Thursday, April 13, 2017

Endrew F and The Metaphysics of Special Education Law #metaphysics #Hegel #Paul Simon

We have gotten a robust reaction to the post a while back concerning who won Endrew F? It seems that each side (parents and school officials) still thinks that they won. Why is that?

First, we should probably take a look at special education law.  We have long said here that special education law is closer to metaphysics than it is to 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 probably 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, and we are once again overdue. Then the U. S. Department of Education must promulgate regulations (if that is still a thing in this age), 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. Let's just say that our "rules" are a little fuzzy around the edges.

Is the slipperiness of special education law what is behind the fact that both sides embrace a unanimous Supreme Court decision as supporting their own position? Is the concept of FAPE so elusive that it cannot be defined? Is it like what Justice Potter Stewart said about pornography- I can't define it, but "...I know it when I see it." Jacobellis v Ohio, 378 U.S. 184 at 197 (Stewart, J concurring)?   Is it like my authority as a hearing officer- where I claim that "my powers are beyond your comprehension? Could this be the explanation? Or maybe it is something else?

Maybe it really is metaphysics?  Could the reaction to Endrew F be an example of what Hegel described as "consciousness determines perception." See, G.F.W. Hegel, "The Phenomenonology of Mind." Does the side your on affect how you read the caselaw? This concept was stated somewhat more poetically by song writer Paul Simon in the lyrics to "The Boxer," "A man sees what he wants to see and disregards the rest." Is that what is going on with the interpretations of Endrew F? I'm not sure. We all have some biases that affect how we view the world. We try to control these biases, but the mind can be a difficult thing to know. Are we all seeing just what we want to see? Or not?

Could this be an example of the deep division in our society today? Culturally, politically, racially and by gender and region, we are divided. We now even work from differing "facts." Is the divide between parents and school officials, especially in the five states that have 90% of due process hearings, so strong that we see different court decisions on the same pages? This would be bad if IDEA is meant to be a collaborative process between parents and school officials. Schaffer v. Weast 546 U.S. 49, 126 S.Ct. 528, 44 IDELR 150 (2005). Or maybe not? We were able to unite all eight generally divided justices in one unanimous opinion so this cannot be a liberal-conservative thing, can it? 

So what explains the discrepancy? Once again, I have many questions and few answers. What do you think?


  1. In my opinion, especially as it relates to IDEA and Special Education, we are unitedly striving for the students. So we all feel like we won; the school district side feels like they were validated that they already are seeking better than minimum progress. I think all schools would agree to that. And the side of the family was acknowledged that 'minimum progress' is not enough. This will propel the expectations going forward.