Back to School on Civil Rights
National Council on Disability
January 25, 2000
LETTER OF TRANSMITTAL
January 25, 2000
The President
The White House
Washington, DC 20500
Dear Mr. President:
On behalf of the National Council on Disability (NCD),
I am pleased to submit a report entitled Back to School on Civil
Rights. This report is the second in a series of independent
analyses by NCD of federal enforcement of civil rights laws.
The series grew out of NCD's national policy summit
of a diverse group of more than 300 leaders from the disability
community, where the participants called on NCD to push for more
effective enforcement of existing civil rights laws. NCD produced
the first report, Enforcing the Civil
Rights of Air Travelers with Disabilities, in March 1999.
The third report on enforcement of the Americans with Disabilities
Act will be released in spring 2000.
Back to School on Civil Rights looks at more
than two decades of federal monitoring and enforcement of compliance
with Part B of IDEA. Overall, NCD finds that federal efforts to
enforce the law over several Administrations have been inconsistent
and ineffective. Despite the important efforts of your Administration
to be more aggressive than any of its predecessors in addressing
these compliance problems, failures to ensure local compliance with
Part B requirements continue to be widespread and persist over many
years. Enforcement of the law is too often the burden of parents
who must invoke formal complaint procedures and request due process
hearings to obtain the services and supports to which their children
are entitled under law. The report includes recommendations for
your Administration and Congress that would build on the1997 reauthorization
of IDEA.
NCD stands ready to work with you and all public and
private stakeholders to address the problems identified in this
report and to advance a federal approach to enforcement that results
in improved compliance and better outcomes for children and families,
so that the nation's 25-year-old commitment to effective education
for all children will be more fully realized.
In your 1997 State of the Union address, you made
clear that your number one priority is to ensure that all Americans
have the best education in the world. We share your commitment.
Sincerely,
Marca Bristo
Chairperson
(This same letter of transmittal was sent to the President
Pro Tempore of the U.S. Senate and the Speaker of the U.S. House
of Representatives.)
NCD MEMBERS AND
STAFF
Members
Marca Bristo, Chairperson
Kate P. Wolters, First Vice Chairperson
Hughey Walker, Second Vice Chairperson
Yerker Andersson, Ph.D.
Dave N. Brown
John D. Kemp
Audrey McCrimon
Gina McDonald
Bonnie O'Day, Ph.D.
Lilliam Rangel-Diaz
Debra Robinson
Shirley W. Ryan
Michael B. Unhjem
Rae E. Unzicker
Ela Yazzie-King
Staff
Ethel D. Briggs, Executive Director
Mark S. Quigley, Public Affairs Specialist
Kathleen A. Blank, Attorney/Program Specialist
Geraldine Drake Hawkins, Ph.D., Program Specialist
Allan W. Holland, Accountant
Brenda Bratton, Executive Secretary
Stacey S. Brown, Staff Assistant
TABLE OF CONTENTS
Acknowledgments
Executive Summary
Introduction
Background of This Report
Purpose of This Report
Report Structure
Scope of This Report
Enforcement Research Perspectives
Research Methodology
I. The Law, the Compliance/Enforcement
Scheme, and the Context
A. Introduction
B. Basic Requirements of IDEA
C. Scope of IDEA
D. Legislative History
E. Reauthorization of IDEA 1997
F. Statutory Framework for IDEA Enforcement
1. The Compliance/Enforcement Scheme for IDEA
2. Background and Enforcement Philosophy
3. The Federal Role--Delegation of Responsibilities
a. Office of the Secretary
b. Office of General Counsel and Relationship with the Department
of Justice
c. Office of Special Education and Rehabilitative Services
d. Office of Special Education Programs (OSEP)/Monitoring and
State Improvement Planning Division
e. Office for Civil Rights/U.S. Department of Education
f. Office of the Inspector General
4. State Education Agencies (SEAs)
5. Local Education Agencies (LEAs)
6. The Unofficial Role of Parents as Enforcers of IDEA
G. A Brief Overview of Federal Enforcement Action
H. Findings and Recommendations
II. Grassroots Perspectives on Noncompliance
and Federal Enforcement of IDEA
A. Obstacles Experienced by Students with Disabilities
and Their Families
1. Noncompliance with Least Restrictive Environment
2. Noncompliance with Free Appropriate Public Education
B. Advocacy Perspectives
1. Parent Advocates Working with PTI Centers
a. Parental Involvement and Communication with OSEP
b. Monitoring Reports
c. Evaluating the Monitoring Process and Corrective Action
d. Corrective Action Plans
e. The Need to Create Consequences
f. Monitoring at the State Level
2. Other Parent Advocates
3. Advocates for Children in the Juvenile Justice System, Minority
and Rural Communities
C. Findings and Recommendations
III. Grant Administration,
Compliance-Monitoring, Complaint-Handling, and Enforcement Functions
A. Grant Administration
1. The Basic State Grant Program
2. Competitive State Program Improvement Grants
3. Findings and Recommendations
B. Oversight: Federal Monitoring of States
1. Purpose of Monitoring
2. The Decision About What to Monitor
3. The Monitoring Cycle
4. The Monitoring Process Before the Fall of 1998
a. Pre-Site Activities
b. The On-Site Visit
c. The Monitoring Report
d. Corrective Action Plans
e. OSEP's Maintenance of Monitoring Reports and Records Regarding
Monitoring Reports
5. Analysis of Fifty Federal Monitoring Reports
a. Methodology
b. Standards Used by OSEP for Determining Noncompliance
c. Summary of State Noncompliance Findings
d. Analysis of Findings of Noncompliance
e. Data Quality Issues Raised by the Monitoring Reports
f. Findings and Recommendations
6. Persistence of Noncompliance Over Time
a. Analysis of Current Monitoring Reports
b. Analysis of Six States Over Time
c. Findings and Recommendations
7. OSEP Initiatives to Address Marginalization Issues
8. Perspectives on the Impact of Federal Compliance Monitoring
a. The Consortium of Citizens with Disabilities
b. The National Association of State Directors of Special Education
c. Findings and Recommendations
C. Oversight: Complaint Handling
1. General Complaints About IDEA Received by OSEP
2. Secretarial Review of IDEA Complaints
3. Section 504/ADA Complaints Received by OCR/DoED
4. Findings and Recommendations
D. Enforcement
1. Restrictions on Grant Awards: High-Risk Status with Special
Conditions and Compliance Agreements
2. Withholding of Funds
3. Cease and Desist Order
4. Referral to the Department of Justice for Enforcement Action
5. The Politics of Enforcement
6. Findings and Recommendations
IV. The National Compliance
Picture Over Time: Analysis of Annual Reports to Congress 1978-1998
A. Introduction
B. Methodology
C. Procedural Focus
D. Definition of Monitoring
E. Procedural Changes
F. Lack of Trend Analysis
G. Charts on Monitoring Findings
H. Intra-Departmental Policy Conflicts
I. Reports Demonstrate the Evolution of DoED's View of Its Mandate
J. Language Changes
K. Trend Toward Partnership with States
L. Findings and Recommendations
V. IDEA Litigation
Challenging State Noncompliance
A. Introduction
B. Summary of Litigation in California, Illinois, and Texas
C. Development of More Effective Monitoring Systems
D. Findings and Recommendations
VI. The Role of the
Department of Justice
A. Functions of the Department of Justice
B. IDEA Litigation in Which the Department of Justice Has Participated
C. Findings and Recommendations
VII. Improving Public
Awareness: Technical Assistance and Public Information for Students
with Disabilities, Their Families, and Advocates
A. Department of Education--Overview
1. OSEP a. National Information Center for Children and Youth
with Disabilities
b. The Families and Advocates Partnership for Education (FAPE)
Project
c. Parent Training and Information (PTI) Centers and the Technical
Assistance Alliance
d. The Technical Assistance Alliance for Parent Centers
e. Technical Assistance to Indian Communities
2. National Institute on Disability and Rehabilitation Research
(NIDRR)
3. Rehabilitation Services Administration (RSA)
4. Office for Civil Rights (OCR)
5. Department of Health and Human Services--Administration on
Developmental Disabilities (ADD)
B. Resource List of IDEA and Education-Related Technical Assistance,
Training, and Informational Materials Collection Approach
C. Findings and Recommendations
VIII. Summary and
Conclusions
Endnotes
Tables and Charts
1: The Three Prongs of the IDEA Compliance/Enforcement
Scheme
2: Status of Approval of IDEA Part B State Plans/State Plan Reviews
3: State Monitoring Data (Reprint from NCD Study)
4: Number and Percentage of Noncompliant States in Each Area According
to 1994-1998 OSEP Monitoring Reports
5: State Noncompliance as Reported by 1994-1998 Monitoring Reports
6: State Noncompliance with FAPE Requirements
7: State Noncompliance with LRE Requirements
8: State Noncompliance with IEP Requirements
9: State Noncompliance with IEP Content Requirements in Five States
10: State Noncompliance with Transition Requirements
11: State Noncompliance with General Supervision Requirements
12: State Noncompliance with Complaint Management Requirements
13: State Noncompliance with State Monitoring Requirements
14: State Noncompliance with Procedural Safeguard Requirements
15: Noncompliance Over Time in California
16: Noncompliance Over Time in Illinois
17: Noncompliance Over Time in New York
18: Noncompliance Over Time in Oregon
19: Noncompliance Over Time in Texas
20: Noncompliance Over Time in Vermont
21: High Risk Grantees/Special Conditions/Compliance Agreements
for Part B State Grant IDEA Awards Determined by OSEP
22: Headings in Annual Reports
23: IDEA Litigation in Which DOJ Has Participated
24: IDEA/Education-Related Technical Assistance Materials and Information
Appendixes
Appendix A: List of Interviews
for This Study
Appendix B: Educational
Inequity and Children With Disabilities: Ten Problem Areas IDEA
Was Intended to Address
Appendix C: Basic Requirements
of IDEA
Appendix D: Letters
to Secretary Riley from Members of Congress and from One Governor
(PDF)
Appendix E: Organizational
Structure of the U.S. Department of Education (PDF)
Appendix F: Responsibilities
of Each Monitoring and State Improvement Team
Appendix G: Summary:
State by State Monitoring Outcomes (PDF)
Appendix H: Overview
of the New Continuous Improvement Monitoring System
Appendix I: Complaints
Received by the Office for Civil Rights, U.S. Department of Education,
Related to Primary or Secondary Schools (PDF)
Appendix J: List of
Acronyms
Appendix K: Consolidated
List of Findings and Recommendations
Appendix L: Mission
of the National Council on Disability
Acknowledgments
All research, data collection, and analysis for this
study were carried out by the Disability Rights Education and Defense
Fund (DREDF) and its subcontractors, under contract to the National
Council on Disability (NCD). Jane West, Ph.D., a consultant in Chevy
Chase, MD, is the principal author and lead researcher for this
report. The following individuals are co-authors of the report:
Mary Lou Breslin, Project Director, DREDF
Nancy Mudrick, Ph.D., Senior Data and Methodological
Consultant, Syracuse University
Mark A. Mlawer, Consultant, Baltimore, MD
Diane Lipton, Senior Attorney, DREDF
Jillian Cutler, DREDF intern, Yale University
Allison Drimmer, Attorney, Washington, DC
Bill Smith, intern, DREDF
Chantal Sampogna, Attorney, DREDF
Important contributions in research, data analysis,
editing, word processing, and advising were made by the following
individuals:
Marla C. Bull Bear, Executive Director, Native American
Advocacy Project
Randi Casenza, DREDF
Deborah Doctor, DREDF
Laura Miller Eligator, Esq., Access Living of Metropolitan
Chicago
LaDonna Fowler, American Indian Rehabilitation Rights
Organization of Warriors (AIRROW)
Renaldo Fowler, Senior Staff Advocate, Arizona Center
for Disability Law
Martin Gould, National Center on Outcomes Research
(NCOR)
Joel Gray, DREDF
David Howell, DREDF
James Jackson, Executive Director, Protection and
Advocacy System of New Mexico
Cheri Lorenz, DREDF
Leslie Seid Margolis, Esq., Maryland Disability
Law Center (MDLC)
Lou McIntosh, Parent, Merrywing Corporation
Thomas Lee McKeithan II, Chairperson, State Advisory
Panel on Special Education for the District of Columbia and members
Barbara Raimondo
Marjorie Rifkin, Esq.
Nate Schiff, Syracuse University
Robert Shuckahosee, American Indian Rehabilitation
Rights
Organization of Warriors (AIRROW)
Robert Silverstein, Center for the Study and Advancement
of Disability Policy
Jenifer Simpson, President's Committee on Employment
of People with Disabilities (PCEPD)
Diane Smith, National Association of Protection
and Advocacy Systems (NAPAS)
Joseph B. Tulman, Professor of Law, University of
the District of
Columbia David A. Clarke School of Law
Pat Wright, Director of Governmental Affairs, DREDF
Therese C. Yanan, Project Director, Native American
Protection and Advocacy Project
NCD would like to acknowledge the many individuals
at the U.S. Department of Education and the U.S. Department of Justice
who generously provided us with interviews and assisted in the collection
of materials. Sonya Savkar, formerly of the Office of General Counsel
of the U.S. Department of Education, assisted as "point person"
within the Department, coordinating the responses to our many requests
for information.
NCD would like to thank the students, parents, family
members, and professionals from the various stakeholder communities
who so generously gave of their time and energy in providing interviews
and information for this report. To the students with disabilities
and their families who traveled to Washington, DC, to speak on September
22, 1999, at the Town Meeting on Federal Enforcement of IDEA, NCD
gives special thanks for sharing your stories of struggle and success.
Executive
Summary
Twenty-five years ago, Congress enacted and President
Gerald Ford signed the Education for All Handicapped Children Act,
one of the most important civil rights laws ever written. The basic
premise of this federal law, now known as the Individuals with Disabilities
Education Act (IDEA), is that all children with disabilities have
a federally protected civil right to have available to them a free
appropriate public education that meets their education and related
services needs in the least restrictive environment. The statutory
right articulated in IDEA is grounded in the Constitution's guarantee
of equal protection under law and the constitutional power of Congress
to authorize and place conditions on participation in federal spending
programs. It is complemented by the federal civil rights protections
contained in section 504 of the Rehabilitation Act of 1973, as amended,
and Title II of the Americans with Disabilities Act.
