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Major Shifts in U. S. Educational Policies
Pamela Darr Wright, MA, MSW
Licensed Clinical Social Worker
In back-to-back sessions at the 15th National Institute on Legal Issues of Educating Individuals with Disabilities, Judith Heumann, U. S. Department of Education and Jean Peelen, Office of Civil Rights, spoke to more than a thousand special educators, administrators, advocates, and attorneys. Their presentations sent a powerful message that the Clinton administration is determined to provide appropriate educational services to handicapped/disabled children. The Institute was held in San Francisco from May 1 through May 4, 1994.
"I do not wear rose-colored glasses" emphasized Heumann, Assistant Secretary of the Office of Special Education and Rehabilitation Services (OSERS) as she described her personal experiences with the educational system. Speaking about the impact of years of discriminatory treatment, she stated that these experiences have "driven me to fight for the rights of disabled children and adults." Because she was confined to a wheelchair after contracting polio, Heumannís school district refused to allow her to attend the neighborhood school. The only educational opportunity offered by the district consisted of homebound instruction twice a week for more than four years.
After years of pressure from her mother, the district allowed young Judith to attend public school on a trial basis. Because she was disabled, she was placed into "Health Conservation Classes" with other children who had a variety of physical and emotional disabilities. Since HCC classes were held in the school basement, disabled children had minimal contact with "regular education" children.
Believing that disabled children grow up to be adults who must be able to function in the non-disabled world, Heumannís mother organized other parents. Pressure from the parent group eventually caused the district to relent and allow Heumann and other youngsters to attend regular high school classes.
Heumann experienced discriminatory treatment again when, after completing the course work and training to become a teacher, the New York City Board of Education refused to hire her because she could not walk. She brought suit against the Board of Education and was eventually permitted to work as a teacher. She taught disabled and non-disabled youngster in an inner city school before returning to graduate school at Berkeley.
Aware that "people with disabilities are still viewed as second and third rate citizens," Heumann insists that the educational system must change. "Disabled children are regularly denied educational opportunity because of discrimination." Myths about disabled people create more problems. "Despite progress since the IDEA (was passed in 1975), many people still do not believe that disabled children can benefit from an appropriate education." She noted that many members of the educational community share these views and have attempted to block implementation of "the letter and the spirit" of the IDEA.
Judith Heumannís mission is to ensure that children get the education they need and deserve to be productive members of society. She cited the need for higher educational standards for handicapped youngsters, along with concern that children with disabilities are routinely excluded from testing and educational assessments around the country. Noting that "Testing is the way to determine student outcomes," she described innovative programs in states like Kentucky and Colorado, where there is a commitment to include all children and find alternative ways to test them.
"To see what is right and not to do it shows a lack of courage or principle," asserted Heumann. She then asked the audience "Are we doing what is right so that kids get an appropriate education?" Citing the need for a continuum of placements, she reiterated her belief that most children can be educated successfully in neighborhood schools.
To support her contention that many school districts are failing to do their job of educating handicapped children, Heumann cited statistics that she termed "appalling." Forty percent of disabled children drop out before graduating. Sixty-seven percent of disabled adults are unemployed. More than eighty percent of disabled people become victims of violence. "A meaningful education will help turn these figures around."
She expressed deep concern about the incarceration of children, noting that 52,000 kids are incarcerated in youth facilities in California alone. Describing the economic costs that occur from expelling kids from school, she noted that Norfolk, Virginia spends $50,000 per child in incarceration costs.
"Expelling kids and putting them on the streets is not the way to deal with these problems" she said. "Expelling these children costs billions of dollars (in juvenile justice costs) instead of creating placements where they could be learning."
"We have no life that we can allow to be wasted" she emphasized. "These five million disabled kids have a contribution to make. The 43 million disabled children and adults have a contribution to make."
Paraphrasing Martin Luther King she told the audience "Let us never succumb to the temptation of believing that legislation and judicial decree play only a minor role in solving problems. Morality cannot be legislated . . . but behavior can be regulated. Judicial decrees may not change the heart . . . but they can restrain the heartless. The law cannot make an employer love an employee or a teacher love a student . . . but it can prevent him from refusing to hire me or teach me because of the color of my skin or my disabilities."
What does the future look like? Heumann believes that the next thirty to fifty years will involve enforcement of legislation, including the IDEA, 504, and Americans with Disabilities Act. She also believes that "the next generation wonít understand why integrating disabled people was such a big deal."
And, according to Heumann "Bill Clintonís vision of the future for disabled kids involves independence, not dependence; inclusion, not exclusion; empowerment, not paternalism."
"What is success in special education?" asked Jean
Peelen, Director of the Elementary and Secondary Division of the Office of Civil Rights (OCR). Indicating that the issue of educational quality ". . . is serious enough to require serious measures," Peelen described OCRís plan to examine special education referral, evaluation and placement plans.
Concerned that minorities are over-represented in special education and that a disproportionate number of special education children are dropping out of school or ending up in jail, OCR is asking "Why?" In an attempt to answer urgent questions about the quality of special education, OCR will be examining IEPs that have been generated by school districts for periods of up to ten years to locate evidence that children are not benefiting from special education placements.
In discussing minority over-representation and Title VI violations, Peelen disclosed that OCR will be examining the process by which youngsters are referred to special education: "What is the overall rate of referrals? How many children who are referred are actually admitted into special ed? Are minority kids being referred more often?"
