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Council of Parent Attorneys and Advocates COPAA
National Conference
March 3-5, 2000
Houston, Texas

Keynote Address by Lilliam Rangel-Diaz

Good afternoon! I am delighted and honored to be here and I am energized by the power of so many child advocates in this room. Thank you Jim Rosenfeld and COPAA for putting this conference together and thank you for inviting me to deliver these keynote remarks on behalf of the National Council on Disability

The National Council on Disability (NCD) is the independent federal agency charged with providing policy guidance and advice to the President and Congress on all issues relating to people with disabilities of all ages and all ethnic and cultural backgrounds. I am a proud member of NCD, but I am most proud to be "mom" to six wonderful boys, two of them with disabilities and I am living proof, like so many others here today, of "parent power," granted with lots of help from Divine intervention.

I am here to talk to you about NCD's report Back to School on Civil Rights, which, as I was telling my good friend, Barbara Burch from Florida, perhaps should have been entitled, "Back to School on Civil Rights - Not!" I am also here to tell "What's right with the NCD Report! (in response to Jim Rosenfeld's article, "What's Wrong with the NCD Report") 

Back to School on Civil Rights is the second in a series of NCD reports entitled Unequal Protection Under the Law. This series examines the track record of the Federal Government agencies responsible for administering and enforcing the Air Carrier Access Act, IDEA and the ADA. This report took nearly two years of research, data analysis, drafting and negotiation with the Department of Education to complete. The report was finally released under a severe snowstorm in Washington, D.C. on January 25. Linda Shepherd from the National Parent Network on Disabilities who is here today was with us that day. The major findings of the report, for example, that every State is out of compliance to some degree with IDEA requirements and that the burden of enforcement has fallen on the backs of parents, are not news to anyone here today or to any parent of a student with a disability.

All States Non-Compliant with IDEA: Burden of Enforcing Law Falls on Parents

These findings were not a surprise, but a confirmation and documentation of what so many of us have known for two decades or more. One of the important purposes of this report is to provide a tool for parents and advocates who for years have received the brush off from school officials, legislators and policy-makers who want "evidence not anecdotes" that widespread problems exist. For the first time, we have the data demonstrating that noncompliance is, in fact, a nation-wide problem. We have also caught the attention of the media in unprecedented news coverage for NCD - we have had over 910 radio broadcasts, reaching over 17 million listeners and over 600 newsclips reaching millions of readers. In addition to unprecedented requests made to NCD for copies of the report--over 5,000 requests so far in record time.

The main purpose of the report was to establish how the federal system of monitoring and enforcement has been working. NCD analyzed the findings of the Department of Education's own state monitoring reports between 1975 to 1998 to determine what has been happening over time. The Department of Education's own reports show that progress has been mixed with persistent noncompliance, and that noncompliance with the same requirements sometimes remains uncorrected for many years. The Office of Special Education Programs (OSEP), which is responsible for the implementation and enforcement of IDEA, has taken a wide variety of approaches to assist the states in correcting compliance problems over the years. OSEP made and continues to make extensive use of technical assistance, to help states assess and correct noncompliance. The problem is that technical assistance is not enough. Corrective action plans and timetables are not enough. Compliance plans are not enough when there are no consequences for not following through and making good on a commitment to fix the problems. The one constant factor throughout two and a half decades of federal enforcement is that federal efforts over several administrations to enforce IDEA have been inconsistent and lacking any real teeth. There have been no consequences for states that have disregarded the law and devastating consequences for the students with disabilities and their families who have been denied the protections of the law.

National Compliance Standards

The National Council on Disability maintains that in order to stop the cycle of noncompliance, there must be national standards that will serve as triggers for specific enforcement sanctions. National compliance standards, together with specific sanctions for failures to comply, must be developed in consultation with all affected stakeholders. Without standards that define the limits of noncompliance and appropriate sanctions, the incentives for correcting noncompliance have not been compelling enough in too many states.

No Incentives for Aggressive Enforcement

As Jim Rosenfeld has rightly pointed out, however, there is not much incentive for the Department of Education to develop a more aggressive enforcement posture. The political disincentives are considerable. Past attempts by the Department to impose sanctions have resulted in very strong opposition from the congressional delegations representing the states involved. 

The Department is not inclined to put itself in the position of being politically pressured and threatened with lawsuits for attempting to exercise its responsibilities and prerogatives under the law. Nor is the Department inclined to antagonize state education administrations with whom they have long-standing and collaborative working relationships. 

Recommendations

To address the non-enforcement problem, NCD has recommended that responsibility for actually carrying out enforcement actions be shifted to the Department of Justice. The two main recommendations are: 

1) independent litigation authority for DOJ, rather than waiting for referrals from the Department of Education, and 

2) establishing a federal mechanism at DOJ for investigating and hearing complaints filed by individuals involving state pattern and practice violations. 

