Special Education: A Statewide Compliance Crisis

Equip for Equality will be launching a major new initiative this coming year, a clinic for parents of students receiving special education services. Federal, state and private studies of the Illinois special education system have documented what advocates in the trenches and parents have long known: There is widespread noncompliance by schools and school districts with the federal special education law, known as the Individuals with Disabilities in Education Act, or IDEA. Despite some differences among the school districts across the state, there are some common areas of noncompliance. Schools continue to have a preference for segregation over inclusion. Discipline is too readily substituted for adoption and implementation of appropriate education plans based on the individual student's needs (IEPs). Appropriate and needed services are denied or arbitrarily reduced without regard to the impact on the student's progress.

Attempts to resolve questions informally are increasingly more difficult because school districts "lawyer up" at routine meetings with parents if they expect any disagreement. Even in situations in which the parents take the matter to "due process" (the administrative hearing process for resolving parentdistrict disputes) and prevail, real change in the school's policies and practices almost never happens. This means that students, and those who will be entering in the future, are likely to face the same problems year after year.

Of course, the high cost of legal services is a huge barrier to parents' enforcing their children's legal rights as students. The recent Illinois study on unmet legal needs of low-income households with a member with a disability showed that special education is an area of significant unmet legal need. The study further noted that Equip for Equality provides legal advocacy services to more than 50 percent of the education cases handled by the 23 legal aid service providers statewide (see Spring 2005 Equalizer). Yet the free and low-cost providers of legal service meet only a fraction of the need, while school districts, many of which have law firms on retainer, have legal advice and representation every step of the way.

At Equip for Equality, we hear from parents every day who feel alone and frustrated in their dealings with schools. They tell us that it is difficult to figure out where to turn for help to get the reliable, up-to-date resources, information, training and hands-on legal advocacy services. Parents and students are often desperate to get the situation resolved without making school life any harder. Many parents find it difficult to challenge the school because they feel intimidated by many school personnel and experts who tell them they're wrong.

Parents who need to get an attorney involved face many barriers. Few legal aid groups provide legal representation in due process or court for free or on a sliding scale. Few parents can afford to turn to the private bar because special education cases are often time-consuming for the attorney and may require retaining a paid independent expert as well. The Supreme Court has recently held that parents may not recover the costs of the expert, even when they win! The lack of affordable legal representation is especially troubling because a study of the outcome of due process hearings in Illinois done a few years ago found that parents who go to due process without an attorney almost always lose, while those who are represented by an attorney win about half the time.

With the need for special education legal advocacy services growing each year, Equip for Equality concluded that we had to do something. As the federally mandated Protection and Advocacy (P&A) System for the State of Illinois, we have a responsibility to advocate for people of all ages on a broad range of issues. At the same time, we know that if we turn down a case, it is likely that the parents will go without the help they need to be successful. In the end, after talking with many parents, advocacy groups, special education officials and others, we decided that we needed to establish a new clinic to support parents of special education students.

With a grant from the Chicago Bar Foundation for emerging issues, Equip for Equality began making plans for the clinic, including identifying potential partners and investors in this initiative, as well as parents and others to serve on a special education council to provide guidance and direction to the clinic. Once fully implemented, the clinic will provide information and advocacy, including the following:

A special education helpline for parents
Training on a range of special education issues
Parent-to-parent networking opportunities
Advocacy support at school meetings
Legal representation in due process hearings and court
A comprehensive special education website with self-help materials and links

This project is consistent with our commitment to expanding the provision of advocacy for all students who receive special education. Equip for Equality is committed to making the clinic a resource for all parents, including those who are low income, people of color, non–English speaking, deaf and other traditionally underserved groups. Fees will be charged based on a sliding scale.

The managing attorney will oversee and work to expand the clinic, and the clinic will rely on both EFE and pro bono attorneys to provide legal advocacy services to parents. Other volunteers will also be used to expand the clinic's reach. A recently announced two-year grant by Equal Justice Works will support a new attorney at Equip for Equality this fall to advocate for students involved in the juvenile justice system who require assistance related to their special education.

When the federal special education law was last up for reauthorization by Congress, the Senate added a provision that would have established a new Protection and Advocacy System for special education students. Although the provision establishing a new P&A program did not become law, we believe that the new clinic for parents of special education students at Equip for Equality will help demonstrate the value of creating special education clinics in each of the state Protection and Advocacy systems nationwide.

Supporters of the clinic currently include: The Illinois Bar Foundation, Chicago Tribune Charities, Northern Trust Charitable Trust, Polk Bros Foundation, and Illinois Equal Justice Foundation. Individuals, companies and law firms interested in exploring ways they can support the clinic should contact Zena Naiditch at the Chicago office - Tel: (800) 537-2632, TTY: (800) 610-2779.

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