64 Children’s Legal Rights Journal [Vol. 38: 1 2018]
educational results for children with disabilities so they have an “equality of opportunity,”
“independent living,” and “economic self-sufficiency.”194 The statute further discusses that, while
state and local governments are responsible for providing these educational services, it is the
Federal Government that should have a supporting role in assisting the states in their efforts.195
While the statute outlines several worthy efforts, it uses ambiguous words to define what
standards are necessary to comply with the Act. Yet, the Act does make one thing clear: while
state and local governments are vested with providing services to children with disabilities, the
Federal Government should have an active and continuous role in the education of children with
disabilities. Congress recognizes that it has a valuable role to play in the education of all children
in this nation, including those with disabilities. However, the Act does not set parameters for the
achievement of the goals laid out within the Act. It is the classic “throw money at the problem,”
but do not actually ensure the problem is fixed. Instead, Congress, in what is most likely an effort
to appease stakeholders with differing views, has emphasized the procedural safeguards in the Act
and left any ambiguity to be duked out in court proceedings. The problem here is that courts exist
to make sure someone’s rights have not been violated, and to provide recourse when they are. The
purpose of the court system is not to rewrite legislation when Congress is unclear.
In addition, Congress has had years to clarify these ambiguities, and every time it has
amended the IDEA, it chose to keep the ambiguities as they are. This leads one to wonder if
Congress never intended there to be a substantive portion to this legislation, and instead only that
the legislation be enforced and measured upon procedural requirements. Maybe what the courts
are supposed to do is decide cases on procedural grounds only.
The biggest problem with this is best illustrated by recalling our hypothetical student, Ella.
Ella’s teacher is making accommodations according to Ella’s IEP, but Ella is still unable to keep
up with the rest of her class. One would assume that the school should go back and modify the
accommodations, but that would require costly testing and pages of paperwork. Additionally, since
IEPs are only issued on an annual basis, it could take until the next academic year for Ella’s new
accommodations to be approved.
In the meantime, what is her mother to do? Initiate a lawsuit? Let’s assume she does. If the
court only looks to the procedural requirements of the Act, the school has met them. It has
developed an IEP for the current school year, it is following that IEP, and it has included Ella’s
mother in that process. Aside from violating the process of creating the IEP (let us assume here
that there was none), the school has not violated any procedural requirement. Therefore, the school
has not violated the Act, and the court should rule in favor of the school. If this were the outcome,
Ella would continue failing her classes. This begs the question that maybe what Congress needs to
do is make the process more efficient. Yet, any lawyer will tell you not to hold your breath waiting
for Congress and the Administration to “act.” 196
necessary to measure the academic achievement and functional performance of the child on State and districtwide
assessments ( 7) and the projected date for initiation and anticipated duration of such services”).
194 20 U.S.C. § 1400(c).
196 See Condit, supra note 8, at 19 (“Many argue that in today's political climate, Congress will not likely be able to
pass legislation that expressly heightens schools' responsibilities to special education students”); see also Terry Jean
Selignann, Sliding Doors: The Rowley Decision, Interpretation of Special Education Law, and What Might Have
Been, 41 J.L. & EDUC. 71, 93–94 (Jan. 2012) ("Despite the sympathetic proposition that children with disabilities
should receive an appropriate education, given the current landscape one wonders whether it would be possible to
pass an entitlement statute like the IDEA today").