D.L. v. DCPS and Private versus Public Enforcement of IDEA

A recent ruling in a special education case against the District of Columbia Public Schools (DCPS) highlights the potential power of litigation by private parties in bringing about systemic reform.  On November 16, a judge ruled against DCPS  in D.L. v. DCPS, a class action challenging the adequacy of the school system’s early childhood services under the Individuals with Disabilities in Education Act (IDEA).  (The plaintiffs also survived a class decertification motion arguing lack of commonality based on Wal-Mart v. Dukes.)

This isn’t the first large-scale special education lawsuit against DCPS – in fact, the system only recently emerged from a consent decree monitoring special education due process hearings, and court supervision still continues to some degree.

Eloise Pasachoff (Georgetown) just published a very timely article in the Notre Dame Law Review, Special Education, Poverty, and the Limits of Private Enforcement, which offers a useful context for D.L. Pasachoff makes the point that IDEA’s private enforcement mechanism has proven less effective for children in poverty. Therefore, she argues, government enforcement is essential to ensure that poor children receive the services guaranteed under IDEA.

Pasachoff emphasizes that IDEA is “unusual among education programs” because it establishes an enforceable right to a “free appropriate public education” (FAPE) for children with special needs. The statutory right to FAPE – plus fee shifting – means that private litigants and their attorneys play a significant role in enforcing IDEA.

But, as Pasachoff highlights, there’s evidence that wealthier families benefit from private enforcement of IDEA far more than poor families. This didn’t surprise me at all, based on my personal experience as a legal aid lawyer representing low-income students in special education cases in Chicago. Anecdotally speaking, it’s very, very difficult for low income families to secure representation in special education cases – even with fee shifting — in part because of the resources required to compile test results, student records and other evidence needed to assess a case. And it can be really challenging to succeed without a lawyer.

Pasachoff also makes the case that class actions have limited usefulness in IDEA enforcement because of problems in establishing commonality – and because families with resources may prefer to go it alone.

What is striking, then, is the DC plaintiffs’ success in overcoming the obstacles Pasachoff identifies. What makes this particular lawsuit different? Maybe it was easier to demonstrate commonality because DCPS serves such a large proportion of low income students? Most school systems, I think, have greater socioeconomic diversity than DC’s – which could pose difficulties in establishing commonality or assembling a class. But perhaps the DCPS lawsuit offers a model of private enforcement of IDEA that could work in comparable school systems.