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.
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