After two decades of decline, education litigation appears to be on the rise, with special education leading the way, according to an analysis from Lehigh University professor Perry A. Zirkel, an expert in special education law.
Zirkel's paper on his findings will appear in full in an upcoming issue of West's Education Law Reporter, but he walked me through the findings.
Using West's Key Number System, Zirkel tabulated state and federal court decisions by decades, starting in the 1940s. In the 1970s, state and federal education decisions combined reached a high of about 7,600 decisions, but dropped to about 7,300 decisions in the 1980s and under 7,000 decisions in the 1990s. When Zirkel counted the cases for 2000 through November 2010, he expected to see the same downward trend. Instead, the number was higher even than in the 1970s, at about 8,000 reported decisions.
The overall growth was attributable to federal courts; the level for the state courts continued its gradual decline in the most recent decade. As a result, the proportion of federal court cases was 45 percent of the overall total for 2000-10, as compared to 32 percent in the previous decade.
Digging further into the types of cases that were litigated, Zirkel found that, specifically, federal special education cases showed a dramatic increase—from 623 decisions in the 1990s to 1,242 decisions rendered between 2000-2010. Other types of education cases increased, but no other category grew as much.
Zirkel said he's not sure what to pin the increase on; his analysis did not look at the individual cases to identify common trends. But the rise doesn't appear to be driven by some shift in court sympathies; about 65 percent of special education lawsuits are won by the districts, and that proportion has held steady, he said.
"Something happened that was unexpected," he said. "Whether it's signaling a lasting trend is unknown, but it's raising a cautionary flag."