Where Have All the Lawsuits Gone?

Read the whole article at :
http://www.aei.org/docLib/20081010_Bagenstos3.15.08.pdf


In this chapter, I assess the role and effects of the courts in implementing the IDEA. Perhaps the most surprising empirical conclusion is that courts do not have much of a role in implementing the statute.7 As I will show, there is very little litigation under the IDEA. In some class action cases—such as the Jose P. case that Sandler and Schoenbrod highlight—the effects of judicial intervention have been significant (for both good and ill). But, by and large, the courts have made little direct difference in the treatment of students with disabilities. Courts have a somewhat greater indirect effect on the education of students with disabilities, as their (relatively rare) decisions cast a shadow over the (much more frequent) decisions of school administrators. Those decisions have, at the margins, exacerbated one of the problems commentators have attributed to the IDEA—an excessive focus on process over substance. And they have created and maintained a system of public reimbursement of private school tuition that may appear necessary in individual cases but raises substantial equity concerns nonetheless. Considered overall, however, both the strengths and the weaknesses of the IDEA have less to do with the actions of the courts than with those of Congress and the Executive Branch.

THE INDIRECT EFFECTS OF JUDICIAL DECISIONS—THE ROLE OF LEGAL DOCTRINE
There are two possible ways the courts might affect education when they implement the IDEA. They might do so directly, by ordering schools to take or refrain from taking certain actions as a remedy for a proven violation of the statute. Or they might do so indirectly, as their legal rulings cast a shadow over the actions of educators, students, and parents. In this section, I discuss the indirect effects of legal doctrine in this area. The following two sections discuss direct effects of judicial intervention.