So there's this ruling that came down today, in
Schaffer v. Weast, a case that originated in Montgomery County, Maryland.
The basic problem is this: school systems need to provide its resident schoolchildren with a free and appropriate public education (FAPE). This includes children with special needs, who can present special problems to school districts as well as parents.
The Individuals With Disabilities Education Act (IDEA) puts forth procedural safeguards to protect and enforce a special ed child's right to FAPE. What usually happens is that a team forms, composed of school district personnel (therapists, social workers, administrators), a teacher, and a parent, and they work together to create an Individualized Education Plan (IEP) for the affected student. About 6.6 million children in America are covered by IDEA, and that number is growing every year.
Now, sometimes, the IEP process is pretty cut-and-dried, and everyone agrees to what the child's FAPE should look like. Other times -- for instance, in cases of children with autism, or other disabilities that may have no single identifiable cause or prescribed course of action -- the parents may feel that their child requires a more THEIR CHILD-specific program than the school will (or can) provide.
IDEA sets a framework of dispute resolution in these sorts of cases, which, as you can probably imagine, can turn quite adversarial, and can appear very like trials. The problem with IDEA, though, is that unlike most laws, it does not specify where the burden of proof falls -- on the parents, to prove that what the school system is offering isn't sufficient, or on the school, to prove that its offering is perfectly reasonable.
Now, considering the fact that it's the school's responsibility to provide FAPE, it seems logical that it should be the school system's burden to prove that the IEP program it is offering a particular student complies with FAPE -- they have the experts, the resources, and the experience to do so. It should NOT fall to the parents to prove that what the school-suggested FAPE for their child is not adequate.
I can sympathize with the school's position. It would be cost-prohibitive to provide one-on-one, highly individualized programs for students with disabilities. Take Bamm-Bamm's class alone: five 5-year-old autistic boys. One can write his name, but he can't bring himself to look you in the eye, and can't stand to be touched. Two others thrive on touch, and are extremely social, but can't speak. Another can't stand noise of any kind, and will start sobbing and hiding if there is a fire drill...or if someone screams. And if you've been around autistic children, you know that generally, they do, in fact, scream. Shrill and loud, like a human teakettle. It is unlike any other sound.
Special ed. teachers should be sainted. Seriously. Just saying.
Anyhoo, to give each of these children their very own personal ideal environment isn't feasible (there are some private schools that do that, to the tune of $50,000 a year or more, but we can't all be rich). And health insurance doesn't seem to recognize therapy for autism as "medically necessary." So, often, the only resource most parents HAVE is the public school system. The schools do what they can -- for children who are at all educable, they try to group them in ways that make sense, and then pull them out of the general classroom for individualized attention (occupational therapy, speech therapy, physical therapy, etc.).
But. But but but. What if you think the school isn't offering your child what (s)he needs? Well, then there's that dispute resolution. Which can take years. In
Schaffer, the original case was heard in 1998. It is now 2005. In cases of, say, autism-spectrum disorders, it's generally recognized that early intervention is key, and that if there IS no early intervention, the child's opportunties are then severely limited. Seven years is a long damn time. Seven years can cost a child, his parents, and the community/society where (s)he grows up far more than it would have cost to help that child. A 1998 study estimated that there was a societal cost savings of about $2 million PER PERSON with autism "if intervention is widespread, early, and effective."
In cases like these, it is far more appropriate for the school district to bear the burden of persuading a hearing officer that the therapies a parent seeks outside of the suggested IEP are unnecessary. It's the fairest way of creating a level playing field between school districts and parents. And it should be fairly simple -- No Child Left Behind (aka No Teacher Left Employed) says that even children with disabilities have to meet "adequate yearly progress" (AYP) standards. Seems to me that if a child fails to meet the AYPs consistently, then maybe, just maybe, their program isn't adequate, and the school district should be required to show why it should not, then, change the IEP to a more restrictive environment, or a more child-specific program. All the parents should have to do is point to the IEP, the AYP, and say "fix it." The end result will be that the school districts will have the burden of education, and the parents will have the burden of parenting, and they can work together for the best interests of -- and outcome for -- the child.
SCOTUS says that if the parents don't like what the schools are offering, they can go hire lawyers, teams of experts, and spend tens of thousands of dollars and hundreds of hours of research to prove that their child isn't getting the help that (s)he needs. Ginsberg and Breyer were the lone dissenting voices in the 6-2 ruling. "School districts are charged with responsibility to offer to each disabled child an individualized education program (IEP) suitable to the child's special needs. The proponent of the IEP, it seems to me, is properly called upon to demonstrate its adequacy," Ginsburg wrote.
You go, girl.
