National Council on Disability

January 25, 2000

LETTER OF TRANSMITTAL

January 25, 2000

The President
The White House
Washington, DC 20500

Dear Mr. President:

On behalf of the National Council on Disability (NCD), I am pleased to submit a report entitled Back to School on Civil Rights. This report is the second in a series of independent analyses by NCD of federal enforcement of civil rights laws.

The series grew out of NCD's national policy summit of a diverse group of more than 300 leaders from the disability community, where the participants called on NCD to push for more effective enforcement of existing civil rights laws. NCD produced the first report, Enforcing the Civil Rights of Air Travelers with Disabilities, in March 1999. The third report on enforcement of the Americans with Disabilities Act will be released in spring 2000.

Back to School on Civil Rights looks at more than two decades of federal monitoring and enforcement of compliance with Part B of IDEA. Overall, NCD finds that federal efforts to enforce the law over several Administrations have been inconsistent and ineffective. Despite the important efforts of your Administration to be more aggressive than any of its predecessors in addressing these compliance problems, failures to ensure local compliance with Part B requirements continue to be widespread and persist over many years. Enforcement of the law is too often the burden of parents who must invoke formal complaint procedures and request due process hearings to obtain the services and supports to which their children are entitled under law. The report includes recommendations for your Administration and Congress that would build on the1997 reauthorization of IDEA.

NCD stands ready to work with you and all public and private stakeholders to address the problems identified in this report and to advance a federal approach to enforcement that results in improved compliance and better outcomes for children and families, so that the nation's 25-year-old commitment to effective education for all children will be more fully realized.

In your 1997 State of the Union address, you made clear that your number one priority is to ensure that all Americans have the best education in the world. We share your commitment.

Sincerely,

Marca Bristo
Chairperson

(This same letter of transmittal was sent to the President Pro Tempore of the U.S. Senate and the Speaker of the U.S. House of Representatives.)

NCD MEMBERS AND STAFF

Members

Marca Bristo, Chairperson
Kate P. Wolters, First Vice Chairperson
Hughey Walker, Second Vice Chairperson

Yerker Andersson, Ph.D.
Dave N. Brown
John D. Kemp
Audrey McCrimon
Gina McDonald
Bonnie O'Day, Ph.D.
Lilliam Rangel-Diaz
Debra Robinson
Shirley W. Ryan
Michael B. Unhjem
Rae E. Unzicker
Ela Yazzie-King

Staff

Ethel D. Briggs, Executive Director
Mark S. Quigley, Public Affairs Specialist
Kathleen A. Blank, Attorney/Program Specialist
Geraldine Drake Hawkins, Ph.D., Program Specialist
Allan W. Holland, Accountant
Brenda Bratton, Executive Secretary
Stacey S. Brown, Staff Assistant

TABLE OF CONTENTS

Acknowledgments

Executive Summary

Introduction

Background of This Report
Purpose of This Report
Report Structure
Scope of This Report
Enforcement Research Perspectives
Research Methodology

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

A. Introduction
B. Basic Requirements of IDEA
C. Scope of IDEA
D. Legislative History
E. Reauthorization of IDEA 1997
F. Statutory Framework for IDEA Enforcement
1. The Compliance/Enforcement Scheme for IDEA
2. Background and Enforcement Philosophy
3. The Federal Role--Delegation of Responsibilities
a. Office of the Secretary
b. Office of General Counsel and Relationship with the Department of Justice
c. Office of Special Education and Rehabilitative Services
d. Office of Special Education Programs (OSEP)/Monitoring and State Improvement Planning Division
e. Office for Civil Rights/U.S. Department of Education
f. Office of the Inspector General
4. State Education Agencies (SEAs)
5. Local Education Agencies (LEAs)
6. The Unofficial Role of Parents as Enforcers of IDEA
G. A Brief Overview of Federal Enforcement Action
H. Findings and Recommendations

II. Grassroots Perspectives on Noncompliance and Federal Enforcement of IDEA

A. Obstacles Experienced by Students with Disabilities and Their Families
1. Noncompliance with Least Restrictive Environment
2. Noncompliance with Free Appropriate Public Education
B. Advocacy Perspectives
1. Parent Advocates Working with PTI Centers
a. Parental Involvement and Communication with OSEP
b. Monitoring Reports
c. Evaluating the Monitoring Process and Corrective Action
d. Corrective Action Plans
e. The Need to Create Consequences
f. Monitoring at the State Level
2. Other Parent Advocates
3. Advocates for Children in the Juvenile Justice System, Minority and Rural Communities
C. Findings and Recommendations

