The Bad Economy and the Law: Should Cost/Money Be a Defense in a Special Ed Case?

Could cost become a hot button issue? An article recently caught my eye about the ongoing litigation in Wisconsin concerning the finding that the school districts there , and eventually the state Department of Education, have run afoul of IDEA by violating its child find provisions. The article claims that the
Milwaukee school district is appealing a federal court ruling in part because compliance with the order would be too expensive. Here is the article.

Now I know that the intricacies of the law are very difficult for reporters to grasp, and that sometimes news articles garble the law part of the story. However, in general, monetary cost does not constitute a defense to a violation of the special education law. The U. S. Supreme Court emphatically declared in its decision in Cedar Rapids Community Sch. Dist. v. Garret F. 119 S.Ct. 992, 29 IDELR 966 (1999) that the cost of services could be a defense to a violation of IDEA. See recently Washoe County NV Sch Dist 51 IDELR 52 (OCR 2008) (Note this decision holds that cost is not a defense to a section 504 violation.) The only exceptions are cases where the cost of compliance do not impact FAPE, such as where more than one program is appropriate or where a district has a center for low incidence populations. I have also seen expense mentioned by the courts in some least restrictive environment decisions but I do not recall expense ever being the deciding factor.

This issue could become more important as the recession continues. The extra money from the stimulus package helps, but at a special ed law conference two weeks ago a speaker quoted the special ed director of a large urban school district as saying "this is going to get ugly." Cash strapped school districts may be tempted to avoid expensive solutions. I expect that the number of due process hearings where cost or expense is an issue will rise. Be on the lookout for money issues. Please let me know if you see similar cases where you live and work.

The Quadracci Pavilion of the Milwaukee Art Mu...Image via Wikipedia

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