I grew up in an affluent suburban area and, beginning in kindergarten, attended school alongside my peers who had disabilities. Inclusion quickly became my expectation and a deep core value. My friends were included in their general classrooms because of the Individuals with Disabilities Education Act (IDEA), which serves to (1) provide educational services designed to meet children’s “unique needs” and (2) protect the rights of children with disabilities and their parents.[1]

As I began to understand the role affluence played in my educational experiences, I realized that it was not the mere existence of the IDEA that afforded my peers an inclusive education; it was their parents’ abilities to access the law via its enforcement mechanisms. Although the IDEA was not intended strictly for the wealthy,[2] these families more often “reap” the IDEA’s benefits[3] while low-income students with disabilities are the “invisible segment of children”[4] with worse educational outcomes.[5] Wealthy students’ disproportionate benefits can be largely attributed to their greater access to and invocation of the IDEA’s primary private enforcement mechanism: due process proceedings.[6]

When parents wish to challenge a school’s decision as violative of the IDEA, the most common avenue of action is filing a due process complaint.[7] Parents have a right to counsel during due process proceedings,[8] which increases success rates against school districts that are seldom unrepresented.[9] However, because parents have “the right to be accompanied and advised by counsel,” but not the right to free legal representation,[10] this safeguard favors wealthy parents who can afford counsel.[11] Tens of thousands of dollars in legal fees can accompany due process hearings and further special education litigation,[12] leaving few options for low-income parents. In addition to the costs associated with this representation, private attorneys have little incentive to provide services in special education cases because the IDEA does not award damages to prevailing parents.[13] Courts do have discretion to award attorney’s fees,[14] but even so, the possibility of attorney’s fees does little to persuade private attorneys to litigate IDEA cases.[15] Some parents can secure free legal representation through legal services organizations, Protection and Advocacy organizations, or law school clinics, but these resources are scarce.[16] While the IDEA’s text provides all parents with this safeguard, in practice, low-income parents are largely deprived of its protections.

Facing the grim realities of our inaccessible legal system,[17] most low-income families have two choices: (1) proceed pro se or (2) settle for inadequate educations. Neither fulfills the IDEA’s goal of giving parents “meaningful opportunities” to participate in their children’s education.[18]

Proceeding pro se can pose insurmountable challenges. First, parents must correctly identify which legal right(s) they believe the school violated. The IDEA requires schools to inform parents of proposals or refusals to take action regarding their children’s education[19] and of the parents’ procedural safeguards.[20] These notices must be written in “understandable language,”[21] but schools often ignore this mandate,[22] leaving pro se parents to decipher legalese. After grappling with federal and state education laws, parents must accurately apply them to their children’s cases.[23]

Even if they master the law and its application, low-income parents report feeling vulnerable and disempowered when confronting schools.[24] In addition to possible language barriers and limited legal knowledge, low-income parents may fear that their advocacy will result in retaliation against them and their children.[25] Wealthier parents can choose to enroll their children in one of many nearby public schools or pay private school tuition should IDEA proceedings turn sour, but low-income families typically do not have these options.[26]

In light of these barriers, it is no surprise that wealthy parents are more likely to invoke the IDEA’s enforcement procedures. This leads to a continuous cycle of inequity: schools are incentivized to prioritize wealthy parents’ demands to avoid legal proceedings and present low-income parents with less expensive, often inadequate services, knowing full well they are unlikely to be challenged.[27]

The IDEA was designed to serve all children with disabilities,[28] but its application actively disadvantages low-income students with disabilities. These disparities are of great concern given that children with disabilities are more likely to live in poverty than their peers without disabilities.[29] The IDEA’s purpose is to meet children’s unique needs and prepare them for “further education, employment, and independent living.”[30] However, it is not really a “universal”[31] statute because wealthy students are “better situated”[32] to enforce their rights. Instead, it is a statute merely designed for all children with disabilities, in dire need of reform so that it can be enforced for all, and not just for those who can afford it.

 

 

 

 

[1] 20 U.S.C. § 1400(d)(1)(A)-(B); 34 C.F.R. § 300.114(a). Specifically, the IDEA guarantees all children with disabilities a Free and Appropriate Education (FAPE), which should be delivered in their Least Restrictive Environments (LRE). This means that children with disabilities should be educated “[t]o the maximum extent appropriate” with children who do not have disabilities and should only be removed from the general classroom if education cannot be “achieved satisfactorily” with “supplementary aids and services.”

