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Article of Interest - Commentary

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Special-education Failures Run Deep
Kalman R. Hettleman, The Baltimore Sun, November 18, 2005
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School boards across the country are generally rejoicing over the decision by the Supreme Court that parents who appeal their child's special-education plan, usually to an administrative law judge, have the legal burden of proving that the plan was not "appropriate" under federal law. The parents in the case, Schaffer v. Weast, which originated in Montgomery County, claimed that the school system should bear the burden of proving that the child's plan was appropriate.

I am a member of the school board in Baltimore City, but I don't share the general celebratory mood. If school board members in Maryland and elsewhere understood more about the roots of the nationwide failure of special education, I don't think they would, either.

Having served as a pro bono attorney for many parents and children in special-education cases, I know firsthand that the court's decision will impose another obstacle on parents and children, especially those who are low income.

The Supreme Court based its 6-to-2 ruling in favor of school districts on the traditional principle in civil cases that the party initiating the legal proceeding has the burden of proof. But as Justices Stephen G. Breyer and Ruth Bader Ginsburg pointed out in separate dissenting opinions, special-education cases should be an exception to the rule because school systems hold most of the cards to begin with. That is, they control almost all of the expertise and information that should determine the child's individual special-education plan.

For poor parents and children, to call that a disadvantage is an understatement. Federal and state law provides theoretical safeguards for parents: the right to participate in meetings at which plans are determined, to examine records and to seek mediation or appeals. But these rights are often meaningless in practice.

It is no secret that school systems across the country fail to provide many students with disabilities with the quality of instruction supposedly guaranteed under federal and state laws. The abysmally low test scores of students with disabilities attest to this. In Maryland and elsewhere, special-education students typically score 30 percent to 40 percent below other students on standardized tests.

True, there are no easy or inexpensive cures for this educational pandemic. But school systems could do better than they do. Special-education practitioners at the school level - teachers, psychologists, speech and language pathologists, social workers and others - work tirelessly to serve students, but they are pressured to limit services because of costs, even though such limits violate the law.

Justice Ginsburg emphasized in her dissent that the vast majority of parents lack the knowledge and sophistication to stand up for their rights. Obviously, low-income parents in particular lack the know-how or the money to hire a lawyer to assert their rights for them.

But the majority view of the Supreme Court was ivory-towered. Even liberal Justice John Paul Stevens, in a concurring opinion, swallowed the line that school systems should be presumed to be "properly performing their difficult responsibilities" under the federal special-education law.

The decision is not likely to affect large numbers of students directly. Lawyers are expensive and pro bono representation is scarce, so poor and working-class parents rarely file appeals. Yet the impact of the ruling will be more widely and painfully felt. School systems will be even less prone than before to confront the problems of inadequate and inappropriate instruction for students with disabilities.

Of local note, nine states filed friend-of-the-court briefs urging the Supreme Court to rule for the parents and against the school district. Maryland unfortunately wasn't one of them.

Still, the Supreme Court left one avenue open to get around its decision. Several states, unlike Maryland, have laws or regulations that put the burden on the school district, and the court's decision did not overrule them.

Maryland education officials could still pass such a regulation, and if they mean what they say about reforming special education, they should.

Kalman R. Hettleman is a member of the Baltimore City school board. His e-mail is


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