Wednesday, February 3, 2010

Is Special Ed Too Litigious or Not Litigious Enough?

Courtroom One GavelImage by Joe Gratz via Flickr

The number of due process hearings in special ed disputes has increased nationwide over the last two decades. This link is to a article discussing the topic. The article quotes Professor Perry Zirkel for some of the reasons for the increase, including the recognition of autism and ADHD as disabilities for purposes of eligibility.

I have great respect for Professor Zirkel and I generally agree with him. One area where we differ, though is whether the special ed hearing system is overlegalized, as he contends. I contend that in the ten busiest jurisdictions, the system probably is overlegalized. In other places, especially in rural or isolated areas of the country, however, I think that the system is underlegalized. I am active in ACRES, the rural special education organization, and many of their members agree with me on this point. There are many places where parents, and sometimes even school districts, cannot find a lawyer familiar with special ed law. As the article above suggests, the income of the parents may be the best indicator of whether they can assert their rights under the procedural safeguards.

I don't think that increasing the number of due process hearings is a goal, but if the problem is that there are parts of the country where legal representation is unavailable, that is not healthy. Similarly, if there are people not assessing procedural safeguards because they are not wealthy, maybe we should design a new and different system.

What has been your experience? What do you think?

Reblog this post [with Zemanta]


  1. I agree that we need a system that doesn't rely on huge expenditures to secure "F"APE. In my district, it's my perception that they hold out to see if parents can afford to fight them in many cases.

    That said, I wanted to share a joke that was told in the SPED law series from Suffolk University on iTunesU (great listen if you like that sort of thing):
    Q: Why are there so many unresolved disputes in the world?
    A: Not enough lawyers.

    I think that sort of sums up your point, and yes, safeguards are just that, but if no one can enforce them, what are they worth?

  2. Thanks MC

    That isn't the funniest lawyer joke, but your point is well taken.


  3. I have disabilities, guessed on my GED, am poor, too. But if I can represent my son's educational interests, just about any parent can without an attorney too in an administrative due process hearing (and 2nd tier appeal if your state still has one).

    My son is now 19, a disabled adult with a notice of appeal in the Third Circuit, Philly, pro se/in need of an attorney; some people are unable to represent themselves when their parents can no longer when they come to the age of majority.

    Since more than 70% of disabled folks were unemployed before the great recession, maybe there has not been enough litigations...

  4. Thanks Anon,

    I appreciate your comment.