[2] See Eloise Pasachoff, Special Education, Poverty, and the Limits of Private Enforcement, 86 Notre Dame L. Rev. 1413, 1430 (2011) (explaining that the IDEA’s creation stemmed from lawsuits by civil rights and poverty law attorneys).

[3] Elisa Hyman, Dean Hill Rivkin & Stephen A. Rosenbaum, How IDEA Fails Families Without Means: Causes and Corrections from the Frontlines of Special Education Lawyering, 20 J. Am. U.J. Gender Soc. Pol’y & L. 107, 109 (2011).

[4] Id. at 111.

[5] Laura A. Schifter, Todd Grindal, Gabriel Schwartz & Thomas Hehir, Students from Low-Income Families and Special Education, The Century Found. (Jan. 17, 2019), https://tcf.org/content/report/students-low-income-families-special-education/. Worse educational outcomes include lower high school graduation rates, lower college enrollment rates, and lower achievement test scores. Jill Anderson, Racial Differences in Special Education Identification, Harvard EdCast (Mar. 5, 2020), https://www.gse.harvard.edu/news/20/03/harvard-edcast-racial-differences-special-education-identification. While this article specifically focuses on low-income students, it is also important to note that racial disparities in the IDEA’s enforcement exist as well. Students of color are less likely to be identified as requiring special education services as compared to their white peers, despite a similar need for such services. See Jill Barshay, New Studies Challenge the Claim that Black Students are Sent to Special Ed too Much, The Hechinger Report (Aug. 19, 2019), https://hechingerreport.org/new-studies-challenge-the-claim-that-black-students-are-sent-to-special-ed-too-much/.

[6] M. Hannah Koseki, Meeting the Needs of All Students: Amending the Idea to Support Special Education Students from Low-income Households, 44 Fordham Urb. L. J. 793, 814 (2017). Other enforcement mechanisms include mediation and filing a complaint with the State Educational Agency. Pasachoff, supra note 2, at 1423.

[7] Koseki, supra note 6, at 814.

[8] 20 U.S.C. § 1415(h)(1).

[9] Koseki, supra note 6, at 816 (citing a study that found the presence of legal representation to result in about a 50% success rate for parents during due process hearings, compared to 16% for pro se litigants and finding that school districts had representation 94% of the time).

[10] 20 U.S.C. § 1415(h)(1).

[11] See id. at 816-17.

[12] See Debra Chopp, School Districts and Families Under the IDEA: Collaborative in Theory, Adversarial in Fact, 32 J. Nat’l Ass’n Admin. L. Judiciary 423, 438 (2012).

[13] See id. at 451-52.

[14] 20 U.S.C. § 1415(i)(3)(B)(i)(I).

[15] See Chopp, supra note, 12 at 452.

[16] See id.

[17] E.g., id.; Margaret M. Wakelin, Challenging Disparities in Special Education: Moving Parents from Disempowered Team Members to Ardent Advocates, 3 Northwestern J. L. & Soc. Pol’y 263, 278 (2008) (citing Patricia A. Massey & Stephen A. Rosenbaum, Disability Matters: Toward a Law School Clinical Model for Serving Youth with Special Education Needs, 11 Clinical L. Rev. 271, 281 (2005)).

[18] 20 U.S.C. § 1400(c)(5)(B).

[19] Id. § 1415(c)(1).

[20] Id. § 1415(d)(1).

[21] 34 C.F.R. §§ 300.504(d), 300.503(c)(i).

[22] Hyman, Rivkin & Rosenbaum, supra note 1, at 133.

[23] Koseki, supra note 6, at 815.

[24] See Chopp, supra note 12, at 450.

[25] See id. at 438.

[26] Pasachoff, supra note 2, at 1444.

[27] See id. at 1436; Koseki, supra note 6, at 817.

[28] 20 U.S.C. § 1400(d)(1)(A).

[29] Pasachoff, supra note 2 at 1432.

[30] 20 U.S.C. § 1400(d)(1)(A).

[31]  Pasachoff, supra note 2, at 1417.

[32] Id. at 1427.