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Back to School on Civil Rights 

I. The Law, the Compliance/Enforcement Scheme, and the Context

A. Introduction
In enacting P.L. 94-142, the Education for All Handicapped Children Act of 1975 (later renamed the Individuals with Disabilities Education Act, or IDEA),[6] Congress sought to end the long history of segregation and exclusion of children with disabilities from the American public school system. In the past three decades, this landmark legislation has yielded great progress in securing the educational rights of more than 5 million children with disabilities. Despite controversies in implementation, the law's assurance that a free appropriate public education must be available to all students with disabilities, no matter how significant their disability, has become a hallmark of education policy in the United States.

IDEA's mandates are complemented by two other key disability rights statutes, Section 504 of the Rehabilitation Act of 1973,[7] and Title II of the Americans with Disabilities Act (ADA).[8] Together, these three laws form the nondiscrimination framework for children with disabilities in public schools. IDEA applies to states as recipients of federal grants to be used in providing and administering special education for children with disabilities; Section 504 applies to all entities, including schools, that receive federal funds. Public school systems must comply with the ADA in all their services, programs, or activities (readily accessible to and usable by individuals with disabilities), including those that are open to parents or to the public.[9] Both IDEA and Section 504 require schools to make a free appropriate public education (FAPE) available to every child with a disability--regardless of the nature or severity of the disability-- in the least restrictive environment (LRE). (See discussion below for further definition of FAPE and LRE.)

In enacting these laws, Congress attempted to address the longstanding discrimination faced by children with disabilities in the U.S. They have faced the same obstacles to full participation in public education as have other minority groups seeking to ensure their rights. Introducing a bill on January 20, 1972, to protect the civil rights of people with disabilities, Senator Hubert H. Humphrey (D-MN) told the Senate:

"I introduce...a bill...to insure equal opportunities for the handicapped by prohibiting needless discrimination in programs receiving federal financial assistance....

The time has come when we can no longer tolerate the invisibility of the handicapped in America.... These people have the right to live, to work to the best of their ability--to know the dignity to which every human being is entitled. But too often we keep children whom we regard as 'different' or a 'disturbing influence' out of our schools and community activities altogether.... Where is the cost-effectiveness in consigning them to... 'terminal' care in an institution?"[10]

Senator Humphrey told Congress, "[M]ore than one million children are denied entry into public schools, even to participate in special classes." Before special education became available, children with disabilities were routinely warehoused in institutions, and if they were provided any education at all, it was often inferior and in separate facilities apart from their peers without disabilities.[11] Children with disabilities were often considered uneducable, disruptive, and their presence disturbing to children and adults in the school community.

By the early 1970s, parents of children with disabilities in 26 states had initiated litigation asserting their children's right to attend public schools under the 14th Amendment of the U.S. Constitution and the same equal protection arguments used on behalf of the African American school children in Brown v. Board of Education [12] in 1954. Two of these cases, Pennsylvania Association for Retarded Citizens (PARC) v. Commonwealth of Pennsylvania and Mills v. Board of Education of the District of Columbia [13], resulted in consent decrees that outlined the basic constitutional principles of the right to an appropriate education in the least restrictive environment for all children with disabilities and the procedural scheme that would later become federal law. Finally, in 1975, recognizing that the problem required a national solution, Congress passed the Education for All Handicapped Children Act.

Throughout the history of the struggle for equal educational rights, the parents of children with disabilities have fueled and guided special education reform. In 1981, six years after enactment of IDEA, the following letter was written by a parent to express her view on the prevalent practice of segregating children with disabilities in separate "handicapped-only" classes and schools despite the Act's mandate that requires placement in the least restrictive environment:

"We are the parents of children attending Cameron School for Physically Handicapped students in El Cerrito, California, in the Richmond Unified School District. For all our children's school lives, they have had little or no opportunity to interact with their nondisabled peers.

Segregated education is but another form of institutionalization, which we view as extremely detrimental to the growth and development of disabled and nondisabled children alike."[14]

The asserted reasons for segregating children with disabilities in educational settings-- that a wheelchair is a fire hazard, that a child's IQ renders her uneducable, and the like--do not reveal the true basis for excluding them. The true basis is the expectation that the children will become dependent adults, unable to contribute to society. This view makes their childhood education seem futile--they will be dependent no matter how good their education. Compounded by widespread discrimination, inaccessible buildings, inaccessible transportation, and lack of adequate support services, these stereotypes were the reason for severely restricted options available to children and adults with disabilities and promoted segregated and inferior education.[15]

The inherent inequality of separate education and the permanent damage it inflicts were recognized by the Supreme Court in Brown v. Board of Education. In this unanimous decision, Chief Justice Earl Warren wrote:

"To separate [children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone....

We conclude that in the field of public education, the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal."[16]

He further wrote that public education prepares children for economic and social participation in society:
"[Education] is a principal instrument for awakening the child to cultural values, in preparing him for later...training, and in helping him to adjust normally to his environment. It is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education."[17]
Education prepares children for their adult roles. Expecting children with disabilities to remain dependent throughout their lives, at least until 1975, was our national policy. State governments and local schools routinely excluded them from public education entirely, warehoused them in institutions, and provided them with inferior and separate education. Even when a child with a disability received sufficient elementary and secondary education to proceed to college, higher educational opportunities often remained limited by low expectations of future adult roles.

