I became a special education attorney right out of law school. Like most attorneys in our small field, my decision was personal. I remember my family’s frustration with my brother’s education. He is a year younger than I and has been diagnosed with cerebral palsy (CP), a group of neurological disorders that affect movement. CP, like many disabilities, exists on a broad spectrum. Some individuals are able to move with relative ease; others are virtually paralyzed and require constant supervision for their whole lives. Fortunately, my brother is more the former. At one point, I recall my mother arguing with the school principal about my brother being placed in a room by himself with only a television. He must have been in the second or third grade, and apparently, this had been going on for more than a month with no notification to my parents. The principal told my mom the school did not have the ability to support my brother, and the room with a television was all they could do. This was illegal, but it kept happening.
Every year, my parents would fight with the school for everything, whether it was speech services, accessibility, field trips, or just having him attend class with typical peers. The school district never made it easy and was rarely, if ever, helpful. We still talk about the experience. This was in the 1980s and 1990s, and the issues my family went through then are the same ones that the families I represent go through now. Although there is and was a robust set of federal and state laws requiring schools to provide an appropriate education to all children with disabilities, getting that education can be grueling for families.
The Evolution of Special Education Law
Special education law has come a long way since its inception, from the exclusion of students with disabilities from public schools to the implementation of various federal and state laws that aim to provide equal opportunities for all students.
Prior to the 1950s, children with disabilities were often excluded from public schools and were either institutionalized or educated at home. This really began to change as a result of Brown v. Board of Education, 347 U.S. 483 (1954), the landmark Supreme Court case in 1954 that held segregation in education was unconstitutional. Although not specifically dealing with the education of disabled children, the case paved the way for the Civil Rights Act of 1964, which prohibited discrimination on the basis of race, color, religion, sex, or national origin in all aspects of public life, including education.
Then two cases brought dramatic change for special education students: Pennsylvania Association for Retarded Children [PARC] v. Commonwealth of Pennsylvania, 334 F. Supp. 1257 (E.D. Pa. 1971), and Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 (D.D.C. 1972).
PARC dealt with the exclusion of children with an intellectual disability from public schools. In the subsequent settlement, it was agreed that educational placement decisions must include a process of parental participation and a means to resolve disputes. Mills involved the practice of suspending, expelling, and excluding children with disabilities from the District of Columbia public schools.
Following the PARC and Mills cases, Congress began investigating the education of children with disabilities. The investigation found that millions of children with disabilities were not receiving an education.
This investigation laid the foundation for the first special education law, the Education for All Handicapped Children Act (EAHCA) of 1975. The law mandated that all children with disabilities receive a free appropriate public education (FAPE). The EAHCA required that schools provide individualized education programs (IEPs) for students with disabilities, with a focus on inclusion and integration into regular classrooms whenever possible. This was a major turning point in special education law, as it established the legal right of children with disabilities to receive equal education opportunities.
In 1990, the EAHCA was renamed the Individuals with Disabilities Education Act (IDEA) and was revised to further strengthen the rights of students with disabilities. The IDEA expanded the definition of disabilities to include conditions such as autism and traumatic brain injury and required schools to provide related services, such as counseling and speech therapy. The law also established a due process system for resolving disputes between parents and schools and mandated that students with disabilities be educated in the least restrictive environment (LRE) possible.
The IDEA has undergone several revisions, most recently in 2004, which added several new provisions. These include the requirement for schools to provide early intervention services for infants and toddlers with disabilities and a focus on ensuring that students with disabilities are prepared for post-secondary education and employment. The law also emphasizes the importance of using evidence-based practices and interventions to support the academic and social-emotional needs of students with disabilities.
In addition to federal laws, individual states have also enacted their own special education laws to provide further protections for students with disabilities. For example, my state, California, passed AB 1369 in 2015, requiring schools to provide dyslexia screening and intervention services for students who are struggling with reading.
Despite the progress that has been made in special education law, there are still challenges that need to be addressed. On the federal level, the underfunding of special education is significant. Under the IDEA, Congress promised states that the federal government would provide 40 percent of the cost of special education services. To date, only about 14 percent is being covered, seriously prohibiting states from providing much-needed programs and services to children. On the state level, many parents still face difficulties in accessing services for their children and challenging school district decisions when they disagree with them.
