Role of the Courts

For the past few decades the courts have been one of the protectors of the rights of children with disabilities and their families. Beginning with the PARC case (Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania, 1972), the courts have tended to side with the rights of the child to a free and appropriate education. But just what does “appropriate” mean in this context? This term has been the basis of many of the legal issues raised by parents and advocates. Parents often believe that the local education authority (LEA) is assuming less responsibility than it should in providing special services for children with autistic spectrum disorders. The schools, faced with high costs for some of the recommended treatments for their students with autism, have tried to find a way of providing services that, while appropriate, will not overburden their budgets. These two understandable positions create the fertile ground for many legal disputes.

One of the key judicial decisions in recent times was made in what is widely known as the Rowley case (Board of Education of the Hendrick Hudson School District v. Rowley, 458 U.S. 176, 1982). In that decision, the court rejected the request of a girl with deafness for a classroom interpreter, reasoning that the school had already provided amplification devices for the girl and she seemed to be performing at an appropriate level in school. Therefore, there was no compelling evidence that she was being harmed through the services being provided by the school.

The Supreme Court held in the Rowley case that the purpose of IDEA was to provide appropriate, not optimal, special education, and, to that end, courts may not substitute their notion of sound educational policy for those of the school authorities. A subsequent case (Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2nd 171, 180–184 (3rd Cir. 1988)) made it clear that such services must be more than de minimus: “While appropriate does not mean ‘the best possible education that a school could provide if given access to unlimited funds,’ it does require the state to provide personalized instruction with sufficient support services to permit the handicapped child to benefit educationally.”

So where is the line to be drawn between optimal and meaningful services? While the Supreme Court clearly meant the school systems to have the predominant role in deciding what “appropriate treatment” should be, if a school system appears to be less than diligent in making such plans, or violates procedures of due process, or if expert testimony suggests that the schools are doing less than necessary, then decisions may be rendered against the schools (Mandlawitz, 1999).

One of the more common issues is to determine whether the states and schools, through their control of the development of the legally required IFSP and IEP, are respectively providing only the treatments or

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