Form Over Substance?

Usually when people talk about elevating “form over substance,” they mean it as a put-down to form.  Procedures, it is thought, are inherently inferior to substance. But are they really?

At least in the special education context, I have not found that to be the case at all.  Procedures are king. Procedures rule.  Let me explain.

Love it or hate it (and most parent-side advocates hate it), the Supreme Court’s Rowley decision from the 1980s, which set the standard (a low one) for a free appropriate public education (FAPE) for students with disabilities, did get one thing right.  The Court recognized the critical importance of the law’s complex procedural protections for families (the “procedural safeguards” guaranteed to families under the federal Individuals with Disabilities Education Act and its state counterparts).

In a recent article written by a school district attorney (Miriam Freedman) published in The Atlantic magazine (http://www.theatlantic.com/national/archive/2012/04/4-common-sense-proposals-for-special-education-reform/256435/), the writer calls for less focus on procedural compliance by schools and more focus on substantive outcomes.  This is all well and good in theory (and I doubt anyone would disagree with this in theory), but in real life, the result would be an evisceration of parent protections in special education – with the end result being a worse, rather than a better, education for our students.

I think that’s why Section 504 – with its focus on substantive civil rights vs. procedural safeguards for parents – is so under-utilized and is in fact often ignored by schools (as anyone whose child has struggled with a 504 Plan but is being refused an IEP can attest). 

For better or worse, the procedural safeguards are really the only thing standing between families and oblivion in the special ed world.  No wonder school attorneys are so eager to obliterate those protections.