Recommended Reading: Recent Special Education Law Scholarship

Filed in Recommended Reading by on January 8, 2014 0 Comments

kate-greenwood_high-res-2011-compI put Karen Syma Czapanskiy’s article Special Kids, Special Parents, Special Education, which is forthcoming early this year in the Michigan Journal of Law Reform, on my To Read list when she  blogged about it (here and here) back in August.  This week, I finally read it, and I am glad I did.  In the article, Professor Czapanskiy sets forth her belief that the special education system should be made more “more parent-friendly or parent-oriented, particularly in terms of supporting parental competence and conserving parental resources.”  To that end, she suggests three reforms, one of which struck me as particularly thought-provoking.

As Professor Czapinskiy explains, despite the Individuals with Disabilities Education Act’s (IDEA’s) requirement that students with disabilities receive individualized education programs, school systems “have standardized approaches to educational plans for children with particular issues[,]” approaches that are “well-known to school employees with special education responsibilities and to other repeat players[,]” but not to parents.  Professor Czapinskiy argues that standardization itself is not necessarily problematic and in fact has much to recommend it.  Done right–that is, democratically and transparently–standardization would reduce the burden the current system imposes on parents and have a number of other salutary effects.  The most compelling potential effect, I think, is that standardization could reduce inequality, because “[t]he only way to achieve the gold standard for one child would be to successfully advocate for a gold-standard for all children with similar conditions.”

Moving from the current individualized, private process to a standardized, transparent one would have myriad potential implications for school districts, including, potentially, affecting their exposure to liability.  In his interesting article, IDEA Class Actions After Wal-Mart v. Dukes, which is forthcoming in the University of Toledo Law Review, Mark C. Weber predicts that, in response to Wal-Mart v. Dukes, in which the Supreme Court overturned the certification of a class of female employees alleging sex discrimination in employment, special education litigants will, among other things, “fram[e] classes around specific system-wide policies[.]”  Professor Weber writes:

“One can easily imagine that plaintiffs in a case alleging violations of IDEA child-find will try to find an email or other directive telling teachers not to refer children for evaluation, or not to refer them after a certain point in the school year.  Similarly, they may look for evidence of a quota system for referrals, or a system by which an administrator in no position to make informed, individualized determinations has to approve referrals.  Or plaintiffs might seek evidence that teachers receive bad evaluations or are penalized in some other way if they make too many requests that children be evaluated for special education.”

Of course, none of this digging would be necessary if the plaintiffs were up against a school district that adopted a standardized program in a formal and transparent manner, as recommended by Professor Czapanskiy.  Such a district could, therefore, be more vulnerable to a class action suit.  This would be mitigated to the extent that standardization reduced the large number of individual suits that are currently brought challenging students’ education programs.  As Professor Weber notes, the IDEA is “no small source of business for the federal and state courts.”

Those interested in the issues Professor Czapanskiy and Weber discuss will likely also be interested in Joanna Birenbaum and Kelly Gallagher-Mackay’s article From Equal Access to Individual Exit: The Invisibility of Systemic Discrimination in Moore, which came out last year in the Journal of Law & Equality.  In their article, Birenbaum and Gallagher-Mackay analyze a 2012 decision of the Supreme Court of Canada upholding an award of monetary damages to parents who were told by their son’s principal and by representatives of the school district that “if they wanted [their son] to read and write at a level necessary for functional literacy, the only option was to enroll [him] in private school[.]”  The parents did as recommended, and paid for private school out-of-pocket “from grade four until graduation in grade twelve[.]”  While the Supreme Court upheld the parents’ damages claim against the school district, it rejected their claim against the province of British Columbia for “fail[ing] to properly fund, support and monitor special education[.]”  The Court also overturned “all the systemic remedies ordered by the Tribunal against the Province and the District.”  Birenbaum and Gallagher-Mackay find this aspect of the Court’s decision dismaying, arguing that “systemic discrimination calls for systemic remedies, consistent with the substantive equality purposes of human rights legislation.”  They acknowledge that the prospect of individual damages awards can in some circumstances motivate systemic change, but argue that “it is unclear how the individual remedy of compensation for private school tuition will achieve the systemic equality result of meaningful access to public school education for children with learning disabilities.”  In addition to being “unlikely to foster comprehensive change”, they contend, the Court’s limited remedy “may undermine substantive equality if school boards decide it is cheaper to pay damages to the squeaky wheels than to fix the system.” 

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