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NCLB Complaint Ends Confusion about
Highly Qualified Special Education Teachers

by Suzanne Whitney, Research Editor, Wrightslaw

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In January 2004, the New Hampshire Bureau of Special Education issued a policy memo to all school Superintendents and Special Education Directors. According to this memo, special education teachers who were certified in Mental Retardation, but not in core academic subjects, could teach children with disabilities.

The policy did not apply to the teachers of children from low-income families, English language learners, racial minorities, or children who do not have disabilities. This policy only applied to the teachers of children with disabilities.

Specifically, the policy violated the highly qualified teacher requirements of NCLB (20 U.S.C. § 7801 (23) (Wrightslaw: No Child Left Behind, page 76) and the Personnel Standards of the Individuals with Disabilities Education Act. (20 U.S.C. § 1412(a) (15)) (Wrightslaw: Special Education Law, page 47).

If the U. S. Department of Education permitted New Hampshire’s Memo to remain in effect and failed to take quick action, all states could be expected to follow New Hampshire in short order.

When the New Hampshire Department of Education did not correct or withdraw the memo, I decided to file a No Child Left Behind complaint.

July 9, 2004: Sent Complaint Letter

On July 9, 2004, I sent a complaint letter to the Secretary's Regional NCLB Representatives, the Office for Civil Rights and the Office for Inspector General.
In my letter, I described the violations and asked the Regional Representatives to require New Hampshire to follow the highly qualified teacher requirements in NCLB.

I asked the Office for Civil Rights to address the policy because it discriminated against children with disabilities. I also asked the Office for Inspector General to address the violation of the Individuals with Disabilities Education Act.

Link to Complaint letter: http://www.wrightslaw.com/heath/nh/complaint.ltr.04.0709.pdf

August 23, 2004: New Hampshire Issues New Memo

On August 23, 2004, the New Hampshire Department of Education issued a new memo to all Superintendents and Special Education Directors that replaced their original memo regarding certification requirements of special education teachers.

The memo addressed the following issues:

*Special education teachers who teach core academic subjects must be highly qualified.

* Activities that special education teachers may carry out if they are not highly qualified in the core academic content area being taught.

This memo also clarified that "these requirements are part of the Parent's Right to Know of NCLB for those schools that receive Title I funding. Parents Right to Know Provisions include the following:

"At the beginning of each school year, a LEA that receives Title I funds must notify parents of each student attending any Title I school that the parents may request, and that agency will provide the parents on request (and in a timely manner) information regarding the professional qualification of the student's classroom teachers, including at minimum the following:

* Whether the teachers has met State qualifications for the grade levels and subject areas in which the teacher provides instruction;

* Whether the teacher is teaching under emergency or other professional status that the State has waived;

* The degree major of the teacher and any other graduate certification or degree held by the teacher and the field of discipline of the certification or degree; and

* Whether the child is provided services by paraprofessionals and if so their qualifications."

November 10 2004: Letter from OCR about Complaint

On November 10, 2004, I received a letter from the Office for Civil Rights. The letter outlined their response to my complaint. They also sent me a copy of a November 4 letter from the Office for Civil Rights to the state of New Hampshire. The purpose of this letter was to confirm that New Hampshire had "made sufficient changes to its policy to resolve these issues."

Unexpected Events

I had no idea how or when the offices I contacted would investigate my complaint. I was surprised at how quickly the investigators contacted the New Hampshire Department of Education.

I expected the process of revising the memo from the New Hampshire Department of Education to take longer.

I was pleased that the new policy was in place before the beginning of the 2004-2005 school year.

Related Article:
How to Report a Problem or File a Complaint (from Wrightslaw: No Child Left Behind)

Note: The Secretary of the U. S. Department of Education appoints Regional Representatives for different regions in the country. These Representatives are responsible for helping states comply with the law and for monitoring compliance in their region.

To find the Regional Representative for your state, click here http://www.ed.gov/about/contacts/state/index.html, click your state, click the third item in the list, then scroll to the bottom of the list to find the Secretary's Regional Representative for your state.

Note: Impact of IDEA 2004

The section of No Child Left Behind that the Office for Civil Rights enforced as a result of my complaint was clarified on December 3, 2004 when IDEA 2004 was signed into law.

On that date, the definition of a "highly qualified special education teacher" became -

(10) HIGHLY QUALIFIED.--

(A) IN GENERAL.-- For any special education teacher, the term `highly qualified' has the meaning given the term in section 9101 of the Elementary and Secondary Education Act of 1965, except that such term also--

(i) includes the requirements described in subparagraph (B); and

(ii) includes the option for teachers to meet the requirements of section 9101 of such Act by meeting the requirements of subparagraph (C) or (D).