This report, the second in a series of independent
analyses by the National Council on Disability (NCD) of federal
enforcement of civil rights laws, looks at more than two decades
of federal monitoring and enforcement of compliance with Part B
of IDEA.[1] Overall, NCD finds that federal efforts to enforce the
law over several Administrations have been inconsistent, ineffective,
and lacking any real teeth. The report includes recommendations
to the President and the Congress that would build on the 1997 reauthorization
of IDEA. The intent is to advance a more aggressive, credible, and
meaningful federal approach to enforcing this critical civil rights
law, so that the nation's 25-year-old commitment to effective education
for all children will be more fully realized.
Background
In 1970, before enactment of the federal protections
in IDEA, schools in America educated only one in five students with
disabilities. More than 1 million students were excluded from public
schools, and another 3.5 million did not receive appropriate services.
Many states had laws excluding certain students, including those
who were blind, deaf, or labeled "emotionally disturbed" or "mentally
retarded." Almost 200,000 school-age children with mental retardation
or emotional disabilities were institutionalized. The likelihood
of exclusion was greater for children with disabilities living in
low-income, ethnic and racial minority, or rural communities.
In the more than two decades since its enactment,
IDEA implementation has produced important improvements in the quality
and effectiveness of the public education received by millions of
American children with disabilities. Today almost 6 million children
and young people with disabilities ages 3 through 21 qualify for
educational interventions under Part B of IDEA. Some of these students
with disabilities are being educated in their neighborhood schools
in regular classrooms. These children have a right to have support
services and devices such as assistive listening systems, braille
text books, paraprofessional supports, curricular modifications,
talking computers, and speech synthesizers made available to them
as needed to facilitate their learning side-by-side with their nondisabled
peers. Post-secondary and employment opportunities are opening up
for increasing numbers of young adults with disabilities as they
leave high school. Post-school employment rates for youth served
under Part B are twice that of older adults with disabilities who
did not benefit from IDEA in school, and self-reports indicate that
the percentage of college freshmen with a disability has almost
tripled since 1978.
Findings
As significant as the gains over time are, they tell
only part of the story. In the past 25 years states have not met
their general supervisory obligations to ensure compliance with
the core civil rights requirements of IDEA at the local level. Children
with disabilities and their families are required far too often
to file complaints to ensure that the law is followed. The Federal
Government has frequently failed to take effective action to enforce
the civil rights protections of IDEA when federal officials determine
that states have failed to ensure compliance with the law. Although
Department of Education Secretary Richard W. Riley has been more
aggressive in his efforts to monitor compliance and take formal
enforcement action involving sanctions than all his predecessors
combined, formal enforcement of IDEA has been very limited. Based
on its review of the Department of Education's monitoring reports
of states between 1994 and 1998, NCD found:
Every state was out of compliance with IDEA requirements
to some degree; in the sampling of states studied, noncompliance
persisted over many years.[2]
Notwithstanding federal monitoring reports documenting
widespread noncompliance, enforcement of the law is the burden
of parents who too often must invoke formal complaint procedures
and due process hearings, including expensive and time-consuming
litigation, to obtain the appropriate services and supports to
which their children are entitled under the law. Many parents
with limited resources are unable to challenge violations successfully
when they occur. Even parents with significant resources are hard-pressed
to prevail over state education agencies (SEA) and local education
agencies (LEA) when they or their publicly financed attorneys
choose to be recalcitrant.
The Department of Education has made very limited
use of its authority to impose enforcement sanctions such as withholding
of funds or making referrals to the Department of Justice, despite
persistent failures to ensure compliance in many states.
DoED has not made known to the states and the public
any objective criteria for using enforcement sanctions, so that
the relationship between findings of noncompliance by federal
monitors and a decision to apply sanctions is not clear.
DoED Monitoring Model
The oversight model adopted by the Department of Education
is multitiered and multipurpose. The Office of Special Education
Programs (OSEP) distributes federal IDEA funding to the states and
monitors the SEAs. The SEAs in turn monitor the LEAs to make sure
they are in compliance with IDEA. In this tiered oversight model,
the same Department of Education office (OSEP) distributes federal
funds, monitors compliance, and enforces the law where violations
are identified. The politics and conflicts inherent in administering
these three disparate functions have challenged the Department's
ability to integrate and balance the objectives of all three.
Data Sources and Summary of Analyses
As mentioned above, NCD found that the most recent
federal monitoring reports demonstrated that every state failed
to ensure compliance with the requirements of IDEA to some extent
during the period covered by this review. More than half of the
states failed to ensure compliance in five of the seven main compliance
areas. For example, in OSEP's most recent monitoring reports, 90
percent of the states (n = 45) had failed to ensure compliance in
the category of general supervision (the state mechanism for ensuring
that LEAs are carrying out their responsibilities to ensure compliance
with the law); 88 percent of the states (n = 44) had failed to ensure
compliance with the law's secondary transition services provisions,
which require schools to promote the appropriate transition of students
with disabilities to work or post-secondary education; 80 percent
of the states (n = 40) failed to ensure compliance with the law's
free appropriate public education requirements; 78 percent of the
states (n = 39) failed to ensure compliance with the procedural
safeguards provisions of the law; and 72 percent of the states (n
= 36) failed to ensure compliance with the placement in the least
restrictive environment requirements of IDEA. In the two remaining
major compliance areas, IEPs and protection in evaluation, 44 percent
of the states (n = 22) failed to ensure compliance with the former
and 38 percent of the states (n = 19) failed to ensure compliance
with the latter.
Enforcement Authority
Currently, the U.S. Department of Education has neither
the authority nor the resources to investigate and resolve individual
complaints alleging noncompliance. The Department does consult with
and share some of its enforcement authority with the U.S. Department
of Justice (DOJ), which has no independent litigation authority.
Yet between the date it was given explicit referral authority in
1997 and the date this report went to the printer, DoED had not
sent a single case to DOJ for "substantial noncompliance," and had
articulated no objective criteria for defining that important term.
The Department of Justice, whose role has been largely limited to
participation as an amicus in IDEA litigation, does not appear to
have a process for determining what cases to litigate.
Overall Enforcement Action
Despite the high rate of failure to ensure compliance
with Part B requirements indicated in the monitoring reports for
all states, only one enforcement action involving a sanction (withholding)
and five others involving imposition of "high risk" status and corrective
action as a prerequisite to receiving further funds, have been taken.
The only withholding action occurred once for a temporary period
and was overruled by a federal court. Overall, the DoED tends to
emphasize collaboration with the states through technical assistance
and developing corrective action plans or compliance agreements
for addressing compliance problems. There appear to be no clear-cut,
objective criteria for determining which enforcement options ought
to be applied and when to enforce in situations of substantial and
persistent noncompliance.
Recommendations for Strengthening Federal Enforcement
NCD makes the following recommendations to strengthen
the capacity of both the Department of Education and the Department
of Justice to more effectively enforce IDEA:
Congress should amend IDEA to create a complaint-handling
process at the federal level to address systemic violations occurring
in a SEA or LEA. Congress should designate the Department of Justice
to administer the process and allocate adequate funding to enable
the Department to take on this new role. This new federal complaint
process should be designed to complement, not supplant, complaint
procedures and the due process hearing at the state level. The
federal process should be simple to use and easy to understand
by parents and students.
Congress should amend IDEA to provide the Department
of Justice with independent authority to investigate and litigate
cases brought under IDEA. The Department of Justice should be
authorized to develop and disseminate explicit criteria for the
types of alleged systemic violation complaints it will prioritize
given its limited resources.
Congress should include in the amendment that
the Department of Education and the Department of Justice shall
consult with students with disabilities, their parents, and other
stakeholders to develop objective criteria for defining "substantial
noncompliance," the point at which a state that fails to ensure
compliance with IDEA's requirements will be referred to the Department
of Justice for legal action.
Congress should ask the General Accounting Office
(GAO) to conduct a study of the extent to which SEAs and LEAs
are ensuring that the requirements of IDEA in the areas of general
supervision, secondary transition services, free appropriate public
education, procedural safeguards, and placement in the least restrictive
environment are being met. In addition, the DoED Office of Inspector
General (OIG) should conduct regular independent special education
audits (fiscal and program). The purpose of the audits would be
to examine whether federal funds granted under IDEA Parts B and
D (State Program Improvement Grants) have been and are being spent
in compliance with IDEA requirements. These audits should supplement
OSEP's annual compliance-monitoring visits, and the audit results
should be in DoED's annual report to Congress. To the extent that
the DoED OIG lacks the subject-matter expertise to conduct program
audits under IDEA, the OIG should contract with independent entities
having such expertise when a program audit is necessary.
The Department of Education should establish
and use national compliance standards and objective measures for
assessing state progress toward better performance outcomes for
children with disabilities and for achieving full compliance with
Part B.
The Department of Education should consult with
students with disabilities, their parents and other stakeholders
in developing and implementing a range of enforcement sanctions
that will be triggered by specific indicators and measures indicating
a state's failure to ensure compliance with Part B.
When Congress and the President approve an increase
in the funding to be distributed to local schools under Part B,
Congress and the President should appropriate at the same time
an amount equal to 10 percent of the total increase in Part B
funding to be used to build the Department of Justice's and the
Department of Education's enforcement, complaint-handling, and
technical assistance infrastructure to effectively enable the
federal agencies to drive improvements in state compliance and
ensure better outcomes for children.
Personnel Training Needs
Regular and special education teachers in many states
are frustrated by the mixed messages regarding compliance from school
administrators, local special education directors, state oversight
agents, school district attorneys, and federal oversight agents.
Teachers ultimately bear the responsibility to implement interventions
and accommodations for students with disabilities, often without
adequate training, planning time, or assistance. They must function
within an educational system that often lacks adequate commitment,
expertise, or funding to deliver appropriate services to every child
who needs them. School administrators, special education directors,
school principals, and agents of federal, state, and local governments
must stop working at cross purposes and commit to working together
to resolve, not conceal or ignore, these very real problems. If
the Federal Government continues to refrain from taking enforcement
action in the face of widespread failures to ensure Part B compliance,
this atmosphere of questionable commitment to the civil rights of
students with disabilities will continue.
Advocacy Service Needs
Pervasive and persistent noncompliance with IDEA is
a complex problem with often dramatic implications on a daily basis
for the lives of children with disabilities and their families.
Too many parents continue to expend endless resources in confronting
obstacles to their child's most basic right to an appropriate education,
often at the expense of their personal lives, their financial livelihoods,
and their careers. Students are frustrated--their skills undeveloped
and their sense of belonging tenuous. When informal efforts have
failed to end unnecessary segregation or inappropriate programming
for individual children, many have used the rights and protections
afforded by IDEA to successfully challenge these injustices. Advocacy
and litigation have been essential to ending destructive patterns
of recurring noncompliance. Litigation has resulted in important
victories for the children involved and better outcomes for other
students with disabilities by exposing and remedying systemic noncompliance
with IDEA. Yet legal services are often far beyond the financial
reach of many families of students with disabilities.
Children with disabilities and their families are
often the least prepared to advocate for their rights in the juvenile
justice, immigration and naturalization, and child welfare systems
when egregious violations occur. Children with disabilities and
their families who are non-English speaking, or who live in low-income,
ethnic or racial minority, and rural communities, are frequently
not represented as players in the process. These individuals must
be included and given the information and resources they need to
contribute and advocate for themselves.
Recommendations for Training and Advocacy
Accordingly, NCD makes the following recommendations:
When Congress and the President approve an increase
in the funding to be distributed to local schools under Part B
of IDEA, Congress and the President should appropriate at the
same time an amount equal to 10 percent of the total Part B increase
to fund free or low-cost legal advocacy services to students with
disabilities and their parents through public and private legal
service providers, putting competent legal assistance within their
financial reach and beginning to level the playing field between
them and their local school districts.
The Department of Education should give priority
support to the formation of a comprehensive and coordinated advocacy
and technical assistance system in each state. The Department
should develop a separate OSEP-administered funding stream to
aid public and private advocacy entities in each state in collaborating
to expand and coordinate self-advocacy training programs, resources,
and services for students with disabilities and their parents
throughout the state. Elements of the coordinated advocacy and
technical assistance systems should include:
The availability of a lawyer at every state Parent
Training and Information (PTI) Center, a protection and advocacy
agency, legal services, and independent living center to provide
legal advice and representation to students with disabilities
and their parents in advocating for their legal rights under IDEA.
Self-advocacy training programs for students
with disabilities and their parents focused on civil rights awareness,
education and secondary transition services planning, and independent
living in the community.
The establishment of a national backup center
with legal materials, training, and other supports available for
attorneys working on IDEA cases and issues at the state level.
Expansion of involvement by the private bar and
legal services organizations in providing legal advice to students
with disabilities and their parents in advocating for their legal
rights under IDEA.
Training in culturally sensitive dispute resolution
to meet the needs of growing populations of citizens from racial
and ethnic backgrounds having diverse traditions and customs.
Multiple language needs and communication styles must be accommodated
in all training.
Full compliance with IDEA will ultimately be the product
of collaborative partnership and long-term alliances among all parties
having an interest in how IDEA is implemented. For such partnerships
to be effective, all interested parties must be well prepared to
articulate their needs and advocate for their objectives. To that
end, coordinated statewide strategies of self-advocacy training
for students with disabilities and their parents are vital. To make
this happen, NCD recommends the following:
The Department of Education should fund additional
technical assistance, training, and dissemination of materials
to meet continuing needs in the following areas:
Culturally appropriate technical assistance,
which should be available to ensure that American Indian children
with disabilities, their families, tribal leaders, and advocates
in every interested tribe can participate as full partners in
implementing IDEA in their communities. Culturally appropriate
training and technical assistance should be developed and delivered
through the satellite offices of newly created disability technical
assistance centers (DBTACs) managed and staffed primarily by Native
Americans that serve American Indian communities around the country.
