Endrew F and The Metaphysics of Special Education Law #metaphysics #Hegel #Paul Simon

We have gotten a robust reaction to the post a while back concerning who won Endrew F? It seems that each side (parents and school officials) still thinks that they won. Why is that?

First, we should probably take a look at special education law.  We have long said here that special education law is closer to metaphysics than it is to contract law. Contract law, and other types of old law, have "hornbook" rules that have been settled for ages. Old lawyers can apply those settled rules to a fact pattern and predict an outcome with reasonable certainty. (Although as one very senior attorney once told me, "anybody who says they know what a jury will do is lying.")

Special ed law, though (Read more...)

The Metaphysics of Special Education Law

Image via WikipediaI pointed out a few times during my presentations at the recent Wyoming and Utah Special Education Conferences that special education law is a lot closer to metaphysics than it is to, say contract law.Contract law, and other types of…

Land sales contract. Sumerian clay tablet, ca....Image via Wikipedia



I pointed out a few times during my presentations at the recent Wyoming and Utah Special Education Conferences that special education law is a lot closer to metaphysics than it is to, say contract law.

Contract law, and other types of old law, have "hornbook" rules that have been settled for ages. Old lawyers can apply those settled rules to a fact pattern and predict an outcome with reasonable certainty. (Although as one very senior attorney once told me, "anybody who says they know what a jury will do is lying.")

Special ed law, though, is new law. New law being roughly defined as what did not come over on the boat from England. The mid 1970's stuff is brand new law. Especially when you mix in equal parts of social policy and children's rights, the result is less predictable than other fields of law. Pity the fool.

Add to this mix, the never-ending cycle of special education law and things become even less clear. IDEA must be periodically reauthorized by Congress, we are again overdue. Then the feds must promulgate regulations, upon which the public may comment before they are finalized. Then, states develop regs. Soon hearing officer decisions appear followed by court opinions. Just when we become comfortable with the current state of the law, Congress reauthorizes and the process begins again.

So if a lack of ambiguity appeals to you, special education law may not be your cup of tea. (I still think that there must be a Jeff Foxworthy joke in that line, but I cannot find one I can use in a public forum. Any ideas that are fit to print?)


Why Everybody Hates Special Education Law

Image by lauromaia via FlickrI was giving a presentation last month and one of the participants yelled out, “but we still don’t have an answer.” This took me by surprise inasmuch as there is rarely an “answer” in special education law. To explain my …

welcome to urbanaImage by lauromaia via Flickr



I was giving a presentation last month and one of the participants yelled out, "but we still don't have an answer." This took me by surprise inasmuch as there is rarely an "answer" in special education law. To explain my point, I told the unhappy participant that special education law is more like metaphysics than it is like contract law. This may not have satisfied the participant, but it is true and I like the analogy.

Special ed law is new law as we have said here before. For me, "new law" is roughly defined as whatever didn't come over on the boat from England. Because special ed law is of a mid-1970's vintage, it is very new law. Older lawyers don't like new law, especially law that combines social policy. They like property and contracts- areas of the law where you can look at a set of facts and provide reasonably reliable advice to a client. Special ed law is not like that.

Special education law is a lot like the weather in Urbana, it changes frequently. In fact I have often commented on these pages about the "cycle" of special ed law. The statute was enacted, followed by federal regulations, followed by state regulations, followed by hearing officer decisions followed by court decisions, (both trial and appellate court opinions)(we even have ten by the Supremes). Then the statute, IDEA, is reauthorized and changed and the whole cycle repeats until we are pretty comfortable with the law, then the process repeats itself again. As I have said before, if certainty or red letter, hornbook law is your thing, you may not like special ed law. (I still think that there must be a Jeff Foxworthy joke in there somewhere, but I can't quite grasp of it!)

The ever-changing nature of it makes teachers, parents, administrators and many others hate special education law. It's slippery, and it's hard to get a handle on. How many cases, like the recent Supreme Court case of Forest Grove, have we seen where several of the decision makers disagree as to the result based upon the same set of facts? The answer my friend is in the eye of the beholder.

Only those who enjoy metaphysics, a shrinking number indeed, refuse to hate special ed law, or the "player" as we call it. We do have some guiding principles, but the rule of law model of applying a clearly established legal standard to any given set of facts doesn't really work here. Don't hate the player!


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