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Bagenstos: Courts' Focus on Process Doesn?t Aid Disabled Students Much

By Eric L. Lipman

Among the most interesting posts to the Social Science Research Network in recent weeks is a draft article by Professor Samuel R. Bagenstos of the Washington University School of Law: ?Where Have All the Lawsuits Gone? The Shockingly Small Role of the Courts in Implementing the Individuals with Disabilities Education Act.? In this draft, Professor Bagenstos argues that when assessing the role of the courts in implementing the Individuals with Disabilities Education Act, ?[p]erhaps the most surprising empirical conclusion is that courts do not have much of a role in implementing the statute.?

Bagenstos points out that the great majority of special education-related litigation is concentrated in just 6 jurisdictions ? with the remaining federal court districts handling an average of just 4 special education-related suits each year.

Moreover, as Bagenstos reasons, the applicable standard of review makes for more exacting scrutiny of procedural matters than it does of the substantive benefits conferred upon disabled children. Notes Bagenstos:

Under the [Board of Education v. Rowley] test, the instruction school districts provide to children with disabilities must satisfy all of the statute?s procedural requirements for the development of an IEP, but it need meet only a very minimal substantive standard: It must ?permit the child to benefit educationally from that instruction.? The Court specifically rejected the notion that the instruction provided to children with disabilities must provide children with disabilities the same educational benefit as other children receive?or even an equal opportunity to benefit.
?.

The more wide-ranging the case, and the more process-oriented the remedy, the less likely is litigation to be successful in achieving desirable outcomes.

Moreover, Bagenstos disclaims that the current focus on process-oriented matters is an ?inherent limitation of courts and judges,? but rather follows from a set of legislative and regulatory policy choices.

A draft of Professor Bagenstos? article is accessible here. Also, a still-earlier lecture and powerpoint that he rendered on the same topic, at a day-long education conference hosted by the American Enterprise Institute, is accessible here. (Professor Bagenstos' remarks begin at the 4 hour and 22 minute point in the AEI recording ? but the entire series of panel discussions is pretty interesting, too.)

Full post as published by Within the Scope on December 08, 2008 (boomark / email).