October 5

It’s about empowering parents

Special education law is the one area where I have found scholarly articles to be attention grabbers. Here is an excerpt from my article, “Considering the Individualized Education Program: A Call for Applying Contract Theory to an Essential Legal Document” that appeared in the Winter, 2013 issue of the C.U.N.Y. Law Review:
The IDEA has revolutionized the way children with disabilities are educated in the United States. A unique statutory scheme requiring public schools to open their doors to children with disabilities, the IDEA rejected a one-size-fits-all concept of education and armed families with an unprecedented right to an education. Public schools would be required to figure out how to educate students with a myriad of differences through classroom accommodations, services and supports in the “least restrictive environment.” The Act seeks to empower the weakest parties in the administrative process: children with disabilities and their parents. The primacy of this value is explicit in the precatory section of the current IDEA, which states that “[a]lmost 30 years of research and experience ha[ve] demonstrated that the education of children with disabilities can be made more effective by . . . strengthening the role and responsibilities of parents and ensuring that families of such children have meaningful opportunities to participate in the education of their children at school and at home.” The IDEA has had massive, positive social impact. Opening schools to people of various abilities has profoundly impacted society, making disability “a normal part of the broad range of human experience and personality.” People who would have been hidden away from society in the 1970s are seen in schools, the economic workforce, and even in popular culture.
For those parents who have had to advocate for their children, however, the process often remains daunting, overwhelming and exhausting. IEP formulation meetings are often fraught with tension. Parents are faced with the challenge of absorbing a tremendous amount of information; they need to learn about their children’s disability, educational methodology, and the law. The balance of resources and information greatly favors school administrators over parents. IEP formulation meetings often involve a lone parent facing a table of teachers and administrators in a meeting that is supposed to be collaborative, but is more often intimidating and tense. My own experience advocating for my child from 2010 to 2012 is reflective of this opinion. I spent several years advocating in a public school system on behalf of a child who is gifted but dogged by non-visible, brain-based disabilities. It was unpleasant, aggravating and tiring for everyone involved. It fell to me to tell the school district how to work with my child. I also met individually with teachers to discuss the disabilities at issue. My impression was that they had no understanding whatsoever of the disabilities identified in the IEP which, being extremely charitable, I will assume they read—and this was in a small, affluent school district. I wish I could say that my experience was unique, but it wasn’t—and isn’t. In the end, faults in the system fortuitously led to a better situation for my child when the district permitted her to leave early to attend college. I do hope that my efforts at that particular school have led to positive improvements to the benefit of all of the students there. I must also refer to the acknowledgment of similar experience in the works of David M. Engel, supra note 4, at 187–89, and Martin A. Kotler, supra note 4, both of which were written over twenty years ago.