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December 01, 2000

Ensuring Access to the Legal System - Human Rights Magazine, Winter 2000

Ensuring Access to the Legal System for Children and Youth with Disabilities in Special Education Disputes

By Lilliam Rangel-Diaz

One of the most crucial issues affecting the disability community relates to children and youth with disabilities and their parents: the lack of adequate access to our legal system. As children and youth with disabilities are denied the free and appropriate public education they are entitled to, their parents face many challenges and obstacles placed by a recalcitrant system of education that has had a long-standing history of not being held accountable. While school boards have funds provided by taxpayers’ money to pay for attorneys to defend them against parents who dare advocate for their children’s access to the free and appropriate public education they are entitled to, parents do not have the same resources. Few experienced attorneys are available to represent students with disabilities and their parents in special education advocacy cases. Few others are even willing to attempt the job.

Why is this important? Until 1975, children with disabilities did not have a right to a public education; they were usually kept at home or institutionalized. In the early seventies, two court decisions, Pennsylvania Association for Retarded Children v. Pennsylvania (334 F. Supp. 1247 (E.D. Pa. 1971)) and Mills v. Board of Education of the District of Columbia (348 F. Supp. 866 (D. D.C. 1972)) recognized that children with disabilities are guaranteed an equal opportunity to an education under the Fourteenth Amendment of the U.S. Constitution. These two court cases were filed through the efforts of parent advocates and were based on the equal protection arguments used in the landmark desegregation case of Brown v. Board of Education (347 U.S. 483 (1954)).

In 1975, as a result of these court cases, Congress enacted the Education for All Handicapped Children Act (Pub. L. No. 94-142). This federal law provided children and youth with disabilities with a federally protected civil right to a free and appropriate public education for the first time. This law was amended in 1990 and its name changed to the Individuals with Disabilities Education Act (IDEA). IDEA was amended and reauthorized by Congress in 1997 (20 U.S.C. § 1400 et seq.). Its final regulations were issued in May 1999 and can be found at 34 C.F.R. § 300 et seq. Children and youth with disabilities are also protected by section 504 of the Rehabilitation Act (29 U.S.C. § 794(a) (1973), 34 C.F.R. § 104 (1990)) and Title II of the Americans with Disabilities Act (42 U.S.C. § 12101 et seq. (1990), 28 C.F.R. § 38.130 et seq.). However, these laws have not been adequately implemented or enforced as they relate to students with disabilities. The result is that such children and youth rarely have access to the free and appropriate public education guaranteed to them.

Delineating the Problems: A New NCD Report

The National Council on Disability (NCD), the independent federal agency charged with providing the president and Congress with policy guidance and recommendations on issues related to people with disabilities, recently conducted an independent analysis of the federal monitoring and compliance enforcement with IDEA. Its findings and recommendations can be found in a report entitled Back to School on Civil Rights: Advancing the Federal Commitment to Leave No Child Behind, soon to be officially released in January 2000. The NCD finds "that federal efforts to enforce the law over several Administrations have been inconsistent, ineffective and lacking any real teeth." (National Council on Disability, Back to School on Civil Rights: Advancing the Federal Commitment to Leave No Child Behind, at 4 (Nov. 1, 1999, draft).) The findings in this NCD report show that "every State is out of compliance with IDEA requirements to some degree; noncompliance persists in some States over many years." ( Id. at 6.) Despite the states’ lack of compliance with federal laws, which results in the discrimination and segregation of children and youth with disabilities, the U.S. Department of Education has continued to provide state educational agencies with federal dollars that continue to be misused under the pretense of providing a free and appropriate public education to students with disabilities in their least restrictive environment.

