Wrightslaw - Front Matter 2

Back to School on Civil Rights:
Advancing the Federal Commitment to Leave No Child Behind

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.