Back
to School on Civil Rights:
Advancing the Federal Commitment to Leave No Child
Behind
By
the National Council on Disability
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.
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