School Districts and Families Under the IDEA: Collaborative in Theory, Adversarial in Fact

Abstract

To read the Individuals with Disabilities Education Act (IDEA) is to be impressed with the ambition and promise of special education. The statute guarantees disabled students a "free appropriate public education" (FAPE) in the "least restrictive environment." At the core of this guarantee lies an entitlement for the parents of a disabled child to collaborate with teachers and school administrators to craft an educational program that is both tailored to the child's unique needs and designed to help her make progress in her education. This entitlement, and the IDEA generally, represents an enormous advance for children with disabilities--a community that, for generations, passed through school with minimal learning, or worse, were excluded from school altogether.[...] This article highlights the myriad forces that impede the realization of the IDEA's goals. Part II gives an overview of the history of special education and the special education process under the IDEA, particularly as it relates to the cooperative development of an individualized education program (IEP) for a disabled child. Part III examines features of the special education process that operate to the systematic detriment of parents, particularly low-income parents, and prevent them from securing an "appropriate education" for their children. I am not the first to note ways in which parents are at a disadvantage both in negotiating with, and litigating against, school districts. What Part III does is assemble these critiques and add one that has not received attention: the ability of some school districts to obtain insurance to cover their litigation costs should parents sue them under the IDEA, and the effect that this insurance has on the special education process. Part IV concludes with an overview of recent scholarly suggestions for improvement and observations based on my experience practicing special education law.