The Difficult Process of Challenging a Child’s Educational Program
In California, when parents want to challenge their child’s educational program and believe that their child’s educational rights are being violated, they can file a due process complaint with the California Office of Administrative Hearings Special Education Division (OAH). An administrative law judge (ALJ) is then assigned to hear the case. The ALJ is intended to be an impartial third party who is trained in special education law and procedures. The ALJ will review the evidence presented by both the school and the parents and render a decision based on the facts of the case.
Special education due process is a critical safeguard for children with disabilities in California and other states. It is essentially the only insurance that schools are appropriately providing for disabled children. Due process provides parents a real and tangible mechanism to challenge decisions made by schools regarding their child’s education and IEP and helps ensure that special needs children receive appropriate services to meet their unique needs. However, the actual process of challenging a school can be daunting.
First, school districts have a massive advantage when parents file a due process complaint. Schools understand the law better than most parents, and they understand educational programming. They have an unlimited supply of money to spend on attorneys and experts, and school staff will rarely, if ever, take a different view than the administration. I cannot count how many times teachers have told me they agree with the parents but are afraid of saying something for fear of retaliation from the administration. This leaves parents with almost no witnesses to support their position, and the expense of obtaining experts is prohibitive.
Second, parents who file a due process complaint are often unrepresented, whereas most, if not all, school districts are represented by very competent private counsel. The IDEA does provide for statutory attorney fees; if a parent prevails in court, the district is required to pay the parent’s attorney fees. While many attorneys in our field do not charge parents, relying instead on the fees-shifting provisions of the IDEA, many do charge up front, given the risk of losing at the administrative hearings. Further, families often don’t know that they should even look for an attorney, or they believe attorneys are too expensive, so they file due process complaints on their own.
Bringing a case to the administrative hearings poses its own risks. Parents prevailed in only 18 percent of the cases heard by California’s OAH in 2019. So, even if parents are able to find an attorney and can afford expert witnesses, they still have only about a 20 percent chance of winning. Essentially, the deck is stacked against parents to such a degree that many choose not to fight schools for the educational programming they know their children need.
To be clear, these families are not seeking large monetary sums. The IDEA does not provide for “damages.” In most cases, parents either are asking the school to make up for services the school did not provide (compensatory education or tutoring) or are asking the school to make changes to their child’s education program (such as an increase in speech services). They are seeking educational supports for their children. They are looking for reading intervention because their child is reading four years below her same-age peers. They are looking for placement in general education, tutoring, and behavioral support—all things we collectively agree special education children should receive under the IDEA.
Causes for Hope
Regardless of the hurdles, we have begun to see some better results for students with disabilities in due process. I think, without question, that parents have become much better advocates for their children over the last ten to 15 years. This is largely a result of social media. In the 1980s and 1990s, it would have been difficult, if not impossible, for parents to understand the IDEA, how it is supposed to be implemented, what rights their children have, or how to challenge an educational setting and services. The information was just not easily accessible. Now, the collective experience of thousands of parents is easily accessible in ways it has never been before. Parents can join online parent support groups and learn about other parents’ experiences in special education. There are online special education trainings available for free to the families of special needs children. Parents can quickly learn not only about the IDEA but also how to better advocate on behalf of their children. They can learn about educational settings and educational programming and services. Parents now come much more prepared to IEP meetings, and it is not entirely uncommon to see parents represent themselves in a due process complaint and be successful.
The representation of special needs children has also gotten better. I asked my mom why she never looked for an attorney when she was dealing with issues with my brother. In fact, I was wrong; my parents had spent several years looking for any attorney who might be willing to take their case. However, at the time, they were unable to find one in California. This is not a field that many attorneys are willing to work in or even know about. It is certainly not lucrative on the students’ side.
However, over the last decade, we’ve seen more attorneys come into this field. Almost all of them have a similar experience as me—a family member, such as a sibling or child, who has gone through the special education system and had a less than positive experience. This increase in representation has been important. It has allowed parents to viably challenge their child’s special education program. The availability of attorneys who do not charge up-front fees has further opened the door for families.
Now, not only are parents more educated about the special education process and how to advocate for their children, but they also have available to them attorneys, where parents previously did not. I believe over time this will fundamentally transform the landscape for special needs children. The system itself was designed to have checks and balances. There is an understanding under the IDEA that schools don’t always get it right and that parents are their children’s best advocates. With the increase in easily accessible information and availability of representation, students will no doubt be better served by schools.