Friday, September 30, 2005

Caruso on Bargaining and Distribution in Special Education

New on Westlaw: Daniela Caruso, Bargaining and Distribution in Special Education, 14 Cornell J.L. & Pub. Pol'y 171 (2005). From the introduction:

As illustrated in the pages that follow, special education services are currently allocated on the basis of heavy parental participation in the administrative process. Bargaining power and negotiation strategies play a significant role in the ultimate determination of children's entitlements. These mechanisms are worthy of praise in many respects and should be retained. Thanks to such participation opportunities, families devoid of financial means but endowed with advocacy skills may still ensure that their children receive an adequate education. Parental involvement also allows for truly individualized educational plans, drafted with full knowledge of each child's strengths and needs. Recent attempts to limit parents' say in the process of defining appropriate educational services are not commendable. It is nonetheless important to point out that such bargaining mechanisms combine with other traits of the system--such as wide agency discretion, lack of transparency, and budget constraints--to generate unintended outcomes. It was explicit in the design of the Individuals with Disabilities Education Act that the distribution of special education services would counteract existing inequalities. However, there is evidence that the resultant distribution is uneven. The current system yields lower payoffs for needier families, which are on average less endowed with bargaining power and therefore less capable of taking advantage of participation opportunities.

What follows is not an overall critique of special education law. If compared with prior regimes, the current system has certainly succeeded at improving the average condition of children with disabilities. The purpose of this article is to examine the law's distributive effects in order to devise strategies of correction while upholding the federal government's commitment to the educational welfare of children with disabilities.
If I may borrow a page from Larry Solum's playbook: This looks very interesting!


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