Special education, poverty, and the limits of private enforcement.

• Author: Pasachoff, Eloise

This Article examines the appropriate balance between public and private enforcement of statutes seeking to distribute resources or social services to a socioeconomically diverse set of beneficiaries through a case study of the federal special education law, the Individuals with Disabilities Education Act (IDEA). It focuses particularly on the extent to which the Act's enforcement regime sufficiently enforces the law for the poor. The Article responds to the frequent contention that private enforcement of statutory regimes is necessary to compensate for the shortcomings of public enforcement. Public enforcement, the story goes, is inefficient and relies on underfunded, captured, or impotent government agencies, while private parties are appropriately incentivized to act as private attorneys general. This Article challenges that argument as not applicable to all circumstances. Instead, it uses the IDEA to identify certain features of institutional design that can make heavy reliance on private enforcement lead to predictable disparities in enforcement in favor of wealthier beneficiaries as opposed to poor beneficiaries, in contravention of the stated goals of some statutes. These features of institutional design include universal rather than means-tested service provision distributed by relying on nontransparent, nonprecedential, private bargaining over a highly individualized system where the contours of the right are determined through significant amounts of agency discretion. Where these features are present, the Article argues, greater attention to public enforcement, as opposed to private enforcement, is likely to be necessary if the goal is to avoid enforcement disparities in favor of wealthier beneficiaries. Alternatively, modifying these features may reduce enforcement disparities and make public enforcement less necessary.

INTRODUCTION I. THE PROBLEM OF DISPARITIES IN PRIVATE ENFORCEMENT OF THE IDEA A. The Legal Framework of the IDEA's Enforcement System B. Enforcement Disparities C. Why Enforcement Disparities Matter II. INSTITUTIONAL DESIGN AND DISPARITIES IN PRIVATE ENFORCEMENT OF THE IDEA A. Institutional Design B. Information Asymmetries C. Externalities D. Transaction Costs III. WHY REFORM OF THE IDEA's PRIVATE ENFORCEMENT MECHANISMS Is INSUFFICIENT A. Incentivizing Lawyers by Changing Attorneys' Fees Rules B. Incentivizing Lawyers by Providing Damages C. Providing or Mandating Attorneys D. Bringing Class Actions E. Means-Testing or Eliminating Private Enforcement IV. PUBLIC ENFORCEMENT ADDRESSING THE NEEDS OF LOW-INCOME CHILDREN WITH DISABILITIES A. Rationales for Public Enforcement B. Proposals for Public Enforcement 1. Informational Regulation a. Design Details b. Assessment of Success and Feasibility 2. Monitoring and Investigation a. Design Details b. Assessment of Success and Feasibility 3. Financial Incentives a. Design Details b. Assessment of Success and Feasibility V. ENFORCING STATUTORY RIGHTS BEYOND THE IDEA CONCLUSION INTRODUCTION

Scholars frequently focus on the importance of private enforcement of statutory regimes in a variety of fields with a concomitant nod to the limits of public enforcement. (1) They point to the efficiency of private enforcement, since private parties will take action only when the expected value of doing so outweighs their expected costs. (2) They note the significance of private parties acting as private attorneys general (3) and explore how both class actions and serial individual actions can produce policy change. (4) They express concern about relying on underfunded, captured, or impotent government agencies to enforce the law. (5) In turn, this focus on private enforcement results in expressions of dismay at doctrinal and legislative cutbacks on such enforcement; (6) advocacy around creating private rights of action in legislation or permitting private enforcement through judicially implied private rights of action or [section] 1983 suits; (7) and even suggestions that some government enforcement agencies ought to go out of business. (8)

