Disabled Education
California Lawyer

Disabled Education

A Critical Analysis of the Individuals with Disabilities Education Act

December 2013

Disabled Education: A Critical Analysis of the Individuals with Disabilities Education Act
by Ruth Colker
New York University Press, 293 pages, $47, hardcover

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One reality resonates about the law passed to ensure that public school children with disabilities get adequate educations: It's not working. Or when it works, it's for white children whose parents have legal sophistication and advocacy skills - along with plenty of time and money to fight through thickets of procedures and appeals.

The first federal special-education civil rights legislation, the Education for All Handicapped Children Act (Pub. L. No. 94-142), was passed in 1975 to remedy the reality that back then U.S. public schools accommodated only one in five children with disabilities.

In 1990, that law was replaced by the Individuals with Disabilities Education Act (20 U.S.C. §§ 400-482), focusing on individual children rather than the category of their conditions - and snagging a catchier acronym. Like the law it replaced, IDEA requires that local educational agencies, teachers, and parents prepare a program tailored to give each child with a disability a "free appropriate public education. (See 20 U.S.C. §1412(a)1(A).)

Disabled Education traces the tests and trials of IDEA, detailing the people and circumstances involved. Most rankling are the contrasts between black and white students: Statistics show that low-income black children with learning disabilities are disproportionately classified as "mentally retarded" or "emotionally disturbed"; white, middle-class children with similar symptoms are deemed "autistic," allowing them entrée into funded programs, where they can be mainstreamed along with their peers. Black students, more often segregated into "special-education classes," are four times as likely to be suspended from school as their white peers.

Courts have provided little help - including the U.S. Supreme Court, called upon several times to clarify disability education laws. Its seminal 1982 ruling that a school need only provide an education "reasonably calculated to enable the child to achieve passing marks and advance from grade to grade" is enduringly misapplied to deny students help. (Board of Education v. Rowley, 458 U.S. 176, 204 (1982).)

Many IDEA cases are pressed by parents who seek reimbursement for private school tuition paid when public school accommodations fall short. For the less affluent, the usual option is to let their children attend public schools until they fail there. Few can navigate the law's flummoxing procedural mandates; many complaints are dismissed for failing to meet the highly specific pleading requirements. Another hurdle is the $5,000 or so cost of the essential psychoeducational evaluations if a school district decides to defend; most do.

Ruth Colker's book begins with a lengthy table defining acronyms used throughout its pages, presaging a less-than-breezy read. But the author, a professor at Ohio State University's Moritz College of Law, knows her stuff from the inside out - having sued her local school district under IDEA to get accommodations for her son, diagnosed early with a hearing impairment. The school district ultimately capitulated, providing the listening devices he needed, but only after a battle involving a lawyer and two expert witnesses.

A few chapters describe states with instructive IDEA experiences: Ohio, Florida, New Jersey, the District of Columbia. California is also covered, chosen because of its word-searchable database of decisions, high litigation rate - especially in cases initiated by school districts - and large numbers of students for whom English is a second language.

Colker's conclusion, that "the odds really seem stacked against parents and their children in California," is borne out by the fact that parents or guardians prevailed in only about a third of the 101 cases she reviewed.

The author heralds no good news for lawyers here, either, finding California "an extraordinarily difficult state in which one might work as a special education lawyer in the hope of earning a living."

Barbara Kate Repa, a contributing writer to California Lawyer, is a lawyer, writer, and editor in San Francisco.

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