The Special Education Case Law "Iceberg": An Initial Exploration of the Underside

By Zirkel, Perry A. | Journal of Law and Education, July 2012 | Go to article overview

The Special Education Case Law "Iceberg": An Initial Exploration of the Underside


Zirkel, Perry A., Journal of Law and Education


Special education case law, which appears to be the most active sector of K- 12 education litigation,1 has been the subject of relatively extensive empirical analysis. These analyses have examined the frequency, issues, and outcomes of adjudications for the field of special education generally2 and for selected subcategories within this field.3 The primary pertinent legislation, the Individuals with Disabilities Education Act (IDEA),4 provides for initial adjudications at the administrative level prior to judicial action.5 The research limited to court decisions under the IDEA has relied on the standard searchable databases; thus, the results are not necessarily generalizable to decisions that are unpublished and unavailable in the standard databases. Previous studies have been subject to the implicit or explicit caveat that the unpublished decisions may be dramatically different, thereby leaving in question the utility of their findings.6 For example, if the unpublished decisions are much more numerous and parent-friendly than the district-friendly trend in the outcomes of published cases, the "hidden" part of the case law suggests that the whole story is the opposite of what is told.

In recent years, the concept of "published" has become more flexible and expansive, ultimately affording a larger available corpus of judicial decisions for empirical analysis. Originally, the term "published" was limited to those decisions appearing in the official hard-copy reporters, such as the Federal Supplement, which largely depended on judges' submission decisions.7 However, with the development of the Internet and competition between West's Westlaw and Mead's Lexis services, more and more previously unpublished court decisions have become generally available.8 The advent of specialized legal publishers, such as LRP in the special education field,9 and West's Federal Appendix, a reporter for decisions not for official publication,10 have made even more unpublished decisions available and searchable through standard methods of legal research.

The principal source for research on decisions below the surface - beyond the offices of the various courts and the occasional specialized project - was the specialized database of the Administrative Office of the U.S. Courts (AO)," which originally was in the form of tapes but has become the Internet-based Public Access to Court Records (PACER) system.12 More recently, Westlaw and Lexis have developed dockets databases that facilitate access to and analysis of the PACER records.13

Based on the availability of this dockets service, which provides access of federal district and appellate court records starting in approximately 1990, this study explores the feasibility of a systematic comparison of the frequently-analyzed decisions above the surface, generically referred to herein as "published,"14 with those heretofore not generally available for such empirical analysis, referred to as "unpublished."

Part I of this paper provides a fuller picture of the availability of IDEA decisions via the analogy of an "iceberg."15 This analogy provides the framework for our empirical exploration. Part ? consists of a critical review of related literature, especially previous pertinent empirical analyses. Part III summarizes the methodology for this exploratory study. Finally, Parts IV and V present and discuss the results of the exploratory study.

I. THE "ICEBERG"

Although IDEA adjudicative proceedings start with an impartial administrative hearing,16 this exploratory study is limited to court decisions under this Act.17 Consequently, Figure 1 does not account for the administrative hearing phase of an IDEA case. Therefore, the figure illustrates the metaphor of an iceberg for judicial proceedings in general as well as for the IDEA-related judicial proceedings analyzed herein. The visible portion of the iceberg consists of the officially published decisions and also those additionally available in the standard Westlaw (and Lexis)18 electronic databases. …

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