Adequate access or equal treatment: looking beyond the idea to section 504 in a post-Schaffer public school.

• Author: Walker, Christopher J.

INTRODUCTION I. THE POLICY CONTEXT: MULTI-DISABLED STUDENTS AND STATE SPECIAL SCHOOLS FOR THE BLIND AND DEAF A. The Unfriendly Sandbox: The Story of Holly P. and the California State Special Schools for the Blind and Deaf B. Looking Beyond California: A State-by-State Survey of State Special Schools' Admission Policies and Practices II. THE LEGAL PRINCIPLES: THE IDEA AND SECTION 504 IN THE STATE SPECIAL SCHOOL CONTEXT A. The Classic IDEA Claim: A Federal Mandate To Provide Adequate Access to a FAPE B. The Complementary Section 504 Claim: A Federal Mandate To Provide Equal Treatment III. BEYOND STATE SPECIAL SCHOOLS: THE IDEA AND SECTION 504 IN A POST-SCHAFFER PUBLIC SCHOOL CONTEXT CONCLUSION APPENDIX: STATE-BY-STATE SURVEY RESULTS INTRODUCTION

In the public school special education context, the Individuals with Disabilities Education Act (IDEA) (1) has served as the dominant tool for ensuring that no child is left behind on the basis of a disability. But the IDEA approach is not without drawbacks. Addressing the Act's many limitations, the Supreme Court held this Term in Schaffer v. Weast that the IDEA forces parents, not schools, to prove that their children are not receiving a free appropriate public education (FAPE). (2) The 6-2 Schaffer decision, in which Chief Justice Roberts took no part, was not particularly surprising. Placing the burden of proof on the party seeking relief is the ordinary default rule when Congress is silent, and most states already required this standard in IDEA challenges. (3) However, the dissents and amicus briefs in Schaffer illustrate the obstacles that parents must overcome when challenging a school's decision under the IDEA.

In her dissent in Schaffer, Justice Ginsburg emphasizes the unequal playing field in the battles between schools and parents under the IDEA and finds an unlikely ally in Judge Luttig of the Fourth Circuit: "For reasons well stated by Circuit Judge Luttig, dissenting in the Court of Appeals, ... I am persuaded that 'policy considerations, convenience, and fairness' call for assigning the burden of proof to the school district in this case." (4) Judge Luttig aptly describes these considerations:

For the vast majority of parents whose children require the benefits and protections provided in the IDEA, the specialized language and technical educational analysis with which they must familiarize themselves as a consequence of their child's disability will likely be obscure, if not bewildering. By the same token, most of these parents will find the educational program proposed by the school district resistant to challenge: the school district will have better information about the resources available to it, as well as the benefit of its experience with other disabled children. (5) The amicus brief by the parents, attorneys, and advocates further illustrates why parents have an uphill battle under the IDEA. Among their arguments, the amicus petitioners assert that parents do not have "full, unfettered access to all relevant information about a proposed placement" or to the school's "experts who have worked with or evaluated the child," that "parents often proceed pro se and do not ... have any experience in the mechanisms for presenting evidence," and that "there is usually no right to discovery by which the parents can obtain documents ... [or] depose school district employees." (6) Indeed, while the outcome in Schaffer might have been unsurprising, the Court's focus on the IDEA underscored how unequal the playing field is for students with special needs looking to obtain an adequate education under the IDEA.

And the playing field arguably became even more unequal when Congress reauthorized the IDEA in 2004. (7) The proposed regulations have yet to become official, which makes it difficult to measure the full impact of the IDEA's reauthorization. (8) Professor Paolo Annino summarizes some of the potentially negative ramifications of the new IDEA:

[M]any of the [IDEA] Improvement Act's revisions are harmful to children pursuing a FAPE and dilute their due process protections. These harmful changes include the elimination of short term objectives on the [Individualized Education Program (IEP)]; the elimination of the requirement that schools inform parents whether their child's progress is sufficient to enable him or her to achieve annual goals listed in the IEP; the waiver of the right to have a child reevaluated at least once every three years; removal of children for certain disciplinary problems to an interim placement for 45 school days; reduction of services provided to those children removed; the elimination of the stay put provision in discipline cases; and the reduction of discipline protections for children not yet eligible for special education. (9) Furthermore, the IDEA focuses on guaranteeing education to students with special needs, but, in many cases, parents are just as concerned that their child was discriminated against--and that other children with similar needs would likewise face similar discriminatory practices. As further explored in Part II, the IDEA allows for an individualized analysis and is thus not a particularly effective tool for systemic reform.

