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Excerpted From: Claire S. Raj, Rights to Nowhere: The IDEA's Inadequacy in High-poverty Schools, 53 Columbia Human Rights Law Review 409 (Spring, 2022) (314 Footnotes) (Full Document)


ClaireSRajWhen President Gerald Ford signed the Education for All Handicapped Children Act (“EAHCA”) into law, he did so with trepidation, stating “Unfortunately, this bill promises more than the Federal Government can deliver, and its good intentions could be thwarted by the many unwise provisions it contains.” More than forty years, two reauthorizations, and billions of dollars later, President Ford's fears seem prescient. Certainly, momentous gains have been made in the education of children with disabilities and without a doubt, the legislation forced open schoolhouse doors and the promise of education for a multitude of students who had previously been barred. But the EAHCA--now known as the Individuals with Disabilities Education Act (“IDEA”) a majority of students who currently attend poorly functioning and under-resourced public schools.

America's public school students have suffered from decades of disinvestment. But the country's dereliction of public education is inequitably shouldered by low-income students and students of color. School districts that serve predominantly low-income, Black, and Latinx students receive the fewest state and local dollars. Those same districts also tend to enroll high proportions of students with disabilities, who require higher levels of funding per pupil. The net result is that schools in these districts operate with significantly less funding than what is needed to meet their students' educational needs.

Unsurprisingly, disinvestment in public schools leads to poor academic outcomes, particularly for students with disabilities. Students attending high-poverty school districts sit in overcrowded classrooms in antiquated, sometimes hazardous, school buildings. Their teachers rarely have advanced degrees and often lack basic certifications. Students in these schools are less likely to have access to advanced curricular offerings, laboratories, or even latest-edition textbooks. Students with disabilities face even greater challenges, since compared to their non-disabled peers they are more likely to be segregated into lower-achieving classrooms, subjected to punitive discipline, or pushed out of schools entirely.

These dismal outcomes are inconsistent with the rich legal rights afforded to students with disabilities. The IDEA was lauded as a civil rights victory for students with disabilities because it is steeped in privately enforceable procedural and substantive rights. It ended the days of school exclusion and promised access to meaningful educational opportunities. More specifically, it called for comprehensive individualized evaluations to help understand how a child's disability impacts their learning and the creation of a detailed plan of special education and related supports to assist the child in meeting annual academic goals. Embedded in those plans is a substantive right to an appropriate education, defined as “free appropriate public education” (“FAPE”), and a mandate to educate students with disabilities in the “least restrictive environment” (“LRE”), meaning with their non-disabled peers whenever appropriate. These rights are miles ahead of educational rights given to students without disabilities. Why, then, has the IDEA done so little to advance the education of students with disabilities in high-poverty schools?

Several scholars have highlighted the inequities that come with accessing the law's complicated procedural rights. The high cost of attorneys and experts, unequal bargaining power between parents and schools, and a hesitancy to disrupt a child's school-based relationships all undermine low-income families' ability to leverage the IDEA. This Article theorizes that the law's failures cannot be fully explained by these external forces. Rather, they are a product of the law's internal structure, courts' undue deference to schools, and advocates' failure to target impact litigation at meaningful substantive reforms. In other words, the IDEA's weaknesses do not stem from secondary circumstances that could be corrected with modest interventions. The IDEA's inefficacy is baked into its structure, which is then reaffirmed by courts' inability to discern how the law's utility is limited in under-resourced schools.

At its core, the IDEA delivers students with disabilities procedural rights meant to guarantee an appropriate education in the most integrated setting possible. Yet, in high-poverty schools, virtually none of the law's promises are realized. The IDEA's rights are rooted in an assumption that schools are operating with an adequate level of capacity and proficiency, but under-resourced schools generally lack both. So, all three core principles--procedural rights, appropriate education, and integrated settings-- are badly diminished for students with disabilities in high-poverty schools. Essentially, individual students are unable to leverage the IDEA's rights to secure meaningful remedies and are thwarted by courts when they attempt broader programmatic change.