OCR will also examine the evaluation and decision-making process: "Why are black kids over-represented in MR categories? Why are white kids over-represented in LD categories? Was the black kid evaluated using a test instrument that, when validated, excluded minority kids? If so, can this instrument accurately measure this minority childís abilities?"
If minorities are over-represented in special education, OCR will ask the question: "What is the educational benefit in special education?" When a disproportionate number of special education children are dropping out and ending up in jail, this suggests that special ed programs are unsuccessful. Why?
Characterizing her personnel as "Cops" whose job is to enforce federal civil rights laws (i.e. to eliminate discrimination based upon age, sex, race, gender, and disability), Peelen described exciting and substantive changes that are affecting how the Office of Civil Rights (OCR) does business. In the past, OCR was "a complaint-driven agency" that received over 5,000 complaints a year (over half of which related to civil rights violations in the area of disability).
Aware that many groups who were being discriminated against were not filing complaints, OCR and the Department of Education developed a working alliance. To accomplish its expanded, pro-active mission, OCR devised new goals, procedures and objectives.
First, OCRís goal was clarified: "To ensure access to education through the vigorous enforcement of federal civil rights law." As a corollary, staff have been told to "Magnify the effects of what you do"---another departure from the past. OCR developed new objectives: that their work should have a significant impact on the lives of students, and that they would attempt to empower students and parents so that they could act, with full knowledge of their rights.
To accomplish these objectives, OCR decided to funnel less time and resources into the time-consuming comprehensive investigation of individual complaints and more energy into pro-active activities. In addition to finding districts that are not complying with the law, they are working to locate successful educational models, collaborate with advocates, and develop innovative vocational programs with industry.
The specific issues being targeted by OCR involve access to education and educational quality. Of particular interest are the following:
(1) The treatment of limited-English proficient children in special education;
(2) The over-representation of minorities in special education;
(3) The under-representation of minorities and females in mathematics, sciences and other intellectually challenging areas of study;
(4) The impact of racial/cultural background on testing and assessment; and
(5) The prevention of racial and sexual harassment.
Another new and innovative approach is to offer each of the five regional OCR offices the freedom to plan their own investigative and enforcement programs, based on the unique characteristics of the region. This approach, in which a particular state may be targeted on a specific issue, is designed to have maximum impact in each region.
As an example of the new regional approach coupled with the concept of magnifying the agencyís efforts, Peelen described a recent case in Livingstone Parrish, Louisiana. Suspecting that their child had Attention Deficit Disorder, the childís parents asked the school district to evaluate him. Four years later, the district had still not complied with the parentsí requests, nor had the parents been informed of their due process rights.
Frustrated with the districtís delays, the parents finally had their child evaluated privately. This evaluation suggested that the child had "mild ADD." The parents placed him into a private school. They also sent a complaint to OCR.
Investigating the parentsí complaint that the district had refused to evaluate the child for a possible disability, OCR found that the district was in violation. As part of the remedy for failure to evaluate as required by law, OCR requested that the district reimburse the parents for the costs of the childís evaluation and the private school placement. Livingstone Parrish refused. OCR then issued a Letter of Finding (LOF) and initiated the process of terminating federal funds. At that point, Livingstone Parrish agreed to settle by reimbursing the parents for the costs of both the evaluation and the childís education.
Peelen stressed that OCR made no determination as to whether or not the education purchased by the parents was appropriate. Instead, their goal was to send a clear message to all school districts about the importance of evaluating youngsters who may be eligible for special education services.
Peelen described another substantive change in how OCR investigates complaints. Aware that many sources of valuable information are often excluded or unaware when a school district is investigated, OCR staff will now arrive in the community with great fanfare! To locate parents and other sources of information, OCR will attempt to maximize media exposure. Staff investigators will contact the news media, participate in talk shows and community meetings, and ask non-English speaking communities for information.
Further, when OCR receives a complaint, they will assume that the allegations are true. What the other side offers must be designed to "fix" the problem. If the defendant side offers a fair, appropriate remedy to fix the complaint, OCR will facilitate settlement and leave.
Peelen described this as a "terrific system for several reasons." First, everyone will receive faster services. She noted that "Justice tends to be swifter as the process moves more quickly." Second, the complainant may like the new system because the Supreme Court has ruled that monetary damages are available under Title IX of the Educational Act of 1972. Damages may also be available under Section 504 and Title VI.
The school district can benefit from the new system because, if a satisfactory settlement is achieved, a Letter of Finding (LOF) will usually not be issued. In the past, these Letters of Findings have been used in litigation against school districts. Now, assuming that a satisfactory solution to the complaint has been developed, OCR will simply issue a Closure Letter. The Closure Letter will indicate that allegations A, B and C were made, that in the process of investigating, the defendant school district offered a fair plan to correct for the allegations, and that this plan was accepted.
However, Peelen cautions that there is an exception to this new policy on Letters of Finding. If it is believed that this particular case may stand for an important principle and/or could set a precedent that would have positive impact on many other students, then OCR reserves the right to issue a Letter of Finding.
School districts are "on notice." Citing ignorance, indifference, inadequate educational programs, and violations of the law by school districts across the county, Judith Heumann and Jean Peelen emphasized that the abuses of the past would not be tolerated. As they described substantive changes in how the federal government will oversee special education programs, they also spoke about commitment to the independence and empowerment of handicapped children.