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Abstract:
The new Individuals with Disabilities Education Improvement Act leaves the basics of federal special education law intact, but makes important changes along the periphery. Special education is now much more closely aligned with the No Child Left Behind initiative. The new law allocates funds for the education of children not yet found eligible for special education and pushes school districts to provide services to special education-eligible children in religious and other private schools. It changes eligibility determination rules for children with learning disabilities. It alters dispute resolution procedures. Finally, it makes disciplinary procedures somewhat harsher for children with disabilities, while still retaining the requirement that no child with a disability ever be excluded entirely from school. The new law, however, does not provide clarity on two important issues of interpretation of current law, the treatment of parent demands for less restrictive educational placements for their children and the disposition of parent requests for intensive out-of-school services for children with autism. This article discusses the changes that the new law has made and the areas where statutory clarification would be desirable. It concludes by describing a vision of special education that the new law, to some degree, helps to advance - a vision of special education that is not so much special as part and parcel of the educational enterprise as a whole.

special education, disability, education

Abstract:
The Individuals with Disabilities Education Act (IDEA) guarantees students with disabilities a free public education appropriate to their needs. To be eligible for that entitlement, a student must meet the definition of "child with a disability." The law governing special education eligibility, however, is charitably characterized as a mess.

There are several sources of the current eligibility confusion. First, recent court cases have reached conflicting conclusions about how much adverse educational impact the child's disabling condition must have, what constitutes a sufficient need for special education, and when children with emotional disabilities are eligible. Second, long-established methods for assessing learning disabilities have withered under criticism from educational experts, and a new method of approaching learning disabilities, response-to-intervention, is being touted by the United States Department of Education. Nevertheless, that innovation remains largely unproven and may be impossible to implement at scale. Third, Congress and others have focused long-overdue attention on the disproportionate percentage of African-Americans who are found eligible for special education under the disability categories of mental retardation and emotional disturbance, but neither Congress nor anyone else appears to have a promising idea about how to address the situation.

This Article analyzes and critiques the recent cases, describes and comments on the new learning disability assessment methodology, and evaluates competing ideas about how to respond to ethnic disproportion. It concludes that the solution to the entire set of problems is not a redefinition of special education eligibility under IDEA, but rather a renewed attention to the actual terms of the statute and the goal of full educational opportunity. This step will promote what might be called "not-quite-so-special education," that is, an entitlement for a broad class of children to high quality special education supports provided in the regular educational environment.

special education, education, disability, civil rights

Abstract:
Government support for private schooling has been a topic of public discussion from the beginning of the administration of President George Bush. The Individuals with Disabilities Education Improvement Act of 2004 (Improvement Act) amends the Individuals with Disabilities Education Act (IDEA) with regard to (among other things) publicly funded services for children with disabilities who attend private schools. This Article describes the private school student provisions of the new law, demonstrating that the Improvement Act represents continuity in the field of special education services for children in private education. The Article then takes up three issues regarding services for private school children: (1) The existence of any individual entitlement that private school children and their parents may have to any particular level of publicly funded special education services; (2) Whether denial of equal, or even of any, services to some private school children unconstitutionally burdens free exercise of religion or parents' rights to control their children's upbringing; and (3) The risk of arbitrary decision making in allocating services among private school children. With regard to the first issue, this Article demonstrates that Congress has not created any enforceable individual entitlement to special education services for any given private school child. Some states, however, have established an individual entitlement. Regarding the second problem, this Article concludes that it is constitutionally permissible for public schools to refuse to fully subsidize private school children's special education services; any contrary view would expand constitutional rights to public services of private school children and their parents beyond acceptable bounds. Regarding the third problem, this Article advances the position that the Improvement Act creates risks of arbitrary and unfair allocations of services that are unacceptably high, and that under due process principles, transparency of the allocation process needs to be guaranteed.

education, special education, freedom of religion, disability law, administrative law

Abstract:
This paper asks whether statutory social insurance programs, which provide contributory tax-based income support to people with disabilities, are compatible with the disability rights movement's ideas. Central to the movement that led to the Americans with Disabilities Act is the insight that physical or mental conditions do not disable; barriers created by the environment or by social attitudes keep persons with physical or mental differences from participating in society as equals.

The conflict between the civil rights approach and insurance seems apparent. A person takes out insurance to deal with tragedy, such as premature death, or damage, such as accidental harm to an automobile or home. Social insurance, for example, the United States Social Security old-age and disability programs, consists of government-run insurance to cover risks of advanced age and disability for which the private market has not provided affordable coverage. But the civil rights approach to disability posits that disability is not a risk, not tragedy, and not a damage or defect. Instead it is a maladaptation of society to human variation. This paper argues that a justification remains for social insurance under the civil rights approach to disability, and further suggests that expansion of social insurance for disability is both compatible with disability rights principles and supported by wise public policy.

disability, civil rights, social insurance, disability insurance, disability discrimination

