Monday, September 16, 2013

When Agencies Won't Act: Mississippi Department of Education's Alleged Failure to Enforce IDEA

The district court in E.H. v. Mississippi Dept. of Educ., 2013 WL 4787354 (S.D. Mississippi 2013), issued its first opinion last week in a class action claim against the Mississippi Department of Education for its failure to force Jackson Public School District to comply with the IDEA's mandate of a Free Appropriate Public Education (FAPE).  In September 2010, the first plaintiff filed an administrative complaint with the Mississippi Department of Education.  The Department investigated the complaint and found that Jackson was, in fact, violating IDEA and ordered the district implementa a remedy.  In follow up monitoring of the district, the Department found that Jackson had not remedied its violations of IDEA.  The Department set November 1, 2012 as a deadline for compliance and indicated that failure to comply would result in the state stripping the district of its accreditation.  But when November 1 arrived, the district was still non-compliant. Rather than take action against the district, the state extended the deadline (and did so again later). The deadline as it currently stands is February 28, 2014.

Now distrustful of both the district and the Department, plaintiffs filed suit this summer against the Department, claiming that its failure to enforce the IDEA against the district was also a violation of the law.  Last week's ruling by the district court does not address the merits of the claim and only clears up some procedural matters regarding motions. Plaintiffs, however, are now facing a motion to dismiss.

Plaintiffs' move to sue the state is interesting as they obviously would have had a claim against the district had they chosen to pursue it.  In the past, plaintiffs have tried to bring claims against the U.S. Department of Education for failure to enforce education statutes.  These claims have typically been unsuccessful.  A suit against a state department of education, however, is more likely to succeed because a state department is fundamentally different in form and function from the U.S. Department of Education. The U.S. Department's job under IDEA is not to provide FAPE or comply with IDEA in any substantive sense.  Rather, its job is to enforce IDEA, which is a job that includes a fair amount of judgement.  In contrast, a state department of education's job is both to enforce IDEA and provide FAPE and other rights through its delegated school districts. Proceeding under this type of theory, plaintiffs in Gomez v. Illinois, 811 F.2d 1030 (7th Cir. 1987), were able to secure a major victory against the Illinois Department of Education in regard to its failure to properly enforce and implement the Equal Educational Opportunities Act.  As a result, this case had far reaching effects beyond the individual districts involved.  I will keep you posted on what the district court says in Mississippi.

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