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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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