New Jersey lawyer focusing on special education law and employment law


Special Education in The Atlantic

The Atlantic is a well known magazine that publishes articles about a wide range of political and social issues, as well as book reviews and works of fiction. The magazine began in 1857 by a number of well known thinkers and writers, including Harriet Beecher Stowe, Ralph Waldo Emerson and Henry Wadsworth Longfellow.

I always thought The Atlantic was politically moderate or centrist, as others also seemed to think.

But when I read Chris Borreca’s The Litigious Mess of Special Education and Miriam Freedman’s 4 Common-Sense Proposals for Special Education Reform, I was amazed.

Mr. Borreca and Ms. Freedman are both school district attorneys who believe that the Individuals with Disabilities in Education Act (“IDEA”) needs to be substantially overhauled. However, their suggestions for reforming the IDEA make very little sense.

Ms. Freeman made four suggestions. The first one is:

Focus on improving regular education for all students. The better that regular education is, the fewer students need to be identified for special education services.

I fail to see how improving regular education changes the genetic makeup of the child. If a child is dyslexic, or has a speech-language disorder, it is critical that we identify that child and provide appropriate services, accommodations, and modifications. Improving the regular education program is not going to change the fact that the child has a disability and needs an individualized educational plan to meet her needs.

Ms. Freeman also suggests working to

end the “medical model” in which IDEA eligibility for services requires a specialist’s diagnosis. This model is costly, problematic, and inexact. It often kicks in too late, after previously undiagnosed students have struggled and failed. The far better solution is to provide timely and appropriate education services for all students in our schools, based on their current performance, without the need for a diagnosis or label.

If a mildly or moderately disabled child has not made any progress for a significant period of time, how can you find ways to help the child without ever figuring out why the child is struggling? How can it be done without knowing the source of the problem? I really don’t get it.

If someone has been medically ill for a certain period of time, a physician will need to run a battery of tests, including a blood test, and, if necessary, a CT scan, PET scan, X-ray, and so forth, until a firm diagnosis is made. A diagnosis is necessary before a physician can treat the source of the problem. So it is with special education. The IDEA has a child find mandate: if a child is struggling in school and is suspected of having a disability, the school district is required to evaluate the child. This could mean having professional administer a battery of tests and then determine ways in which the child might be able to improve her performance in school.

Unfortunately, I have had cases involving students who were reading three, four, and five grades behind their peers. In other words, kids who were in the 9th grade who read at 3rd grade levels, or 11th graders who read at 5th grade levels. Ms. Freeman seems to suggest that it isn’t necessary to have these kids professionally diagnosed. Ms. Freeman seems to  suggest that “one size fits all.” But life isn’t one size fits all. For kids who have disabilities, we need a diagnosis, and we need a blueprint (the Individualized Education Plan).

Ms. Freeman’s final suggestion is well-intentioned:

End the adversarial approach of “private enforcement” by parents and use other dispute resolution models, such as via mediators and ombudsmen or federal and state enforcement mechanisms that encourage trust-building and collaboration between schools and parents.

I am all for trust-building and collaboration. I am a strong advocate of being open with school district personnel and sharing information as soon as possible. However, if school district personnel insist that they are providing an appropriate education when in fact they are not, something must be done. Parents cannot be expected to simply sit down and “trust” the teachers to do the “right thing.” When a 6th grader is reading on a 1st grade level, is the parent supposed to “trust” the teachers to do the “right thing” from here on in?

Joining Ms. Freeman’s criticisms of the adversarial nature between parents and school personnel, Mr. Borreca suggests that there should be a cap on attorney’s fees. I am opposed to any such cap. As I explained in my comment in response to Mr. Borreca’s article:

The courts will determine whether the fee requested is reasonable by reviewing the attorney’s hourly rate, the attorney’s experience, the amount of time that the attorney spent on the case, and how well the case turned out. If the requested fee is not reasonable, the court will adjust the fee downwards. This will undoubtedly hurt parent attorneys because if the school district’s attorney drags out cases, parent attorneys will be more unlikely to help the parents and their disabled child.

The IDEA is essentially a civil rights law, and the fee shifting provision in the IDEA can be historically traced to Title VII of The Civil Rights Act of 1964. The reason why Congress added a fee shifting provision in the IDEA is clear: the cost of retaining a special education attorney is high and many parents cannot afford the high costs of retaining a special education attorney. Mr. Borreca’s suggested cap will likely limit the number of parent attorneys who take special education cases. The reality is that practicing special education law requires a high degree of knowledge and skill; and litigation can take a very long time if it is not settled.

As of this writing, The Atlantic has not yet published a single article by a parent attorney to offer a different perspective. This is extremely disappointing. Perhaps the editors of The Atlantic believe that parent attorneys do not think that the IDEA needs to be reformed. This simply isn’t the case at all.

I hope that in due course The Atlantic will give at least two parent attorneys an opportunity to write and publish an article about how special education law may be reformed. There is clearly no question that the IDEA can be improved, but not in the ways that Ms. Freeman and Mr. Borreca suggest.

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