B. Basic Requirements of IDEA
IDEA is a complex statute, divided into Parts A, B, C, and D. Part A contains general provisions, including the findings and purposes of the law, the goals for the law, and definitions of terms used throughout the Act. It also clarifies the procedures regarding the U.S. Department of Education's use of policy letters and other correspondence. Part B, "Assistance for Education of All Children with Disabilities" describes how the Federal Government provides funding to assist the states in making available a free appropriate public education and carrying out the purposes of the Act, how the state education agencies (SEAs) supervise and monitor implementation, and how the SEAs and local education agencies (LEAs) must make available a free appropriate public education to students with disabilities ages three through 21. Part B also lays out the basic rights and responsibilities of children with disabilities and their parents. Part C, "Infants and Toddlers with Disabilities," describes the program for addressing the needs of infants and toddlers ages birth to three years old. Part D, "National Activities to Improve Education of Children with Disabilities," authorizes discretionary programs related to state improvement (i.e., for improving teacher preparation and credentialing or improving results for children with disabilities in geographic areas of greatest need). This report focuses primarily on Department of Education (DoED) enforcement of Part B.

IDEA sets forth a comprehensive scheme for ensuring two basic substantive rights of eligible children with disabilities:[18] (1) the right to a free appropriate public education, and (2) the right to that education in the least restrictive environment. The body of the law delineates a procedural framework to ensure these two substantive rights. Appendix C provides an overview of the basic rights and requirements: (1) free appropriate public education (FAPE), (2) least restrictive environment (LRE), (3) parent and student rights, (4) child-find, (5) evaluation procedures, (6) individualized education program (IEP), and (7) procedural safeguards. Three of those requirements--FAPE, LRE, and IEP--are briefly described below.

IDEA defines FAPE as special education and related services that meet the standards of the state education agency and are provided at public expense. These include appropriate preschool, elementary school, and secondary school education. The education is to be provided in accordance with the child's IEP, as described below. FAPE, for each child, is defined by that student's IEP.

IDEA mandates that students with disabilities be offered special education and related services in the least restrictive environment appropriate for the individual child with a disability. LRE is the environment that provides for maximum interaction with nondisabled children consistent with the disabled child's needs. This is the key substantive right of children with disabilities under IDEA and is often considered the linchpin of IDEA. It is sometimes called the "integration mandate." Every step away from the regular classroom must be accompanied by a compelling educational rationale, in light of the law's preference for educating children with disabilities in the regular classroom alongside their nondisabled peers.

The IEP is the centerpiece of IDEA. Parents use this tool to ensure that an appropriate program is developed to meet their child's unique needs. The IEP is a written statement that must contain specific information about the child's educational needs, levels of performance, annual goals, short-term objectives, and special education and related services and supplementary aids and services to be provided to the child. The IEP must explain the extent to which the child will not participate with nondisabled children in regular classes and include, among other elements, a statement of the child's transition needs beginning when the child reaches age 14 and a statement of how the child's progress toward annual goals will be measured. The IEP is developed, reviewed, and revised during meetings that include a representative of the school or agency, the child's teacher, the child's parents, the child (if appropriate), and other individuals who have knowledge or special expertise at the request of the parent or education agency.

C. Scope of IDEA
IDEA and the corresponding regulations set forth a comprehensive federal commitment to guarantee FAPE is made available in the least restrictive environment to each child with a disability regardless of the nature or severity of the child's disability. The statute and regulations apply to every state that receives federal funds under IDEA. Under the law, the Office of Special Education Programs (OSEP) is charged with ensuring implementation of the law through monitoring and enforcement activities. Within each state, IDEA applies to many overlapping entities, including, but not limited to, the following: (1) the state education agency, (2) all political subdivisions involved in the education of children with disabilities, (3) local and intermediate educational agencies, (4) other state agencies such as departments of mental health, which provide educationally related services to children with disabilities, (5) state schools for deaf and blind children, and (6) state correctional facilities.

IDEA applies to all public agencies that receive "direct or delegated authority to provide special education and related services in a state that receives funds under Part B," even if an agency receives no federal funds under Part B.[19] Further, any public agency that refers a child to a private program must ensure that the child's rights are protected in that setting.[20]

The SEA in a given state has the ultimate responsibility for educating children with disabilities in that state. SEAs and school districts that cannot provide all related services or special education classes, however, may contract with other organizations. Also, they may enter interagency agreements with other agencies--a state department of health, for example--to provide certain services on a statewide basis. Interagency agreements spell out several things-- each agency's responsibility, the methods of payment, etc.

D. Legislative History
Congress first enacted IDEA in 1975 as the Education for All Handicapped Children Act (EHA), P.L. 94-142.[21] The law was intended to address numerous well-documented problems facing children with disabilities, which are detailed in Appendix B. EHA guaranteed all children with disabilities, ages three through 21, the right to FAPE in the LRE consistent with that goal. The first regulations implementing the EHA went into effect in 1977, adding requirements such as time lines for due process procedures. Although Congress has amended IDEA several times since 1975, most key provisions have not changed. Hence, current policy is guided by case law interpreting statutory provisions from the various versions of IDEA.

Early in his administration, President Reagan targeted IDEA for deregulation. After issuing draft changes to the IDEA regulations, the administration encountered tremendous opposition in hearings conducted by the DoED and in the extensive media attention they garnered. When opponents of the draft changes sent 30,000 letters to the White House, the Reagan Administration decided to leave the regulations in place.

In 1986, Congress enacted the Handicapped Children's Protection Act (HCPA)[22] in response to the Smith v. Robinson[23] Supreme Court decision. Among other things, HCPA added an attorney fee provision to IDEA, bringing special education up to par with other civil rights statutes and allowing parents who prevail in due process hearings and court to be reimbursed for their attorneys' fees. Also in the mid-1980s, Congress added an early intervention program known as Part H for infants and toddlers and their families.