However, Section 504 of the Rehabilitation Act (Section 504) (10) is a powerful, yet oft-neglected, complement to the IDEA--perhaps more powerful and effective in certain instances--if it is understood and applied correctly. The overall comparison of the IDEA and Section 504 is complicated, but important. As explored in Parts II and III, these legal standards often accomplish similar objectives, but do so by using different instruments and driving principles. In essence, the IDEA focuses on adequate access to a FAPE, while Section 504 emphasizes equal treatment within federally funded programs. (11) The IDEA is not about antidiscrimination, but rather a guarantee of access to public education for children with disabilities. (12) Conversely, Section 504 emerged specifically in response to discrimination against individuals with disabilities. (13) Neither standard alone accurately depicts the principles at play in most special education cases. Instead, we must understand both standards and how they interact to better understand how to address discriminatory practices that inhibit students with disabilities from receiving the free and appropriate public education to which they are entitled under federal law.

In this Note, the lens through which we view these legal standards in action involves state special schools for the blind and deaf and their admission practices that exclude multi-disabled students. Part I first illustrates the limitations of the IDEA in California's state special schools through the story of Holly P.; it then further demonstrates the need to supplement the IDEA with Section 504 through a state-by-state survey of thirty states' state special schools admission. Detailed analysis of each state special school system is included in the Appendix. Part II explores the contrasting legal standards of adequate access to a FAPE under the IDEA and equal treatment under Section 504, as applied to the state special school context. Finally, Part III moves beyond the state special school context to examine special education generally--demonstrating how Section 504 is a powerful tool, and an excellent complement to the IDEA, for making sure that no child is left behind (14) or otherwise excluded from educational opportunities solely on the basis of a disability. (15) This understanding is particularly important for special education attorneys and advocates as they attempt to look beyond the IDEA in a post-Schaffer public school context.

1. THE POLICY CONTEXT: MULTI-DISABLED STUDENTS AND STATE SPECIAL SCHOOLS FOR THE BLIND AND DEAF

   Multi-disabled blind and deaf children are entitled to a free appropriate public education (FAPE) under state and federal law, including any communicative and related services necessary for them to benefit from special education. (16) However, state special schools in California--and in many states nationwide--either explicitly exclude multi-disabled blind and deaf students in their admission policies or informally exclude them in practice. (17) When these schools were founded in the nineteenth century, many children were "pure blind" or "pure deaf," so the establishment of special schools for the pure blind and deaf was a logical and meaningful public policy. (18)

   However, with advancements in medicine and technology, "pure" blindness and deafness have become less common. (19) Instead, children born with hearing or visual impairments are also likely to have other disabilities. Estimates vary widely, but many researchers have found that approximately thirty percent of all school-aged deaf children have at least one additional disability, (20) with mental retardation, cerebral palsy, aphasoid, and emotional-behavioral disorders being the most common nonsensory disabilities. (21) The majority of blind children also have at least one additional disability. As many as two-thirds of blind children and one-third of partially sighted children have additional disabilities, the most common of which are mental retardation, hearing impairment, cerebral palsy, and seizure disorders. (22)

   Consequently, the state special schools have effectively served a special population for the last 150 years, but changed circumstances--a lower incidence of pure blindness and deafness and a rise in the proportional number of multi-disabled blind and deaf students--have created a situation in which these schools purposefully exclude the children who would benefit most from their services and who currently may not receive a FAPE anywhere else in the public school system. In this Part, the policy environment at the California state special schools will first be outlined through the story of Holly P., followed by the findings from the state-by-state survey of twenty-nine states...