The IDEA's individual remedies are inherently incapable of providing students the means to achieve the law's core principles for at least three reasons. First, courts fail to recognize that the IDEA's procedural protections are impaired in high-poverty schools. Instead, they assume that procedural protections ensure substantive quality and carelessly defer to schools' ill-conceived educational programs. In overwhelmed and under-resourced schools, following procedure does not guarantee adequate educational programming because the procedures cannot correct programmatic failures. Requiring that certain people attend meetings cannot ensure qualified and knowledgeable teachers are present. Requiring decisions based on a variety of data does not prevent that data from being flawed. Requiring schools to secure parental consent does not ensure parental understanding and engagement. In short, guaranteeing process does not have any real bearing on the quality of a child's educational program. Rather, when schools lack the resources needed to assess and implement specialized instructions and supports, focusing on process is the equivalent of rearranging deck chairs on the Titanic--utterly futile. Yet, courts follow a precedent steeped in the false narrative that adequate procedures will help guarantee some substantive level of quality when, in fact, they just ensure a better view of the sinking ship.

Second, the IDEA's primary qualitative standard--FAPE--requires a healthy underlying system to function as intended. In high-poverty schools, such systems generally do not exist, and schools strain to provide adequate educational programming generally, let alone the highly specialized instruction required by the IDEA. FAPE is primarily measured by a student's progress towards individualized academic goals. These goals are derived in large part from a student's current academic performance. When schools are unable to deliver quality instruction, both a student's current performance and their expectations for future progress are routinely low, not because the individual student lacks capacity, but because their school does. Moreover, courts' ferocious deference to schools' chosen methodologies for delivering instruction, regardless of their actual efficacy, leave students with limited ability to leverage the IDEA for improved educational programs. Given this precedent, students in high-poverty schools are stuck with special education programming that has no plausible prospect of succeeding in the under-resourced environments in which they operate.

Third, the IDEA's proscription against segregation, conceptualized as the LRE requirement, simply does not have the strength to compel meaningful integration in high-poverty schools. The LRE obligation requires schools to integrate students with disabilities with their non-disabled peers whenever appropriate. However, underfunded school districts lack the resources to set up a variety of programs that could support different types of integration needs. As a result, students in high-poverty schools are more likely to learn in segregated classrooms, rather than through integrated services that take place in inclusive regular educational settings. Similarly, poorly funded school districts are more likely to set up centralized services in one school and transfer students in need of those services to that setting. Thus, a student's right to be free from segregation--which the IDEA purports to protect--is constrained by schools' and districts' capacity to fund a variety of options on the continuum of alternative placements.

Further, when students with disabilities in high-poverty schools attempt to achieve programmatic, rather than individual, remedies, they are thwarted by courts' heavy-handed use of the IDEA's exhaustion clause. Although this clause requires that students with disabilities exhaust administrative remedies before bringing actions in court, Congress and the Supreme Court have both stated that exhaustion should not be required where it would be “futile as either a legal or practical matter.” Students requesting programmatic remedies squarely fall within this exemption because they seek systemic relief that cannot be awarded through the administrative process. Yet many lower courts dismiss their cases, reasoning that because students could have sought individual remedies, the exhaustion process is not futile. Consequently, these courts force plaintiffs to seek individual remedies through administrative agencies that are inherently incapable of ordering broad-based programmatic relief.

Finally, while class action lawsuits hold real promise for substantive change, too often, well-meaning advocates target systemic claims at procedural issues, leaving the substance up to chance. This Article offers an original analysis of certified and putative class actions in federal courts during the last fifteen years, revealing an almost singular focus on issues of process in IDEA class actions. Plaintiffs' allegations involved screening and evaluation procedures, meaningful access to interpreters, and timely implementation of related services, among others. While such claims are both necessary and helpful, they do not strike at the heart of the problem for students in high-poverty schools--improving the educational program itself. Stated differently, class actions must be directed not just at improved access to special education services, but at the quality of those services and by extension, the educational programs in which they operate.

