Heather Hulit, Berney & Sang

Introduction

Lyndon Johnson told us that education "offers an escape from poverty." Nelson Mandela said it is the "most powerful weapon you can use to change the world." And the eminent educator, Horace Mann asserted that education is the "great equalizer" of the human condition. You may have noticed that in all the campaign flyers you have received that most feature the candidate in the classroom or reading to a child and include bullet points on how important education is to combat all sorts of social evils, from poverty to gun violence. And it's true—education is a powerful weapon. Education can serve as the gateway to the American dream while a lack of educational opportunity statistically leads to poverty and involvement with the criminal justice system. A 2016 study, for example, found that high school dropouts are four times more likely to be arrested, become dependent on government assistance and use drugs.

Lawsuits as the Costs of Doing Business

Like many civil rights lawyers, attorneys who enter the field of special education do so inspired by the likes of Thurgood Marshall, who was, among other things, aiming to force change in an inequitable and unfair educational system through litigation. But, as any seasoned civil rights attorney will tell you, whether its special education, Title IX claims, or police brutality, civil rights lawsuits do not often spur the system change we seek. Each plaintiff is made whole with a settlement that is very good for the individual plaintiff with little to no impact on the system. It is as if the lawsuits are just the "costs of doing business" and the system—be it a police department or a school district—largely keeps on operating the same way they did before the suit.

In the case of schools, they spend hundreds of thousands of dollars each year on litigation—on compensatory education, educational trust funds, private school tuition, plaintiffs attorney fees and defense costs. The benefit of the lawsuit goes only to the children who are the subject of the lawsuits and not to the broader student population. In fact, for many of my clients who remain in the same school setting after their lawsuit, the district continues to violate the student's rights so that the student has a legal claim each new school year over essentially the same violations. The civil rights practice in special education is largely unable to change the system; at best it helps the lucky few whose parents were fortunate enough to find and afford an attorney. This leads to two perverse outcomes.