(B) REQUIREMENTS FOR SPECIAL EDUCATION TEACHERS.--When used with respect to any public elementary school or secondary school special education teacher teaching in a State, such term means that--

(i) the teacher has obtained full State certification as a special education teacher (including certification obtained through alternative routes to certification), or passed the State special education teacher licensing examination, and holds a license to teach in the State as a special education teacher, except that when used with respect to any teacher teaching in a public charter school, the term means that the teacher meets the requirements set forth in the State's public charter school law;

(ii) the teacher has not had special education certification or licensure requirements waived on an emergency, temporary, or provisional basis; and

(iii) the teacher holds at least a bachelor's degree.

(C) SPECIAL EDUCATION TEACHERS TEACHING TO ALTERNATE ACHIEVEMENT STANDARDS.--When used with respect to a special education teacher who teaches core academic subjects exclusively to children who are assessed against alternate achievement standards established under the regulations promulgated under section 1111(b)(1) of the Elementary and Secondary Education Act of 1965, such term means the teacher, whether new or not new to the profession, may either--

(i) meet the applicable requirements of section 9101 of such Act for any elementary, middle, or secondary school teacher who is new or not new to the profession; or

(ii) meet the requirements of subparagraph (B) or (C) of section 9101(23) of such Act as applied to an elementary school teacher, or, in the case of instruction above the elementary level, has subject matter knowledge appropriate to the level of instruction being provided, as determined by the State, needed to effectively teach to those standards.

(D) SPECIAL EDUCATION TEACHERS TEACHING MULTIPLE SUBJECTS.--When used with respect to a special education teacher who teaches 2 or more core academic subjects exclusively to children with disabilities, such term means that the teacher may either--

(i) meet the applicable requirements of section 9101 of the Elementary and Secondary Education Act of 1965 for any elementary, middle, or secondary school teacher who is new or not new to the profession;

(ii) in the case of a teacher who is not new to the profession, demonstrate competence in all the core academic subjects in which the teacher teaches in the same manner as is required for an elementary, middle, or secondary school teacher who is not new to the profession under section 9101(23)(C)(ii) of such Act, which may include a single, high objective uniform State standard of evaluation covering multiple subjects; or

(iii) in the case of a new special education teacher who teaches multiple subjects and who is highly qualified in mathematics, language arts, or science, demonstrate competence in the other core academic subjects in which the teacher teaches in the same manner as is required for an elementary, middle, or secondary school teacher under section 9101(23)(C)(ii) of such Act, which may include a single, high objective uniform State standard of evaluation covering multiple subjects, not later than 2 years after the date of employment.

(E) RULE OF CONSTRUCTION.--Notwithstanding any other individual right of action that a parent or student may maintain under this part, nothing in this section or part shall be construed to create a right of action on behalf of an individual student or class of students for the failure of a particular State educational agency or local educational agency employee to be highly qualified.

(F) DEFINITION FOR PURPOSES OF THE ESEA.--A teacher who is highly qualified under this paragraph shall be considered highly qualified for purposes of the Elementary and Secondary Education Act of 1965. [Section 602 (10), which will become (U.S.C. §1410 (10))].

Highly Qualified Teachers: References & Resources

Improving Teacher Quality - Non Regulatory Guidance, U. S. Department of Education (Rev. 1-16-04)

Title 1 Paraprofessionals - Draft Non Regulatory Guidance, U. S. Department of Education (3-1-04)

Meeting the Highly Qualified Teacher Challenge: The Secretary's Second Annual Report on Teacher Quality, U. S. Department of Education (2003)

State Reports on the Quality of Teacher Preparation - Title II Technical Assistance Main page l State Reports

NCLB: Toolkit for Teachers, U. S. Department of Education (2002)

Information and Complaints (all states), U. S. Department of Education

An Action Guide for Community and Parent Leaders - Using NCLB to Improve Student Achievement from the Public Education Network.

What are the New IDEA 2004 Requirements for Highly Qualified Special Education Teachers? Learn about new requirements for highly qualified special education teachers, how to meet these requirements, and limitations on what you can do if you are not "highly qualified."

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Last revised: 11/09/08


Meet Sue Whitney

Sue Whitney of Merrimack, New Hampshire, is the research editor for Wrightslaw.

Sue is the co-author of Wrightslaw: No Child Left Behind (ISBN: 978-1-892320-12-4) that is published by Harbor House Law Press.

In Doing Your Homework, she writes about reading, research based instruction, No Child Left Behind, and creative strategies for using federal education standards to advocate for children and to improve public schools. Her articles have been reprinted by SchwabLearning.org, EducationNews.org, Bridges4Kids.org, The Beacon: Journal of Special Education Law and Practice, the Schafer Autism Report, and have been used in CLE presentations to attorneys. Sue Whitney's bio.

Sue has served on New Hampshire's Special Education State Advisory Committee on the Education of Students/Children with Disabilities (SAC) and has been a volunteer educational surrogate parent. She currently works with families as a special education advocate.


Copyright © 2002-2014 by Suzanne Whitney.

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