Training to enhance evaluation skills for parents
to assess the effectiveness of their states' IDEA compliance-monitoring
systems.
Training of the appropriate agents (officials,
advocates, and other stakeholders) in the immigration and naturalization
and child welfare systems in IDEA's civil rights requirements.
Training of the appropriate agents (officials,
advocates, and other stakeholders) in the juvenile justice system
in IDEA's civil rights requirements, how they apply within the
juvenile justice system, and ways the law can be used to help
minimize detention of children with disabilities in the juvenile
justice system.
A Six-State In-Depth Sample
NCD looked in depth at a sampling of six states, using
the last three monitoring reports to assess the compliance picture
in those states over time. The first two of the monitoring reports
for these six states (covering a period from 1983-1998) included
failure to ensure compliance with a total of 66 Part B requirements.
Only 27 percent (n = 18) of the 66 violations had been corrected
by the time of the third report. Based on the reported data, in
73 percent (n = 48) of the 66 violations, either the six states
still failed to ensure compliance or no compliance finding was reported
at all in the last monitoring report.[3]
To date federal compliance-monitoring and enforcement
efforts have not fully dealt with the root causes of widespread
noncompliance, and children with disabilities and their parents
have suffered the consequences. This report details NCD's findings
and recommendations for improving the effectiveness of federal efforts
to ensure state compliance with IDEA and related legislation. NCD
calls on Congress and the President to work together to address
the inadequacies identified by this report so that children and
families will have an effective and responsive partner in the Federal
Government when they seek to ensure that IDEA's goal s of enhanced
school system accountability and improved performance outcomes for
students with disabilities move from the language of the law to
the reality of each American classroom.
IDEA mandates that school systems respond to the needs
of individual children with disabilities, making education accessible
to them, regardless of the severity of their disabilities. Teachers
today know that education tailored to individual needs and learning
styles can make all the difference in the quality of a child's learning,
whether or not she has a disability. Very few public schools consistently
and effectively deliver this individualized approach for all children.
Accordingly, many children fall through the cracks, as performance
on achievement tests across the nation demonstrates. Alternatives
to traditional public education such as charter and private schools,
as well as political calls for vouchers, indicate growing public
dissatisfaction with schools that do not educate all children effectively.
IDEA calls for a responsive public education system that meets the
individual learning needs of students with disabilities. It also
contains a blueprint for the future of public education--where no
child is left behind, and all children have an equal opportunity
to gain the knowledge and skills they need to fulfill their dreams.
Ultimately, the enforcement of the civil rights protections
of IDEA will make a difference to every child, not only children
with disabilities. At the national summit on disability policy hosted
by NCD in 1996, more than 350 disability advocates called for a
unified system of education that incorporates all students into
the vision of IDEA. NCD's 1996 report, Achieving
Independence, presents the outline of a system in which
every child, with or without a disability, has an individualized
educational program and access to the educational services she or
he needs to learn effectively. IDEA leads the way in reshaping today's
educational system from one that struggles to accommodate the educational
needs of children with disabilities to one that readily responds
to the individual educational needs of all children.
Introduction
Background of This Report
Since the 1980s, NCD has commissioned a number of
reports on the implementation of IDEA and its impact on children
with disabilities. These studies presented statistical and qualitative
findings on state and local implementation of IDEA from formal research
projects, scholarly publications, testimony from grassroots hearings,
and input from national and state advocacy organizations. The statutory
framework of IDEA envisioned states as the primary implementers
of IDEA to ensure the protections of the law for children with disabilities.
Yet the findings in some of these reports suggested states were
falling far short of meeting these responsibilities.
In 1996 NCD convened a diverse group of more than
350 disability community leaders from across the country at a National
Summit on Disability Policy. At the summit, members of the education
policy working group had summarized the state of enforcement of
IDEA and other civil rights laws related to education as follows:
Despite progress in the last decade in educating
students with disabilities, current federal and state laws have
failed to ensure the delivery of a free appropriate public education
for too many students with disabilities. Students with disabilities
often still find themselves in forced and inappropriate isolation,
separated from their nondisabled peers. In other situations, students
with disabilities are in regular classrooms with teachers with
little or no training in how to educate students with disabilities
and without the supports they need. Lack of accountability, poor
enforcement, and systemic barriers have robbed too many students
of their educational rights and opportunities and have produced
a separate system of education for students with disabilities
rather than one unified system that ensures full and equal physical,
programmatic, and communication access for all students. Parents
and students across the country express a high level of frustration
with the continued barriers they face to full participation and
effective instruction.[4]
In addition, many advocacy organizations have reported
numerous situations where parents have been unable to secure appropriate
educational services for their children. The Disability Rights Education
and Defense Fund (DREDF) and the National Association of Protection
and Advocacy Systems (NAPAS) have represented such parents and families
in court. Year after year their dockets have been replete with cases
where students have not received the free appropriate public education
in the least restrictive environment that the law envisions. Complaints
and due process hearings have been pursued by parents in every state
in the country in hopes of ensuring that the promise of the law
will become a reality for their children. (Appendix B provides a
list of obstacles faced by students with disabilities and their
families that were intended to be addressed by IDEA.) Problems in
all of these areas persist today.
The mandate of the 1996 summit and the above findings
led to this study, which focuses on the Department of Education's
roles, policies, and procedures related to enforcement and their
impact on states' implementation and compliance with IDEA.
Purpose of This Report
This report focuses primarily on the enforcement mechanism,
policies, and activities of the Department of Education in relation
to IDEA. Because of its integral relationship to enforcement, our
researchers carefully evaluated the Department of Education (DoED)
compliance-monitoring system in use at the time our research was
conducted. In the fall of 1998, however, after the major research
for the report had been completed, the Department began implementing
a new continuous-improvement monitoring system. Unless stated otherwise,
the findings in this report on DoED's compliance monitoring pertain
to the system in effect from 1975 to the fall of 1998. Although
the new system introduces new elements that deserve to be evaluated
on their own merit in a later study, it retains many strategies
used in the old system.
The report also examines the relationship between
the DoED and the Department of Justice (DOJ) with respect to shared
enforcement responsibility for IDEA. It also assesses the selected
technical-assistance and public-information materials developed
or funded by the DoED that are intended for students with disabilities,
their families, and advocates. NCD assessed the following specific
areas:
The effectiveness of the state monitoring and corrective-action
processes in ensuring compliance with IDEA.
The utilization of sanctions for noncompliant states
and the effect of such sanctions in bringing about compliance.
The utilization of high risk status, compliance
agreements, and special conditions as enforcement mechanisms.
The utilization and effectiveness of the state complaint
procedures.
The utilization of litigation to enforce the law.
The collaboration with the Department of Justice
in enforcing IDEA.
The utilization of the Section 504 (Rehabilitation
Act of 1973) complaint process for addressing IDEA/504 complaints.
The perspectives of students with disabilities,
parents, the Consortium for Citizens with Disabilities, state
special education directors, and other stakeholders in relation
to IDEA enforcement.
The leadership effectiveness of DoED in ensuring
compliance with the law and addressing obstacles encountered in
ensuring nondiscrimination against students with disabilities
in elementary and secondary education.
The quality and availability of public information
to students with disabilities, their families, and advocates on
the provisions of IDEA.
Report Structure
This report is presented in eight parts. Part I, "The
Law, the Compliance/Enforcement Scheme, and the Context," considers
the development of the original law, the Education for All Handicapped
Children Act, and its evolution over the past 25 years. It describes
the past and current need for the law and its regulations, the basic
requirements of the law, and the issues raised by the 1997 reauthorization.
It presents a summary of the statutory framework for IDEA enforcement,
describing the compliance/enforcement scheme for IDEA and how the
federal enforcement mechanism is organized, including the Department
of Education's relationship with the Department of Justice. It discusses
the role of parent advocacy in driving enforcement throughout the
last two decades. And finally, it gives a brief overview of the
DoED's enforcement activity and offers findings and recommendations.
Part II, "Grassroots Perspectives on Noncompliance
and Federal Enforcement of IDEA," discusses the experiences and
perspectives of students with disabilities, their families, and
advocates on enforcement.
Part III, "Grant Administration, Compliance-Monitoring,
Complaint-Handling, and Enforcement Functions," describes the processes
in place within the Department of Education that are intended to
carry out these functions and the extent to which they are utilized.
This part includes a discussion of the grant-making, oversight (including
federal monitoring and complaint processes), and enforcement activities
related to IDEA. It offers a description of the funding vehicles,
monitoring activities, complaint-handling functions, and enforcement
activities of the Department and presents an in-depth analysis of
the 50 most recent monitoring reports issued by the Office of Special
Education Programs (OSEP), along with a summary of the noncompliance
findings throughout the country. Appendix G provides a state-by-state
summary of noncompliance findings from the most recent monitoring
reports. In addition, an analysis of state findings addresses the
extent to which states that are out-of-compliance come into compliance
over time. Various perspectives on the impact of compliance monitoring
are discussed. Appendix H contains an overview of the new continuous
monitoring system that replaces the monitoring system studied in
this report. Findings and recommendations are provided following
the major sections of this part.
Part IV, "The National Compliance Picture Over Time:
Analysis of Annual Reports to Congress 1978-1998," considers how
the Department of Education has described its monitoring/compliance
functions over time and how it has presented its monitoring/compliance
results. Findings and recommendations are presented.
Part V, "IDEA Litigation Challenging State Noncompliance,"
summarizes three cases in which states have developed new approaches
to compliance monitoring that are now being tested. Findings and
recommendations are offered.
Part VI, "The Role of the Department of Justice,"
describes the functions of the Department of Justice in relation
to IDEA and provides a list of IDEA litigation that the Department
has been involved in since the enactment of the law in 1975. Findings
and recommendations are offered.
Part VII, "Improving Public Awareness: Technical Assistance
and Public Information for Students with Disabilities, Their Families,
and Advocates," reviews the technical assistance and public information
materials the Department of Education funds or provides to these
target audiences. Findings and recommendations are offered.
Part VIII, "Summary and Conclusions," completes the
report with a summary of the study and our conclusions.
Scope of This Report
While this report addresses federal enforcement of
IDEA carried out by DoED, it does not cover several significant
aspects of implementation or enforcement. Specifically, it does
not analyze due process procedures and private litigation, which
are important IDEA enforcement mechanisms available to students,
parents, and families, except as they relate to the federal enforcement
mechanism. The report does not assess the performance of local education
agencies (LEA) in implementing the requirements of IDEA, but does
discuss findings on LEA compliance published in the Department of
Education's monitoring reports evaluating state monitoring and enforcement
efforts. The report does not attempt to assess the individual state
complaint systems that are required to be available to parents in
each state. Nor does it address the activities of the federally
funded protection and advocacy systems (P&As) in representing
thousands of parents in IDEA administrative procedures and litigation
every year and in every state,[5] although it briefly discusses
P&As' technical assistance activities.
This report briefly examines the overlapping enforcement
within the Department of Education of IDEA, the Americans with Disabilities
Act (ADA) Title II, and Section 504 of the Rehabilitation Act. Data
about complaints received under Title II and Section 504 were collected
and analyzed, and the findings appear in Appendix I. However, a
full examination of federal enforcement of education-related Title
II and Section 504 requirements is beyond the scope of this report.
Enforcement Research Perspectives
IDEA enforcement activities are considered from two
perspectives. The whole agency approach examines the effectiveness
of the DoED and all its components in achieving the enforcement
objectives for which it is responsible. The whole law approach considers
the overall effectiveness of DoED's external coordination and collaboration
(i.e., interagency, with private organizations and with other levels
of government) in achieving the enforcement objectives of the law.
Research Methodology
Several research approaches were used to conduct this
study, namely (1) archival analysis, involving 62 OSEP Monitoring
Reports, 19 Annual Reports by the Office of Special Education and
Rehabilitative Services (OSERS) to Congress, and Office for Civil
Rights (OCR) complaint data reviews; (2) qualitative analysis involving
more than 25 interviews with DoED representatives, 14 interviews
with state parent advocates representatives, and at least six interviews
with representatives from various other national and state advocate
constituencies; (3) a national town hall meeting with about 100
participants representing students with disabilities and parents
from around the country; and (4) legislative analysis of IDEA and
related legislation. The research activities for this study included
the following:
Identifying the functions and organizational components
of federal enforcement activities in the U.S. Department of Education.
Identifying, collecting, and analyzing material
related to IDEA compliance monitoring and enforcement including
the most recent monitoring reports for all states; all monitoring
reports and corrective action plans in the possession of the Department
of Education for six states (Oregon, Texas, California, Vermont,
New York, and Illinois); enforcement and compliance correspondence
between the DoED and states.
Collecting and analyzing information related to
state applications for IDEA Part B funding and enforcement activities
that have flowed from that application process.
Collecting information related to the general complaint
process and the secretarial review process in DoED's Office of
Special Education Programs.
Collecting and analyzing Section 504 complaint data
from the DoED's Office for Civil Rights.
Collecting and analyzing annual reports to Congress
and the President on IDEA from 1978-1998 to gain a historical
perspective of how the federal monitoring and enforcement role
is depicted for the public over time.
Identifying, collecting, and analyzing information
on DoED's IDEA public information activities.
Conducting interviews with the responsible agency
staff to understand the monitoring process and departmental functioning
in relation to enforcement.
Conducting interviews with staff in the Department
of Justice responsible for IDEA litigation and gathering information
about that litigation.
Analyzing interactions and interrelationships of
enforcement functions and their net impact in addressing noncompliance;
Reviewing and evaluating of overall enforcement
operations in light of the requirements, legislative history,
and judicial interpretations of the law.
Identifying issues and areas for improvement in
the enforcement mechanisms and operations (e.g., gaps, duplication,
overlaps, inconsistencies, and inadequacies).
Conducting interviews with parents, advocates, and
a representative of state directors of special education to discern
their views of federal monitoring and enforcement of IDEA.
Deriving conclusions and developing recommendations
for the entire analysis.
Consulting with stakeholder consultants on key findings
and recommendations.
National town meeting of students with disabilities,
parents, and stakeholders for their input on report findings.
