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Why No Child Left Behind is a Good Law -
And How to Use It
by Pete Wright

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Note: Congress has reauthorized the Elementary and Secondary Education Act (ESEA), the statute formerly known as No Child Left Behind. The new statute, Every Student Succeeds Act, was signed into law by President Obama on December 10, 2015.

**********

Many people have questions about the No Child Left Behind Act. Some people damn NCLB, some praise it. Others want my opinion about whether the law is good or bad for kids with special educational needs.

No Child Left Behind is a good law. Enforcement of this law (as with enforcement of IDEA) will be a problem.

Some of us old-timers remember the early 1970’s, before the special education law was passed. It was perfectly legal for schools to expel children with disabilities permanently for reasons related to their disabilities.

You may know Judy Heumann, former head of special ed for the U. S. Department of Education. Because she was in a wheelchair, she was not allowed to attend school in New York City - she was deemed a "fire hazard."

When Public Law 94-142 (now IDEA) was passed in 1975, schools complained loudly, just as they are complaining about No Child Left Behind today. Initially, several states refused to accept federal special ed funding so they would not have to comply with the law.

During the early 1980s, children with autism in Virginia were deemed to be suffering from a medical condition, and not to have educational disabilities. Decision after decision upheld school districts' right to deny special education services to children with autism.

We’ve come a long way.

Enforcement Problems

Some people say that if the U. S. Department of Education will not enforce the No Child Left Behind Act, it is a bad law. Enforcement has always been a problem with IDEA. Enforcement will be a problem with No Child Left Behind. This does not make NLCB a bad law.

I think it is unrealistic to expect the U. S. Department of Education to do this. As a practical matter, they view themselves as educators, not as law enforcers or prosecutors. They are different from the investigators and attorneys with the U. S. Department of Justice - and that's a problem.

From the passage of P.L. 94-142’s in 1975, move forward 25 years to 2000, when the National Council of Disability published their explosive report, “Back to School on Civil Rights” (also called the IDEA Compliance Report).

On January 25, 2000, the National Council on Disability reported to the President and Congress that as “a result of 25 years of nonenforcement by the Federal Government, parents are still a main enforcement vehicle for ensuring compliance with IDEA.(Report, page 70)

In their report, NCD explained that a fundamental problem with IDEA is that the U.S. Department of Education is a funding and programmatic agency, not an enforcement agency.

“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.” (Report, page 18)
. . .

“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.” (Report, page 40)
. . .

“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.” (Report, page 40)

“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.” (Report, page 45)

The above quotes from "Back to School on Civil Rights" are from a brief I filed with the U. S. Court of Appeals for the Fourth Circuit in successful reversal of a NC District Court case a couple of years ago. I used language from the NCD report in my brief. During oral argument, it was clear to me that the three Judge panel had read the NCD report.

You can read the IDEA Compliance Report, "Back to School on Civil Rights" on the National Council on Disability site. The full text of the Report is also available on the Wrightslaw site.

Feds Withold Funds

While I do not expect the feds to do any real enforcement of NCLB, I was pleasantly surprised when they turned down Virginia's requests for Reading First funds - twice - because Virginia wanted to use the funds for reading programs that are not research based.

Using NCLB in Special Ed Litigation

I am now using language from No Child Left Behind in special ed cases.

Reading, Reading Programs, Research

In a recent due process case, we raised No Child Left Behind issues in correspondence before we requested the hearing.

I wrote a letter to the special education director to request information about their reading program and quoted portions of NCLB as a basis for my request. This letter began to create the theme of the case - that the child did not learn to read because the school district failed to use a research based reading program. I included the definition of scientifically based reading research and the definition of essential components of reading instruction, per the statute, in my letter. (see 4 Great Definitions About Reading in No Child Left Behind)

Unqualified Staff

I also raised questions about using an aide who did not meet the minimal qualifications for a paraprofessional under No Child Left Behind. In addition to verbatim quotes from NCLB, I attached copies of the critical NCLB statutes to my letter. (My letter is one of 15 sample letters in Chapter 11 of Wrightslaw: No Child Left Behind)

When the parents requested the due process hearing, the school had still not provided the requested information, so I wrote a letter to the school board attorney, with a copy to the Hearing Officer. I included a copy of my earlier letter, quoted a portion of it, and explained that:

“We are waiting for the 'scientifically based research' that was relied upon to support the continued use of ‘Patterns for Success’ with K.”

