Shape Special Education? Part III

In the first two installments 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:

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. By 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.

Many of you have had the same reaction to this article that I had. Duh- yes court decisions shape the substantive area of law. In the second installment I challenged some of the conceptual math. The numbers are interesting, but slightly deceptive.

In this installment I want to challenge some of the logic underlying the argument. Some cases have had a dramatic impact on special education. Rowley, the seminal Supreme Court decision, defined the FAPE standard and determined how courts and hearing officers would review IEPs. The Burlington decision allowed reimbursement for unilateral placements as relief. Honig v. Doe found the stay put provision to have teeth. The Garret F decision said that cost is not a defense. Indeed, all of the substantive Supreme Court cases have had a major impact on special education. So do certain appeals court decisions. For example, the bullying and IEP implementation hot button cases can have a major impact upon special ed.

I think the real question involves who is asserting their procedural safeguards, including due process hearings and court appeals. If 80% of due process hearings happen in six states plus Washington DC, maybe justice is not widespread. If as many suspect procedural safeguards are accessed mostly by the wealthiest families, maybe justice is not widespread. So maybe the really interesting question is not do court decisions shape special education, but who is litigating the cases that do shape special education?

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