In summary, this report is intended to provide a picture
of the status of the enforcement mechanism, including monitoring,
related to IDEA in the Federal Government. It also presents an overview
of the technical assistance information available to parents and
families of children with disabilities that is funded by the Federal
Government. The report considers how monitoring and enforcement
activities have been carried out since the law's inception in 1975,
and provides recommendations for improving federal compliance and
enforcement efforts to support improvement of educational outcomes
for students with disabilities.
I.
The Law, the Compliance/Enforcement Scheme, and the Context
A. Introduction
In enacting P.L. 94-142, the Education for All Handicapped
Children Act of 1975 (later renamed the Individuals with Disabilities
Education Act, or IDEA),[6] Congress sought to end the long history
of segregation and exclusion of children with disabilities from
the American public school system. In the past three decades, this
landmark legislation has yielded great progress in securing the
educational rights of more than 5 million children with disabilities.
Despite controversies in implementation, the law's assurance that
a free appropriate public education must be available to all students
with disabilities, no matter how significant their disability, has
become a hallmark of education policy in the United States.
IDEA's mandates are complemented by two other key
disability rights statutes, Section 504 of the Rehabilitation Act
of 1973,[7] and Title II of the Americans with Disabilities Act
(ADA).[8] Together, these three laws form the nondiscrimination
framework for children with disabilities in public schools. IDEA
applies to states as recipients of federal grants to be used in
providing and administering special education for children with
disabilities; Section 504 applies to all entities, including schools,
that receive federal funds. Public school systems must comply with
the ADA in all their services, programs, or activities (readily
accessible to and usable by individuals with disabilities), including
those that are open to parents or to the public.[9] Both IDEA and
Section 504 require schools to make a free appropriate public education
(FAPE) available to every child with a disability--regardless of
the nature or severity of the disability-- in the least restrictive
environment (LRE). (See discussion below for further definition
of FAPE and LRE.)
In enacting these laws, Congress attempted to address
the longstanding discrimination faced by children with disabilities
in the U.S. They have faced the same obstacles to full participation
in public education as have other minority groups seeking to ensure
their rights. Introducing a bill on January 20, 1972, to protect
the civil rights of people with disabilities, Senator Hubert H.
Humphrey (D-MN) told the Senate:
"I introduce...a bill...to insure equal opportunities
for the handicapped by prohibiting needless discrimination in
programs receiving federal financial assistance....
The time has come when we can no longer tolerate
the invisibility of the handicapped in America.... These people
have the right to live, to work to the best of their ability--to
know the dignity to which every human being is entitled. But too
often we keep children whom we regard as 'different' or a 'disturbing
influence' out of our schools and community activities altogether....
Where is the cost-effectiveness in consigning them to... 'terminal'
care in an institution?"[10]
Senator Humphrey told Congress, "[M]ore than one million
children are denied entry into public schools, even to participate
in special classes." Before special education became available,
children with disabilities were routinely warehoused in institutions,
and if they were provided any education at all, it was often inferior
and in separate facilities apart from their peers without disabilities.[11]
Children with disabilities were often considered uneducable, disruptive,
and their presence disturbing to children and adults in the school
community.
By the early 1970s, parents of children with disabilities
in 26 states had initiated litigation asserting their children's
right to attend public schools under the 14th Amendment of the U.S.
Constitution and the same equal protection arguments used on behalf
of the African American school children in Brown v. Board of
Education[12] in 1954. Two of these cases, Pennsylvania Association
for Retarded Citizens (PARC) v. Commonwealth of Pennsylvania
and Mills v. Board of Education of the District of Columbia[13],
resulted in consent decrees that outlined the basic constitutional
principles of the right to an appropriate education in the least
restrictive environment for all children with disabilities and the
procedural scheme that would later become federal law. Finally,
in 1975, recognizing that the problem required a national solution,
Congress passed the Education for All Handicapped Children Act.
Throughout the history of the struggle for equal educational
rights, the parents of children with disabilities have fueled and
guided special education reform. In 1981, six years after enactment
of IDEA, the following letter was written by a parent to express
her view on the prevalent practice of segregating children with
disabilities in separate "handicapped-only" classes and schools
despite the Act's mandate that requires placement in the least restrictive
environment:
"We are the parents of children attending
Cameron School for Physically Handicapped students in El Cerrito,
California, in the Richmond Unified School District. For all our
children's school lives, they have had little or no opportunity
to interact with their nondisabled peers.
Segregated education is but another form of institutionalization,
which we view as extremely detrimental to the growth and development
of disabled and nondisabled children alike."[14]
The asserted reasons for segregating children with
disabilities in educational settings-- that a wheelchair is a fire
hazard, that a child's IQ renders her uneducable, and the like--do
not reveal the true basis for excluding them. The true basis is
the expectation that the children will become dependent adults,
unable to contribute to society. This view makes their childhood
education seem futile--they will be dependent no matter how good
their education. Compounded by widespread discrimination, inaccessible
buildings, inaccessible transportation, and lack of adequate support
services, these stereotypes were the reason for severely restricted
options available to children and adults with disabilities and promoted
segregated and inferior education.[15]
The inherent inequality of separate education and
the permanent damage it inflicts were recognized by the Supreme
Court in Brown v. Board of Education. In this unanimous decision,
Chief Justice Earl Warren wrote:
"To separate [children] from others of similar
age and qualifications solely because of their race generates
a feeling of inferiority as to their status in the community that
may affect their hearts and minds in a way unlikely ever to be
undone....
We conclude that in the field of public education,
the doctrine of 'separate but equal' has no place. Separate educational
facilities are inherently unequal."[16]
He further wrote that public education prepares children
for economic and social participation in society:
"[Education] is a principal instrument for
awakening the child to cultural values, in preparing him for later...training,
and in helping him to adjust normally to his environment. It is
doubtful that any child may reasonably be expected to succeed
in life if he is denied the opportunity of an education."[17]
Education prepares children for their adult roles.
Expecting children with disabilities to remain dependent throughout
their lives, at least until 1975, was our national policy. State
governments and local schools routinely excluded them from public
education entirely, warehoused them in institutions, and provided
them with inferior and separate education. Even when a child with
a disability received sufficient elementary and secondary education
to proceed to college, higher educational opportunities often remained
limited by low expectations of future adult roles.
B. Basic Requirements of IDEA
IDEA is a complex statute, divided into Parts A, B,
C, and D. Part A contains general provisions, including the findings
and purposes of the law, the goals for the law, and definitions
of terms used throughout the Act. It also clarifies the procedures
regarding the U.S. Department of Education's use of policy letters
and other correspondence. Part B, "Assistance for Education of All
Children with Disabilities" describes how the Federal Government
provides funding to assist the states in making available a free
appropriate public education and carrying out the purposes of the
Act, how the state education agencies (SEAs) supervise and monitor
implementation, and how the SEAs and local education agencies (LEAs)
must make available a free appropriate public education to students
with disabilities ages three through 21. Part B also lays out the
basic rights and responsibilities of children with disabilities
and their parents. Part C, "Infants and Toddlers with Disabilities,"
describes the program for addressing the needs of infants and toddlers
ages birth to three years old. Part D, "National Activities to Improve
Education of Children with Disabilities," authorizes discretionary
programs related to state improvement (i.e., for improving teacher
preparation and credentialing or improving results for children
with disabilities in geographic areas of greatest need). This report
focuses primarily on Department of Education (DoED) enforcement
of Part B.
IDEA sets forth a comprehensive scheme for ensuring
two basic substantive rights of eligible children with disabilities:[18]
(1) the right to a free appropriate public education, and (2) the
right to that education in the least restrictive environment. The
body of the law delineates a procedural framework to ensure these
two substantive rights. Appendix C provides an overview of the basic
rights and requirements: (1) free appropriate public education (FAPE),
(2) least restrictive environment (LRE), (3) parent and student
rights, (4) child-find, (5) evaluation procedures, (6) individualized
education program (IEP), and (7) procedural safeguards. Three of
those requirements--FAPE, LRE, and IEP--are briefly described below.
IDEA defines FAPE as special education and related
services that meet the standards of the state education agency and
are provided at public expense. These include appropriate preschool,
elementary school, and secondary school education. The education
is to be provided in accordance with the child's IEP, as described
below. FAPE, for each child, is defined by that student's IEP.
IDEA mandates that students with disabilities be offered
special education and related services in the least restrictive
environment appropriate for the individual child with a disability.
LRE is the environment that provides for maximum interaction with
nondisabled children consistent with the disabled child's needs.
This is the key substantive right of children with disabilities
under IDEA and is often considered the linchpin of IDEA. It is sometimes
called the "integration mandate." Every step away from the regular
classroom must be accompanied by a compelling educational rationale,
in light of the law's preference for educating children with disabilities
in the regular classroom alongside their nondisabled peers.
The IEP is the centerpiece of IDEA. Parents use this
tool to ensure that an appropriate program is developed to meet
their child's unique needs. The IEP is a written statement that
must contain specific information about the child's educational
needs, levels of performance, annual goals, short-term objectives,
and special education and related services and supplementary aids
and services to be provided to the child. The IEP must explain the
extent to which the child will not participate with nondisabled
children in regular classes and include, among other elements, a
statement of the child's transition needs beginning when the child
reaches age 14 and a statement of how the child's progress toward
annual goals will be measured. The IEP is developed, reviewed, and
revised during meetings that include a representative of the school
or agency, the child's teacher, the child's parents, the child (if
appropriate), and other individuals who have knowledge or special
expertise at the request of the parent or education agency.
C. Scope of IDEA
IDEA and the corresponding regulations set forth a
comprehensive federal commitment to guarantee FAPE is made available
in the least restrictive environment to each child with a disability
regardless of the nature or severity of the child's disability.
The statute and regulations apply to every state that receives federal
funds under IDEA. Under the law, the Office of Special Education
Programs (OSEP) is charged with ensuring implementation of the law
through monitoring and enforcement activities. Within each state,
IDEA applies to many overlapping entities, including, but not limited
to, the following: (1) the state education agency, (2) all political
subdivisions involved in the education of children with disabilities,
(3) local and intermediate educational agencies, (4) other state
agencies such as departments of mental health, which provide educationally
related services to children with disabilities, (5) state schools
for deaf and blind children, and (6) state correctional facilities.
IDEA applies to all public agencies that receive "direct
or delegated authority to provide special education and related
services in a state that receives funds under Part B," even if an
agency receives no federal funds under Part B.[19] Further, any
public agency that refers a child to a private program must ensure
that the child's rights are protected in that setting.[20]
The SEA in a given state has the ultimate responsibility
for educating children with disabilities in that state. SEAs and
school districts that cannot provide all related services or special
education classes, however, may contract with other organizations.
Also, they may enter interagency agreements with other agencies--a
state department of health, for example--to provide certain services
on a statewide basis. Interagency agreements spell out several things--
each agency's responsibility, the methods of payment, etc.
D. Legislative History
Congress first enacted IDEA in 1975 as the Education
for All Handicapped Children Act (EHA), P.L. 94-142.[21] The law
was intended to address numerous well-documented problems facing
children with disabilities, which are detailed in Appendix B. EHA
guaranteed all children with disabilities, ages three through 21,
the right to FAPE in the LRE consistent with that goal. The first
regulations implementing the EHA went into effect in 1977, adding
requirements such as time lines for due process procedures. Although
Congress has amended IDEA several times since 1975, most key provisions
have not changed. Hence, current policy is guided by case law interpreting
statutory provisions from the various versions of IDEA.
Early in his administration, President Reagan targeted
IDEA for deregulation. After issuing draft changes to the IDEA regulations,
the administration encountered tremendous opposition in hearings
conducted by the DoED and in the extensive media attention they
garnered. When opponents of the draft changes sent 30,000 letters
to the White House, the Reagan Administration decided to leave the
regulations in place.
In 1986, Congress enacted the Handicapped Children's
Protection Act (HCPA)[22] in response to the Smith v. Robinson[23]
Supreme Court decision. Among other things, HCPA added an attorney
fee provision to IDEA, bringing special education up to par with
other civil rights statutes and allowing parents who prevail in
due process hearings and court to be reimbursed for their attorneys'
fees. Also in the mid-1980s, Congress added an early intervention
program known as Part H for infants and toddlers and their families.
In 1990, Congress amended the statute and crafted
the statutory name used in this report --the Individuals with Disabilities
Education Act, or IDEA. The regulations were correspondingly changed
to reflect the statutory changes. Substantively, the 1990 changes
were limited. Among the changes were the addition of separate categories
for autism and traumatic brain injury, and the addition of transition
services to the IEP requirements for children 16 years old and up,
or younger if appropriate, who are preparing to leave school because
of graduation or age.[24]
E. Reauthorization of IDEA 1997
Shortly after 1990, two issues fueled special education
changes: inclusion of children with disabilities into regular classrooms,
and school violence. In the late 1980s and early 1990s, several
court decisions led to an increase in the integration or inclusion
of children with disabilities into regular classes and schools.[25]
These inclusion cases strongly affirmed the preference in the law
for educating children with disabilities in regular classes with
support services, alongside their nondisabled peers. Around this
same time period, several notorious incidents of school violence
occurred in various parts of the country. In response to the increased
integration of children with disabilities into regular public schools
and classrooms, some blamed these children for the increase in disruptive
and violent behavior in schools, despite the lack of any data substantiating
that they were involved in these incidents. A prominent teachers'
union and school board organization subsequently lobbied Congress
to revisit the issues of integration, disruption, and discipline.
Some members of Congress responded by proposing substantial changes
to IDEA during the process of reauthorizing the law in the early
and mid-1990s. Parents and advocates for children with disabilities
viewed these proposed changes very negatively and deeply resented
what they considered the "scapegoating" of children with disabilities.
To the credit of the current administration, both the President
and the DoED continuously resisted pressure from members of Congress
and powerful lobbying interests to compromise the intent of IDEA
to ensure FAPE for every child.
Judith E. Heumann, Assistant Secretary of the Office
of Special Education and Rehabilitative Services within the Department
of Education (OSERS), made every effort to redirect the debate into
positive change and improving results for children with disabilities.