In 1990, Congress amended the statute and crafted the statutory name used in this report --the Individuals with Disabilities Education Act, or IDEA. The regulations were correspondingly changed to reflect the statutory changes. Substantively, the 1990 changes were limited. Among the changes were the addition of separate categories for autism and traumatic brain injury, and the addition of transition services to the IEP requirements for children 16 years old and up, or younger if appropriate, who are preparing to leave school because of graduation or age.[24]

E. Reauthorization of IDEA 1997
Shortly after 1990, two issues fueled special education changes: inclusion of children with disabilities into regular classrooms, and school violence. In the late 1980s and early 1990s, several court decisions led to an increase in the integration or inclusion of children with disabilities into regular classes and schools.[25] These inclusion cases strongly affirmed the preference in the law for educating children with disabilities in regular classes with support services, alongside their nondisabled peers. Around this same time period, several notorious incidents of school violence occurred in various parts of the country. In response to the increased integration of children with disabilities into regular public schools and classrooms, some blamed these children for the increase in disruptive and violent behavior in schools, despite the lack of any data substantiating that they were involved in these incidents. A prominent teachers' union and school board organization subsequently lobbied Congress to revisit the issues of integration, disruption, and discipline. Some members of Congress responded by proposing substantial changes to IDEA during the process of reauthorizing the law in the early and mid-1990s. Parents and advocates for children with disabilities viewed these proposed changes very negatively and deeply resented what they considered the "scapegoating" of children with disabilities. To the credit of the current administration, both the President and the DoED continuously resisted pressure from members of Congress and powerful lobbying interests to compromise the intent of IDEA to ensure FAPE for every child.

Judith E. Heumann, Assistant Secretary of the Office of Special Education and Rehabilitative Services within the Department of Education (OSERS), made every effort to redirect the debate into positive change and improving results for children with disabilities. For several years, however, most of the debate in Congress continued to focus on the issue of discipline. Some members of Congress wanted to allow teachers and schools to exclude children simply for being "disruptive," whether or not the schools had adequately addressed the child's needs. Again, these proposals were viewed by parents as manifesting outright hostility toward children with disabilities and they vigorously opposed them. Special education for children with disabilities in adult prisons also became a controversial point in the congressional debates as some members of Congress sought to eliminate the right of incarcerated youth to receive special education services.

During the reauthorization, many parent leaders did not call for changes to IDEA, but rather for full implementation and enforcement of the law. In the view of many of these parents and advocates, the law itself needed no improving. Rather, widespread and pervasive noncompliance with the law needed to be corrected. Parents were highly critical of DoED and the state departments of education for failing to live up to their enforcement responsibilities.

In 1997, Congress finally reauthorized IDEA in the IDEA Amendments of 1997, Public Law 105-17 or IDEA '97, which President Clinton signed into law on June 4, 1997. This reauthorization launched the second generation of statutory development. For the first time since 1975, significant changes were made to the law while retaining its basic protections. The 1997 additions were intended to clarify, strengthen, and provide guidance on implementation of the law based on two decades of experience.[26]

The congressional statements prefacing the amended Act describe its new emphasis on educational results and improved quality of special education and regular programs and services:

"Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities. [T]he implementation of this Act has been impeded by low expectations, and an insufficient focus on applying replicable research on proven methods of teaching and learning for children with disabilities.

Over 20 years of research and experience has demonstrated that the education of children with disabilities can be made more effective by--

(A) ...ensuring their access in the general curriculum to the maximum extent possible;

(B) strengthening the role of parents...;

(C) coordinating this Act with other... service agenc[ies]... and... school improvement efforts in order to ensure that such children benefit from such efforts and that special education can become a service for such children rather than a place where they are sent;...

(D) supporting high-quality, intensive professional development for all personnel who work with such children in order to ensure that they have the skills and knowledge necessary [to teach them effectively]."[27]

In keeping with these articulated purposes, several important themes are woven throughout the new law:
The LRE requirements are maintained and strengthened in many references to educating children with disabilities alongside children without disabilities.

Children with disabilities must have an opportunity to be involved in and progress in the general curriculum. New IEP provisions reflect this emphasis.

The rights of parents to be involved in educational decisions affecting their children--including eligibility and placement decisions--are reinforced and strengthened.

Challenging behavior is best approached proactively through the use of functional behavioral assessments, and positive behavior strategies, interventions, and supports.

Children with disabilities must be included in state- and districtwide assessment programs.

There is a results-based approach to special education; the state must establish performance goals and indicators to measure and report progress.

State and local agencies are to engage in systemwide capacity building, linking student progress with school improvement.

In the area of discipline, in the spirit of compromise, some changes were made to the law to give school officials greater flexibility in dealing with children with disabilities involved with weapons, drugs, and behavior that could cause serious injury. On the other hand, schools are directed in IDEA '97 more proactively to address challenging behavior problems rather than excluding or punishing children with disabilities because of misbehavior, especially misbehavior caused by their disabilities.

The years of controversy preceding reauthorization were marked by protracted and contentious debate, grassroots organizing, congressional hearings, and involvement by every conceivable "stakeholder." IDEA nevertheless survived an intense and prolonged period of bill introductions and amendments in the House and Senate, and of direct and active involvement of organizations representing teachers, parents, psychologists, related service providers, local and state boards of education, school administrators, and various other interest groups. Tools for enforcement were explicitly added to the law. The law that emerged from this process was, for the most part, strengthened and revitalized.

F. Statutory Framework for IDEA Enforcement
The overall purpose of IDEA is,
"To assure that children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and..., to assist states, localities, educational service agencies, and federal agencies to provide for the education of all children with disabilities..."[28]
This section describes the overall compliance and enforcement mechanism, including the statutory roles of the DoED, the SEAs, and the LEAs. The informal role of parents as enforcers of IDEA in relation to the federal and state agencies is also discussed, as well as a brief overview of the history of federal enforcement action.

