Are There Too Many Due Process Cases? An Examination of Jurisdictions With Relatively High Rates of Special Education Hearings

Authors

Andrew A. Feinstein
Michele Kule-Korgood
Joseph B. Tulman

Abstract

Congress enacted, and President Ford signed, the Education for All Handicapped Children Act (EAHCA) in 1975 to ensure that children with disabilities had access to a free appropriate public education. As the Supreme Court emphasized in Smith v. Robinson:[T]he Act establishes an enforceable substantive right to a free appropriate public education. See Board of Education of Hendrick Hudson Central School Dist. v.Rowley, 458 U.S. 176, (1982). See also 121 Cong. Rec.37417 (1975) (statement of Sen. Schweiker: "It can no longer be the policy of the Government to merely establish an unenforceable goal requiring all children to be in school. [The bill] takes positive necessary steps to insure that the rights of children and their families are protected"). Finally, the Act establishes an elaborate procedural mechanism to protect the rights of handicapped children. The procedures not only ensure that hearings conducted by the State are fair and adequate. They also effect Congress' intent that each child's individual educational need be worked out through a process that begins on the local level and includes ongoing parental involvement, detailed procedural safeguards, and a right to judicial review. §§1412(4), 1414(a)(5), 1415. See also S. Rep. No. 94-168, at 11-12 (emphasizing the role of parental involvement in assuring that appropriate services are provided to a handicapped child); id., at 22; Board of Education of Hendrick Hudson Central School Dist. v.Rowley, 458 U.S., at 208-209.1

First Page

249

Recommended Citation

Andrew A. Feinstein, Michele Kule-Korgood & Joseph B. Tulman, Are There Too Many Due Process Cases? An Examination of Jurisdictions With Relatively High Rates of Special Education Hearings, 18 U.D.C. L. Rev. 249 (2015).
Available at: https://digitalcommons.law.udc.edu/udclr/vol18/iss2/6