Where Have All the Lawsuits Gone? The Shockingly Small Role of Courts in Implementing the Individuals with Disabilities Education Act

The Individuals with Disabilities Education Act (IDEA) - and its predecessor, the Education for All Handicapped Children Act (EAHCA), first enacted in 1975-ought to be an ideal context in which to study the courts' role in American education. When Congress enacted the EAHCA in 1975, it did so in response to constitutional litigation in twenty-eight states that challenged the exclusion of children with disabilities from public education. The statute incorporated into federal law significant provisions of consent decrees that resolved key cases in Pennsylvania and the District of Columbia: the "zero-reject" principle, under which the public schools may not turn away students with disabilities as "uneducable"; and the "least restrictive environment" principle, under which students with disabilities are to be taught alongside students without disabilities to the greatest extent appropriate. In implementing these principles, themselves born from litigation, the statute takes a proceduralist approach. The statute requires states to provide a "free appropriate public education" in the least restrictive environment to all children with disabilities, but it says very little about the content of that education. Instead, the statute simply requires the development of an Individualized Education Plan (IEP) for each student with a disability and then imposes a series of administrative and judicial devices for resolving disputes about the content and implementation of a student's IEP. The statute has been criticized from both the left and the right as overly legalistic. School superintendents report that that parents of children with disabilities "are too quick to threaten legal action to get their way." Shep Melnick has asserted that "litigation has increased dramatically" since the statute's passage. And in perhaps the most influential recent critique of court-led social reform, Ross Sandler and David Schoenbrod used a major IDEA class action, Jose P. v. Ambach, as their primary example of problematic "democracy by decree." In this chapter, I assess the role and effects of the courts in implementing the IDEA. Perhaps the most surprising empirical conclusion is that courts do not have much of a role in implementing the statute. As I will show, there is very little litigation under the IDEA. In some class action cases - such as the Jose P. case that Sandler and Schoenbrod highlight - the effects of judicial intervention have been significant (for both good and ill). But, by and large, the courts have made little direct difference in the treatment of students with disabilities. Courts have a somewhat greater indirect effect on the education of students with disabilities, as their (relatively rare) decisions cast a shadow over the (much more frequent) decisions of school administrators. Those decisions have, at the margins, exacerbated one of the problems commentators have attributed to the IDEA - an excessive focus on process over substance. And they have created and maintained a system of public reimbursement of private school tuition that may appear necessary in individual cases but raises substantial equity concerns nonetheless. Considered overall, however, both the strengths and the weaknesses of the IDEA have less to do with the actions of the courts than with those of Congress and the Executive Branch.