1. The Compliance/Enforcement Scheme for IDEA
The IDEA compliance/enforcement scheme was created to address both systemic and individual compliance problems. Activities take place in three separate arenas: (1) the Federal Government, (2) the state government, and (3) the due process/judicial system. In the first arena, the Federal Government initiates action; in the second arena, it is the state government; and in the third arena, it is parents of students with disabilities. It should be noted that the compliance/ enforcement scheme for IDEA is different than that for other civil rights laws. The key difference is the lack of an individual federal complaint system under IDEA. Such a system is the key enforcement mechanism for other civil rights laws, such as the ADA and Section 504 of the Rehabilitation Act. The IDEA compliance/enforcement scheme is depicted in Table 1 below:

Table 1: The Three Prongs of the IDEA Compliance/Enforcement Scheme
1. Federal Government Role 2. State Government Role 3. Due Process/ Judicial Role for Parents
Approve/disapprove state eligibility documents Ensure that IDEA requirements are met in the state Procedural safeguards in law
Monitor states/issue reports detailing noncompliance Determine eligibility of local education agencies (LEAs) Mediation (if this option is chosen by complainant)
Provide technical assistance to states Monitor LEAs for compliance Impartial hearing
Develop and ensure implementation of Corrective Action Plans Establish and maintain complaint system for parents Appeal of hearing
Designate states as "high risk with special conditions" or require compliance agreements Withhold funds from noncompliant LEAs Civil action in court
Withhold funds (total or partial) from state for substantial noncompliance Technical assistance to LEAs  
Refer state to Department of Justice for substantial noncompliance Ensure qualified personnel, personnel standards, and comprehensive system for personnel development Complaints to SEAs
Review complaints Obtain corrective action plans from LEAs  
Collaborate with the Office for Civil Rights on 504/ADA/IDEA overlap Designate LEAs as high risk subgrantees.  
Enter into compliance agreement with state Audit LEAs for compliance.  
Cease and desist action Audit states for compliance  

Federal Government activities, the first prong of the compliance/enforcement scheme, are the focus of this study and will be described throughout the body of this report. State government activities, prong two, will be addressed only to the extent that the Federal Government monitors whether the state carries out these responsibilities. For example, in the section on federal monitoring, states are shown to be in or out of compliance with the general supervision requirements, indicating whether the state is carrying out its function of ensuring that LEAs comply with the law. The law gives states the responsibility for ensuring that IDEA's requirements are carried out in the states. In theory, the Federal Government is ensuring that the SEA is performing that function. Thus, the federal DoED is monitoring the SEA in much the same way that the SEA is monitoring the LEA.

This study does not attempt to discern the extent to which states withhold funds from LEAs. (Withholding of funds from LEAs, however, does come up in this report when it discusses the Federal Government's determination that an SEA is out of compliance because it is not withholding LEA funds.) Also beyond the scope of this study is an analysis of complaints received by states from parents. In fact, it is unclear as to whether such an analysis would be possible because states are not required to submit such information to DoED.

The third prong of compliance/enforcement, due process and use of the judicial system by parents and advocates, will not be addressed in this report, except in the context of federal monitoring to ensure that states are following the due process requirements of the law, such as notifying parents of their rights under the law and establishing an impartial hearing process. The due process/impartial hearing system is a vital component of the enforcement scheme, providing parents with specific procedural safeguards when disputes arise with school districts. This due process scheme has produced court cases that go on to address significant policy issues under IDEA. The body of impartial hearing decisions in every state is not considered by this report. Furthermore, it is doubtful whether such a consideration could occur because data about these decisions exist only at the state level and are not compiled nationally. Furthermore, states vary in the extent to which they gather and analyze such information.

It is critical for the reader to keep in mind that all three prongs together constitute the overall compliance/enforcement scheme of IDEA, since only Federal Government activities are the focus of this report. An examination of all three prongs, which is beyond the scope of this study, is necessary for a complete picture of IDEA enforcement. However, state enforcement activities are touched upon indirectly in this report's analysis of the federal monitoring reports. The analysis provides a national picture of the variability of state compliance with IDEA (see Part III). The role of private litigation (third prong) is also briefly discussed in the context of its impact on state monitoring efforts (see Part V).

2. Background and Enforcement Philosophy
The Federal Government was always intended to play a critical role in monitoring and enforcing IDEA. The Bureau of Education for the Handicapped (BEH) within the Office of Education in the Department of Health, Education, and Welfare, was the first federal entity responsible for administering the law. When the law was passed in 1975, the Bureau was charged with monitoring the states' implementation of the Act while the states were charged with monitoring the local school districts' implementation of the Act.

Acknowledging that the Education for All Handicapped Children Act "represents the most important legislation for the handicapped ever passed" (1979 Annual Report to Congress-- Introduction), the BEH had established a monitoring system by 1976. The monitoring system included a Program Administrative Review (PAR), or monitoring site visits. By 1978, every state had been visited at least once by BEH, and a few had been visited twice. BEH issued monitoring reports and worked with states, just as OSEP does today, to develop corrective action plans to address areas of noncompliance.

When the DoED was established in 1980, the Office of Special Education and Rehabilitative Services was created. OSERS was given the responsibility, which it retains today, for administering the law (now IDEA).

DoED has been monitoring states and states have been monitoring local education agencies since the mid-1970s as intended by law. As part of its responsibility for the administration of IDEA, DoED has been issuing monitoring reports that detail state noncompliance and deficiencies for more than 20 years.

IDEA is a unique law in that it is a blend of a civil rights law and a state grant program. The DoED administers both of these types of laws, but separately. Generally, the Office for Civil Rights (OCR) in the Department of Education administers the civil rights laws, as described below, but it does not administer IDEA. The other divisions of the DoED administer state grant programs, research programs, demonstration programs, teacher training programs, student loan programs, etc. Indeed, the core activity of the DoED is the administration of educational funds. Unlike some other agencies, such as the Equal Employment Opportunity Commission and the Department of Justice, its core activity is not civil rights enforcement. Civil rights enforcement is a secondary task of the DoED; its primary activities are programmatic.