For several years, however, most of the debate in Congress continued
to focus on the issue of discipline. Some members of Congress wanted
to allow teachers and schools to exclude children simply for being
"disruptive," whether or not the schools had adequately addressed
the child's needs. Again, these proposals were viewed by parents
as manifesting outright hostility toward children with disabilities
and they vigorously opposed them. Special education for children
with disabilities in adult prisons also became a controversial point
in the congressional debates as some members of Congress sought
to eliminate the right of incarcerated youth to receive special
education services.
During the reauthorization, many parent leaders did
not call for changes to IDEA, but rather for full implementation
and enforcement of the law. In the view of many of these parents
and advocates, the law itself needed no improving. Rather, widespread
and pervasive noncompliance with the law needed to be corrected.
Parents were highly critical of DoED and the state departments of
education for failing to live up to their enforcement responsibilities.
In 1997, Congress finally reauthorized IDEA in the
IDEA Amendments of 1997, Public Law 105-17 or IDEA '97, which President
Clinton signed into law on June 4, 1997. This reauthorization launched
the second generation of statutory development. For the first time
since 1975, significant changes were made to the law while retaining
its basic protections. The 1997 additions were intended to clarify,
strengthen, and provide guidance on implementation of the law based
on two decades of experience.[26]
The congressional statements prefacing the amended
Act describe its new emphasis on educational results and improved
quality of special education and regular programs and services:
"Improving educational results for children
with disabilities is an essential element of our national policy
of ensuring equality of opportunity, full participation, independent
living, and economic self-sufficiency for individuals with disabilities.
[T]he implementation of this Act has been impeded by low expectations,
and an insufficient focus on applying replicable research on proven
methods of teaching and learning for children with disabilities.
Over 20 years of research and experience has demonstrated
that the education of children with disabilities can be made more
effective by--
(A) ...ensuring their access in the general curriculum
to the maximum extent possible;
(B) strengthening the role of parents...;
(C) coordinating this Act with other... service
agenc[ies]... and... school improvement efforts in order to ensure
that such children benefit from such efforts and that special
education can become a service for such children rather than a
place where they are sent;...
(D) supporting high-quality, intensive professional
development for all personnel who work with such children in order
to ensure that they have the skills and knowledge necessary [to
teach them effectively]."[27]
In keeping with these articulated purposes, several
important themes are woven throughout the new law:
The LRE requirements are maintained and strengthened
in many references to educating children with disabilities alongside
children without disabilities.
Children with disabilities must have an opportunity
to be involved in and progress in the general curriculum. New
IEP provisions reflect this emphasis.
The rights of parents to be involved in educational
decisions affecting their children--including eligibility and
placement decisions--are reinforced and strengthened.
Challenging behavior is best approached proactively
through the use of functional behavioral assessments, and positive
behavior strategies, interventions, and supports.
Children with disabilities must be included in state-
and districtwide assessment programs.
There is a results-based approach to special education;
the state must establish performance goals and indicators to measure
and report progress.
State and local agencies are to engage in systemwide
capacity building, linking student progress with school improvement.
In the area of discipline, in the spirit of compromise,
some changes were made to the law to give school officials greater
flexibility in dealing with children with disabilities involved
with weapons, drugs, and behavior that could cause serious injury.
On the other hand, schools are directed in IDEA '97 more proactively
to address challenging behavior problems rather than excluding or
punishing children with disabilities because of misbehavior, especially
misbehavior caused by their disabilities.
The years of controversy preceding reauthorization
were marked by protracted and contentious debate, grassroots organizing,
congressional hearings, and involvement by every conceivable "stakeholder."
IDEA nevertheless survived an intense and prolonged period of bill
introductions and amendments in the House and Senate, and of direct
and active involvement of organizations representing teachers, parents,
psychologists, related service providers, local and state boards
of education, school administrators, and various other interest
groups. Tools for enforcement were explicitly added to the law.
The law that emerged from this process was, for the most part, strengthened
and revitalized.
F. Statutory Framework for IDEA Enforcement
The overall purpose of IDEA is,
"To assure that children with disabilities
have available to them a free appropriate public education that
emphasizes special education and related services designed to
meet their unique needs and..., to assist states, localities,
educational service agencies, and federal agencies to provide
for the education of all children with disabilities..."[28]
This section describes the overall compliance and
enforcement mechanism, including the statutory roles of the DoED,
the SEAs, and the LEAs. The informal role of parents as enforcers
of IDEA in relation to the federal and state agencies is also discussed,
as well as a brief overview of the history of federal enforcement
action.
1. The Compliance/Enforcement Scheme for IDEA
The IDEA compliance/enforcement scheme was created
to address both systemic and individual compliance problems. Activities
take place in three separate arenas: (1) the Federal Government,
(2) the state government, and (3) the due process/judicial system.
In the first arena, the Federal Government initiates action; in
the second arena, it is the state government; and in the third arena,
it is parents of students with disabilities. It should be noted
that the compliance/ enforcement scheme for IDEA is different than
that for other civil rights laws. The key difference is the lack
of an individual federal complaint system under IDEA. Such a system
is the key enforcement mechanism for other civil rights laws, such
as the ADA and Section 504 of the Rehabilitation Act. The IDEA compliance/enforcement
scheme is depicted in Table 1 below:
Table 1: The Three Prongs of the IDEA Compliance/Enforcement
Scheme
1.
Federal Government Role |
2.
State Government Role |
3.
Due Process/
Judicial Role for
Parents |
Approve/disapprove state eligibility
documents |
Ensure that IDEA requirements are
met in the state |
Procedural
safeguards in law |
Monitor states/issue reports
detailing noncompliance |
Determine eligibility of local
education agencies (LEAs) |
Mediation (if this option
is chosen by complainant) |
Provide technical assistance to
states |
Monitor LEAs for compliance |
Impartial hearing |
Develop and ensure implementation
of Corrective Action Plans |
Establish and maintain complaint
system for parents |
Appeal of hearing |
Designate states as "high risk with
special conditions" or require
compliance agreements |
Withhold funds from noncompliant
LEAs |
Civil action in court |
Withhold funds (total or partial)
from state for substantial
noncompliance |
Technical assistance to LEAs |
|
Refer state to Department of Justice
for substantial noncompliance |
Ensure qualified personnel,
personnel standards, and
comprehensive system for
personnel development |
Complaints to SEAs |
Review complaints |
Obtain corrective action plans from
LEAs |
|
Collaborate with the Office for
Civil
Rights on 504/ADA/IDEA overlap |
Designate LEAs as high risk
subgrantees. |
|
Enter into compliance agreement
with state |
Audit LEAs for compliance. |
|
Cease and desist action |
Audit states for compliance |
|
Federal Government activities, the first prong of
the compliance/enforcement scheme, are the focus of this study and
will be described throughout the body of this report. State government
activities, prong two, will be addressed only to the extent that
the Federal Government monitors whether the state carries out these
responsibilities. For example, in the section on federal monitoring,
states are shown to be in or out of compliance with the general
supervision requirements, indicating whether the state is carrying
out its function of ensuring that LEAs comply with the law. The
law gives states the responsibility for ensuring that IDEA's requirements
are carried out in the states. In theory, the Federal Government
is ensuring that the SEA is performing that function. Thus, the
federal DoED is monitoring the SEA in much the same way that the
SEA is monitoring the LEA.
This study does not attempt to discern the extent
to which states withhold funds from LEAs. (Withholding of funds
from LEAs, however, does come up in this report when it discusses
the Federal Government's determination that an SEA is out of compliance
because it is not withholding LEA funds.) Also beyond the scope
of this study is an analysis of complaints received by states from
parents. In fact, it is unclear as to whether such an analysis would
be possible because states are not required to submit such information
to DoED.
The third prong of compliance/enforcement, due process
and use of the judicial system by parents and advocates, will not
be addressed in this report, except in the context of federal monitoring
to ensure that states are following the due process requirements
of the law, such as notifying parents of their rights under the
law and establishing an impartial hearing process. The due process/impartial
hearing system is a vital component of the enforcement scheme, providing
parents with specific procedural safeguards when disputes arise
with school districts. This due process scheme has produced court
cases that go on to address significant policy issues under IDEA.
The body of impartial hearing decisions in every state is not considered
by this report. Furthermore, it is doubtful whether such a consideration
could occur because data about these decisions exist only at the
state level and are not compiled nationally. Furthermore, states
vary in the extent to which they gather and analyze such information.
It is critical for the reader to keep in mind that
all three prongs together constitute the overall compliance/enforcement
scheme of IDEA, since only Federal Government activities are the
focus of this report. An examination of all three prongs, which
is beyond the scope of this study, is necessary for a complete picture
of IDEA enforcement. However, state enforcement activities are touched
upon indirectly in this report's analysis of the federal monitoring
reports. The analysis provides a national picture of the variability
of state compliance with IDEA (see Part III). The role of private
litigation (third prong) is also briefly discussed in the context
of its impact on state monitoring efforts (see Part V).
2. Background and Enforcement Philosophy
The Federal Government was always intended to play
a critical role in monitoring and enforcing IDEA. The Bureau of
Education for the Handicapped (BEH) within the Office of Education
in the Department of Health, Education, and Welfare, was the first
federal entity responsible for administering the law. When the law
was passed in 1975, the Bureau was charged with monitoring the states'
implementation of the Act while the states were charged with monitoring
the local school districts' implementation of the Act.
Acknowledging that the Education for All Handicapped
Children Act "represents the most important legislation for the
handicapped ever passed" (1979 Annual Report to Congress-- Introduction),
the BEH had established a monitoring system by 1976. The monitoring
system included a Program Administrative Review (PAR), or monitoring
site visits. By 1978, every state had been visited at least once
by BEH, and a few had been visited twice. BEH issued monitoring
reports and worked with states, just as OSEP does today, to develop
corrective action plans to address areas of noncompliance.
When the DoED was established in 1980, the Office
of Special Education and Rehabilitative Services was created. OSERS
was given the responsibility, which it retains today, for administering
the law (now IDEA).
DoED has been monitoring states and states have been
monitoring local education agencies since the mid-1970s as intended
by law. As part of its responsibility for the administration of
IDEA, DoED has been issuing monitoring reports that detail state
noncompliance and deficiencies for more than 20 years.
IDEA is a unique law in that it is a blend of a civil
rights law and a state grant program. The DoED administers both
of these types of laws, but separately. Generally, the Office for
Civil Rights (OCR) in the Department of Education administers the
civil rights laws, as described below, but it does not administer
IDEA. The other divisions of the DoED administer state grant programs,
research programs, demonstration programs, teacher training programs,
student loan programs, etc. Indeed, the core activity of the DoED
is the administration of educational funds. Unlike some other agencies,
such as the Equal Employment Opportunity Commission and the Department
of Justice, its core activity is not civil rights enforcement. Civil
rights enforcement is a secondary task of the DoED; its primary
activities are programmatic.
Generally, the stakeholders for civil rights laws
are quite different from the stakeholders for grant programs. The
major stakeholders for civil rights laws are those protected by
the laws and their advocates; in the case of IDEA, children with
disabilities and their families and advocates. The major stakeholders
for state grant programs are generally the recipients of the funds
(state and local education agencies in the case of IDEA) and professionals
who provide the services. Sometimes there is tension between these
two groups, whose perspectives on the purpose of the law may be
at odds, leaving the administering agency in the difficult position
of being in the middle. While the state is the partner of the Federal
Government in delivering educational services, it may also be the
target of enforcement actions. Such an internal conflict is not
present in the administration of most other civil rights laws, where
the federal role is solely one of enforcing the rights of the protected
group.
In recent years, OSEP has used the grant administration
process as an informal means of civil rights enforcement. During
1990s, OSEP imposed "high risk status" on six states for failure
to correct findings through federal monitoring of noncompliance
with IDEA. Correcting the noncompliance was the "special condition"
for continued eligibility to receive federal funding under IDEA
for the next funding period. These informal actions eventually escalated
to formal actions to withhold federal funds from two states that
were persistently out of compliance.
These actions, taken against Virginia and Pennsylvania,
were met with opposition from political leaders of those states.
In the case of Virginia, when the DoED attempted to withhold funds
because of noncompliance, the entire Virginia delegation and the
governor wrote to the Secretary of Education requesting that he
release the funds. In the case of Pennsylvania, four members of
Congress requested that the Secretary reconsider his "high risk
status" determination of the state and instead provide technical
assistance. (See Appendix D for copies of the letters.) Secretary
Riley did not withdraw the DoED's actions in response to the strong
political pressure.
Concern about lax federal enforcement of IDEA, nonetheless,
has been raised intermittently over the years. During the 1997 reauthorization
of IDEA, many parents expressed strong doubts about the effectiveness
of the monitoring process, calling for no change in the law and
for full implementation and enforcement. Such concerns prompted
Congress to clarify and restate enforcement authorities in IDEA
'97. IDEA '97 explicitly authorized the Department of Education
to refer noncompliant states to the Department of Justice.[29] OSEP
also can withhold funds in whole or in part from states, based on
the degree of noncompliance found.[30] (The former law was interpreted
to preclude partial withholding of funds and allow only total withholding
of funds, unless the noncompliance was limited to particular LEAs.)
The House Committee Report accompanying IDEA '97 acknowledges these
concerns and sets out a clear expectation that the Secretary will
fully utilize these explicit authorities to enforce the law.
"The Committee recognizes and fully expects
that the Secretary will utilize the broad enforcement authority
available for ensuring compliance with and implementation by state
educational agencies....The Committee expects the Secretary to
initiate actions to ensure enforcement, including the re-examination
of current federal monitoring and compliance procedures to improve
the implementation of the law, and a subsequent annual report
to Congress, which evaluates the impact of the improved procedures
on compliance. The Committee also expects that the Secretary's
re-examination of current enforcement procedures will place strong
emphasis on (1) including parents in the state monitoring process,
(2) focusing monitoring efforts on the issues that are most critical
to ensuring appropriate education to children with disabilities,
and (3) timely follow-up to ensure that a state has taken appropriate
actions to demonstrate compliance with the law."[31]
The final regulations restating DoED's enforcement
options (referral to the Department of Justice and partial withholding
of funds), became effective in May 1999, but DoED has developed
no guidelines on specific conditions in which they should be used.[32]
The organization of the DoED in carrying out its enforcement
role is described in the following section.