Abstract:
This paper responds to Ruth Colker, The Disability Integration Presumption: Thirty Years Later, 154 U. PA. L. REV. 789 (2006). I disagree with Professor Colker's proposal that the statutory presumption that children with disabilities be educated to the maximum extent with children without disabilities should not be applied or should be applied only in a weakened form when a school district offers a continuum of separate and integrated placements and provides supplementary services in regular classes. Although I believe that Professor Colker's proposal misinterprets the statutory language and would educationally and socially disadvantage children with and without disabilities if it were adopted, I believe that the presumption in favor of integrated placements should not be applied in a simple-minded way. Under a nuanced approach to the presumption, if the school is arguing for integration, the presumption ought to carry some, though not very great, weight. If the parent is arguing for integration, the presumption should be much stronger. Moreover, in all cases involving integration, the emphasis should be on the nature and quality of the supplemental aids and services offered the child in the integrated setting.

disability, education, civil rights

Abstract:
Like most other legal disputes, most cases brought under the Individuals with Disabilities Education Act (IDEA) settle. But although IDEA, the federal law governing special education, was enacted a generation ago, litigants still lack guidance how the mechanisms of settlement should work, what the settlement agreement should look like, and what to do if one side of the dispute fails to live up to its agreement. Settling an IDEA case entails unique issues - and unique pitfalls - that make the topic even more challenging than the settlement of other cases. IDEA has a mediation provision with extensive requirements and a one-of-a-kind prehearing settlement device termed the 'resolution session.' Special education settlement agreements may be vulnerable to attack on the ground that they undermine the purpose of IDEA. Jurisdiction under IDEA for actions to enforce settlements is uncertain, and exhaustion defenses may bar the actions. There is an administrative offer-of-settlement provision whose interpretation is open to debate, and parents who prevail in special education disputes have an entitlement to attorneys’ fees that may, or may not, apply when a case is settled.

This Article provides a comprehensive description of the law of settlement of IDEA disputes. It delves into mediation and dispute resolution, discussing what can be mediated and how. It notes the courts’ general practice of enforcing settlement agreements as written, despite arguments that departures from settlement terms are justified. It marshals the arguments and caselaw regarding jurisdiction to enforce settlement agreements and the administrative exhaustion defense. It describes the offer-of-settlement rule and discusses its interaction with the attorneys’ fees provision. It considers attorneys’ fees for settlements, discussing the circumstances under which fees might be available to parents in IDEA settlements. Although this Article is intended primarily to be descriptive, it concludes with an evaluation that advances some steps for reforming the law of IDEA case settlement: a clarification of federal jurisdiction, a bypassing of exhaustion for civil actions enforcing settlements, and greater legislative guidance as to what forms of settlement may support fees.

education, special education, disability, civil rights

Abstract:
Hurricane Katrina created the need and the opportunity to reconstitute the New Orleans public school system. Educational reformers took advantage of the destruction of existing institutions to build a new system based on educational choice and dependent on charter schools to provide the choices. The disaster also created the need and opportunity to rebuild the system of special education in the city, but education for children with disabilities appears to have been an afterthought. Reports have surfaced of children being steered away from charter schools or inadequately served there. This paper asks what principles should guide reformers in establishing education for children with disabilities in a reconstructed school system committed to choice and charters. The principles include the following: (1) Guaranteeing that the general education system takes responsibility for all children; (2) Adequately supporting children with disabilities in general education; (3) Improving outcomes; (4) Providing equal opportunity for choice; (5) Assigning costs fairly; and (6) Protecting parents' and children's rights. This paper will discuss each principle in turn, considering its implications for policy and its legal ramifications.

Education, Special Education, Disability, Civil Rights

Abstract:
This work considers courts' and scholars' approaches to the problem of disability harassment. It develops and critiques the analogy to race and sex harassment law and argues for the development of new legal remedies. It applies the insights of disability rights scholars who emphasize that people with disabilities are members of a minority group who face attitudinal barriers to participation in society on a plane of equality with others. Topics covered include harassment in the workplace, at school and in public accommodations, and the legal response to that conduct. The book closes with a discussion of social and legal reforms to eliminate disability harassment.

disability rights, harassment, civil rights

Abstract:
This article discusses four major topics concerning claims under the ADA and the Rehabilitation Act made by college and university students with learning disabilties: (1) Which students are considered disabled so as to be covered by the laws; (2) Should deference be given to colleges and universities regarding their decisions about student selection and accommodations; (3) What accommodations must be afforded during testing; and (4) What obligations do colleges and universities have to prevent harassment of students with learning disabilities. It concludes with a brief discussion of the benefit to academic institutions from adoption of inclusive practices with respect to students with learning disabilities.

learning disabilities, education, disability

Abstract:
This article discusses legal developments in the United States and internationally regarding inclusion of children with disabilities in general education. It discusses educational inclusion in relation to ideas generated by the disability studies movement. It suggests that integrated education should remain an important goal, but that steps should be taken to make inclusion work more successfully.

education, special education, disability