Tuesday, November 22, 2005

Op-Ed on Schaffer

See this article by Barbara McKee. As I've said, I think Schaffer was wrong, but I think McKee overreaches when she predicts the likely impact of the decision:

The ruling by the Supreme Court opens the door to specialized schools, possibly isolating children with disabilities that keep them from interacting with able-bodied children.

Disabled people fought hard to be part of mainstream America. This re-creates a school system that is discriminatory and dates to the 1970s.

These may be hypothetical scenarios, but they are backed by history. The Supreme Court left it up to the states to decide how they want to educate children with disabilities. This may lead to a huge gap when, or if, the child goes to college.

If the proper education of disabled children is not the responsibility of the public school system that all taxpayers support, the parents of these children have an enormous burden. This could be the beginning of lengthy lawsuits - for those who can afford to take a school system to court.

I don't think Schaffer leaves it "up to the states to decide how they want to educate children with disabilities." All it says is that the party challenging the IEP bears the burden of proof. That's going to have a decisive effect in a very small number of cases. The substantive standard the school district has to meet remains the same -- free appropriate public education plus related services, with all the standard's entailments. States have exactly the same obligations to children with disabilities after Schaffer as they had before the case was decided. The burden of proof matters only when the decisionmaker is in equipoise -- the evidence on both sides is equally persuasive. How often does that happen?

I'm all for trying to get this overturned. What I worry about, though, is that a Chicken Little response will just convince school districts that the Court really did cut back on the obligations they have to kids with disabilities. This is really a marginal decision.


2 Comments:

Blogger Daniel said...

I think you are missing the point. In the rational and logical legal world that you work in, it is a "marginal" opinion. In the pragmatic world it comes down to an issue of trust, which is always a big deal. In theory, the situation of "equipose" is rare. But who guards the guardians? School districts can invent situations of equipose and many of those will go unchallanged because there are not the resouces to fight them. If schools were simply legal entities that behaved in strictly legal ways, no one would be worried. But people who interact with school districts all the time on disability issues know that many of them will find any loophole they can to discriminate. It's that simple. We are not dealing, in many cases, with good-hearted people who want to do the right thing for people with disabilities. We are dealing with people who will refuse an accomodation so that the money can be spent on a cheerleading outfit, a field trip, or a sporting event. That's reality.

3:00 PM  
Blogger Sam said...

Trust me: As a parent who has dealt with school districts on these issues, I get it. I've been there when a school district was searching for any loophole they could find. But Schaffer doesn't change or purport to change the obligations school districts have to kids with disabilities, in any way, shape or form. All it does is make a marginal change to a procedural rule that applies once we're litigating over an IEP. I can see why school districts have an interest in spinning this as giving them all kinds of new leeway, but I can't see why disability advocates have an interest in doing so. I don't think it's so easy to manufacture equipoise. And if parents lack resources (which they clearly do), putting the burden of proof on the school system isn't going to help that much. I'd be very happy if Schaffer were overturned, but I still don't think it's such a major decision.

10:05 AM  

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