Generally, the stakeholders for civil rights laws are quite different from the stakeholders for grant programs. The major stakeholders for civil rights laws are those protected by the laws and their advocates; in the case of IDEA, children with disabilities and their families and advocates. The major stakeholders for state grant programs are generally the recipients of the funds (state and local education agencies in the case of IDEA) and professionals who provide the services. Sometimes there is tension between these two groups, whose perspectives on the purpose of the law may be at odds, leaving the administering agency in the difficult position of being in the middle. While the state is the partner of the Federal Government in delivering educational services, it may also be the target of enforcement actions. Such an internal conflict is not present in the administration of most other civil rights laws, where the federal role is solely one of enforcing the rights of the protected group.

In recent years, OSEP has used the grant administration process as an informal means of civil rights enforcement. During 1990s, OSEP imposed "high risk status" on six states for failure to correct findings through federal monitoring of noncompliance with IDEA. Correcting the noncompliance was the "special condition" for continued eligibility to receive federal funding under IDEA for the next funding period. These informal actions eventually escalated to formal actions to withhold federal funds from two states that were persistently out of compliance.

These actions, taken against Virginia and Pennsylvania, were met with opposition from political leaders of those states. In the case of Virginia, when the DoED attempted to withhold funds because of noncompliance, the entire Virginia delegation and the governor wrote to the Secretary of Education requesting that he release the funds. In the case of Pennsylvania, four members of Congress requested that the Secretary reconsider his "high risk status" determination of the state and instead provide technical assistance. (See Appendix D for copies of the letters.) Secretary Riley did not withdraw the DoED's actions in response to the strong political pressure.

Concern about lax federal enforcement of IDEA, nonetheless, has been raised intermittently over the years. During the 1997 reauthorization of IDEA, many parents expressed strong doubts about the effectiveness of the monitoring process, calling for no change in the law and for full implementation and enforcement. Such concerns prompted Congress to clarify and restate enforcement authorities in IDEA '97. IDEA '97 explicitly authorized the Department of Education to refer noncompliant states to the Department of Justice.[29] OSEP also can withhold funds in whole or in part from states, based on the degree of noncompliance found.[30] (The former law was interpreted to preclude partial withholding of funds and allow only total withholding of funds, unless the noncompliance was limited to particular LEAs.) The House Committee Report accompanying IDEA '97 acknowledges these concerns and sets out a clear expectation that the Secretary will fully utilize these explicit authorities to enforce the law.

"The Committee recognizes and fully expects that the Secretary will utilize the broad enforcement authority available for ensuring compliance with and implementation by state educational agencies....The Committee expects the Secretary to initiate actions to ensure enforcement, including the re-examination of current federal monitoring and compliance procedures to improve the implementation of the law, and a subsequent annual report to Congress, which evaluates the impact of the improved procedures on compliance. The Committee also expects that the Secretary's re-examination of current enforcement procedures will place strong emphasis on (1) including parents in the state monitoring process, (2) focusing monitoring efforts on the issues that are most critical to ensuring appropriate education to children with disabilities, and (3) timely follow-up to ensure that a state has taken appropriate actions to demonstrate compliance with the law."[31]
The final regulations restating DoED's enforcement options (referral to the Department of Justice and partial withholding of funds), became effective in May 1999, but DoED has developed no guidelines on specific conditions in which they should be used.[32]

The organization of the DoED in carrying out its enforcement role is described in the following section.

3. The Federal Role - Delegation of Responsibility
The U.S. Department of Education is headquartered in Washington, DC, where it employs approximately 3,600 people. In addition, DoED has 10 regional offices with 1,300 employees. Regional offices have no special education staff and thus no designated responsibility for IDEA monitoring or enforcement. They play a central role in the enforcement of Section 504 of the Rehabilitation Act, however, which prohibits discrimination against people with disabilities. All IDEA monitoring and enforcement functions are performed by Washington, DC, staff.

Appendix E presents the organizational structure of the Department of Education in Washington, DC. The boxes that have an asterisk represent the offices at the agency having IDEA-enforcement responsibilities. OSERS, also in Washington, is the principal office charged with implementing and carrying out IDEA and provisions concerning the education of children with disabilities.[33] Their roles and responsibilities are described below.

a. Office of the Secretary
The Secretary of Education holds ultimate authority and accountability in DoED for the implementation of all federal education laws. Under IDEA, the Secretary of Education ("Secretary") is responsible for issuing regulations,[34] allocating funds among the various states,[35] determining eligibility for funds,[36] and assessing the adequacy of eligibility documents demonstrating implementation of the statute (i.e., policy and procedure documents).[37] The Office of the Secretary is involved in all significant policy decisions related to IDEA and is informed of any developments related to IDEA that may become controversial.

Additionally, the Secretary is required to assess the progress in the implementation of IDEA, including the effectiveness of state and local efforts to provide a free appropriate public education to children with disabilities.[38] To underscore DoED's responsibility to monitor and enforce implementation of the Act, the law clarifies DoED's authority to invoke sanctions against noncompliant states. In general, whenever the Secretary finds:

(A) "that there has been a failure by the state to comply substantially with any provisions of this part, or

(B) that there is a failure to comply with any condition of an LEA's or state agency's eligibility... including the terms of any agreement to achieve compliance with this part within the time line specified in the agreement,

(C) the Secretary shall... withhold, in whole or in part, any further payments to the state under this part, or refer the matter for appropriate enforcement action, which may include referral to the Department of Justice."[39]

Withholding "in part" and referral to the Department of Justice were clarified in IDEA '97 as explicit enforcement options available to DoED in the event of noncompliance by the states.

