False Promises

False Promises

The Individuals with Disabilities Act (IDEA) promises families choices if they believe the school has failed to provide the required free appropriate education at public expense.   Families have been told that they and their children will have the right of due process in fighting back against what they believe to be an inappropriate placement. 

Turns out that in practice, not all kids are getting those benefits.  Race and income level play a significant part in the question of “who benefits?”.

The nonpartisan investigation arm of Congress analyzed the data from five states (Massachusetts, Michigan, New Jersey, Ohio and Pennsylvania) for the 2017-18 school year.  School districts in high-income areas were four times more likely to have at least one due process mediation as compared to less affluent areas.  Correspondingly, school districts with lower income families had many fewer due process claims.

There were multiple factors that led to these differences.  Obviously, lower income families did not have the funds for lawyers and expert witnesses.  A number of years ago, Congress passed legislation that requires school districts to pay the cost of a family’s attorney if they prevail at a hearing.  However, that does not include the cost for expert witnesses nor does it help a family put out the money in advance.  Given the limited success rate of families since the make-up of the hearing boards has changed, few attorneys are willing to accept these cases on contingency.  Add to the cost factor, the limited opportunity to take time off from work for lower income families and you can see why due process is not seen as a resort.

One U.S. Representative from Virginia has called the results of this investigation a “wake up” call saying that the civil rights provided to children under IDEA are not equally accessible to all students.  Of course, he is correct.  But since IDEA (and EHA before it), school districts have been hard at work to limit these rights.   Families initially did not need to be represented by attorneys.  They could be represented by lower cost child advocates.  That changed as school districts hired high powered attorneys to represent the school district.   Early on families won 90% of the hearings.  Hearing officers were, at that time, required to be knowledgeable in the areas of the child’s disability.  That too changed when court masters, with little to no knowledge, of children with special needs and/or what their educational needs were replaced the educational professionals as hearing officers.  To add to the insult, these masters were trained by the very boards of education who were appearing before the master.  Now families prevail in about 5% of the cases.

Read IDEA, the promises will warm your heart.   Sad to say, they are false.