Monday, August 9, 2010

The Metaphysics of Special Education Law

Land sales contract. Sumerian clay tablet, ca....Image via Wikipedia

I pointed out a few times during my presentations at the recent Wyoming and Utah Special Education Conferences that special education law is a lot closer to metaphysics than it is to, say contract law.

Contract law, and other types of old law, have "hornbook" rules that have been settled for ages. Old lawyers can apply those settled rules to a fact pattern and predict an outcome with reasonable certainty. (Although as one very senior attorney once told me, "anybody who says they know what a jury will do is lying.")

Special ed law, though, is new law. New law being roughly defined as what did not come over on the boat from England. The mid 1970's stuff is brand new law. Especially when you mix in equal parts of social policy and children's rights, the result is less predictable than other fields of law. Pity the fool.

Add to this mix, the never-ending cycle of special education law and things become even less clear. IDEA must be periodically reauthorized by Congress, we are again overdue. Then the feds must promulgate regulations, upon which the public may comment before they are finalized. Then, states develop regs. Soon hearing officer decisions appear followed by court opinions. Just when we become comfortable with the current state of the law, Congress reauthorizes and the process begins again.

So if a lack of ambiguity appeals to you, special education law may not be your cup of tea. (I still think that there must be a Jeff Foxworthy joke in that line, but I cannot find one I can use in a public forum. Any ideas that are fit to print?)

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