The Special Education Bargain

“Half a century ago, Congress “revolutionized” the way children with disabilities are educated in this country. Under the Individuals with Disabilities Education Act (“IDEA”), every year the public schools must prepare a “written statement” describing where each such child stands educationally, what educational goals she will work toward, and the special education services she will need to meet them. That document-the Individualized Education Program (“IEP”)-is easily the single most recognizable symbol of special education today. Courts have held it “central” to the IDEA’s “statutory scheme.” Scholars and educators regard it as the “heart and soul” of special education law. And yet, for all that, the IEP has long been a puzzle. What is it, exactly? To many scholars, parents, advocates, and even some schools and educational agencies, the IEP has looked suspiciously like a contract. And yet, courts and agencies rarely recognize it as such. Hence the puzzle: if courts, agencies, even Congress have insisted that IEPs are not contracts, why does the IEP feel so unmistakably contractual? Is that feeling simply a mistake? But if so, what makes that mistake-if that’s what it is-so irresistible

This Article urges a new way of looking at the IEP, and with it, much of special education today. We so easily fall into thinking of IEPs as contracts, this Article argues, because that was the way the IEP process was designed to work-like contract-even though the IEP was not meant to be one. On its face this may seem odd, even paradoxical. As this Article shows, however, the Act’s history tells us that that is exactly what Congress created when it wrote the IEP process into the IDEA. The Act tempts this contractual talk by design. The trouble is that we lack a vocabulary to pinpoint why it does so, and how. So this Article proposes one: the IEP is a process transplant. What distinguishes a transplant of this kind is what gets borrowed: not a legal rule, concept, or principle-the law’s black letter-but the model of a process, assembling legally recognized actors, with specified legal powers, into a definite arrangement. With this account, this Article argues that we can come to see why courts have read and enforced the IDEA in sometimes surprising ways-through a lens that looks decidedly contractual. And we can also come to better appreciate how the IDEA ultimately “revolutionized” special education-by deliberately remaking it in the image of contract-and how we might then start fixing that law’s flaws.”