The NCD further finds that "[t]he Department of Education has made extremely limited use of sanctions such as withholding of funds or referrals to the Department of Justice, despite persistent noncompliance in many States." ( Id.) As a result of this lack of accountability, almost twenty-five years after the initial passage of IDEA, the educational outcomes of children and youth with disabilities remain dismal. They are overrepresented in the juvenile and adult correctional systems, particularly those from poor and diverse cultural backgrounds. "Significantly, many, and perhaps most, of the children in the juvenile justice system have educational disabilities . . . ." (Joseph B. Tulman and Marcy C. Hynes, "Enforcing Special Education Law on Behalf of Incarcerated Children: A Blueprint for Deconstruction," 18 Children’s Legal Rights Journal (Summer 1998).) According to the National Organization on Disability/Harris 1998 Survey of Americans with Disabilities, youth with disabilities have the largest dropout rate in the country (14.8 percent); 20 percent of adults with disabilities have not completed high school, as opposed to 9 percent of adults without disabilities; only 29 percent of adults with disabilities work full- or part-time, as opposed to 79 percent of adults with no disabilities; and 72 percent of the unemployed adults with disabilities would prefer to be working.

"Both IDEA and Section 504 require schools to make a free and appropriate public education . . . available to every child with a disability—regardless of the nature or severity of the disability—in the least restrictive environment (LRE)." (National Council on Disability, Back to School on Civil Rights, at 24.) This means that children and youth with disabilities, regardless of their disability, have a right to education in a regular classroom in the school they would attend if they did not have a disability, i.e., their neighborhood school. This education is to be provided with the support and services they need to meet their individual educational needs, providing them with meaningful access to the general education curriculum alongside their nondisabled peers.

In theory, this access is implemented through an individual educational plan (IEP), which is reviewed at least on a yearly basis. The IEP is the core of special education and is the single most important document in the educational life of the child. Parents must be active participants in developing their child’s IEP because they bring to the IEP meeting important and unique information regarding their child. Students also are active participants in developing their IEP, starting their contributions at an appropriate age, but no later than at sixteen. Schools are also required to invite youth with disabilities to participate, together with their parents, in developing their individual transition plans (ITP). This oftentimes will begin as early as age fourteen. The ITP is the plan developed to provide the student with individual services so that he or she may successfully transition from school to higher education, employment, and independent living.

According to the 1994–1998 Office of Special Education Programs of the Department of Education, 80 percent of states are out of compliance with the free and appropriate public education requirement, 78 percent of states are out of compliance with the procedural safeguards requirement, 72 percent of states are out of compliance with the least restrictive environment requirement of IDEA, and 88 percent of states are out of compliance with the transition requirement of IDEA. ( Id. at 81.)

Bitter Realities, Including Limited Legal Access

Instead of meeting the statutory requirements, public school systems are systematically segregating students with disabilities in schools and discriminating against them by placing them in separate educational classrooms outside of their neighborhood schools and away from nondisabled children. In these "special" classrooms, the children and youths are provided with a watered-down curriculum. To the lucky ones who have not been driven out of the schools in sheer frustration and/or into the correctional system, the public schools award a "special ed" diploma or certificate of completion. Then we expect them to be ready for the real world. The cruel reality is that they are not. We have certainly not cured their disabilities, nor have we provided any semblance of a real education. They still have disabilities, and we have left them illiterate to boot. They leave our schools with no education, no employability skills, and no knowledge of their rights as they enter the adult world.

The few students with disabilities who get better results are the ones whose parents doggedly fight for their children’s statutory rights. With limited access to the legal system, these parents’ advocacy for their children is a long and uphill battle. In many cases, it is nearly impossible to achieve what has been guaranteed by law. The irony, of course, is that the Department of Education talks about "empowering" parents and then undermines their efforts at every turn. And if the students and parents are poor, or from non-English-speaking backgrounds, the issues of discrimination, disempowerment, and lack of access to the legal system are even greater.

The NCD report confirms these failures. It states that "enforcement of the law is falling on the backs of parents who too often must invoke formal complaint procedures, including expensive and time-consuming litigation, to obtain the services and supports to which their children are entitled under the law." ( Id. at 6.) It goes on to say that "many parents, particularly parents with limited resources, are unable to challenge violations successfully when they occur. Even parents with significant resources are hard-pressed to prevail over local education agencies when these agencies and/or their publicly-financed attorneys choose to be recalcitrant." ( Id.)