In relation to the enforcement of IDEA, the Secretary's office becomes involved whenever an activity is above and beyond the routine. For example, whenever an enforcement action is taken, such as the initiation of a compliance agreement with a state or withholding of funds, the Secretary's office is involved. The Office of the Secretary has a very specific function in relation to withholding of funds. A state is entitled to request a hearing on a withholding of funds decision with a hearing officer, such as an Administrative Law Judge (ALJ) appointed by the Secretary. If the state is displeased with the decision of the ALJ, it may appeal to the Secretary for a final determination. Such an appeal has occurred only once in the history of IDEA enforcement--in July 1995 with the state of Virginia. (See Part IV below.)

b. Office of General Counsel and Relationship with the Department of Justice
The Office of General Counsel (OGC) provides legal advice to all divisions of the Department of Education, including those involved with the implementation of IDEA. Six divisions and one unit constitute the OGC. The Educational Equity and Research Division provides legal advice related to IDEA, all other programs administered by OSERS, other equity oriented programs (such as bilingual education) and laws administered by the Office for Civil Rights, including Section 504 of the Rehabilitation Act. The OGC has a staff of 113, of whom 86 are attorneys. Approximately 13 full-time equivalent (FTE) attorneys are assigned to the Educational Equity and Research Division. Of those, about four have responsibility for IDEA.

The OGC performs four main functions in relation to IDEA enforcement. First, it coordinates with OSEP in the review of all state applications for funding. Second, it reviews all state monitoring reports written by OSEP. Third, it supports OSEP on any enforcement actions related to IDEA, including determinations of "high risk" status for a state, developing compliance agreements with states, denial of funding applications, withholding of funds, and "cease and desist orders." (While the Department has the authority to utilize "cease and desist" orders to enforce IDEA, it has never done so.) Fourth, the OGC takes the lead in interacting with the Department of Justice on IDEA cases and issues.

The 1997 amendments to IDEA explicitly authorize the Department of Education to refer noncompliant states to the Department of Justice for investigation, litigation, or both. While the Department of Education has likely always had this authority, the 1997 amendments make such authority explicit and statutory.

The OGC, in conjunction with OSERS and OSEP, collaborates with the Department of Justice when IDEA matters are in federal court or the Supreme Court. When the state of Virginia took the Department of Education to court (see explanation of Virginia case below), the Department of Justice represented DoED. In some circumstances, the two agencies have worked together to write amicus briefs or to develop an argument in relation to a case or an issue. In consultation with the Department of Education, the Department of Justice considers cases that have been brought to its attention by the public (see Part VI below).

c. Office of Special Education and Rehabilitative Services
The Office of Special Education and Rehabilitative Services (OSERS), which will administer an $8.1 billion budget for FY '99, is the second largest office in the U.S. Department of Education. Only the Office of Postsecondary Education is larger. At a $5.3 billion FY '99 appropriation, IDEA is by far the largest of the programs administered by OSERS. OSERS employs a staff of 360[40] and is made up of three offices: the Rehabilitation Services Administration (RSA), the National Institute on Disability and Rehabilitation Research (NIDRR), and the Office of Special Education Programs (OSEP). OSEP administers IDEA. NIDRR administers parts of the Vocational Rehabilitation Act and the Assistive Technology Act. RSA administers most of the Vocational Rehabilitation Act.

The vision and mission statements of OSERS articulate the organizational philosophy and outlook shaping its policies and activities. OSERS' vision statement expresses its overall purpose and how it intends to achieve that purpose: "OSERS will aggressively and collaboratively work to create a society in which all disabled people can obtain the knowledge and skills necessary to achieve the goals they set for themselves." The mission statement articulates OSERS' role in bringing about the vision: "The mission of OSERS is to provide leadership to achieve full integration and participation in society of people with disabilities by ensuring equal opportunity and access to and excellence in, education, employment, and community living."

The organizational role and functions of OSEP, the office primarily responsible for the day-to-day activities of administering IDEA, are described in the following section.

d. Office of Special Education Programs/Monitoring and State Improvement Planning Division
OSEP administers the $5.3 billion appropriated for programs authorized by IDEA.[41] Of this $5.3 billion, $4.1 billion funds the Part B Grants to States program. Between 1996 and 1998, this program has grown almost $2 billion, or 85 percent.

OSEP was reorganized in January 1998, and employed 120 staff at the time of the interview for this report. In addition to the Office of the Director (OD) and the Support Team, OSEP comprises two divisions: the Research to Practice Division (RTP) and the Monitoring and State Improvement Planning Division (MSIP). The OD coordinates all policy, provides leadership to OSEP's activities and to the field of special education, and is the home of the Federal Interagency Coordinating Council. The RTP division administers the discretionary programs authorized by IDEA. It is organized into four teams: Early Childhood; Elementary and Middle School; Secondary transition and Post-Secondary; and National Initiatives. The MSIP division carries out activities related to P art B and the preschool and early intervention formula grant programs of IDEA. MSIP is responsible for review and approval of state eligibility documents, monitoring the formula grant programs, and providing leadership in improving state structures and systems of education for infants, toddlers, children, and youth and their families.

MSIP has a staff of 45 organized into four units--the Office of the Division Director, Team A, Team B, and Team C. There are six individuals in the Office of the Division Director, 13 on Team A, 15 on Team B, and 11 on Team C. The Office of the Division Director has three key functions: (1) administer the State Program Improvement Grants (discretionary grants to states for systemic change activities related to improving performance of children with disabilities, education personnel development, and other initiatives related to meeting the requirements of IDEA), (2) develop policy in areas related to the division's activities, and (3) manage audit resolutions (including Inspector General (IG) audits and General Accounting Office (GAO) reports). In addition, the Office of the Director develops a chapter for the Annual Report to Congress, provides support for monitoring, and coordinates and collaborates with other relevant federal entities.

