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Monday, August 20, 2012

How IDEA Fails Families Without Means: Causes and Corrections From the Frontlines of Special Education

From the Journal of Gender, Social Policy & the Law

By Elisa Hyman, Dean Hill Rivkin and Stephen A. Rosenbaum

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NOTE: This is long but important and thought-provoking article. You can--and should--read it in its entirety HERE.

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INTRODUCTION

As a quintessential civil rights issue, the struggle for equal educational opportunity for students with disabilities whose families have few resources is waged daily from the parapets of the Individuals with Disabilities Education Act (IDEA)I, a complex entitlement statute.

Dissimilar to the progress made under the IDEA for their wealthier peers, low-income children are not reaping the educational benefits that effective advocacy has achieved for students with disabilities who can afford determined advocates, skilled counsel, and knowledgeable experts to navigate the highly technical mandates of the statute and corresponding regulations.

Among others, these benefits include identification and certification under the IDEA and Section 504 of the Rehabilitation Act (Section 504); development of an enforceable Individualized Education Program (IEP), with a continuum of services calibrated to the precise needs of each eligible child; rich compensatory services for the failure of school systems to comply with the requirements of a Free Appropriate Public Education (FAPE); provision of focused private education, in a residential setting if appropriate; protections from school discipline, including continuing educational services following more than ten days of out-of-school suspension, and formulation of a staged transition plan to ensure meaningful opportunities upon a student’s departure from the school system.

The data is mounting to support the thesis that students from families without resources are systematically deprived of educational outcomes that would allow them to pursue gainful employment or further educational opportunities. The links between poverty, race, and disability are “well-documented.”

Low-income students with disabilities are more frequently pushed out of public education through punitive discipline, sheer neglect, or other more subtle strategies. Low-income students of color with unidentified educational disabilities are disproportionately referred for prosecution in juvenile court. If scrupulously observed by school systems, and rigorously enforced, the IDEA has the power to stem this phenomenon. The paucity of lawyers and advocates who toil to represent disempowered families and children in special education matters keenly know that the unmet legal needs in this arena are prodigious, and the remedies for this often invisible segment of children are elusive.

In this unequal netherworld, can an entitlement statute such as the IDEA accomplish more for the very children who need the IDEA’s educational services the most?

The obstacles that families without resources face in the IDEA are compounded by the increasingly technical nature of the IDEA and the inability of these families to retain professionals to assist in navigating the intricacies of disability definitions, evaluation processes, the development of IEPs, the complex of procedural safeguards, among other provisions in the statute.

Lack of access to attorneys vastly worsens this plight. This Article does not diminish the power of some parents, of whatever means, compellingly to articulate the needs of their children and to advocate for appropriate services and supports.

This is a democratizing feature of the IDEA that will and should persist. But in the current landscape of retrenchment—at the school system level, in Congress, and in the courts—the more “smart” corrections that advocates and lawyers can formulate, the greater the likelihood that at least some will be adopted when the IDEA is up for its next reauthorization, or enlightened states, through legislation, regulations, or adoption of best practices, will seek to level the unequal playing field that this Article traverses.

This Article will (1) focus on the most salient architectural features of the IDEA that are theoretically designed to protect and assert the rights of all affected children and parents; (2) analyze how these features disproportionately fail children from families without financial resources; and (3) make modest suggestions for improvements to the legal regime under the IDEA. The full agenda for legislative or court adoption that is proposed in this Article may seem infeasible at this time.

But just as the pendulum dramatically swung in 1975 when the IDEA was first enacted, there is hope that, given the country’s increasing focus on improving educational outcomes for all children, humanitarian impulses will inevitably rise again and recognize that all students with disabilities— regardless of their financial status—are entitled to the full benefits of this remarkable remedial law.


"...there is hope that, given the country’s increasing focus on improving educational outcomes for all children, humanitarian impulses will rise again and recognize that all students with disabilities— regardless of their financial status—are entitled to the full benefits of this remarkable law."

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