The enactment of the Education for All Handicapped Children Act of 1975 [hereinafter EHA] brought about rapid and widespread change in the availability of public education programs for handicapped children. Prior to its enactment, the education of such children was largely a matter of happenstance; local or state programs or private facilities might or might not be available or affordable. Handicapped children and their families had to fend for themselves to find appropriate or even adequate services. Many handicapped children were excluded from the regular educational system. If public services were available, they were offered in separate classes, buildings, or institutions. As late as 1970, it was estimated that some two million handicapped children between the ages of seven and seventeen were not enrolled in school, and perhaps two million more were not receiving an adequate education.

Advocates for the interests of handicapped children sought change on two fronts – the courts and Congress. After the results in two federal district court cases, which held that handicapped children had a right to a publicly funded education, Congress enacted the EHA. In order to ameliorate the history of exclusion and segregation of handicapped children and to bring them into the mainstream of public education, the EHA “legalized” special education by conceptualizing it as a right to a free appropriate public education. Parents must be included in the planning of their child’s “individualized educational program” [hereinafter IEP]; they are given rights to notice and to a full dress due process hearing before an impartial hearing officer with respect to disputes about their child’s programming. Decisions by the hearing officer ultimately are reviewable in federal district court.”t The terms “legalized” or “legalization” are used to reflect all of these features.

The EHA has brought about substantial and rapid change in the provision of special education services to this disadvantaged group. There is no longer any debate about the wrongfulness of excluding handicapped children from the school system and, although there are still resource allocation problems, no child can be turned away.

Following the declaration and acceptance of these basic principles, however, the focus of the EHA turned almost immediately from issues of exclusion to issues surrounding the kind and quality of education a handicapped child would receive. It is in this arena that the effectiveness of the EHA has been seriously questioned. Prominent among the EHA’s troubles is the low quality of parental participation in IEP conferences, which frequently are highly formal and non-interactive. In addition, the adversary-model due process procedures, which are designed to allow parents to enforce their substantive rights, are used mainly by a handful of usually wealthy and knowledgeable parents. Finally, even favorable decisions for parents have not always resolved the dispute satisfactorily.

The most striking characteristic of the current EHA enterprise, therefore, is the remarkable gap between the statute’s promises and the empirically demonstrated reality. The EHA’s failures have been traced to the inherent weaknesses of the legalization model itself, which can degenerate into formalism or “legalism,” where the strict compliance with procedures takes precedence over any substantive change. It is said that the mismatch between a highly individualized and discretionary delivery of special education services and the highly legalized EHA is untenable and unworkable. Additionally, a legalized, adversary system can foster defensiveness, delay, and hostility. The costs of legalization, both in human energy and in dollars, is such that only the wealthy and knowledgeable have meaningful entry into the processes which purport to be designed for all. Moreover, legalization in the school setting has been criticized particularly as running counter to the educational mission.

In light of this critique, the recommendation for “treatment” of the EHA’s problems is fairly predictable: less legalization. This has meant the call for more informal dispute resolution mechanisms and less participation by attorneys. While the macro-benefits of legalization may be too great to abandon, the commentators have uniformly sought to pull back from what are considered the less attractive features of legalization, and comparative studies have explored less adversarial approaches to special education delivery.

The EHA has been described as a highly legalized system. If one looks only at its processes, from complaint to decision making, this is an accurate characterization. However, the EHA did not expressly incorporate fines, penalties, or monetary damages into its private enforcement mechanisms. This gap has not received adequate attention in analyses of the statute’s failures. Public law rights administered by lower-level officials and bureaucrats have been called highly “remedy-dependent,” requiring a significant level of vindication in order to assure compliance. The remedial dimension of the EHA, however, has been so inconsistent with the substantive rights of the statute (which are expressed in language of unconditional entitlement) that implementation failures are the logical result.

It is the thesis of this Article that the absence of competent remedies in the system has exacerbated implementation problems. Although implementation problems can be attributed to a myriad of causes and conditions, the “remedies gap” has been overlooked as a source of difficulty. Remedies are essential components in a private enforcement model, and their absence has at least partially disabled the potential impact of the EHA.

This Article first examines the structure and history of the EHA. Next, the Article explores the significance of the “remedies gap” both in the statute as written and in the current interpretations of the statute by the courts. It then focuses on the two most recent developments in special education law: the 1986 enactment of the Handicapped Children’s Protection Act and the 1985 United States Supreme Court decision in School Committee of Burlington v. Department of Education. Both of these developments enhance the remedies available under the EHA and illustrate the inexorable pressure towards further legalization despite some critics’ exhortations toward a contrary course. Next, the Article examines the connection between the substantive right and the remedial regime and argues that as the courts have defined the substantive right more specifically, and thus narrowly, they have broadened the availability of remedies. The final Section surveys the various remedies which are potentially available under the EHA and explores the effect of each remedy on EHA implementation.