In my nearly 3 decades engaging in systems change, legislators and other policymakers often ask 2 questions when advocates ask them to support proposed legislation or policy change:
- Will this bill solve the problem?
- Will this bill create more litigation?
While these questions appear to have surface level legitimacy, they are often interposed as excuses to avoid supporting legislation. It does not take deep analysis to understand that mankind has yet to find the law that is universally followed and therefore solves the problem. Indeed, even the most fundamental universal law, Thou shalt not kill, is sadly violated on a daily basis. Needless to say, there is not a civil society that has rid itself of its laws against murder because they have not solved the problem.
Regarding increased litigation, that question depends in large part on the nature of the proposal. Some bills specifically set forth a litigation framework to provide for their enforcement, such as the Civil Rights Act of 1964 which just celebrated its 50th anniversary. Other bills, such as Wisconsin Act 125, prohibiting the inappropriate use of seclusion and restraint, are framed more at the level of guidance and best practices, but do not envision litigation to enforce them.
For its nearly 40 years of existence, federal special education law, now known as the IDEA (Individuals with Disabilities Education Act), has been vilified by many school district officials and politicians as too litigation oriented. True, the law has always empowered parents to sue school districts when their children do not receive a free appropriate public education (FAPE) in the least restrictive environment (LRE). However, any reasonable analysis of the numbers of cases litigated under the IDEA demonstrates that the fears of excessive litigation are greatly exaggerated.
For example, during the 2013-14 school year, there were 122,654 children eligible for special education in Wisconsin. Yet, only 6 administrative due process hearings were filed that year, with only 2 of those hearing requests proceeding to a full hearing. In percentage terms, these negligible hearing requests are less than 5/1000% of students in special education.
With litigation in such minuscule numbers, it is puzzling why the aura of over litigation in special education continues to hang over the IDEA. I learned a satisfying lesson about the power of the IDEA and other civil rights legislation to act as preventive medicine during Gov. Scott McCallum’s brief term as Wisconsin governor from 2001-03, which coincided with the Congressional and state debate over the last reauthorization of the IDEA. Gov. McCallum surprised many when he hired retired teacher’s union director, Morrie Andrews, to lead an effort to build a consensus for state level education reform. Andrews started that effort by meeting with key education leaders, including me.
During my meeting with Mr. Andrews, he made it quite clear that he felt there was too much special education litigation. I relayed the paltry numbers of special education cases that were being litigated at the time, which truly surprised him. He then provided me with an important lesson on the power of law as preventive medicine.
After conceding that I knew the numbers better than he did, he informed me that school districts obeyed the law because they were afraid of being sued. As I let that sink in, a big smile came across my face as I came to the realization that over 100,000 children with disabilities in Wisconsin were receiving a free appropriate public education in the least restrictive environment because the law was acting as preventive medicine.
My conversation with Morrie Andrews helped me realize that systems change happens in many ways. Of course, for law to impact behavior, it must provide both guidance and an enforcement mechanism. But there truly are not enough lawyers (or people who can afford them) to enforce the laws on the books. That is why successful systems change must include use of the media to magnify the impact of laws on the books and the handful of cases which are litigated to enforce them, so that those who must obey the law understand that the risk of failing to obey the law is simply not worth taking.
For more information on how I can help you accomplish effective, progressive systems change contact Jeff Spitzer-Resnick by visiting his website: Systems Change Consulting.