Justice Delayed
Becoming a parent was, without doubt, the most humbling experience of my life. As a young educator, I found it surprisingly easy to dispense advice about other people’s children, a practice in which I blithely engaged with a self-appointed sense of authority. As if to exact a measure of compensation for bestowing the title of parent, my children quickly disabused me of any such pretense.
There were, however, certain lessons I learned as a teacher that stood me in good stead as a parent. Among the most notable was the dictum that one should never create a rule that one is either unwilling or unable to enforce. The violation of this rule not only deprives children of a reliable sense of boundaries and structure, but serves to undercut parental authority.
In like manner, when government enacts laws it fails to enforce, it both invites bad behavior and weakens respect for the rule of law. A blatant example of such an occurrence was recently brought to the attention of the nation in a Government Accountability Office report on the provision of equitable services for private school students and educators under provisions of the federal Elementary and Secondary Education Act (ESEA). Before revealing what the GAO found, a bit of context is in order.
The law (in this instance, ESEA) establishes a framework that permits “parents, teachers, or other individuals and organizations” to submit complaints alleging violations of those portions of the law relating to the provision of equitable services, by “a State educational agency, local educational agency, educational service agency, consortium of those agencies, or entity.” Any such complaint is to be submitted to the state educational agency (SEA) – in California’s instance, the California Department of Education – which is given a period of 45 days within which to produce a written resolution.
Following the issuance of a written resolution by a state educational agency, the law gives relevant parties a period of 30 days in which to submit an appeal of the resolution to the U.S. Department of Education (ED). If a SEA fails to issue a written resolution, a party may, nevertheless, submit an appeal to ED no later than 30 days following the expiration of the 45-day period given an SEA to produce a written resolution. Once ED receives an appeal, the law allows for no more than 90 days within which time the Secretary of Education must “investigate and resolve the appeal.” These provisions of law appear in Section 8503 of the ESEA statute [20 U.S.C. 7883].
The Government Accountability Office investigators reported: “By law, Education has 90 days to investigate and issue a decision in such appeals, but since 2015, it has never met that timeframe. GAO found that Education took a median of 258 days to issue decisions, with the longest taking over 500 days.”
Not only does the U.S. Department of Education violate the very law it exists to enforce, it does so routinely. As the GAO found, the average length of time ED took to resolve a appeal exceeded the statutory limit by more than 5 months. And that’s an underestimate. For in July, 2021, an appeal involving a complaint brought by the Roman Catholic Archdiocese of Los Angeles was submitted by the Los Angeles Unified School District to the U.S. Department of Education, which has yet to issue a final resolution. The time stamp on that appeal currently stands at 700 days and counting.
Such procedural sloth mocks an already laughable law. If an aggrieved party fails to submit an appeal to ED within the statutory 30-day limit, that party is penalized via revocation of entitlement to appeal, a real and meaningful consequence. By contrast, there are no apparent penalties imposed on SEAs that fail to resolve complaints within the 45-day statutory window. (The law even makes presumptive allowance for instances in which SEAs fail to uphold their statutory obligation.) And ED routinely ignores the 90-day statutory deadline for the resolution of appeals, with impunity.
With impunity, but not without damage. For justice delayed is justice denied, and failure to resolve complaints in a timely manner erodes faith in the law that holds it must be otherwise. Our polity relies upon the rule of law and the consent of the governed. Just as children quickly learn that there’s little need to consent to rules whose violation is unaccompanied by negative consequences, unenforced laws invite a deterioration of authority.
When considering ESEA equitable services complaint procedures, both the underlying law and its enforcement are in clear and compelling need of improvement.
Ron Reynolds
Note: The commentary and views expressed in this article are those of the author, and do not necessarily represent those of the California Association of Private School Organizations, or its members.
