E.D. Ordered To Release Papers in Special-Ed. Case

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WASHINGTON--In a decision that could increase the public's access to information about how states comply with federal laws, a federal judge here has ordered the Education Department to release documents from its 1986 review of Maryland's special-education programs.

The June 30 decision by U.S. District Court Judge Norma Holloway Johnson came in a case brought by the Maryland Coalition for Inclusive Education, a parent-advocacy group.

The group took the federal agency to court in 1989 after its requests to see a draft report and other documents from the department's 1986 monitoring review of Maryland were refused.

Federal officials claimed the documents were exempt from scrutiny under the "deliberative process'' privilege of the federal Freedom of Information Act. That privilege allows public agencies to withhold documents that are prepared before a legal or policy determination is made.

But Judge Holloway said the privilege did not apply in this case because no policy was being considered.

Rather, the judge wrote, the materials at issue "assess how well existing policies are being implemented by the state of Maryland.''

'No Longer Shut Out'

Mark Mlawer, the executive director of the advocacy group, praised the judge's decision.

"What this does is insure that the Department of Education can no longer shut parents and advocates out of the compliance process,'' he said.

"Perhaps now federal monitoring can become something more than it currently is,'' he added, "a closed, meaningless process with no consequences for noncompliance.''

The ruling is actually the second one to stem from the dispute. In 1992, the judge reached a similar conclusion with regard to other materials from the federal review, such as notes from the monitoring visit.

The current case was separated out because the judge said the parents had not exhausted other legal avenues before filing suit.

The Education Department has appealed the earlier ruling, and federal officials declined to discuss the specifics of the ongoing case last week.

But in response to similar concerns from a number of advocacy groups, the department in 1990 changed its policy and began to make draft reports available at the same time final reports are issued.

Still Unsatisfactory?

Mr. Mlawer said, however, that the new practice was still unsatisfactory because it prevents parents and advocates from taking part in the process before a final report is finished.

The 1986 draft report of Maryland's special-education programs and the state's response to it have never been released. Parent advocates said they wanted to see the documents because the department's final report on Maryland was unusually brief and inconclusive.

A 1990 federal review of Maryland's compliance with special-education laws noted that the state had numerous problems satisfying provisions of federal law that call for teaching disabled children in the "least restrictive environment'' possible.

Vol. 12, Issue 40

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