Not all of the people on each team participate in monitoring activities. Of the 39 individuals on teams, approximately 22 of them are monitors for the Part B state grant program. The smallest number of monitors employed at DoED in the past decade was nine.[42]

Each of the three Monitoring and State Improvement Planning Teams is responsible for a range of activities in 18 to 20 states and entities. The key responsibilities of these teams are to review state eligibility and recommend approval or disapproval for grant applications, monitor states, and provide or coordinate technical assistance for states. Monitors are assigned as the key state contact person for three to four states. Appendix F provides a detailed description of the responsibilities of the Monitoring and State Improvement Planning Teams.

e. Office for Civil Rights/U.S. Department of Education
The Office for Civil Rights (OCR) in the Department of Education has no responsibility for enforcing or monitoring IDEA. The nature of its authorities, however, as described below, leads it to be involved in issues that are also IDEA issues. OCR was included in this study because complaints and issues brought to OCR may at times overlap with those raised under IDEA.

The Office for Civil Rights is charged with enforcing federal civil rights laws that prohibit discrimination on the basis of race, color, national origin, sex, disability, and age in programs and activities that receive federal financial assistance. Two of those laws prohibit discrimination on the basis of disability--Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act (ADA). Section 504 prohibits disability discrimination by any recipient of federal funds, such as local school districts. Title II of the ADA prohibits disability discrimination by public entities including public school districts, public colleges and universities, public vocational schools, and public libraries, whether they receive federal funds or not. Most of OCR's enforcement activities take place in the 12 regional offices throughout the country.

OCR carries out its responsibilities in two primary ways--by responding to complaints and conducting compliance reviews. OCR receives about 5,400 complaints per year. More than half of these are Section 504/ADA complaints (see discussion on Complaint Handling in Part IV for an analysis of these complaints, which may overlap with IDEA). OCR works with the involved parties to resolve complaints. OCR may initiate compliance reviews, which allows it to target resources on compliance problems that appear acute, national in scope, or newly emerging. An advantage of a compliance review is that it may result in policy or program changes that benefit large numbers of students, whereas an individual complaint may benefit only the complaining party. OCR has the authority to withhold federal funds from entities, such as local school systems, found to be violating Section 504.

OCR has conducted compliance reviews on minority students in special education, and has provided technical assistance under Section 504 and Title II of ADA regarding discipline of students with disabilities. In addition to providing technical assistance on making FAPE available to students with disabilities in correctional facilities, OCR and OSEP have collaborated on cases involving students with disabilities in correctional institutions.[43]

The potential overlap in authorities between OCR and OSERS has long been acknowledged by both offices. Because of concerns about lack of coordination and potential duplication of efforts, OCR and OSERS developed a Memorandum of Understanding (MOU) in 1987.[44] The MOU outlined how the two offices will share information about potential 504/IDEA violations. Processes for joint review of eligibility documents and complaints were outlined. Joint activities, including investigation of education agencies, issuance of findings, negotiation of remedies for violations found, monitoring of compliance plans, and enforcement proceedings were authorized. Since the MOU, OCR and OSERS have carried out some of these authorized activities in New York, Mississippi, Nevada, the Virgin Islands, Arizona, and Florida.[45] OCR and OSEP appear to be developing an increasingly productive relationship as well based on coordination and collaboration. OCR and OSEP have drafted joint letters about overlapping issues. OCR reported that it provides OSEP with its compliance monitoring docket for the year so OSEP will know what school districts OCR is investigating and why.[46] OSERS reported that as part of its pre-site monitoring activities, it requested Section 504 agreements from OCR for a particular state. OCR reported coordinating with OSEP on disability cases and meeting with OSEP quarterly to share information about the respective offices' activities. Both offices have conducted training for staff in the other's office.[47]

f. Office of the Inspector General
The Office of the Inspector General (OIG) is charged with reviewing audits performed by states to ensure that their expenditure of Part B IDEA state grant funds is consistent with the requirements of the law. OIG also investigates allegations of waste, fraud, and abuse, and can independently audit states to verify that federal funds have been used appropriately. Such independent audits have uncovered instances of abuse resulting in repayment by the state of all misappropriated or misspent funds. In 1991, OIG challenged the child count submitted by Pennsylvania in December 1990. Ultimately, DoED and Pennsylvania agreed that the child count should be adjusted downward from 195,607 to 190,771. As a consequence, Pennsylvania's Part B award, on or about July 1, 1991, was adjusted downward by $1,928,016.[48]

4. State Education Agencies (SEAs)
Within the states, Congress placed the ultimate responsibility for reaching the goal of making FAPE available for each child with a disability with the state educational agency, stating that "the state educational agency is responsible for ensuring that:
(i) the requirements of this subchapter are met; and

(ii) all educational programs for children with disabilities in the state, including all such programs administered by any other state or local agency--

(I) are under the general supervision of individuals in the state who are responsible for educational programs for children with disabilities; and

(II) meet the educational standards of the state educational agency."[49]

To be eligible for federal funds to assist with the education of children with disabilities the SEA must submit documentation to the U.S. Department of Education for approval, detailing the state's policies and procedures assuring compliance. Once approved, new submissions to DoED are required only when changes to a state or federal law, policy, or procedure impact the approved policies and procedures. In part, these documents must demonstrate the state's assurance that:
"[A] free appropriate public education is available to all children with disabilities residing in the state between ages three and 21, inclusive..."[50]

"To the maximum extent appropriate, children with disabilities... are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily."[51]

"Children with disabilities and their parents are afforded the procedural safeguards required by Section 1415 of this [Act]."[52]

Additionally, the SEA's eligibility documents must show (1) that funds received under IDEA will be expended in accordance with provisions of the Act;[53] (2) that the state has a comprehensive system of personnel development designed to ensure an adequate supply of qualified special education, regular education, and related services personnel,[54] how the state acquires and disseminates to teachers, administrators, school board members, and related services personnel, significant knowledge derived from educational sources,[55] and how the state, where appropriate, adopts promising educational practices, materials, and technology;[56] and (3) that the SEA regularly evaluates the effectiveness of IDEA programs and services in meeting the educational needs of children with disabilities.[57]

