Don't Get the Wrong IDEA: How the FourthCircuit Misread the Words and Spirit ofSpecial Education Law-and How to Fix It

I. IntroductionAn old proverb claims that it takes a village to raise a child-everyone associated with a child must play a part in her upbringing. In the case of a child with a handicap that affects her ability to learn, it takes a village to educate that child. In other words, teachers, parents and everyone else responsible for a child's education must work together to ensure that she receives services that are "designed to meet [her] unique needs and prepare [her] for further education, employment, and independent living."1 This is no small undertaking. As of the 2006 school year, 13.6% of students enrolled in American public schools received special education services due to a disability.2 That amounts to nearly seven million children nationwide.3School districts and corresponding public agencies bear the ultimate legal responsibility for implementing the individualized education programs (IEPs) developed for each of the United States' millions of disabled children.4 Nevertheless, Congress recognized the necessity of parental participation as it prepared the nation's first comprehensive piece of special education legislation.5 Congress stated that it purposely designed procedures to incorporate parents in the planning and drafting of their child's education plans to guard against possible bad faith on the part of state and local agencies.6 Congress continues to acknowledge that collaborative spirit today. The Individuals with Disabilities Education Act (IDEA)7 encourages alternative dispute resolution and considers Article III courts to be a last resort.8 The state educational agency must offer an administrative due process hearing at which the public agency or the parents can bring a grievance against the other.9 Prior to such a hearing, and consistent with the cooperative character of special education law, the parties must attend a resolution session in a preemptive effort to resolve their differences.10In light of the extensive administrative attempts at resolution required before a trial can proceed, courts traditionally have understood Congress's vision of a collaborative venture and have acknowledged the exceptional nature of the special education process. As the Ninth Circuit stated: "Working out an acceptable educational program must, in the end, be a cooperative effort between parents and school officials; the litigation process is simply too slow and too costly to deal adequately with the rapidly changing needs of children."11 Unfortunately, some courts cannot help but view school personnel and parents as adversarial parties in the IEP drafting process, instead of as collaborative partners.A.K. ex rel. J.K. v. Alexandria City School Board12 - a case that involved a dispute between a child's parents and a northern Virginia school district over the child's placement-is indicative of this trend. The Court of Appeals for the Fourth Circuit not only disregarded congressional intent, but misapplied accepted mies of statutory and regulatory interpretation to do so.13 By construing the IDEA's requirement that IEPs specify the anticipated "location" at which a child will receive services to mean that each IEP must identify "a particular school," the Fourth Circuit ignored congressional reports and Department of Education comments that indicate otherwise.14 Although its decision was somewhat of an anomaly, the result should not have been unexpected. The confusion, misinterpretation, and ignorance surrounding the use of "location" in the IDEA are common among educators and adjudicators.15Without an unambiguous definition for "location"-and clear procedural guidelines for when and how to identify such a site-costly mistakes are likely to be repeated around the country. Under the current state of affairs, the A.K. decision could result in the invalidation of numerous otherwise acceptable IEPs and force school systems to reimburse disgruntled parents for tuition payments made to private schools of their own choosing. …