3. The Federal Role - Delegation of Responsibilities
The Department of Education is headquartered in Washington,
DC, where it employs approximately 3,600 people. In addition, DoED
has 10 regional offices with 1,300 employees. Regional offices have
no special education staff and thus no designated responsibility
for IDEA monitoring or enforcement. They play a central role in
the enforcement of Section 504 of the Rehabilitation Act, however,
which prohibits discrimination against people with disabilities.
All IDEA monitoring and enforcement functions are performed by Washington,
DC, staff.
Appendix E presents the organizational structure of
the Department of Education in Washington, DC. The boxes that have
an asterisk represent the offices at the agency having IDEA-enforcement
responsibilities. OSERS, also in Washington, is the principal office
charged with implementing and carrying out IDEA and provisions concerning
the education of children with disabilities.[33] Their roles and
responsibilities are described below.
a. Office of the Secretary
The Secretary of Education holds ultimate authority
and accountability in DoED for the implementation of all federal
education laws. Under IDEA, the Secretary of Education ("Secretary")
is responsible for issuing regulations,[34] allocating funds among
the various states,[35] determining eligibility for funds,[36] and
assessing the adequacy of eligibility documents demonstrating implementation
of the statute (i.e., policy and procedure documents).[37] The Office
of the Secretary is involved in all significant policy decisions
related to IDEA and is informed of any developments related to IDEA
that may become controversial.
Additionally, the Secretary is required to assess
the progress in the implementation of IDEA, including the effectiveness
of state and local efforts to provide a free appropriate public
education to children with disabilities.[38] To underscore DoED's
responsibility to monitor and enforce implementation of the Act,
the law clarifies DoED's authority to invoke sanctions against noncompliant
states. In general, whenever the Secretary finds:
(A) "that there has been a failure by the state
to comply substantially with any provisions of this part, or
(B) that there is a failure to comply with any
condition of an LEA's or state agency's eligibility... including
the terms of any agreement to achieve compliance with this part
within the time line specified in the agreement,
(C) the Secretary shall... withhold, in whole or
in part, any further payments to the state under this part, or
refer the matter for appropriate enforcement action, which may
include referral to the Department of Justice."[39]
Withholding "in part" and referral to the Department
of Justice were clarified in IDEA '97 as explicit enforcement options
available to DoED in the event of noncompliance by the states.
In relation to the enforcement of IDEA, the Secretary's
office becomes involved whenever an activity is above and beyond
the routine. For example, whenever an enforcement action is taken,
such as the initiation of a compliance agreement with a state or
withholding of funds, the Secretary's office is involved. The Office
of the Secretary has a very specific function in relation to withholding
of funds. A state is entitled to request a hearing on a withholding
of funds decision with a hearing officer, such as an Administrative
Law Judge (ALJ) appointed by the Secretary. If the state is displeased
with the decision of the ALJ, it may appeal to the Secretary for
a final determination. Such an appeal has occurred only once in
the history of IDEA enforcement--in July 1995 with the state of
Virginia. (See Part IV below.)
b. Office of General Counsel and Relationship with
the Department of Justice
The Office of General Counsel (OGC) provides legal
advice to all divisions of the Department of Education, including
those involved with the implementation of IDEA. Six divisions and
one unit constitute the OGC. The Educational Equity and Research
Division provides legal advice related to IDEA, all other programs
administered by OSERS, other equity oriented programs (such as bilingual
education) and laws administered by the Office for Civil Rights,
including Section 504 of the Rehabilitation Act. The OGC has a staff
of 113, of whom 86 are attorneys. Approximately 13 full-time equivalent
(FTE) attorneys are assigned to the Educational Equity and Research
Division. Of those, about four have responsibility for IDEA.
The OGC performs four main functions in relation to
IDEA enforcement. First, it coordinates with OSEP in the review
of all state applications for funding. Second, it reviews all state
monitoring reports written by OSEP. Third, it supports OSEP on any
enforcement actions related to IDEA, including determinations of
"high risk" status for a state, developing compliance agreements
with states, denial of funding applications, withholding of funds,
and "cease and desist orders." (While the Department has the authority
to utilize "cease and desist" orders to enforce IDEA, it has never
done so.) Fourth, the OGC takes the lead in interacting with the
Department of Justice on IDEA cases and issues.
The 1997 amendments to IDEA explicitly authorize the
Department of Education to refer noncompliant states to the Department
of Justice for investigation, litigation, or both. While the Department
of Education has likely always had this authority, the 1997 amendments
make such authority explicit and statutory.
The OGC, in conjunction with OSERS and OSEP, collaborates
with the Department of Justice when IDEA matters are in federal
court or the Supreme Court. When the state of Virginia took the
Department of Education to court (see explanation of Virginia case
below), the Department of Justice represented DoED. In some circumstances,
the two agencies have worked together to write amicus briefs or
to develop an argument in relation to a case or an issue. In consultation
with the Department of Education, the Department of Justice considers
cases that have been brought to its attention by the public (see
Part VI below).
c. Office of Special Education and Rehabilitative Services
The Office of Special Education and Rehabilitative
Services (OSERS), which will administer an $8.1 billion budget for
FY '99, is the second largest office in the U.S. Department of Education.
Only the Office of Postsecondary Education is larger. At a $5.3
billion FY '99 appropriation, IDEA is by far the largest of the
programs administered by OSERS. OSERS employs a staff of 360[40]
and is made up of three offices: the Rehabilitation Services Administration
(RSA), the National Institute on Disability and Rehabilitation Research
(NIDRR), and the Office of Special Education Programs (OSEP). OSEP
administers IDEA. NIDRR administers parts of the Vocational Rehabilitation
Act and the Assistive Technology Act. RSA administers most of the
Vocational Rehabilitation Act.
The vision and mission statements of OSERS articulate
the organizational philosophy and outlook shaping its policies and
activities. OSERS' vision statement expresses its overall purpose
and how it intends to achieve that purpose: "OSERS will aggressively
and collaboratively work to create a society in which all disabled
people can obtain the knowledge and skills necessary to achieve
the goals they set for themselves." The mission statement articulates
OSERS' role in bringing about the vision: "The mission of OSERS
is to provide leadership to achieve full integration and participation
in society of people with disabilities by ensuring equal opportunity
and access to and excellence in, education, employment, and community
living."
The organizational role and functions of OSEP, the
office primarily responsible for the day-to-day activities of administering
IDEA, are described in the following section.
d. Office of Special Education Programs/Monitoring
and State Improvement Planning Division
OSEP administers the $5.3 billion appropriated for
programs authorized by IDEA.[41] Of this $5.3 billion, $4.1 billion
funds the Part B Grants to States program. Between 1996 and 1998,
this program has grown almost $2 billion, or 85 percent.
OSEP was reorganized in January 1998, and employed
120 staff at the time of the interview for this report. In addition
to the Office of the Director (OD) and the Support Team, OSEP comprises
two divisions: the Research to Practice Division (RTP) and the Monitoring
and State Improvement Planning Division (MSIP). The OD coordinates
all policy, provides leadership to OSEP's activities and to the
field of special education, and is the home of the Federal Interagency
Coordinating Council. The RTP division administers the discretionary
programs authorized by IDEA. It is organized into four teams: Early
Childhood; Elementary and Middle School; Secondary transition and
Post-Secondary; and National Initiatives. The MSIP division carries
out activities related to P art B and the preschool and early intervention
formula grant programs of IDEA. MSIP is responsible for review and
approval of state eligibility documents, monitoring the formula
grant programs, and providing leadership in improving state structures
and systems of education for infants, toddlers, children, and youth
and their families.
MSIP has a staff of 45 organized into four units--the
Office of the Division Director, Team A, Team B, and Team C. There
are six individuals in the Office of the Division Director, 13 on
Team A, 15 on Team B, and 11 on Team C. The Office of the Division
Director has three key functions: (1) administer the State Program
Improvement Grants (discretionary grants to states for systemic
change activities related to improving performance of children with
disabilities, education personnel development, and other initiatives
related to meeting the requirements of IDEA), (2) develop policy
in areas related to the division's activities, and (3) manage audit
resolutions (including Inspector General (IG) audits and General
Accounting Office (GAO) reports). In addition, the Office of the
Director develops a chapter for the Annual Report to Congress, provides
support for monitoring, and coordinates and collaborates with other
relevant federal entities.
Not all of the people on each team participate in
monitoring activities. Of the 39 individuals on teams, approximately
22 of them are monitors for the Part B state grant program. The
smallest number of monitors employed at DoED in the past decade
was nine.[42]
Each of the three Monitoring and State Improvement
Planning Teams is responsible for a range of activities in 18 to
20 states and entities. The key responsibilities of these teams
are to review state eligibility and recommend approval or disapproval
for grant applications, monitor states, and provide or coordinate
technical assistance for states. Monitors are assigned as the key
state contact person for three to four states. Appendix F provides
a detailed description of the responsibilities of the Monitoring
and State Improvement Planning Teams.
e. Office for Civil Rights/U.S. Department of Education
The Office for Civil Rights (OCR) in the Department
of Education has no responsibility for enforcing or monitoring IDEA.
The nature of its authorities, however, as described below, leads
it to be involved in issues that are also IDEA issues. OCR was included
in this study because complaints and issues brought to OCR may at
times overlap with those raised under IDEA.
The Office for Civil Rights is charged with enforcing
federal civil rights laws that prohibit discrimination on the basis
of race, color, national origin, sex, disability, and age in programs
and activities that receive federal financial assistance. Two of
those laws prohibit discrimination on the basis of disability--Section
504 of the Rehabilitation Act and Title II of the Americans with
Disabilities Act (ADA). Section 504 prohibits disability discrimination
by any recipient of federal funds, such as local school districts.
Title II of the ADA prohibits disability discrimination by public
entities including public school districts, public colleges and
universities, public vocational schools, and public libraries, whether
they receive federal funds or not. Most of OCR's enforcement activities
take place in the 12 regional offices throughout the country.
OCR carries out its responsibilities in two primary
ways--by responding to complaints and conducting compliance reviews.
OCR receives about 5,400 complaints per year. More than half of
these are Section 504/ADA complaints (see discussion on Complaint
Handling in Part IV for an analysis of these complaints, which may
overlap with IDEA). OCR works with the involved parties to resolve
complaints. OCR may initiate compliance reviews, which allows it
to target resources on compliance problems that appear acute, national
in scope, or newly emerging. An advantage of a compliance review
is that it may result in policy or program changes that benefit
large numbers of students, whereas an individual complaint may benefit
only the complaining party. OCR has the authority to withhold federal
funds from entities, such as local school systems, found to be violating
Section 504.
OCR has conducted compliance reviews on minority students
in special education, and has provided technical assistance under
Section 504 and Title II of ADA regarding discipline of students
with disabilities. In addition to providing technical assistance
on making FAPE available to students with disabilities in correctional
facilities, OCR and OSEP have collaborated on cases involving students
with disabilities in correctional institutions.[43]
The potential overlap in authorities between OCR and
OSERS has long been acknowledged by both offices. Because of concerns
about lack of coordination and potential duplication of efforts,
OCR and OSERS developed a Memorandum of Understanding (MOU) in 1987.[44]
The MOU outlined how the two offices will share information about
potential 504/IDEA violations. Processes for joint review of eligibility
documents and complaints were outlined. Joint activities, including
investigation of education agencies, issuance of findings, negotiation
of remedies for violations found, monitoring of compliance plans,
and enforcement proceedings were authorized. Since the MOU, OCR
and OSERS have carried out some of these authorized activities in
New York, Mississippi, Nevada, the Virgin Islands, Arizona, and
Florida.[45] OCR and OSEP appear to be developing an increasingly
productive relationship as well based on coordination and collaboration.
OCR and OSEP have drafted joint letters about overlapping issues.