III. Grant Administration, Compliance-Monitoring, Complaint-Handling, and Enforcement Functions

A. Grant Administration
1. The Basic State Grant Program
2. Competitive State Program Improvement Grants
3. Findings and Recommendations
B. Oversight: Federal Monitoring of States
1. Purpose of Monitoring
2. The Decision About What to Monitor
3. The Monitoring Cycle
4. The Monitoring Process Before the Fall of 1998
a. Pre-Site Activities
b. The On-Site Visit
c. The Monitoring Report
d. Corrective Action Plans
e. OSEP's Maintenance of Monitoring Reports and Records Regarding Monitoring Reports
5. Analysis of Fifty Federal Monitoring Reports
a. Methodology
b. Standards Used by OSEP for Determining Noncompliance
c. Summary of State Noncompliance Findings
d. Analysis of Findings of Noncompliance
e. Data Quality Issues Raised by the Monitoring Reports
f. Findings and Recommendations
6. Persistence of Noncompliance Over Time
a. Analysis of Current Monitoring Reports
b. Analysis of Six States Over Time
c. Findings and Recommendations
7. OSEP Initiatives to Address Marginalization Issues
8. Perspectives on the Impact of Federal Compliance Monitoring
a. The Consortium of Citizens with Disabilities
b. The National Association of State Directors of Special Education
c. Findings and Recommendations
C. Oversight: Complaint Handling
1. General Complaints About IDEA Received by OSEP
2. Secretarial Review of IDEA Complaints
3. Section 504/ADA Complaints Received by OCR/DoED
4. Findings and Recommendations
D. Enforcement
1. Restrictions on Grant Awards: High-Risk Status with Special Conditions and Compliance Agreements
2. Withholding of Funds
3. Cease and Desist Order
4. Referral to the Department of Justice for Enforcement Action
5. The Politics of Enforcement
6. Findings and Recommendations

IV. The National Compliance Picture Over Time: Analysis of Annual Reports to Congress 1978-1998

A. Introduction
B. Methodology
C. Procedural Focus
D. Definition of Monitoring
E. Procedural Changes
F. Lack of Trend Analysis
G. Charts on Monitoring Findings
H. Intra-Departmental Policy Conflicts
I. Reports Demonstrate the Evolution of DoED's View of Its Mandate
J. Language Changes
K. Trend Toward Partnership with States
L. Findings and Recommendations

V. IDEA Litigation Challenging State Noncompliance

A. Introduction
B. Summary of Litigation in California, Illinois, and Texas
C. Development of More Effective Monitoring Systems
D. Findings and Recommendations

VI. The Role of the Department of Justice

A. Functions of the Department of Justice
B. IDEA Litigation in Which the Department of Justice Has Participated
C. Findings and Recommendations

VII. Improving Public Awareness: Technical Assistance and Public Information for Students with Disabilities, Their Families, and Advocates

A. Department of Education--Overview
1. OSEP a. National Information Center for Children and Youth with Disabilities
b. The Families and Advocates Partnership for Education (FAPE) Project
c. Parent Training and Information (PTI) Centers and the Technical Assistance Alliance
d. The Technical Assistance Alliance for Parent Centers
e. Technical Assistance to Indian Communities
2. National Institute on Disability and Rehabilitation Research (NIDRR)
3. Rehabilitation Services Administration (RSA)
4. Office for Civil Rights (OCR)
5. Department of Health and Human Services--Administration on Developmental Disabilities (ADD)
B. Resource List of IDEA and Education-Related Technical Assistance, Training, and Informational Materials Collection Approach
C. Findings and Recommendations

VIII. Summary and Conclusions

Endnotes

Tables and Charts

1: The Three Prongs of the IDEA Compliance/Enforcement Scheme
2: Status of Approval of IDEA Part B State Plans/State Plan Reviews
3: State Monitoring Data (Reprint from NCD Study)
4: Number and Percentage of Noncompliant States in Each Area According to 1994-1998 OSEP Monitoring Reports
5: State Noncompliance as Reported by 1994-1998 Monitoring Reports
6: State Noncompliance with FAPE Requirements
7: State Noncompliance with LRE Requirements
8: State Noncompliance with IEP Requirements
9: State Noncompliance with IEP Content Requirements in Five States
10: State Noncompliance with Transition Requirements
11: State Noncompliance with General Supervision Requirements
12: State Noncompliance with Complaint Management Requirements
13: State Noncompliance with State Monitoring Requirements
14: State Noncompliance with Procedural Safeguard Requirements
15: Noncompliance Over Time in California
16: Noncompliance Over Time in Illinois
17: Noncompliance Over Time in New York
18: Noncompliance Over Time in Oregon
19: Noncompliance Over Time in Texas
20: Noncompliance Over Time in Vermont
21: High Risk Grantees/Special Conditions/Compliance Agreements for Part B State Grant IDEA Awards Determined by OSEP
22: Headings in Annual Reports
23: IDEA Litigation in Which DOJ Has Participated
24: IDEA/Education-Related Technical Assistance Materials and Information

