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The aim of this essay, prepared for a symposium on dispute resolution in special education held at The Ohio State University Moritz College of Law in February 2014, is to highlight ways that advocates for children with disabilities can use federal agencies to improve the implementation and enforcement of federal laws protecting children with disabilities in schools—that is, the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act as it relates to schools.

One can spend a lot of time engaging with the contemporary public conversation about the law surrounding the education of children with disabilities without seeing much about the relevant federal agencies: the Office of Special Education Programs in the Department of Education; the Office for Civil Rights in the Department of Education; and the Civil Rights Division in the Department of Justice. For example, a great deal of the scholarly and advocacy discussion about the enforcement regime for special education law focuses instead on the role of private parties in enforcing the law. This vision of the relevant enforcement universe can be misleading for advocates who are not currently taking advantage of what the federal agencies can provide. It can also be misleading for students planning to practice in this arena; the leading casebooks, like the trend in the scholarship and advocacy material, say very little about engagement with federal agencies.

This essay therefore takes a different tack. Instead of focusing on private enforcement, Congress, the courts, or the limitations of federal agencies, I want to capitalize on what is already possible within the agencies and explain how and why to take these possibilities seriously. The goal of the essay is to provide a guide to agency structure and jurisdiction that will help advocates understand more deeply how to approach each office in any given context. More generally, this essay is part of a broader agenda to conceptualize education law as a regulatory field, in order to expand the conventional understanding of both the field of education law and the workings of the regulatory state more generally.

Publication Citation

29 Ohio St. J. on Disp. Resol. 461-494 (2014)