[abstract]
This Article addresses the theoretical and functional role of due process in special education law under the Individuals with Disabilities Education Act ("IDEA"). Thirty years ago, the Supreme Court interpreted the IDEA to grant very limited substantive rights but to provide robust procedural protections for disabled children and their families. Since that decision, the federal courts have been in an unrecognized state of disarray when analyzing procedural violations under the IDEA.
This Article looks to the historical context in which the IDEA was drafted and interpreted, in the midst of the so-called due process revolution, to better understand the meaning of its proceduralist values. The Article revisits the once lively academic discussion of the nature and function of procedural civil rights protections in the education context that engaged scholars during the 1970s and 1980s, updating that analysis to apply to current special education law.
The Article applies the historical and theoretical insights from those earlier inquiries to develop a structural due process vision of the IDEA, distinguishing two separate stages at which due process protections apply under the Act, and deriving three distinct principles that constrain the school district's decisionmaking process in developing an individualized educational program for a disabled student: collaboration, individualization, and contractualization.
Finally, it argues that this theoretical inquiry has significant practical import because the three structural due process principles map precisely onto a recent amendment to the IDEA such that the theoretical vision described in the Article is directly relevant to deciphering the procedural challenges raised under the IDEA that have bedeviled the courts for more than three decades.