Tuesday, December 10, 2013

Systemic Relief and IDEA Class Actions

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Our good friend Professor Mark Weber has a new law review article.  He is one of the true thinkers in the area of special ed law, and his articles are always a good read.

This time he tackles class actions, specifically the effect of the recent Supreme Court decision in Wal Mart upon IDEA class actions. The Wal Mart case involved employment discrimination and placed higher barriers to class certification.  His article tracks the somewhat different approaches of the Seventh and DC Circuits in applying Wal Mart to IDEA class actions.

To me though the most interesting part of the article involves how to redress systemic violations of IDEA. Class actions may still be a viable method as Professor Weber points out, but if courts erect more barriers to class actions, what will be the remedy for systemic violations of IDEA? 

Most states do not allow systemic issues to be raised in due process hearings.  But as Professor Weber points out states are required to have state administrative complaint procedures. 34 C.F.R. §§300.151-300.153. These procedures are supposed to be available for challenges to systemic issues.  Independent Sch Dist No 281 v Minnesota Dept of Educ 48 IDELR 222 (Minn Ct App 2007) See, Letter to Douglas 35 IDELR 278 (OSEP 4/19/2001); OSEP Q & A Document on Dispute Resolution Procedures 61 IDELR 232 (OSEP 7/23/2013) (See Question B-9) 

I'm wondering how well the state complaint procedures address these systemic issues in the states.  Look for a new weekly Monday question on this topic as we seek to gather some data.  More on this later.

In the meantime, be sure to read Professor Weber's thought-provoking article.  If you like special education law, you can and should read it here.

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