We believe that such a shift in responsibility from DOE to DOJ will be an important first step toward minimizing the chilling effect of political pressure on enforcement. These recommendations would require an amendment to IDEA to implement, a notion many consider dangerous.

In the current congressional term alone, there are a number of amendments already waiting in the wings to strip IDEA of the important protections it provides to children who are at the highest risk. It is important that some options be proposed that could constructively address some of the fundamental problems that weaken the federal enforcement mechanism. If adopted and implemented with the support of top agency leaders, these recommendations could be tremendously effective towards creating effective federal enforcement. Until now, however, the cry for vigorous enforcement continues to go unheeded.

At the state level, fundamental changes to complaint handling and due process systems that are frustratingly ineffective and unresponsive are desperately needed. The ineffectiveness of many of these systems to assist many students with disabilities and families in getting the services and supports they need is disheartening. Strong political obstacles to implementing fully effective systems exist at the state level just as they do at the federal level.

Grassroots Advocacy Organizations as Tool for Change

This leads to the question, what will work--what can make a difference? Here, I want to pause and clarify that under our federal mandate, NCD is unable to organize the grassroots. Other grassroots advocacy organizations, such as the National Parent Network on Disabilities and COPAA, are able to do it. It is your job to take this report and use it as a tool to effect change.

After consulting with advocates, parents and other stakeholders, NCD proposes that stronger enforcement will happen as parents and students develop their own more effective voice in advocating for a free appropriate public education. Critical to this happening is the availability of free and low-cost legal advocacy through public and private legal services providers. 

Litigation to Enforce Law 

Litigation continues to be a staple of enforcement. Until the playing field is leveled between parents and local school districts, parent training on IDEA alone will not get students and families access to the services they need. 

The need for legal support for families is so extensive that NCD recommends collaboration of the technical assistance centers, advocacy systems and parent centers to share resources so that strong legal advocacy networks can be created throughout each state. NCD further recommends the establishment of a national back-up center to provide legal materials, training and other supports for attorneys around the country working on IDEA cases. All of this requires money. NCD recommends that for every increase in Part B funds, that Congress allocate an additional amount equivalent to10 percent of the total Part B increase to support the legal advocacy initiatives.

Teach Self-Advocacy Skills

The second highest priority after legal support is for greatly expanded technical assistance to help students with disabilities increase their self-advocacy skills, particularly as they prepare to participate in their transition services planning and to receive the transfer of their rights at the age of majority. Outreach to minority communities with culturally appropriate training materials will be a key to ensuring that students with disabilities are aware of and able to assert their protections under the law.

Educate Stakeholders 

Finally a key to more effective enforcement is the need for funding programs aimed at increasing the effectiveness of parents as collaborators in the implementation, monitoring and enforcement of IDEA. Parents should be trained in how to assess the effectiveness of their states' IDEA compliance monitoring systems. 

Teachers, especially regular education teachers, must be educated about the requirements of IDEA and trained to respond effectively to the special needs of children with disabilities in their classrooms. Without concerted attention to the needs of regular education teachers for training and support, the requirements of IDEA cannot be effectively implemented or enforced. 

Agents of systems such as the immigration and naturalization service, the child welfare system and the juvenile justice system must also be trained as enforcers of IDEA. Their knowledge of the civil rights requirements of IDEA increases the probability that action will be taken to ensure that students with disabilities, particularly those from diverse cultural groups who are disproportionately over-represented in these systems, have the opportunity to become plaintiffs under IDEA rather than continue the trend of being respondents under the juvenile and criminal justice systems.

The National Council on Disability sees implementation of IDEA and full inclusion of children and youth with disabilities in the American educational system as a student's civil rights issue. Today we are fighting the same battle fought by civil rights advocates in Brown v. the Board of Education in 1954: to put an end to the myth of "separate is not equal." 

Our report, with its key findings and recommendations are for all children and youth with disabilities. For their sake, we are appealing to all federal and state agencies that have a role in the implementation and enforcement of IDEA to work together with students with disabilities and their parents to ensure persistent noncompliance is corrected wherever it exists. We stand ready to work with stakeholders, Congressional leaders, members of the Department of Education and the Department of Justice, to develop an action plan that will mark the start of a new era in education for students with disabilities, making the promises of this 25 year-old civil rights law a reality for all children and youth with disabilities.

Thank you.

Lilliam Rangel-Diaz

Center for Education Advocacy
8600 S.W. 92nd Street
Suite 204
Miami, Florida  33156
305-279-2428, Ext. 211
E-mail address:  lillyrdiaz@aol.com

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