Introduction 794 I. Overview of the Individuals with Disabilities Act 797 A. Connecting Poverty, Disability, and Education 798 B. History and Evolution of Special Education Law 801 C. Overview of Individuals with Disabilities Education Act 803 D. The Role of Parents in the Individuals with Disabilities Education Act 807 E. Barriers that Prevent Parents from Effectively Advocating for Their Children 810 1. Development of the Individualized Education Program and Unequal Bargaining Power of Parents Compared to Schools 811 2. Financial Inability to Retain Council 814 F. Consequences of Unequal Enforcement 818 II. Proposals to Address the Shortcomings of the Individuals with Disabilities Act 819 A. Burden Shifting Prior to Individualized Education Program Implementation 820 B. Putting Parents in Touch with Each Other 822 C. Addition of a Legal Advocate to the IEP Team 824 III. Addition of a Special Education Counselor as a Family Advocate 875 A. Elimination of the Mandatory Regular Education Teacher 826 B. The Benefits of School Counselors 828 C. School Counselors as Family Advocates 829 Conclusion 831 INTRODUCTION
In 2011, Jonah entered the tenth grade, reading between a first grade and third grade level. (1) He struggled to read simple words like "chicken," and had never passed a state assessment in reading, math, or science. Although he aspired to join the air force, because of his low reading and math levels, he struggled to obtain qualifying scores on his military aptitude exams. (2) Jonah attended a school that served a low-income population, and nearly seventy percent of his classmates were eligible for a free or reduced lunch. (3) A new special education teacher, who entered her first classroom just one month before meeting Jonah, was in charge of developing and checking on Jonah's academic and emotional well-being. She taught three out of four periods per day, and during her fourth "free period" she observed her students in their regular education classrooms, updated data to track their progress, drafted Individualized Education Programs ("IEPs"), and ran IEP meetings.
At his IEP meeting, Jonah's father, exhausted after finishing another night shift, listened to Jonah's special education teacher rattle away about "benchmarks" and "accommodations." Unsure about what everything meant, he kept quiet, his eyes staring down at the table or occasionally over to Jonah, who was visibly uncomfortable by the number of teachers talking about his career goals and academic shortcomings. A regular education teacher sat in the corner, politely listening but straining to follow along. Apart from seeing him around campus, she did not know Jonah, and because his reading level was so low, there was little to no chance that he would ever step foot in her classroom.
Before the meeting concluded, Jonah's teacher asked his father if he approved of the proposed accommodations. Although he was not convinced that "extra time to complete assignments," or "frequent breaks" would help Jonah's reading level, he nodded his head. He knew Jonah's reading level was low, but he did not know how else to help him. The vice principal handed Jonah's father a copy of his procedural rights and asked if he would like it read to him. Jonah's father quickly passed, as he had been to several meetings before and did not feel the need to hear these rights again. After the twenty-minute meeting, he made just one comment: "If Jonah isn't doing his homework or isn't passing, call me and I'll make sure it gets done."
Across the country, students like Jonah rely on the Individuals with Disabilities Education Act ("IDEA") for educational assistance and access to the public school system. (4) Originally enacted in 1975 as the Education of All Handicapped Children Act ("EAHCA"), the goal of the IDEA is to "ensure that all children with disabilities have available to them a free appropriate public education... designed to meet their unique needs and prepare them for employment and independent living." (5) Today, nearly seven million children (6) receive special education and related services under the IDEA. (7) Although the substantive rights and procedural protections of the IDEA have helped to nearly triple graduation and college entrance rates among students with disabilities, (8) the benefits of the IDEA have not been equally distributed. (9) The extent to which children receive the benefits of the IDEA turns on several factors, including socioeconomic status. (10)
To meet its goals, the IDEA relies on collaboration between parents and schools." Through each step of the IDEA, parents are given the primary responsibility to advocate and negotiate for their child. (12) This begins with helping determine their child's eligibility for special education and related services and continues all the way through the creation and implementation of their child's IEP. (13) Although the IDEA envisions parents as dedicated and vocal team members, parents who do not feel competent to be equal team members either do not understand the procedural and substantive protections available to them under the IDEA or lack the financial means to obtain counsel, and struggle to be effective advocates. (14) In contrast, parents who are not intimidated by the educational or legal systems are more likely to know about the benefits of special education and take advantage of the procedural and substantive protections available under the IDEA. (15) The IDEA's dependence on parental enforcement and construction of rights at an individualized level, coupled with wide agency discretion of a school's ability to propose appropriate services, creates an unbalanced system that substantially disfavors poor families. (16) In low-income communities, students with disabilities often experience inadequate services, low-quality curriculum and instruction, and increased isolation from their nondisabled peers. (17)
To close the gap between the disparities in IDEA implementation between low-income and wealthier communities, this Note argues that Congress should amend the IDEA to include a school counselor as a mandatory part of the IEP team. School counselors can help to advocate for students and their families because they are able to spend time with students and get to know them on a level similar to that of their parents. (18) Counselors often have access to student academic records and are knowledgeable in career paths and options available to students after high school. (19) Furthermore, counselors are fully integrated members of school education teams, working closely with teachers and administrators on a daily basis. (20) Mandating that a school counselor be present and part of the special education team will provide support for the parent, child, and school. (21)
This Note examines how low-income and minority students with disabilities are deprived of the benefits promised by the IDEA because its procedural design severely disadvantages poor families. This Note argues that the IDEA can and should be amended to support low-income families and give parents and students the ability to meaningfully engage with the IEP development process. Part I examines the history of special education law, as well as the substantive and procedural aspects of the IDEA that lead to disparities in the way it is enforced. Part II examines the various solutions that have been proposed to meet parents' advocacy needs in IDEA claims, arguing that each solution is inadequate. Part III proposes an amendment to the IDEA, to mandate that a school counselor--an individual with resources to support parental competence and engagement--be present at each IEP team meeting. (22)
OVERVIEW OF THE INDIVIDUALS WITH DISABILITIES ACT
The IDEA is a comprehensive statute that attempts to provide students with disabilities equal access to a public education. (23) Part I of this Note first examines the connection between poverty, disabilities, and education. Next, it details the history of special education law and the roots of the IDEA. Further, it describes the role parents must play and the barriers that may prevent them from being effective advocates, such as unequal bargaining power or lack of financial resources to obtain counsel. Finally, Part I reviews the consequences of the unequal enforcement of the IDEA for low-income students with disabilities.
A. Connecting Poverty, Disability, and Education (24)
Jonah's story is not unique. Special education places enormous burdens and obligations on educators and schools, (25) and low-income students are disproportionally located in school systems that lack resources and contain undertrained teachers. (26) Additionally, low-income parents often lack the time, money, or education to vigorously advocate for their children. (27) When parents are unable to play active roles in the development of their child's IEP, schools lack the incentive to expend the time and effort required to provide meaningful accommodations and services. (28) Without meaningful accommodations, students like Jonah fall behind until they either drop out or graduate with low academic abilities and meager job prospects. (29)
Although poverty rates among public school children in general have increased in recent years, (30) children with disabilities are far more likely to come from low-income households. (31) Of the seven million children covered under the IDEA, approximately two million live below the poverty line, and nearly four and a half million live in households with incomes of $50,000 or less. (32) A study from the early 2000s revealed that twenty-one percent of elementary and middle school students with disabilities were living in poverty, compared to sixteen percent of children in the general population. (33) Additionally, thirty-seven percent of secondary school students with disabilities were living in households with family incomes of $25,000 or less, compared to twenty-one percent of children in the general population....