Special education is perhaps the most litigated area of education due to the many rights parents and students are afforded under the law. Indeed, a 2019 report by the United States Government Accountability Office (GAO) indicated that over 35,000 requests for special education dispute resolution occurred during the 2016-2017 school year alone*. In my opinion, these very necessary due process protections often have a negative impact on how school leaders approach supervising special education.
What I have witnessed during my thirteen years as a school district administrator and now, as a consultant, is a tendency for school leaders to become preoccupied with compliance. This is largely based upon the fear, which may be real or imagined, of getting sued.
In reflecting on my own experiences as a special education director, I can see how it would be easy for administrators to get “sucked in” to the drama and fear of due process - the rabbit hole of records requests, attorneys meetings, witness prep, legal bills, and so on. This experience is unpleasant for both schools and families alike, and inevitably, does irreparable harm to the relationship between the two.
However, the power dynamic between an educational system and that of a single family is incredibly imbalanced. Legal proceedings, while stressful for all involved, most certainly, place more anxieties and burdens on a family than that which is exerted on a school. Beyond the obvious disparity in resources and expertise, there can be nothing more personal than one’s child.
Yet, while schools are not always “in the wrong,” an approach to special education that prioritizes legal compliance over program development and relationship-building is misplaced. Beyond that, it’s just foolish. Here’s why…
Parents don’t hire attorneys because the school got a date wrong on the IEP. They don’t bring advocates to meetings because the evaluation report came home a day late. Nor do they request mediation because the teacher forgot to send home a progress report or neglected to add criteria to a goal.
Families turn to legal action when they believe their children’s needs are not being met. When progress is not occurring. When student differences are viewed as problems to be fixed rather than gifts to be celebrated. When trust has been broken. When the relationships have soured. Families turn to legal action when they feel there are no other options. Why else would they engage in such daunting battles where the scales of power are so heavily weighted against them?
Yes, schools need to comply with the law, but compliance is not the standard to which we should aspire. The reality is this - if someone wants to sue you, they will. The most carefully-constructed IEP is not going to stop it. However, courageous leadership, visionary programming, and genuine care might.
Leadership is always about choices. When it comes to special education, administrators can choose to invest their time and energy into not getting sued, or they can choose to focus on building strong programs and cultivating family partnerships. In choosing the latter, the likelihood of litigation decreases naturally because actions, rather than paper, serve as the foundation of services.
As Thomas Hehir (2005) wrote in New Directions in Special Education -
“Is our role simply to comply with law or to comply with the spirit of law? Are we simply providers of service, or do we produce results?...Are the only important results of our efforts performance on standards-based tests, or do we have a more robust agenda? Do we accept dominant negative societal attitudes toward disability, or do we seek to change the world through education?”
Mere legal compliance will not deliver on the unfulfilled promises of special education we have yet to achieve.
Our students don’t need beautifully-worded accommodations. They don’t need 100-page IEPs chronicling every negative behavior they have engaged in since infancy, nor do they require educators trained in writing “legally defensible IEPs” (even if the school district lawyers tell you otherwise). This is all noise.
The future of special education is with bold, passionate, committed leaders who prioritize quality programs over paperwork. It is with visionaries who look beyond a child’s disability into their capabilities and personhood. It is with skilled communicators who build allies with parents and community members in support of a shared goal. It is with individuals who recognize the beauty of the children in front of them and design systems in recognition of those gifts.
It is entirely possible for principals, supervisors, directors, and superintendents to be these leaders that our children deserve. But this requires much more than just compliance. It requires a conscious choice to let go of a fear-based approach to special education, and embrace a visionary one. Until then, any individual who does otherwise is merely an administrator, not a leader.
* Data from the United States Government Accountability Office Report (2019). IDEA Dispute Resolution Activity in Selected States Varied Based on School Districts’ Characteristics. https://www.gao.gov/assets/gao-20-22.pdf