In essence, too many students are trapped in under-resourced, failing school systems. When these students are also identified as having disabilities, the IDEA is supposed to help shore them up by offering specialized instruction tailored to meet their unique needs. But when the larger educational program is broken, the IDEA alone cannot fix it. Fundamentally, the issues outlined in this Article are interwoven with the decades-old problem of educational inequity. Solutions are within reach, but they cannot be accomplished without a willingness to sufficiently fund public schools. The IDEA has never been fully funded. When signing the bill into law, President Ford questioned whether the federal government could ever deliver on its promised funding. In 2019, the federal government covered less than 15% of its funding obligations towards the IDEA. Yet, the law both assumes and demands a significant level of resources to be effective. Further, evidence demonstrates that school funding matters--particularly for students of color from low-income families.

This Article suggests three potential solutions to begin to tackle these inequities. As a first step, fully funding the IDEA would go a long way to resolving the burdens unjustly placed on the shoulders of low-income students of color. But since full funding has yet to materialize in the more than forty years since the law's enactment, this Article suggests a more modest and achievable proposal in the form of competitive grants targeting school districts that serve majority low-income populations. Designing a competitive grant program could target funding towards those districts that have the highest level of need and incentivize their participation in finding solutions that work for their particularized challenges. Second, Congress should amend the IDEA to give the Department of Justice (“DOJ”) the authority to investigate and litigate systemic violations of the law. Federal enforcement is necessary to address the inequities embedded in a private enforcement scheme. But rather than punishing bad actors by withholding federal dollars, consequences should involve collaborative planning and oversight towards improved educational outcomes with objectively quantifiable goals. Finally, advocates must orient class actions towards substantive educational practices rather than focusing only on process. Such suits may face a series of obstacles, including, as a starting point, the federal rules governing class certification. Still, class-based litigation has the ability to force changes directed at substantive educational practices--the surest way to improve educational outcomes for students with disabilities.

This Article proceeds in four parts. Part I presents the IDEA's core principles of FAPE and LRE, describing how the IDEA's rights and remedies are tied to the individual, but delivery of those rights exists in a larger programmatic structure. It then briefly describes the state of public schools, paying particular attention to high-poverty schools serving a majority Black and/or Latinx student population. Part II illustrates how each of the IDEA's core principles--procedural rights, substantively appropriate education, and the promise of integration--are gravely weakened when applied to students with disabilities in high-poverty schools. It then details how courts' flawed application of the exhaustion clause unjustly prevents students from accessing crucial systemic remedies. Finally, it analyzes the past fifteen years of IDEA class actions, uncovering advocates' focus on procedural claims. Part III explores three compelling and practical solutions: (1) targeted funding through a competitive grant-based program, (2) federal, rather than private, enforcement of the IDEA, and (3) focused class action lawsuits aimed at substantive educational practices. Part IV concludes

[. . .]

The IDEA was a monumental achievement on the path towards educational opportunity and the full inclusion of children with disabilities in public schools. Yet, more than forty years after the original bill's enactment, it has not delivered on its promise. For thousands of low-income students with disabilities who attend under-resourced public schools, the IDEA's rights ring hollow. The law has yet to scratch the surface of their circumstances, leaving the programmatic deficiencies in underfunded, high-poverty schools untouched. Its failure largely rests on internal structures premised on the notion that public schools start from a place of adequate resources to ensure quality regular education programming. When that premise is shattered, the law's protections crumble alongside it.

Fundamentally, the IDEA's failure in high-poverty schools is interwoven with the decades-old problem of inequity in public education. The IDEA's success is tied not simply to legal rules and doctrines, but also the overall political will to adequately fund public schools. Addressing the entirety of America's educational inequities stretches beyond the IDEA's reach. But ignoring the IDEA's role in perpetuating systemic barriers to equitable educational opportunity is unacceptable. At a minimum, advocates and policy makers must acknowledge the IDEA's inequities as applied to high-poverty schools and begin the hard work of addressing them.

Recognizing political will to fully fund the IDEA remains scarce, this Article proposes that Congress adopt a grant program directing resources towards high-poverty schools with the objective of incentivizing programmatic reforms tied to educational outcomes. Given that the IDEA already has federal funding and compliance structures in place, additional grant funding is a feasible and efficient proposal. Advocates, too, could continue to pressure school districts and states through class actions lawsuits aimed at improving instructional practices. With these calculated steps, the IDEA can move closer to its original goal of improving the lives of all children with disabilities.

Associate Professor, University of South Carolina School of Law.

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