Why Everybody Hates Special Education Law

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I was giving a presentation last month and one of the participants yelled out, "but we still don't have an answer." This took me by surprise inasmuch as there is rarely an "answer" in special education law. To explain my point, I told the unhappy participant that special education law is more like metaphysics than it is like contract law. This may not have satisfied the participant, but it is true and I like the analogy.

Special ed law is new law as we have said here before. For me, "new law" is roughly defined as whatever didn't come over on the boat from England. Because special ed law is of a mid-1970's vintage, it is very new law. Older lawyers don't like new law, especially law that combines social policy. They like property and contracts- areas of the law where you can look at a set of facts and provide reasonably reliable advice to a client. Special ed law is not like that.

Special education law is a lot like the weather in Urbana, it changes frequently. In fact I have often commented on these pages about the "cycle" of special ed law. The statute was enacted, followed by federal regulations, followed by state regulations, followed by hearing officer decisions followed by court decisions, (both trial and appellate court opinions)(we even have ten by the Supremes). Then the statute, IDEA, is reauthorized and changed and the whole cycle repeats until we are pretty comfortable with the law, then the process repeats itself again. As I have said before, if certainty or red letter, hornbook law is your thing, you may not like special ed law. (I still think that there must be a Jeff Foxworthy joke in there somewhere, but I can't quite grasp of it!)

The ever-changing nature of it makes teachers, parents, administrators and many others hate special education law. It's slippery, and it's hard to get a handle on. How many cases, like the recent Supreme Court case of Forest Grove, have we seen where several of the decision makers disagree as to the result based upon the same set of facts? The answer my friend is in the eye of the beholder.

Only those who enjoy metaphysics, a shrinking number indeed, refuse to hate special ed law, or the "player" as we call it. We do have some guiding principles, but the rule of law model of applying a clearly established legal standard to any given set of facts doesn't really work here. Don't hate the player!

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