5. Local Education Agencies (LEAs)
In order to receive IDEA funding from the SEA, a local education agency must demonstrate eligibility to the SEA.[58] The LEA is required to provide assurance to the SEA that policies and procedures are established and administered in accordance with the SEA's responsibilities outlined in the law.[59] Thus, an LEA, as a recipient of federal funds, must provide assurance that all children with disabilities residing within its jurisdiction will be identified, located, and evaluated for special education and related services and that all children in the district are provided FAPE in the LRE.[60]

In the event that an LEA fails to comply with IDEA requirements, the SEA "shall reduce or not provide further payments to the LEA... until the SEA is satisfied that the LEA... is complying with that requirement."[61] Furthermore, if the SEA determines that the LEA is "unable to establish and maintain programs of free appropriate public education that meet the requirements of the Act," it must use the funds that would otherwise go to the LEA to provide the necessary services directly to the children with disabilities.[62]

IDEA's implementing regulations also require SEAs to adopt procedures for filing, investigating and resolving complaints, including a determination of whether IDEA requirements were violated and procedures for ensuring effective implementation of the SEA's final written decision.[63]

6. The Unofficial Role of Parents as Enforcers of IDEA
Under IDEA, parents have a private right of action, or right to go to court, to enforce their children's rights under the statute. However, because of the individualized nature of the law and the requirement that parents exhaust administrative remedies before a court can review an alleged failure to provide FAPE, it is sometimes difficult to address systemic problems through individual litigation. Nevertheless, litigation brought by parents has become a critical enforcement mechanism through judicial interpretations of the law and in relief obtained through class actions to redress systemic problems. As detailed in Part V, recent cases in three states have directly challenged those states' monitoring deficiencies and other systemic problems.

G. A Brief Overview of Federal Enforcement Action
In the 25-year history of IDEA, the use of formal enforcement actions involving sanctions to address state failures to ensure compliance with IDEA has been very limited. Since June, 1997, when Congress clarified the enforcement options of permitting partial withholding of federal funds or referral to the Department of Justice, the Department of Education has used neither of these options. The Department of Education has exercised its authority only once to withhold IDEA funds to address noncompliance by a state (Virginia 1996). The issue in the Virginia case was the state's policy permitting cessation of all educational services for children with disabilities who were suspended or expelled. OSEP policy was that cessation of services is not permitted under IDEA. Cessation of services means that students no longer receive any education or related services from the education system, not even home instruction.[64]

The U.S. Secretary of Education ruled that Virginia's entire annual IDEA grant--$60 million--could be withheld based on the state's refusal to provide FAPE to suspended or expelled children. Virginia appealed the Secretary's decision in federal court. The Fourth Circuit Panel agreed with OSEP that Virginia's policy was in violation of IDEA. Virginia appealed this ruling to the full Fourth Circuit Court of Appeals sitting en banc, which reversed the circuit court panel decision on this issue. Virginia permanently lost this debate, however, when Congress subsequently amended IDEA with a "no cessation of services" provision that ensures school districts provide FAPE to children with disabilities even during suspension or after expulsion.[65]

OSEP has more often used informal mechanisms to secure changes in state operations through negotiations over the approval of state policy and procedures documentation. For example, in 1980, OSEP's predecessor, the Bureau of Education for the Handicapped (BEH), delayed plan approval in California because policies and procedures regarding occupational therapy and physical therapy related services and the state's complaint process failed to comply with the law. This delay was spurred on by an organized grassroots parent complaint strategy in California. As a result, California's Department of Education made substantial changes in the noncompliant areas.

More recently, as discussed later in this report, OSEP made determinations of high risk status or applied requirements for compliance agreements to six different states/entities. In order to address persistent noncompliance with Part B of IDEA, Puerto Rico was and California, New Jersey, Pennsylvania, the Virgin Islands, and the District of Columbia now are under such scrutiny. With the exception of Puerto Rico, these informal enforcement actions are recent. The compliance agreement entered into by Puerto Rico appears to have had some effect in correcting conditions of noncompliance. At the time of this writing, it is too soon to tell how effective the other compliance agreements will be in compelling compliance.

H. Findings and Recommendations

Finding # I.1
The effectiveness of DoED's internal coordination among the various offices and teams involved in IDEA implementation and enforcement is unclear.
OSEP is responsible for IDEA compliance monitoring and enforcement consulting with several other offices within the Department of Education as needed. Within OSEP, the close integration of enforcement responsibility with responsibilities for state grant administration, compliance monitoring, technical assistance, and program improvement can lead to conflicting internal objectives. There appears to be no process for assessing whether the current approach to internal collaboration has helped or hindered IDEA enforcement.

Recommendation # I.1
The Department of Education should assess whether its current internal organization and division of IDEA grant administration and enforcement functions/responsibilities effectively supports the Department's goals to correct persistent state noncompliance.
OSEP, OCR, and perhaps OGC should further articulate the objectives of their joint activities in relation to the enforcement of IDEA, Section 504, and Title II of ADA and describe the specific mechanisms and divisions of responsibility they have developed to implement each objective. In addition, OSEP and OCR should evaluate the effectiveness of their current collaboration for improving compliance monitoring and enforcement of IDEA.

Finding # I.2
The Department of Education's mechanisms for external coordination and collaboration to better implement and enforce IDEA need to be evaluated.

Recommendation # I.2
The Department of Education should also articulate the objectives and mechanisms for collaborating with other government agencies (i.e., the Department of Justice and the Department of the Interior) on the enforcement of IDEA and evaluate their effectiveness on an ongoing basis. At least every two years, DoED's annual report to Congress should report on the effectiveness of these mechanisms and the agencies' progress toward meeting their collaboration objectives.

Part II presents the experiences and perspectives of some students with disabilities, parents, and advocates in their struggle to realize the promises of the law.
 

To Part II, Grassroots Perspectives on Noncompliance and Federal Enforcement of IDEA

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