NOTE CONTENTS INTRODUCTION I. THE HISTORY OF SPECIAL EDUCATION INITIATIVES II. A STATUTORY ANALYSIS OF CURRENT PROCEDURAL PROTECTIONS WITHIN THE IDEA III. DANGEROUS ASSUMPTIONS: WHY SCHOOLS AND PARENTS FAIL UNDER THE IDEA A. IDEA Compliance Challenges Faced by Public Schools 1. Inadequate State and Federal Funding for Special Education 2. The Difficulty of Implementing Highly Individualized Programs 3. Paperwork Burdens of the IDEA B. Obstacles to Effective Parental Advocacy 1. Lack of Knowledge About Disability 2. Lack of Knowledge of Educational Options 3. Difficulty in Interfacing with School Officials and Complying with Procedural Requirements IV. POLICY ALTERNATIVES TO SUPPLEMENT INADEQUATE PARENTAL ADVOCACY A. Models of Policy Analysis : Parental Supplementation vs. Parental Supplantation B. Policy Proposals 1. Policy 1: "Public Defender" Model of Full-Time Advocates 2. Policy 2: Recruiting and Training Community Volunteers 3. Policy 3: Parent Advocacy Centers CONCLUSION INTRODUCTION
Adam is in the tenth grade at a high school that Newsweek ranked in the nation's top two hundred. (1) For twenty years, the Department of Education has designated this school an "exemplary" high school. Since he was in the first grade, Adam has had an "individualized education program" (IEP), meaning that he is entitled to receive special education services under the Individuals with Disabilities Education Act (IDEA). (2) When he was born, Adam was diagnosed with cerebral palsy. Thanks to very dedicated parents, he received rigorous therapy and underwent multiple surgeries so that he is now able to walk normally. Nevertheless, he has difficulty with fine motor skills and especially struggles in his math classes. For example, Adam has a hard time lining up numbers when completing a math problem and he finds it difficult to write his answers clearly in the small blanks provided on worksheets and tests. His IEP entitles him to several modifications, including extra time on tests and enlarged text on assignments.
At the end of the first semester of his sophomore year, Adam went to school prepared for his math exam. The teacher failed to implement any of the modifications his IEP called for. Despite rigorous studying, Adam failed the test with a score of sixty percent.
Adam's mother is a guidance counselor at a local school and received her master's degree in education. She is well-versed in the procedural protections the IDEA affords Adam and takes advantage of them by attending all of Adam's IEP team meetings (3) and requesting supplemental parent-teacher conferences to monitor his progress. Despite her efforts, Adam's mother cannot ensure that teachers will always provide his IEP modifications. Thankfully, she asked Adam detailed questions about the math test and realized what had happened. The next day she went to Adam's school and, after much discussion, convinced the teacher to readminister the test with the proper modifications. Upon retaking a different version of the two-hour exam, Adam earned a score of eighty-eight percent.
Adam's mother knew that she was entitled to request that the school correct its mistake because she works with students receiving special education under the IDEA on a daily basis in her capacity as a guidance counselor. Adam's mother did not receive any parental training upon Adam's placement in an IEP to inform her of her legal rights. Such training is not required under the law. The IDEA's procedural protections merely provide parents with a brochure and require schools to contact parents before an evaluation or when changes are made to a child's IEP. These safeguards often require an additional level of ability and knowledge: many documents detail the processes in dense, inaccessible language. (4)
Jeremy is a thirteen-year-old student in a large, urban school district. (5) At the age of twelve, he remained in a third-grade classroom in a public school. His physical size made social interactions difficult. This discomfort led to discipline problems, resulting in fifty-three absences in one school year. Jeremy's mother realized that something was wrong, and she repeatedly asked the school to evaluate her son for learning disabilities. The school refused to comply, and Jeremy's mother was unaware that she had alternatives to force the school to act.
After five years of requests for an assessment, the school district finally evaluated Jeremy and diagnosed him with two disabilities, malting him eligible for specialized services under the IDEA. (6) Although the school's administrators did agree to perform the evaluation, they did not release the results of the evaluation for 142 days from the date Jeremy's mother gave her formal consent to the evaluation. This is significantly longer than the sixty day period that the IDEA allows for completion of evaluations. (7) Jeremy's new IEP shows that his oral language skills are at a second-grade level and his basic reading skills at a third-grade level.
A five-year delay in evaluating a child for special education needs represents almost one-half of the time that child will spend in the public school system. In Jeremy's case, it appears that he was not learning at his full potential during the five years he spent without an IEP. He will face a monumental challenge attempting to catch up with his peers so that he is able to graduate from high school on time.
In principle, the IDEA gives every qualified child in the United States access to special education. (8) As with many government-provided services, however, individuals often must take affirmative action in order to receive program benefits. Special education, whose consumers are children, presents unique challenges with regard to asserting one's rights. Children do not have the capacity to identify a disability or understand that their educational needs differ from those of their classmates. They must rely on parents or teachers to recognize their special needs and provide appropriate evaluation. As the IDEA is currently structured, children who are entitled to special education depend upon the school's provision of a "free appropriate public education" (FAPE), (9) or, alternatively, their parents' willingness and ability to advocate for them.
Adam's story illustrates that, even in an exemplary school, it is often still necessary for someone effectively and assertively to advocate for a child in order to receive the full benefits of special education. Jeremy's story shows that in a school with more limited resources or professional expertise, well-intentioned parental advocacy is often not enough to prevent children from falling through the proverbial cracks. Because special education law today relies upon a system of procedural protections without detailed substantive requirements, schools can often make errors in judgment about the appropriate treatment plan for a disabled child. Such a formulation assigns parents to be the check on school systems, which is problematic in a system as complex and varied as special education.
This Note argues that, in the context of special education, neither teachers nor parents can act independently as effective representatives for children in the realm of special education. The right to an adequate education has long been an issue of great importance for policymakers in this country, in part because the effects of education policy reach almost every family at some point in time. In passing the IDEA, Congress recognized that public education should not exclude children with disabilities, and thereby extended the benefits of free public education to a class of children who, prior to the 1970s, had been drastically underserved. (10) Congress also recognized that advances in special education have vastly improved the educational prospects of children with disabilities. (11) Without effective advocacy, however, the promise of special education for children with disabilities cannot be realized.
The absolute necessity of successful special education programs is well-established. The successes of the disability rights movement over the past few decades have resulted in the normalization of the movement's goals: accommodation of difference, preparation for independent living, and the right to work and participate fully in the community. (12) For children with disabilities, full participation in the community is largely achieved through special education. In 1970, studies showed that nearly two million children with disabilities were excluded entirely from public education. (13) Today, no state allows public schools to exclude children, and as of 2003, 6.63 million American students received specialized services under the IDEA. (14) Many disability rights advocates emphasize the economic sensibility of special education programs by stressing that integration and quality education will always be less expensive over time than the forced dependency of disabled people. (15)
Despite enormous gains in the area of special education over the last few decades, there is still much room for improvement in utilizing special education programs to expand community participation and opportunities for individuals with disabilities. Evidence suggests that in some instances identification under the IDEA has not been sufficiently accurate. Despite similar incidences of dyslexia in males and females, for example, four times as many boys as girls are identified for special education. (16) The blurry edges of the definition of disability (17) may enable problems of accuracy in the identification of students and the provision of special education. Nonetheless, enhanced representation and assistance for parents in their advocacy efforts would address these concerns of equity and accuracy in the provision of special education. This Note endeavors to address the failures of the special education system by proving that parents of students receiving special education are in dire need of...