There is no doubt that private action can play a significant role in enforcing statutory regimes, for all of the above reasons. But at the same time, there are serious questions about whether scholars and policymakers can place too much emphasis on private enforcement when more public enforcement is actually necessary to effectuate the goals of a statute. The burdens associated with private enforcement--burdens that may be disproportionately more difficult for people in poverty--cast doubt on arguments for greater reliance on private enforcement as a general matter. (9) Moreover, evidence that many violations go unreported further suggests that overreliance on private enforcement may result in underenforcement of the law. (10) This problem may be especially acute when a statute seeks to distribute funding or social services to a socioeconomically diverse set of beneficiaries without privileging those in the wealthier end of the group. If beneficiaries with fewer financial resources consistently bring fewer claims than their wealthier counterparts, relying heavily on private enforcement may mean that the former group will not receive their fair share of the distribution. Reliance on private enforcement will thus unintentionally undercut the statute's substantive goals.

This Article considers questions about the appropriate balance between public and private enforcement in such a statutory scheme through a case study of the federal special education law, the Individuals with Disabilities Education Act (IDEA). (11) The IDEA requires that states provide "appropriate" educational services to children with disabilities, supplying some federal funding to help make this possible. (12) It creates a host of private enforcement mechanisms, from administrative hearings to lawsuits, as well as a system of public enforcement through federal and state agencies. (13) The statute is a universal rather than a means-tested program, meaning that its benefits are intended to extend to the wealthy and middle class as well as the poor. It explicitly announces its intention that resources under the statute are to be distributed equitably, and it directs greater funding to states with a higher share of poor children. (14) Yet the evidence suggests that children from wealthier families enforce their rights under the statute at higher rates than do children in poverty (15) and that this enforcement disparity has a negative effect on the amount and quality of services children in poverty actually receive. (16) Part of the goal of this Article is to explain how certain features of statutory design in the IDEA's private enforcement system lead to this result.

To study how institutional design choices may create and sustain private enforcement disparities in distributional statutes is not to suggest that such disparities do not exist in other types of statutes, nor is it to suggest that the design features that may be particularly salient to enforcement disparities in distributional statutes do not exist to some degree in other types of statutes. Yet because the federal government uses distributional statutes to achieve a number of its policy goals-especially in education, health, and other social welfare programs--it is worthwhile to isolate the features of statutory design that lead to enforcement disparities in those statutes, so that those who wish to counter such disparities in distributional statutes understand which statutory levers to adjust.

There is a growing literature on the problem of economic disparities in the implementation and enforcement of the IDEA. (17) Chief among the concerns expressed in the literature is that wealthier parents use the Act's private enforcement mechanisms more than poor parents do. This is not a new concern. Congress has amended the private enforcement system over the years in attempts to make that system more accessible to low-income families. For example, prevailing parents may recover attorneys' fees, and alternative dispute resolution, which can be less expensive than adversarial lawsuits, is encouraged. (18) Contemporary scholarship largely focuses on additional ways to reform the private enforcement system to ensure that poor families are not left behind, with comparatively little focus on the ways that public enforcement can or should be reformed to achieve this goal. (19)

The critical focus on private enforcement at the expense of public enforcement may have a variety of explanations: it may grow out of frustration that public enforcement of the IDEA has historically not been vigorous, (20) reluctance to introduce a note of class consciousness in the statutory framework to avoid the sense that it is a program for the poor, (21) or an understanding that private enforcement for wealthier children will have positive externalities for poor children. (22) Whatever the explanations, however, the almost exclusive focus on private enforcement is a mistake. As I argue below, certain design features of the IDEA's private enforcement mechanisms severely limit their utility for children in poverty. Because modifying these mechanisms to address this problem is either normatively undesirable on other grounds or politically implausible, there is a strong case to be made for increased attention to public enforcement strategies.

The Article proceeds in five parts. After briefly describing the purpose of the IDEA and the structure of its enforcement mechanisms, Part I discusses the evidence that there are disparities in the use of the Act's private enforcement mechanisms in favor of wealthier families. The existence of these disparities is often asserted as a matter of anecdote and theory, but this Part marshals the available empirical evidence to support this assertion. This Part then explains why the disparities are a problem. The statute purports to distribute resources in a way that is sensitive to...