Law Professor Examines Role of Courts in Autism Special Education Disputes

FAYETTEVILLE, Ark. — A University of Arkansas law professor studied legal disputes between the parents of autistic children and public school districts regarding the adequacy of the child’s individualized education plan, and found that the courts often prefer to make decisions based on proper procedure rather than the appropriateness of the plan.

Law professor Terry Jean Seligmann published her findings in the paper “Rowley Comes Home to Roost: Judicial Review of Autism Special Education Disputes,” in the University of California-Davis Journal of Juvenile Law and Policy. The title comes from a 1982 Supreme Court case, Board of Education v. Rowley, in which the court directed reviewing courts to defer to the local school district’s expertise in any dispute over teaching methods.

In the 20-plus years since, numerous autism special education disputes have made their way into the courts, and Seligmann believes that the courts must take a more proactive role in deciding whether or not a school has indeed created an appropriate educational plan for an autistic child.

“Hearing officer decisions and judicial reviews need to have some teeth to them,” Seligmann said. She is calling for the development of standards to assure that the methodology in a student’s individualized plan is a sound part of determining the adequacy of the plan, so that the child’s right to a free appropriate public education is upheld.

The Individuals with Disabilities Education Act (IDEA), enacted in 1975, guarantees access to educational services for children with disabilities. In the 30 years since its inception, one Supreme Court case, The Board of Education vs. Rowley, has particularly influenced disputes brought to the courts. Cases since Rowley have emphasized both that court’s attention to procedure and its deference to the school district for its expertise in determining an appropriate plan.

Rowley has been invoked in more recent years in a spate of disputes between the parents of autistic children and school districts across the nation. The number of diagnosed cases of autism has risen significantly in the past few decades, and as parents and school districts try to determine an individualized plan for each autistic child, the number of disputes between the two parties has risen as well.

Many of these disputes center on what is the most appropriate choice of a method for teaching the child, with parents and school districts disagreeing. However, research shows that the courts have stayed away from deciding cases on their educational merits, instead deciding cases on the basis of whether or not proper procedure was followed in determining the plan instead of assessing the appropriateness of the plan itself. For example, a district’s plan might be rejected because it had decided what to offer a child before meeting with the parents in the required team meeting.

“School districts and states are the education experts, not the courts,” Seligmann said. But Seligmann thinks that it is important to look at the foundations of an individualized education plan so that whatever the school district suggests is not automatically accepted without question.

“If the courts never question whether a plan is sound, then school districts may begin to behave differently,” she said. “They might begin proposing only low-cost methods rather than ones that promise real educational benefits, but come with a higher price tag.

“Ultimately, the court should be trying to figure out if a child is really getting an educational benefit” from a particular plan, she said. However, the court needs to find a way to do that short of becoming educational experts.

Seligmann cited several things courts can examine to make this determination. First, they can determine if the program is designed specifically and individually for that child. Then, they can determine if the people making decisions about a child’s evaluation and program are qualified to do so and knowledgeable about the specific issues surrounding the creation of an individualized educational program for an autistic child. Third, the courts should examine the facts, including the child’s educational history, to determine whether or not the program has provided or is likely to provide an educational benefit for the child.

“When it comes to judging the appropriateness of an educational program, the best evidence is success,” Seligmann wrote in the article. In many of these legal disputes, the child has stayed in the disputed plan for years, so there should be some evidence of progress — or of a lack of progress.

Although school districts remain the educational experts, when a dispute arises between the parents and school district over an appropriate educational program for an autistic child, the courts must not be reluctant to step in and determine if the child’s educational needs are being met.