“Please advise if you are willing to stipulate for the record that the York County School Division:

  • "Did not rely on any scientifically based research to support the continued use of 'Patterns for Success' with K, and;
  • “That there is no scientifically based research, (as defined in NCLB above), that supports the use of said program with children with dyslexia.”

“If you are unwilling to enter into such a stipulation, please advise as to when the requested information will be produced, or, in the alternative, if it will be necessary that I request the Hearing Officer to issue a subpoena duces tecum to force production of that information.”

This caused a ruckus and led to a telephone conference call with the Hearing Officer.

During the conference call, the Hearing Officer asked if I was asking that he make a finding that the school district's program was in violation of NCLB.

I replied, "Oh no. We are simply arguing that the school district failed to teach this child to read because they used a program that cost about $50, used an untrained aide, and no one involved had the necessary knowledge or skills to teach the child to read. NCLB provides very clear law about reading, reading research, and staff training and qualifications. But I am bringing this case under IDEA, not under NCLB."

The Hearing Officer was relieved. He said he had reviewed information about NCLB on the USDOE website, then read NCLB information on the CEC site, then accessed information about NCLB on the VA Dept of Ed site. He said it seemed that no one had a good handle on the law, that opinions were all over the place. I agreed that there are many misunderstandings about the law.

He added, "but all children must be taught to read, staff must be well trained, and schools must use reading programs that are research based.”

I replied, "Yes sir, and that's the theme of our case." At that point I felt that we had won, although the trial was still three weeks away.

Due Process Hearing

During the hearing, I hammered the school district's inadequate efforts to teach the child how to read. We won.

While the Hearing Officer never mentioned NCLB in his ruling, accountability, charting educational progress, and the need to teach reading skills was central to his ruling.

This is how I am using No Child Left Behind in special education litigation - I use the definitions of reading, scientifically based reading research, diagnostic reading assessment, and essential components of reading programs from the law, and apppropriate training of qualified staff.

Children with Special Needs Left Behind


One issue of The Beacon: Journal of Special Education Law and Practice
focused on these issues.

Read Education Secretary Rod Paige’s Dec 15 speech about No Child Left Behind. Paige said that we have a two-tiered educational system with "islands of excellence" where "some fortunate students received a world-class education" and where "millions of children were left behind." He says, "In my view, that was wrong. It was outrageous. Most of those left behind were from low-income or minority families or children with special needs."

You can read a portion of the chapter about reading and reading research (NCLB for Attorneys and Advocates) from Wrightslaw: No Child Left Behind in The Beacon: Journal of Special Education Law and Practice.

You can download the Fall 2003 Issue of the Beacon from the Harbor House Law Press website.

Let's Make It Work for All of Us

A couple of months ago, West Virginia attorney Bill Byrne wrote No Child Left Behind - Really? Why I Like This Law, an an Op-Ed piece for the Sunday edition of his local newspaper.

Bill is the attorney who had the first jury trial against a teacher for failure to follow a child’s IEP. In Doe v. Withers, the jury awarded punitive and compensatory damages against the teacher.

Bill concluded his article with this statement: “No Child Left Behind is the best thing that has happened in a long time for the millions of children with disabilities and their families. Let’s make it work for all of us!” (You can read Bill's Op-Ed piece on the Wrightslaw site)

NCLB as a Sword

No Child Left Behind is an excellent sword that we can use to open doors for the children we represent.

Yes, until the USDOE gives over enforcement authority of IDEA and NCLB, we will have enforcement problems. That is a separate issue, and should not detract from the value of the No Child Left Behind law.

What do I think about the No Child Left Behind law? I think it's great!

Pete Wright

Links in this Article

Back to School on Civil Rights by the National Council on Disabilities
IDEA Compliance Report: Back to School on Civil Rights published on Wrightslaw
4 Great Definitions About Reading in No Child Left Behind
Hearing Officer's Decision
Fall 2003 Issue of the Beacon
Wrightslaw: No Child Left Behind by Peter W. D. Wright, Pamela Darr Wright and Suzanne Whitney Heath
NCLB for Attorneys and Advocates
No Child Left Behind - Really? Why I Like This Law by Bill Byrne

Rev. 12/1/05

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