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COPAA Issues Statement & Position Paper on IDEA Compliance Report
December 17 2000. The Council of Parent Attorneys and Advocates (COPAA) issued a statement and position report about “Back to School on Civil Rights” (also known as the “IDEA Compliance Report”) published in January by the National Council on Disability. COPAA is an independent, nonprofit, tax-exempt organization of attorneys, advocates and parents established to improve the quality and quantity of legal assistance for parents of children with disabilities.
First, we would like to share some news about a case that is pending in the U. S. Court of Appeals for the Fourth Circuit.
Pending U. S. Court of Appeals Case: Pete Uses NCD Report in Brief
In a brief filed by the state of North Carolina in a special ed / statute of limitations case, the state argued that:
“Indeed, in no compliance monitoring by OSEP since the 1988 and 1990 amendments to § 1150-116 has the U. S. Department of Education’s Office of Special Education Programs ever objected to North Carolina’s due process procedures, let alone cited North Carolina for its limitations period for due process petitions. To the contrary, the State procedures in place for more than a decade have been continually reapproved by OSEP. Indeed, in a March 31, 1998, letter from the Director of OSEP to the N.C. Department of Public Instruction, the State was commended for its proposals in the plan for implementing IDEA 1997 reflecting “NCDPI’s (NC Dept of Public Instruction) unique needs and resources and its administrative structure.”In his brief, Pete responded:
“A commendation from the U. S. Department of Education does not mean that North Carolina has a commendable program. The National Council on Disability (NCD) is an independent federal agency led by 15 members appointed by the President of the United States and confirmed by the U.S. Senate. NCD recently issued their report “Back to School on Civil Rights.”Pete advised the Fourth Circuit that in the “Executive Summary” of the IDEA Compliance Report, NCD stated that states have not met their general supervisory obligations to ensure compliance with the civil rights requirements of IDEA at the local level for twenty-five years.
“The Federal Government has frequently failed to take effective action to enforce the civil rights protections of IDEA when federal officials determine that states have failed to ensure compliance with the law. (Report, page 7)”
He included additional information from the NCD report in the brief and closed with this statement:
“That the U. S. Department of Education and Office of Special Education was not diligent in monitoring North Carolina’s change of procedure in the development of a sixty day statute of limitations should come as no surprise. The Department of Education is a funding agency, not an enforcement agency, and has not focused on protections of the rights of children with disabilities.”
In another case argued after the NCD report was published, a local education agency advised the Virginia Department of Education that they would not comply with a federal regulation because it was “void” and promulgated without proper authority.
The Virginia Department of Education told them to obey the regulation. The school district refused. At that point, the Virginia Department of Education blinked, changed their position, and said, “Fine with us.”
Pete requested a due process hearing against the Virginia Department of Education. He prevailed. Virginia refused to follow the law. Pete asked the U. S. Department of Education to require Virginia to comply with the law. The feds refused to take action.
Finally, Pete advised the U. S. Department of Education that he was preparing to file suit in Federal Court against the Virginia Department of Education AND the U. S. Department of Education – both agencies would be co-defendants in the same suit.
As Pete was driving to Washington, D. C. to meet with an attorney who specializes in litigation against federal agencies that fail to follow their mandates, the U. S. Department of Education called to say they had taken steps against the Virginia Department of Education. Since then, Virginia has complied with the new regulation.
What are the lessons we can learn from this?
If the Feds do not require the states to obey the law, can we really expect the states to require the locals to obey the law?
How can we solve this problem? Congress must take enforcement responsibility away from the U. S. Department of Education and give enforcement of the Individuals with Disabilities Education Act to a more independent federal agency, most likely the U. S. Department of Justice. The enforcement agency should be vested with the power to sue the U. S. Department of Education and individual states.
With the imminent change in Administrations and the dislike of the U. S. Department of Education by conservatives and liberals (although for different reasons), this is a good time to change this broken "enforcement system." Over the years, the role of the U. S. Department of Education evolved into programming and funding, not enforcement. In 25 years, they didn't enforce the law. There is no reason to think this comfortable status quo to change unless there is pressure from below (that's us!)
It's time for a change.
Change Comes From the Bottom Up - ALWAYS Says Minnesota Gov. Jesse Ventura
As Minnesota Governor Jesse Ventura wrote in his autobiography, I Ain't Got Time to Bleed,
“Government protects itself from the top down – state government is reluctant to get involved in local government and so forth. Since the good old boys are ensconced from the top down, we have to whittle away at their network from the bottom up. That’s the only way change is possible – in tiny victories that eventually lead to bigger victories.”
Governor Ventura is right!
(In his book, I Ain't Got Time to Bleed, Gov. Ventura he talks about his daughter, Jade - Yes, his daughter is a "special ed kid." You'll find this and other neat books in the Advocate's Gift Shop.)
What Can You Do?
1. Print several copies of the COPAA report.
2. Write letters to your Senators and Representative.
Use your letter as an opportunity to tell your story. Educate your Congressman and Senators about the human costs when parents must enforce the law on behalf of their disabled children - and how many parents are locked out of the system.
3. Enclose the COPAA statement with your letter.
4. Ask Congress to shift enforcement of IDEA to the U. S. Department of Justice.
Parents should not have to enforce the law. When parents have to battle school districts to enforce the law, this drives a huge wedge between parents and educators. We believe parents and teachers could spent their time and energies more wisely if they could work together for our children.
Get the COPAA statement
Get full text of the IDEA Compliance Report – with links- from Wrightslaw
You can get the 387 page version of Back to School on Civil Rights from the NCD site.
If you send a fax to 202-272-2022 and request a copy of “Back to School on Civil Rights,” you will receive your own inch thick bound version – fast!
Please begin your letter writing campaign over the holidays. Make this your New Years Resolution. When you send your letters, be sure to enclose the COPAA statement. With this new administration, there will be changes – you can count on it. You want to influence these changes.
At Wrightslaw, we supply you with good tools – current cases, advocacy articles, research, and tips. We know that parents are the real agents for change. You are the "stakeholders."
Don't forget: Change only happens from the bottom up. (If you don't believe us, ask Jesse Ventura, AKA "The Body")
(PS - Remember the 4th Annual COPAA conference is in Washington, DC, March 8-11, 2001, Hyatt Regency Crystal City Hotel - Arlington, VA)
The Fourth Circuit case is pending.