This past April, DisabilityScoop.com published an article about “educational malpractice” claims becoming potentially viable depending on the outcome of a case that has now worked its way up to the US Supreme Court, Addison v. Compton Unified School District.
I’m not going to go into the blow-by-blow details of the case. You can get all of that on the Wrightslaw web site, including PDFs of the filing documents and prior decisions.
What I will go into are the many reasons why I think Compton Unified’s decision to take this issue to Supreme Court is insane.
In a nutshell, what Compton Unified and its attorneys at Littler Mendelson are saying is that parents are barred from taking school districts to due process for failing to conduct “child find” – that is, seeking out, identifying, and serving all of the kids in the district who need special ed. Federal law makes “child find” a mandatory aspect of special education.
The arguments asserted by Compton Unified completely leave out relevant sections of the regulations that contradict its assertions and its filings include no references to other court cases in which the findings support the assertions being made by Compton Unified. That’s because there are no such cases!
The “child find” cases that have already been tried establish a precedent that parents can file for due process if they believe their children have been denied a FAPE because “child find” wasn’t conducted. Whether or not those parents prevail is another matter, but there has never been any question that “child find” issues can be taken to due process. I’ve worked on cases myself that went to hearing where “child find” was at issue and those complaints were never thrown out on the assertion that “child find” concerns couldn’t be tried. It has always been a given that they can be.
As counsel for the Student points out in their Response to Compton’s Petition, parents have a right to file for due process to address “…?any matter relating to the identification, evaluation, or educational placement of the child.” 20 U.S.C. ? 1415(b)(6)(A). (emphasis added) “Child find” is a mandated activity meant to identify those children within a given local education agency that require special education.
What is so incredible about all of this is Compton’s assertion that a hypothetical floodgate of litigation – “educational malpractice” cases, they call it – would be supposedly opened if every parent who’s kid was denied a FAPE on the basis that “child find” was not conducted were to be deemed actionable. The problem with this argument is that failures of “child find” have been actionable for over 30 years and that floodgate has never manifested during that time. Compton seems to be trying to solve a problem that doesn’t exist, but why?
Perhaps the real issue here is that the District has failed to conduct “child find” across the board for a very long time and only with this case finally got held accountable for it. Maybe the erroneous idea that its failure to conduct “child find” would not result in any consequences has been a deeply rooted misconception that has created a lot of potential litigation against the District by many families with viable “child find” claims.
If the parents of Compton, which is a socio-economically depressed urban community that has been plagued with a high crime rate for many years, were to realize that Compton Unified has been cutting corners by failing to identify and serve those of their children who may require special education, there very well might be a local uproar over the situation that could lead to additional due process litigation or even a class-action suit.
A failure to conduct “child find” is bad enough, but when you neglect to identify eligible students who are already compromised by low socio-economic status, have poor access to medical care and adequate nutrition, and who live surrounded by violence, the injustice is just that much greater. Poverty is a weapon of power – in order for someone to be on top, someone else has to be on the bottom. And, the best way to keep people poor and powerless is to keep them uneducated.
Special education has the potential to break the cycle of poverty for many children, turning them from tax-dependents into successful tax payers. Neglecting to use it only obligates the public to greater expense once these children reach adulthood. Failing to provide special education to eligible students from communities compromised by significant poverty is simply reprehensible on several ethical and practical levels.
According to Compton’s last published SARC report, which is from 2007-08, the District’s student population is about 75% Latino and about 24% African American. That leaves the remaining 1% of the student population being made up of every other ethnicity. About 80% of the student population qualifies for free lunches.
There is plenty of research that has been done showing that Latino and African American students tend to suffer the most because of the cultural differences between what is expected in the classroom and how they have been raised by their families and communities to engage in problem-solving. There is also a high correlation between poverty and poor school performance. So, Compton has a lot on its plate to be sure.
But, for it to go so far as to invest hundreds of thousands of?taxpayer dollars into litigation costs to chase after windmills all the way up to the US Supreme Court is a slap in the faces of the students who continue to go unserved by the District due to its failure to engage in “child find.” Compton is spending its limited funds on frivolous litigation rather than the costs of competently educating its grossly under-served students. If you look at the numbers on their SARC, they’re not pretty.
What compels a school district to invest its resources in defending and attempting to justify?its failures than to simply render the mandated services? In the end, it’s going to have to render them anyway, plus deliver compensatory education to everyone they screwed over who had the knowledge and ability to pursue it.
If there is a floodgate to be opened as a result of this litigation, it will most likely be in Compton where there’s a good chance that there are many, many more children who have fallen between the cracks in the absence of a proactive “child find” scenario. It may be that the District’s only motivation with this Supreme Court case is to prevent itself from being held accountable for having broken the law to the detriment of many of its students. It could be that all the “educational malpractice” hoopla that it’s trying to generate is just smoke and mirrors to pull peoples’ eyes away from the real facts of the case and an attempt to garner the support of other public education agencies by freaking them out over the prospect of unending litigation over “child find” errors.
From where I’m sitting and looking at the situation, the case seem pretty transparent to me. I think the Respondents’ take on the situation in their Response to the Supreme Court is sensible, straightforward, and true. I think it’s significant to note that three different judiciary bodies have already shot down Compton’s insistence that it can’t be tried for “child find” violations. The Supreme Court is the last place to which it can make an appeal. You’d think the District would get the message by now and stop wasting taxpayer resources on something other than what it is obligated to do.
In any event, now we’re all waiting to see if the Supreme Court will even accept the case. I think there’s a pretty good chance that the Supreme Court will toss it out.
But, that still leaves this whole concept of “educational malpractice” unexplored. It’s no secret that America’s schools do not stack up well against other countries’ education programs. If I were looking for instances in which “educational malpractice” has occurred, I would not be limited to “child find” issues – hell, I wouldn’t even be limited to special education issues.
And, that opens up the floor for all kinds of discussion over the degree to which the American public should or should not be able to hold the public education system accountable for its shoddy performance. If “educational malpractice” in general applies to any situation in which the system fails as the result of people not doing what they were supposed to do, then all of the politicking involved in education reform that never seems to amount to much change could be supplemented – if not supplanted – by litigation.
If the costs of litigation hurt badly enough, would the public education system feel forced to reform itself? I’ve seen litigation achieve appropriate outcomes when all else had failed, but I’ve also seen what happens when litigation goes wrong. Crazy judges who don’t know a thing about special ed, changes in the law that people don’t really understand when the case goes to hearing, parents who break down on the witness stand and can’t give coherent testimony, experts who turn out to be not as great as you thought they would … things can go wrong and cases with merit can lose.
I don’t pretend to have all the answers. I just find it interesting that hysteria over the potential for “educational malpractice” suits arising from cases that parents have always had the right to bring to hearing has made it this far.
And, I have to wonder if Compton didn’t just shoot itself and all other school districts in their collective feet by casting this case in the light of “educational malpractice” because it now causes me and others like me to wonder what else might constitute as “educational malpractice” and is that an angle that parents and advocates can work to make things better? Compton may end up wishing it hadn’t opened the “educational malpractice” can of worms before this is all over.