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Supreme Court Decision - From a NJ Advocate

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  • Alpy2@aol.com
    Post Schaffer: New Era By Bob Witanek, _http://StudentAdvocate-NJ.org_ (http://studentadvocate-nj.org/) _advocate@studentadvocate-nj.org_
    Message 1 of 1 , Nov 16, 2005
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      Post Schaffer: New Era

      By Bob Witanek, http://StudentAdvocate-NJ.org advocate@... 908-881-5275

      Permission granted to publish and forward.

      Indeed, she said, "there is reason to believe that a great deal is already spent on IDEA administration, and Congress has repeatedly amended" the law "to reduce its administrative and litigation-related costs."  Washington Post quoting Sandra Day O’Connor’s majority opinion

      Jerry B. Weast, superintendent of the Montgomery County Public School System, called the court's decision "a victory for special education teachers in Montgomery County and across the nation who work hard everyday to provide the best possible education for students with disabilities."

      He added, "We defended this case for one simple reason -- we didn't want our teachers and staff spending more time in the courtroom instead of the classroom."
      Washington Post quoting Superintendent Weast.

      The impact of today’s announcement of a Supreme Court decision in Brian Schaffer et al v. Jerry Weast could have dire consequences for millions of current and future special education students across the United States.  The impact will be felt not only by those parents who are forced to or choose to file for due process but for all parents whose opinions might differ with school district personnel at the IEP table.  For some, the impact will be swift and immediate.  For others, the impact will creep into the IEP process for years to come.  For all of us – the results will be that districts are further empowered to override and disregard our concerns.  A process already warped in favor of school districts and state departments of education will tilt ever further in that direction.


      How so?  Firstly, districts will now have less fear of the idea of due process and being challenged legally by parents.  The task of challenging district decisions will be ever more daunting as the prospects for parents of prevailing in those challenges have been greatly diminished.  The costly venture of taking the district to court will need to be more carefully considered as the ability to prevail is weakened. As bold as districts can be and have been in the past, expect a several fold increase in this regard.


      The remedies of students and their parents to districts being unfair and in reckless disregard for the welfare of our children are greatly curtailed.  There will be either an unspoken grin or an outright gloat by case managers and directors nationwide when parents make reference to legal remedies – even more so than occurs today.  It could evolve that due process ends up as nothing more than a bad joke.


      It is not an exaggeration to state that IDEA was decimated by this decision.  Law without legal remedy can drift into a state of ineffectiveness.


      While legal scholars will no doubt have great opportunity to sift through the decision and provide analysis, it is none too soon for this attempt at a lay person’s response.


      The Washington Post quote of retiring Justice O’Connor’s written opinion above makes reference to “Congress has repeatedly amended" the law "to reduce its administrative and litigation-related costs."  So the long arm of powerful lobbyists of the teachers associations, directors associations, school board associations and professional associations that has held so much sway with the DC politicians with IDEIA 2004 has also impacted the majority decision against our children.


      The moral of that story is that the courts are indeed subject to political influence – as much as they try to state otherwise.  The other moral of that story is that when we stand down in face of devastating modifications to IDEA at the federal level – and when some of the advocacy organizations and local parent groups as well as thousands of special education parents turn their back on the effort to shape how IDEIA 2004 will be implemented in NJ – we create an environment where the only political influence the courts have to respond to is the influence of the well organized, politically unfettered and highly funded forces that aim to undermine the rights and protections for our children each time IDEA is reauthorized.


      As for Weast’s comments that teachers “work hard everyday to provide the best possible education for students with disabilities” – that is pure fiction.  Indeed the federal standard is “appropriate” public education – not the “best possible education”.  It is too bad that the Washington Post did not go the extra mile to point out the legal fallacy in Weast’s quote.


      [When the Supreme Court decided the Rowley case in 1981, the recently deceased chief Justice Rehnquist wrote the 6-3 majority opinion along the lines current chief Roberts suggested, interpreting the law to require aid that provides only "some educational benefit." The decision has been criticized ever since for giving school districts license to give only minimal help to special students -- a "Chevrolet versus Cadillac" approach, as several commentators describe it. The text of the US Supreme Court decision itself is available at http://www.wrightslaw.com/law/caselaw/ussupct.rowley.htm  . ]


      All is not lost though.  The hope that is left is that parents recognize the contour of the road ahead and that we organize ourselves accordingly.  In New Jersey, the IDEA 2004 petition drive to maintain protections and rights for our children is just such an effort.  If you have not gotten on board yet, see http://StudentAdvocate-NJ.org .


      The majority decision admits that it responded to the political winds that blow through congress to undermine and weaken legal protections under IDEA each time it is reauthorized.  The struggles in congress are a very lopsided fight with powerful lobbyists financed by dues paying members with full political rights on  one side, and hands full of 501 C3 and state funded advocates – with no political rights - and some independent advocates and parents on the other.


      The best response would be to overwhelm the state of New Jersey with tens of thousands of comments during the pre-proposal public comment period of December 19 to January 18.  We need district coordinators to collect petition signatures and more importantly, signed personal letters – we need to stuff the comments box with an unprecedented number of comments.  We also need to mobilize for full participation in the December 21 public hearing in Trenton.  See:





      See Washington Post article:


      For All of Our Children,

      Bob Witanek, http://StudentAdvocate-NJ.org advocate@... 908-881-5275


      Sandy, Illinois (alpy2@...)
      Volunteer Co-Webmaster, www.ourchildrenleftbehind.com (IDEA reauthorization)
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