School districts prevail in most due-process hearings.[i] Parents who lose can appeal in federal court. [ii] Parents of autistic students did well in court before 2004, but since then, school districts have won most of the cases.[iii] A parent will face mounting pressure to settle before makes a ruling, because the legal process can drag on and on, and time is on the school district’s side. A child is in any one school for only a few years, so services delayed are services denied.[iv] And in the long run, there is no long run. IDEA only covers people until their 22d birthday: after that, public schools may cut them off. (They do have more limited protections under other laws and programs, which the next chapters will discuss.)
[i] One study of California cases found that parents of autistic children had a better rate of success than parents of children with special learning disabilities “or mental retardation, but they still prevailed less often than the school districts. Gil Eyal and Allison Mann, Who Prevails?: Comparison of Special Education Due Process Hearings for Autistic, MR and SLD Children,” January 2010. Online: http://works.bepress.com/cgi/viewcontent.cgi?article=1002&context=gil_eyal.
[ii] Terry Jean Seligmann, “Rowley Comes Home to Roost: Judicial Review of Autism Special Education Disputes,” UC Davis Journal of Juvenile Law and Policy 9 (Summer 2005): 217-288.
[iii] Doris Adams Hill and Regina Kearley, “Autism Litigation: Outcomes for 2010, Trends in Decision Making and Changes in Diagnostic Criteria,” Research in Developmental Disabilities 34 (May 2013): 1843–1848. Online: http://www.sciencedirect.com/science/article/pii/S0891422213000760.
[iv] Colker, Disabled Education, 46.
Michelle Diament reports at Disability Scoop:
Special education disputes are far more likely to be litigated in some states than others, with a new report finding that just 10 states account for nearly two thirds of all court decisions.
Between 1979 and 2013, there were over 5,000 court decisions nationwide related to legal questions under the Individuals with Disabilities Education Act, according to an analysis published recently in the Journal of Special Education Leadership.
Nearly 600 of those decisions came out of New York, while Pennsylvania and Washington, D.C. each accounted for about 500 decisions.
Rounding out the top 10 states on the list are California, Illinois, New Jersey, Hawaii, Texas, Connecticut and Virginia, the study found.