OCR reported that it provides OSEP with its compliance monitoring
docket for the year so OSEP will know what school districts OCR
is investigating and why.[46] OSERS reported that as part of its
pre-site monitoring activities, it requested Section 504 agreements
from OCR for a particular state. OCR reported coordinating with
OSEP on disability cases and meeting with OSEP quarterly to share
information about the respective offices' activities. Both offices
have conducted training for staff in the other's office.[47]
f. Office of the Inspector General
The Office of the Inspector General (OIG) is charged
with reviewing audits performed by states to ensure that their expenditure
of Part B IDEA state grant funds is consistent with the requirements
of the law. OIG also investigates allegations of waste, fraud, and
abuse, and can independently audit states to verify that federal
funds have been used appropriately. Such independent audits have
uncovered instances of abuse resulting in repayment by the state
of all misappropriated or misspent funds. In 1991, OIG challenged
the child count submitted by Pennsylvania in December 1990. Ultimately,
DoED and Pennsylvania agreed that the child count should be adjusted
downward from 195,607 to 190,771. As a consequence, Pennsylvania's
Part B award, on or about July 1, 1991, was adjusted downward by
$1,928,016.[48]
4. State Education Agencies (SEAs)
Within the states, Congress placed the ultimate responsibility
for reaching the goal of making FAPE available for each child with
a disability with the state educational agency, stating that "the
state educational agency is responsible for ensuring that:
(i) the requirements of this subchapter are met;
and
(ii) all educational programs for children with
disabilities in the state, including all such programs administered
by any other state or local agency--
(I) are under the general supervision of individuals
in the state who are responsible for educational programs for
children with disabilities; and
(II) meet the educational standards of the state
educational agency."[49]
To be eligible for federal funds to assist with the
education of children with disabilities the SEA must submit documentation
to the U.S. Department of Education for approval, detailing the
state's policies and procedures assuring compliance. Once approved,
new submissions to DoED are required only when changes to a state
or federal law, policy, or procedure impact the approved policies
and procedures. In part, these documents must demonstrate the state's
assurance that:
"[A] free appropriate public education is
available to all children with disabilities residing in the state
between ages three and 21, inclusive..."[50]
"To the maximum extent appropriate, children
with disabilities... are educated with children who are not disabled,
and special classes, separate schooling, or other removal of children
with disabilities from the regular educational environment occurs
only when the nature or severity of the disability of a child
is such that education in regular classes with the use of supplementary
aids and services cannot be achieved satisfactorily."[51]
"Children with disabilities and their parents
are afforded the procedural safeguards required by Section 1415
of this [Act]."[52]
Additionally, the SEA's eligibility documents must
show (1) that funds received under IDEA will be expended in accordance
with provisions of the Act;[53] (2) that the state has a comprehensive
system of personnel development designed to ensure an adequate supply
of qualified special education, regular education, and related services
personnel,[54] how the state acquires and disseminates to teachers,
administrators, school board members, and related services personnel,
significant knowledge derived from educational sources,[55] and
how the state, where appropriate, adopts promising educational practices,
materials, and technology;[56] and (3) that the SEA regularly evaluates
the effectiveness of IDEA programs and services in meeting the educational
needs of children with disabilities.[57]
5. Local Education Agencies (LEAs)
In order to receive IDEA funding from the SEA, a local
education agency must demonstrate eligibility to the SEA.[58] The
LEA is required to provide assurance to the SEA that policies and
procedures are established and administered in accordance with the
SEA's responsibilities outlined in the law.[59] Thus, an LEA, as
a recipient of federal funds, must provide assurance that all children
with disabilities residing within its jurisdiction will be identified,
located, and evaluated for special education and related services
and that all children in the district are provided FAPE in the LRE.[60]
In the event that an LEA fails to comply with IDEA
requirements, the SEA "shall reduce or not provide further payments
to the LEA... until the SEA is satisfied that the LEA... is complying
with that requirement."[61] Furthermore, if the SEA determines that
the LEA is "unable to establish and maintain programs of free appropriate
public education that meet the requirements of the Act," it must
use the funds that would otherwise go to the LEA to provide the
necessary services directly to the children with disabilities.[62]
IDEA's implementing regulations also require SEAs
to adopt procedures for filing, investigating and resolving complaints,
including a determination of whether IDEA requirements were violated
and procedures for ensuring effective implementation of the SEA's
final written decision.[63]
6. The Unofficial Role of Parents as Enforcers of IDEA
Under IDEA, parents have a private right of action,
or right to go to court, to enforce their children's rights under
the statute. However, because of the individualized nature of the
law and the requirement that parents exhaust administrative remedies
before a court can review an alleged failure to provide FAPE, it
is sometimes difficult to address systemic problems through individual
litigation. Nevertheless, litigation brought by parents has become
a critical enforcement mechanism through judicial interpretations
of the law and in relief obtained through class actions to redress
systemic problems. As detailed in Part V, recent cases in three
states have directly challenged those states' monitoring deficiencies
and other systemic problems.
G. A Brief Overview of Federal Enforcement Action
In the 25-year history of IDEA, the use of formal
enforcement actions involving sanctions to address state failures
to ensure compliance with IDEA has been very limited. Since June,
1997, when Congress clarified the enforcement options of permitting
partial withholding of federal funds or referral to the Department
of Justice, the Department of Education has used neither of these
options. The Department of Education has exercised its authority
only once to withhold IDEA funds to address noncompliance by a state
(Virginia 1996). The issue in the Virginia case was the state's
policy permitting cessation of all educational services for children
with disabilities who were suspended or expelled. OSEP policy was
that cessation of services is not permitted under IDEA. Cessation
of services means that students no longer receive any education
or related services from the education system, not even home instruction.[64]
The U.S. Secretary of Education ruled that Virginia's
entire annual IDEA grant--$60 million--could be withheld based on
the state's refusal to provide FAPE to suspended or expelled children.
Virginia appealed the Secretary's decision in federal court. The
Fourth Circuit Panel agreed with OSEP that Virginia's policy was
in violation of IDEA. Virginia appealed this ruling to the full
Fourth Circuit Court of Appeals sitting en banc, which reversed
the circuit court panel decision on this issue. Virginia permanently
lost this debate, however, when Congress subsequently amended IDEA
with a "no cessation of services" provision that ensures school
districts provide FAPE to children with disabilities even during
suspension or after expulsion.[65]
OSEP has more often used informal mechanisms to secure
changes in state operations through negotiations over the approval
of state policy and procedures documentation. For example, in 1980,
OSEP's predecessor, the Bureau of Education for the Handicapped
(BEH), delayed plan approval in California because policies and
procedures regarding occupational therapy and physical therapy related
services and the state's complaint process failed to comply with
the law. This delay was spurred on by an organized grassroots parent
complaint strategy in California. As a result, California's Department
of Education made substantial changes in the noncompliant areas.
More recently, as discussed later in this report,
OSEP made determinations of high risk status or applied requirements
for compliance agreements to six different states/entities. In order
to address persistent noncompliance with Part B of IDEA, Puerto
Rico was and California, New Jersey, Pennsylvania, the Virgin Islands,
and the District of Columbia now are under such scrutiny. With the
exception of Puerto Rico, these informal enforcement actions are
recent. The compliance agreement entered into by Puerto Rico appears
to have had some effect in correcting conditions of noncompliance.
At the time of this writing, it is too soon to tell how effective
the other compliance agreements will be in compelling compliance.
H. Findings and Recommendations
Finding # I.1
The effectiveness of DoED's internal coordination among
the various offices and teams involved in IDEA implementation and
enforcement is unclear.
OSEP is responsible for IDEA compliance monitoring
and enforcement consulting with several other offices within the
Department of Education as needed. Within OSEP, the close integration
of enforcement responsibility with responsibilities for state grant
administration, compliance monitoring, technical assistance, and
program improvement can lead to conflicting internal objectives.
There appears to be no process for assessing whether the current
approach to internal collaboration has helped or hindered IDEA enforcement.
Recommendation # I.1
The Department of Education should assess whether
its current internal organization and division of IDEA grant administration
and enforcement functions/responsibilities effectively supports
the Department's goals to correct persistent state noncompliance.
OSEP, OCR, and perhaps OGC should further articulate
the objectives of their joint activities in relation to the enforcement
of IDEA, Section 504, and Title II of ADA and describe the specific
mechanisms and divisions of responsibility they have developed to
implement each objective. In addition, OSEP and OCR should evaluate
the effectiveness of their current collaboration for improving compliance
monitoring and enforcement of IDEA.
Finding # I.2
The Department of Education's mechanisms for external
coordination and collaboration to better implement and enforce IDEA
need to be evaluated.
Recommendation # I.2
The Department of Education should also articulate
the objectives and mechanisms for collaborating with other government
agencies (i.e., the Department of Justice and the Department of
the Interior) on the enforcement of IDEA and evaluate their effectiveness
on an ongoing basis. At least every two years, DoED's annual report
to Congress should report on the effectiveness of these mechanisms
and the agencies' progress toward meeting their collaboration objectives.
Part II presents the experiences and perspectives
of some students with disabilities, parents, and advocates in their
struggle to realize the promises of the law.
II.
Grassroots Perspectives on Noncompliance and Federal Enforcement
of IDEA
A. Obstacles Experienced by Students with Disabilities
and Their Families
Almost a quarter century following the passage of
the Individuals with Disabilities Act (IDEA), students with disabilities
and their families still commonly face obstacles to securing the
free appropriate public education (FAPE) that the law promises.
The impact of noncompliance with IDEA is difficult to overestimate.
Every Parent Training and Information (PTI) center in the country
hears daily about the toll taken on students whose educational and
related services needs are not being met and on the parents who
expend incredible amounts of energy advocating for basic access
to educational programs for their children. Appendix B provides
a general list of the obstacles faced by students with disabilities
and their families that were intended to be addressed by IDEA. Problems
in all of these areas persist today.
The experience of many parents gives the impression
that compliance with the law is the exception rather than the rule.
Parents frequently face repeated challenges year after year, sometimes
throughout the entire elementary and secondary educational experience
of the child. The stress of working with a recalcitrant school system
that appears to not want to work with a parent to educate a disabled
child can be tremendous. The recent controversy over the discipline
provisions in IDEA has fueled special education cases related to
suspension and expulsion of students.
The following situations are examples of what many
students and families in this country experience when working with
special education systems. These experiences demonstrate that even
the most basic promises of the law are too often not being met.
1. Noncompliance with Least Restrictive Environment
In California, a first-grade student with significant
mental impairments was placed in the regular classroom for the full
day. The school district thought that the placement was wrong for
the student and claimed that she was not receiving academic benefit
from her placement. In addition, the district held that the girl's
presence had a detrimental effect on her teacher and classmates.
A hearing officer determined that the regular classroom was indeed
the correct placement for the girl and outlined approp riate supports
that had to be provided. The school district appealed the decision.
Eventually the girl's family moved to a neighboring district and
enrolled the child in a regular education class there, where she
is doing well.[66]
In another situation, in Indiana, a student who is
blind sought to attend his local school. The school district required
the child to travel 25 miles away from home to a residential school
for the blind to receive the educational services he needed. A hearing
officer determined that the child must be served in his home school,
which is the least restrictive environment. The school district
has appealed the ruling.[67]
In New Jersey, a very bright elementary-age child
with dyslexia was in a resource room several periods a day. In more
than two years she had not shown progress in reading. Her parents
sought training for the teachers on how to best instruct children
with dyslexia in reading. The school system responded by seeking
to place the child in a self-contained classroom. The school contended
that it teaches all children to read by the same method. The parents
prevailed in court and were awarded instructional compensation for
the child over the summer.[68]
These situations, all related to the "least restrictive
environment" mandate, persist case after case and year after year
despite repeated rulings for integrated placements. In one of the
best known cases, Rachel Holland and her family spent five years
fighting in court for her right to be educated in a regular classroom.
The school district in California insisted that Rachel, then a seven-year-old
girl with mental retardation, be educated in a separate special
education classroom. Her parents held that she should be educated
in a regular classroom with support. In 1992, the district court
ordered an aide and special education consultant to work part-time
with Rachel's teacher and held that she should be placed in a regular
classroom. The school district appealed this decision all the way
to the Supreme Court, which declined to hear the case, thus affirming
the lower court's decision. Rachel and her parents were engaged
in pursuing their child's right to an integrated education for more
than five years. For two of those years, they were in a position
of defending against appeals by the school system. During the pendency
of the case, the Hollands placed Rachel in a regular private school,
at their own expense, where she was in a regular classroom with
supports. She continues to thrive today in a regular public education
classroom.[69]
2. Noncompliance with Free Appropriate Public Education
A special education student in East Palo Alto, California,
Empris Carter, is not receiving the education and related services
she requires. She and her family are embroiled in a lawsuit with
the school district over her services. She may be speaking for many
of the nation's special education students as she reflects on her
situation as follows:
Early in the game I discovered that many of my
teachers felt that I was a nice, respectful, and intelligent young
girl. However, they had some doubts about my capabilities and
immediately began to label and set limits on my future role in
society. Instead of helping me to find ways to learn, they moved
me to a special class where kids were not expected to learn. I
would get angry about their doubts and my self-esteem was low.
My mother would fight back with encouraging words and my self-esteem
would rise again. After being encouraged by mother's words, I
again realized that I am the key person in my future.
Learning comes easy for some and is more difficult
for others. Education plays a major role in everyone's future.
I, Empris Carter, have a place in the future. In order for me
to function properly and be able to contribute something positive
to our society, I, too, must have the opportunity to receive the
best education possible.[70]
Saundra Lemmons, a 17-year-old high school student
and basketball champion in Washington, DC, told her story to politicians
in February 1999.[71]
Lemmons was misdiagnosed as mentally retarded in the
first grade and for years was improperly placed. While she has language
processing problems, she never received speech and language therapy.
Teachers allowed her to pass from grade to grade as "a gift." Finally,
during the 1998-99 school year, Lemmons began receiving speech and
language therapy. She hopes to play basketball in college, but fears
that her low academic skills will prevent her from succeeding in
life. After 12 years in special education, she has reached only
a fourth-grade reading level. "The school system has not given me
what I needed," she said. "I feel as though no one really cares.
If they did care, I would be reading a lot better," she added.
Cases related to suspension and expulsion are increasing.
In New Jersey, a middle school student was receiving special education
because of multiple disabilities, including behavior problems. After
an incident in the classroom where the child threw something (not
harming anyone) and tipped over a chair, the child was suspended
and then expelled and placed on home instruction. The child is currently
in a self-contained setting in a different school district. The
child did not have a behavioral plan as part of his Individualized
Education Program (IEP), nor has he had a functional behavioral
assessment.[72] In Delaware, parents successfully challenged a school
district's failure to provide special education services to students
with disabilities who are expelled.[73]
Parents have a reasonable expectation that the federal
and state agencies charged with monitoring and enforcement will
do their jobs. But as these cases demonstrate, parents throughout
the country cannot be sure that the rights of their children are
protected in school districts and states. Noncompliance in many
states is still too common, even after more than two decades of
implementation.
The following section discusses the experiences of
parents and others in their roles as advocates in obtaining services
and supports under IDEA for children with disabilities.
B. Advocacy Perspectives
1. Parent Advocates Working with PTI Centers
This section highlights major themes and concerns
raised by 14 parents of children with disabilities from nine states
who were specifically interviewed for this study. A number of these
parents were also directors of Parent Training and Information centers
in their states. They were chosen because of their active involvement
with and knowledge about federal monitoring and enforcement of IDEA
in their states before 1999 and because they represented a geographic
range of states. The parents interviewed were from California, Florida,
Illinois, New Mexico, New York, North Carolina, Pennsylvania, Texas,
and Vermont. The National Council on Disability (NCD) made connections
with most parents through the network of PTIs across the country.
While this was clearly not a representative sample of parents, their
insights offered a valuable perspective on the monitoring and enforcement
of IDEA. Because several of these parents expressed concern about
having their identities disclosed in the report, NCD has chosen
not to attribute remarks to individual parents.
