Making Due Process A 'Do' Process

By Perry A. Zirkel

In an earlier Commentary (" 'Backlash' Threatens Special Education," Aug. 1, 1990), I predicted a possible crisis in special education that would be the result of expanding entitlements and rising costs. A wide spectrum of educators and parents wrote to me after the article appeared, expressing general agreement with my analysis. Many, however, asked the difficult question, "Do you have any solutions?"

Predictions are difficult enough; prescriptions are another matter. The problem I spoke of has multiple facets; I can offer a solution only to the legal aspect. The Education of the Handicapped Act and its amendments, including the 1990 reauthorization which renamed the legislation the Individuals with Disabilities Education Act, represent an experiment in the legalization of education. The experiment is failing to the extent that undue resources are being diverted into litigation.

For example, in one of the many recent special-education cases, a federal appeals court reversed a lower-court judge's refusal to approve a settlement agreement that allocated over $160,000 per year for the placement of a handicapped child. The appellate court ordered approval of the settlement, ruling that the judge had no discretion to reject it...