Effective lay advocacy does work, and when this level of advocacy is available early on in the special education process, children and youth with disabilities have a greater opportunity to access the free and appropriate public education they are entitled to in the least restrictive environment—and can ultimately achieve the educational outcomes intended under IDEA. Advocates can successfully reduce the tensions between an educational system that is not held accountable for the educational outcomes of its students with disabilities and the parents who are frustrated from trying to ensure that their sons and daughters achieve some level of acceptable success. Many problems can be and are addressed. However, efforts must be made to fund and develop a greater number of lay advocates who could help parents fight effectively for the rights of their children to a free and appropriate public education under IDEA.

At times more than lay advocacy is needed. It is a constant frustration that legal representation is very often unavailable for special education cases. Our democracy is based on a system of laws that is supposed to be enforceable. It is designed so that attorneys will help to enforce those laws. When a group of people are cut off from having equal access to the legal system, we no longer have democracy.

While I do not have all the answers as to why attorneys are rarely interested or trained in special education law, I suspect that part of the reason is that these cases are labor-intensive, often take a long time to resolve, can be very costly, and not enough public resources are available to assist parents in special education representation. Although IDEA has a provision to award reasonable attorneys’ fees to the parents of a child with a disability (20 U.S.C. § 1415(i)(3)(B)), attorneys’ fees are only awarded if the parents are the prevailing party and, of course, at the conclusion of all appeals. Meanwhile, the school board attorneys continue to collect their fees, paid with taxpayers’ moneys, throughout the life of the case.

Another obstacle that students with disabilities and their parents face in attempting to gain equal access to our legal system is the lack of clarity regarding the availability of damages for violations of IDEA. This has been pointed out by a number of observers. "The law on the availability of damages for violations of the Individuals with Disabilities Education Act (IDEA) rights, whether under IDEA directly or in an action linking IDEA to § 1983, is in a state of flux and confusion." (Joseph B. Tulman and Joyce A. McGee, Special Education Advocacy under the Individuals with Disabilities Education Act (IDEA) for Children in the Juvenile Delinquency System (1998).)

While we recognize that "IDEA has produced important improvements in the quality and effectiveness of the public education received by millions of American children with disabilities" (National Council on Disability, Back to School on Civil Rights, at 5), we also recognize that twenty-five years is a long time in the life of a child. It is clearly time that our students with disabilities and their parents gain the access, the educational outcomes, and the procedural safeguards that were promised to them twenty-five years ago. If enforcement of IDEA will continue to fall on the backs of parents, then parents must be given adequate tools to achieve enforcement.

A List of Solutions

Rather than end on a note of negativism, I think it best to look forward to the things that we can do to make the system work better. The following list will hopefully provide some concrete suggestions that policymakers, legislatures, and other institutions can act upon.

1. States should be held accountable for the dismal educational outcomes of children and youth with disabilities. Under the premise that behavior without consequences does not change, state and local education agencies should pay financial consequences for their behavior whenever the rights of students with disabilities and their parents are violated under the federal laws enacted to protect the students and to educate them.

2. A greater number of lay advocates, funded with public dollars, should be trained and made available to children and youth with disabilities and their parents.

3. Law schools should provide their students with opportunities to become familiar with education disability laws and encourage the pursuit of expertise in this field.

4. The American Bar Association, through its Put Something Back Proj-ect, should provide students with disabilities and their parents with pro bono special education legal representation by providing their participating attorneys with opportunities to gain special education advocacy expertise.

5. IDEA should be amended to clarify if and when damages for violations of IDEA rights are available.

6. The president and Congress should embrace and move forward the recommendations made by the NCD in Back to School on Civil Rights: Advancing the Federal Commitment to Leave No Child Behind in an effort to improve the educational outcomes of our children and youth with disabilities and to fulfill the spirit and intent of their twenty-five-year-old civil rights law.

Lilliam Rangel-Diaz is the director of the Center for Education Advocacy in Miami, Florida. She was appointed by President Clinton and confirmed by the U.S. Senate to the National Council on Disability, the independent federal agency that provides advice to the president and Congress on all issues related to children, youth, and adults with disailities.