Their concerns were echoed by many of the parents
and others who attended the NCD-sponsored Town Meeting on Federal
Enforcement of the Individuals with Disabilities Education Act sponsored
by NCD in Washington, DC, on September 22, 1999. Their comments
are highlighted to underscore concerns raised throughout this section.
a. Parental Involvement and Communication with OSEP
Most of the parents interviewed commended the current
administration of OSEP for their concerted effort to solicit information
and input from parents. They cited improved coordination and collaboration
with OSEP monitors in recent years, and appreciated the opportunity
to contribute to the monitoring process. This sentiment, however,
was not shared by all parents. Several parents, especially those
at the NCD Town Meeting, expressed continued frustration over OSEP's
failure to facilitate parental input and participation.
"Parents are disenfranchised. .... with minority
parents, particularly, the information is not disseminated. We
have not been included certainly in the monitoring process in
Texas. And I'm just wondering what kind of effort is going to
be made to include those really, truly minority grassroots programs
and parents working in these communities, and visible to the school
districts. They know who we are. We're not getting the information,
so it needs to come from maybe another source other than the school
district." - Parent from Texas on the failure to involve parents,
especially in minority communities, in monitoring IDEA[74]
Other barriers to meaningful parental involvement
in the monitoring process cited included the following:
- Approximately one-half of the parents interviewed
said that notification of public meetings came too late for them
to notify and organize other parents to testify. These parents
would like to be notified several months in advance of the meeting.
".....in the state of Maryland, we were not
notified of the meeting. ...The only parents that showed up were
the ones that found out secondhand." - a parent from Maryland
on the invitation to public participation in the monitoring process[75]
- Three parents specifically mentioned that the presence
of district representatives instructed to take notes at the public
meetings heightened fears that school districts would retaliate
against their children. Several of the PTI directors underscored
this admission by commenting on parents in their states who were
reluctant to testify at the meetings for fear of retaliation.
- Parents from the rural areas said that the burden
of traveling to the meetings can be prohibitive and expressed
frustration that their school districts are commonly overlooked
in the monitoring process.
- The PTI directors reported that many of the parents
in their states were frustrated that monitoring has not led to
more comprehensive enforcement of IDEA or improvement in the education
of their children, and therefore believed that it was a waste
of time to testify at the public meetings.
b. Monitoring reports
i. Acquisition of reports
Our interviews found that the distribution of final
monitoring reports to parent advocates was highly inconsistent.
Some of the PTI directors interviewed said that they never received
a copy of the monitoring reports, which contributed to their feelings
of being excluded from the monitoring process and deprived of feedback.
Those who did receive the reports commended OSEP for their improved
speed of publishing and disseminating copies to parent and advocacy
organizations.
ii. Quality of reports
Of the parents who did receive the monitoring reports,
many found them useful in holding their states accountable and pressuring
them to improve compliance. One parent, however, criticized the
reports as "poorly written, giving SEAs and LEAs room to discredit
the reports and the federal monitoring." She explained that the
findings of the reports are presented in a way that they "appear
anecdotal and are easily dismissed by states and districts." She
was further concerned that the organization of the monitoring reports
and data were not standardized. From her perspective, a standardized
approach to presenting data in the reports would allow a comparison
of basic findings on the same requirements for the same and different
states, as well as a comprehensive national picture of IDEA compliance,
to emerge over time. The current method of presenting data in different
formats from one monitoring cycle to the next undermines the credibility
and impact of the monitoring findings.
c. Evaluating the Monitoring Process and Corrective
Action
i. "Just going through the motions"
Without exception, the parents felt that there was
no clear nexus between monitoring and enforcement. One parent from
Illinois commented:
"OSEP monitors did paint a
very accurate picture of what was going on [in the state]. But,
that's where it broke down. The same districts are cited for the
same violations year after year, and there are no consequences
for noncompliance, no incentives to do good."
This concern over the apparent lack of consequences
and enforcement as a result of the monitoring process was undeniably
the strongest and most common concern expressed by parent advocates
who were interviewed.
"I've turned green when somebody says we're going
to do technical assistance [to remedy noncompliance]. For 24 years
this has been the law. How much technical assistance do we do?
What does it take until you get it? Our kids are only in school
until 21 but we've got 24 years of technical assistance. Come
on, guys. I want to see accountability. You deliver the mail or
you don't get the money!" - parent from Florida on the minimal
impact of technical assistance on correcting noncompliance in
her state[76]
ii. An unrepresentative picture of compliance in rural
and larger states
The PTI directors from larger or more rural states
were concerned that the design of the monitoring process, which
relies on snapshots of circumstances in a handful of schools and
districts to get a representative picture of the whole state, was
less effective in soliciting input from stakeholders or getting
an accurate picture of special education in their districts and
states, and overlooked many rural districts.
iii. Tension between federal law and state autonomy
Parents in a number of states felt that school administrators
in their states and districts were hostile to IDEA and didn't take
it seriously. One parent advocate from California explained that
"simply by being there and throwing their weight around, [the federal
monitors] promote change." Other parents felt that the monitoring
visit was beneficial because it provided a model of effective monitoring
procedures for SEAs. They expressed the need for OSEP to convey
the seriousness of monitoring and compliance to the local districts.
"Noncompliance occurs at the
school site level, at the district level, and at the state level,
and if all levels are not monitoring and ensuring, it cannot fall
on the backs of parents to remedy. You have to take out some of
those states or districts and then start setting an example."
- Parent from California on the need for DoED to change its heavy
reliance on parent enforcement of IDEA[77]
iv. The need for ongoing, targeted monitoring
Several of the PTI directors were concerned that the
four-year cycle employed by OSEP failed to direct the monitoring
process and resources appropriately. They suggested that it be supplemented
with, or replaced by, more ongoing and "target-driven" monitoring,
an approach OSEP is attempting to implement in its new monitoring
system. In their view, if a state is failing to ensure compliance
with the law, OSEP must continue to monitor it, applying pressure
and offering assistance until compliance is achieved. Along these
lines, parents favored ongoing monitoring, technical assistance,
and follow-up visits. One parent explained, "The federal monitors
come in and say that a state or district is doing it wrong and then
they leave without providing real support or follow-up. These states
and districts need more guidance in implementing an enforcement
plan."
One parent suggested, "We need incentives for those
who are doing it right and have promising practices, and ongoing
technical assistance for those who aren't."
d. Corrective Action Plans
All of the parents NCD spoke to reported that there
was little or no parental involvement in the corrective action plans
(CAPs). One parent expressed concern that because every state has
a CAP, its potential for facilitating compliance may be significantly
limited. She explained that when her state is confronted with a
report showing noncompliance, "the first question that the state
asks is how many other states are out of compliance. When the answer
is all of them, it seriously weakens the ... incentive to do something
about it."
e. The Need to Create Consequences
Most of the parents were extremely frustrated by the
lack of enforcement and skeptical as to when they would see full
implementation and enforcement of the law. Several have urged OSEP
to find a way to create sanctions that would improve accountability
and compliance. At the same time, however, they were conflicted
over whether to withhold funds. Some parents felt that it was crucial
that OSEP exercise this enforcement mechanism and put some power
behind the law, while others feared that this would only harm the
students that IDEA is meant to serve.
They clearly expressed their sense of urgency about
the need to follow through:
"Currently there are no administrative standards
or accountability. Monitoring is okay, but how do we take it to
the next step? We've got to hit them in the pocketbook. There
are consequences of noncompliance for our kids, and there should
be consequences for the districts."
"There is no enforcement, no teeth. It's like making
the speed limit on the highway 55 mph but taking away all of the
police. Why do we have laws if no one is going to follow them?"
"It's a good law, make it work!"
f. Monitoring at the State Level
There was widespread agreement that effective monitoring
at the state level has been hindered by state reform initiatives
and budgetary cutbacks that leave SEAs with a lack of staff and
resources to perform adequate monitoring of local districts. A number
of parents felt that the Federal Government needs to convey the
importance of monitoring and enforcement to the state and local
leaders and provide technical assistance to increase compliance.
A handful of parents reported that their states conducted partial
monitoring of districts that had received an unusual number of complaints
and suggested that OSEP institute this practice on the federal level.
"Our constituency [children
with disabilities] is not a strong constituency. It is not sexy
to be for us. ....Teachers get their marching orders from principals,
who get their marching orders from boards of education who respond
to state legislatures...... It's got to be okay for a teacher
to say okay, I will take a risk. For a principal to say, I'll
take a risk..... If the state legislatures and the governors do
not take that kind of stand, I'm sorry, folks, it's not going
to happen. It hasn't happened in 20 years and it's not going to
happen now. .. So, ..it is a political reality of [OSEP] approaching
a legislature, of approaching governors and saying, 'Hey, guys,
unless you give real credence to what we're doing, this is not
going to happen no matter how many millions of dollars we filter
down to you." - Parent from Florida
on the need for OSEP to educate state legislatures about persistent
noncompliance and its impact[78]
In recognition that the IDEA amendments of 1997 will
require a concerted effort to fully implement the law and enable
federal and state monitoring to truly achieve full compliance, the
National Parent Network on Disabilities (NPND) (an organization
that comprises Parent Training and Information centers around the
country) has recommended the establishment of a "People's Monitoring
and Compliance Project." This proposed project to promote greater
grassroots involvement in monitoring would gather information about
the status of monitoring, develop a report, transmit it to the Congress
and the Administration, request oversight hearings in the Congress,
request that the Secretary of Education set up a monitoring committee
to report to him or her, and establish and convene a legal advocacy
group. This project is still under development at NPND.[79]
2. Other Parent Advocates
Some parents report situations of systemic noncompliance.
In Georgia, Linda Sheppard, the executive director of Parents Educating
Parents and Professionals, reports that at least three counties
in the state outright refuse to serve students with learning disabilities
under IDEA. She notes that despite repeated complaints, school districts
take the attitude of "go ahead and try to make me" serve learning
disabled students. Sheppard also notes that this deficiency was
cited in a federal monitoring report; however, it took the state
two years to respond to the report because extensions continued
to be granted. According to Sheppard, this lack of service to learning
disabled students has persisted for at least five years and is growing
worse. One result is students with learning disabilities are not
learning to read, are becoming frustrated, and are increasingly
dropping out of school.
Another concern cited by Sheppard is the racial discrimination
faced by students with disabilities in southern Georgia. She notes
that children who are African-American in south Georgia are too
frequently labeled as behavior disordered or mentally retarded and
then served in separate settings. There is one program that serves
three- and four-year-old African-American children in a separate
setting, she notes.[80] Reports from New Jersey also indicate that
students with disabilities who are racial minorities are more likely
to be in separate settings than those who are not racial minorities.[81]
3. Advocates for Children in the Juvenile Justice System,
Minority and Rural Communities
In addition to the testimony of parents, special education
advocates attest that inappropriate placement in separate settings
and a lack of services for children with disabilities served in
regular classrooms persist in many areas. Testimony of parents at
public hearings, consultation with special education advocates serving
rural, Native American, and other minority communities around the
country, as well as studies by various government and advocacy organizations
indicate that minority students are disproportionately represented
in separate educational settings.[82]
"...there is a very big need
on our reservation to have monitoring of our school districts.
We've made it very clear to them that we have a need, that there
are problems in our education system, and our children are not
getting IDEA implemented there. And we're told by our district
people that 'yes, we agree there is a problem.' Well, where do
we go after we get the acknowledgment and there's nothing done
about it?" - a Native American parent
from Montana[83]
Other studies find that minority children are over-represented
in institutions such as detention and correctional facilities where
access to appropriate educational services is inadequate to nonexistent.
That is especially problematic considering that 40 percent of youth
held in detention are estimated to have some form of learning disability.[84]
The students whose stories and situations discussed
above are just a few among many whose special education needs were
not or are not now being met in their state educational systems.
C. Findings and Recommendations
Finding # II.1A
The ongoing struggles of many students with disabilities,
their parents, and advocates to obtain services under IDEA leaves
them with the impression that the Federal Government is not enforcing
the law effectively.
Finding # II.1B
As a result of 25 years of nonenforcement by the Federal
Government, parents are still a main enforcement vehicle for ensuring
compliance with IDEA.
Recommendation # II.1A
The Department of Education must exercise leadership
in enforcing the law, with parents as partners and resources in
carrying out their enforcement mandate.
Recommendation # II.1B
The Department of Education should publicly articulate
and implement an enforcement philosophy and plan that includes the
strategic use of litigation and administrative sanctions.
When noncompliance is not corrected within the agreed
upon time frame, the Department of Education should aggressively
enforce the law, using clearly defined appropriate sanctions to
improve accountability and achieve compliance with the law.
Finding # II.2
Parents have identified a number of obstacles to their
participation as full partners in the IDEA monitoring and enforcement
processes:
Parents have not been invited consistently to be involved
in the monitoring process, and, if invited, have not consistently
been given an opportunity to be heard.
Parents are not knowledgeable enough about either
the requirements of IDEA or the monitoring and enforcement processes.
The presentation of compliance information in the
monitoring reports is inconsistent from one monitoring period to
the next, making evaluation of improvements over time difficult.
The recommendations below address how some of these
obstacles can be corrected.
Recommendation # II.2A
OSEP should encourage the involvement of students
with disabilities and their parents as resources to improve monitoring.
Parents stressed that they and their children have
the "frontline" experience and expertise with the districts in their
states and would like increased involvement in directing the monitoring
process and resources to areas of noncompliance that they have already
identified.
Recommendation # II.2B
Congress should direct a change in the mission of
the Protection and Advocacy (P&A) systems and IL centers to
include a priority focus on special education advocacy, and in collaboration
with the PTIs, the development of a collaborative special education
advocacy strategy for their states.
The combined resources of PTIs, P&As, and IL centers
are needed to develop and maintain special education advocacy services
and programs statewide at a level commensurate with the need of
students with disabilities and their parents for assistance in obtaining
services and supports under IDEA, as well as participating effectively
in monitoring and enforcement.
Recommendation # II.2C
OSEP should standardize the presentation of the
monitoring reports and data.
Such standardization is essential for accurate and
credible evaluation of compliance from one monitoring period to
the next.
Part III provides a more in-depth description and
analysis of DoED's roles and responsibilities vis-a-vis the implementation
and enforcement of IDEA.
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