Appendixes

Appendix A: List of Interviews for This Study

Appendix B: Educational Inequity and Children With Disabilities: Ten Problem Areas IDEA Was Intended to Address

Appendix C: Basic Requirements of IDEA

Appendix D: Letters to Secretary Riley from Members of Congress and from One Governor (PDF)

Appendix E: Organizational Structure of the U.S. Department of Education (PDF)

Appendix F: Responsibilities of Each Monitoring and State Improvement Team

Appendix G: Summary: State by State Monitoring Outcomes (PDF)

Appendix H: Overview of the New Continuous Improvement Monitoring System

Appendix I: Complaints Received by the Office for Civil Rights, U.S. Department of Education, Related to Primary or Secondary Schools (PDF)

Appendix J: List of Acronyms

Appendix K: Consolidated List of Findings and Recommendations

Appendix L: Mission of the National Council on Disability

Acknowledgments

All research, data collection, and analysis for this study were carried out by the Disability Rights Education and Defense Fund (DREDF) and its subcontractors, under contract to the National Council on Disability (NCD). Jane West, Ph.D., a consultant in Chevy Chase, MD, is the principal author and lead researcher for this report. The following individuals are co-authors of the report:

Mary Lou Breslin, Project Director, DREDF

Nancy Mudrick, Ph.D., Senior Data and Methodological Consultant, Syracuse University

Mark A. Mlawer, Consultant, Baltimore, MD

Diane Lipton, Senior Attorney, DREDF

Jillian Cutler, DREDF intern, Yale University

Allison Drimmer, Attorney, Washington, DC

Bill Smith, intern, DREDF

Chantal Sampogna, Attorney, DREDF

Important contributions in research, data analysis, editing, word processing, and advising were made by the following individuals:

Marla C. Bull Bear, Executive Director, Native American Advocacy Project

Randi Casenza, DREDF

Deborah Doctor, DREDF

Laura Miller Eligator, Esq., Access Living of Metropolitan Chicago

LaDonna Fowler, American Indian Rehabilitation Rights Organization of Warriors (AIRROW)

Renaldo Fowler, Senior Staff Advocate, Arizona Center for Disability Law

Martin Gould, National Center on Outcomes Research (NCOR)

Joel Gray, DREDF

David Howell, DREDF

James Jackson, Executive Director, Protection and Advocacy System of New Mexico

Cheri Lorenz, DREDF

Leslie Seid Margolis, Esq., Maryland Disability Law Center (MDLC)

Lou McIntosh, Parent, Merrywing Corporation

Thomas Lee McKeithan II, Chairperson, State Advisory Panel on Special Education for the District of Columbia and members

Barbara Raimondo

Marjorie Rifkin, Esq.

Nate Schiff, Syracuse University

Robert Shuckahosee, American Indian Rehabilitation Rights

Organization of Warriors (AIRROW)

Robert Silverstein, Center for the Study and Advancement of Disability Policy

Jenifer Simpson, President's Committee on Employment of People with Disabilities (PCEPD)

Diane Smith, National Association of Protection and Advocacy Systems (NAPAS)

Joseph B. Tulman, Professor of Law, University of the District of

Columbia David A. Clarke School of Law

Pat Wright, Director of Governmental Affairs, DREDF

Therese C. Yanan, Project Director, Native American Protection and Advocacy Project

NCD would like to acknowledge the many individuals at the U.S. Department of Education and the U.S. Department of Justice who generously provided us with interviews and assisted in the collection of materials. Sonya Savkar, formerly of the Office of General Counsel of the U.S. Department of Education, assisted as "point person" within the Department, coordinating the responses to our many requests for information.

NCD would like to thank the students, parents, family members, and professionals from the various stakeholder communities who so generously gave of their time and energy in providing interviews and information for this report. To the students with disabilities and their families who traveled to Washington, DC, to speak on September 22, 1999, at the Town Meeting on Federal Enforcement of IDEA, NCD gives special thanks for sharing your stories of struggle and success.

Executive Summary

Twenty-five years ago, Congress enacted and President Gerald Ford signed the Education for All Handicapped Children Act, one of the most important civil rights laws ever written. The basic premise of this federal law, now known as the Individuals with Disabilities Education Act (IDEA), is that all children with disabilities have a federally protected civil right to have available to them a free appropriate public education that meets their education and related services needs in the least restrictive environment. The statutory right articulated in IDEA is grounded in the Constitution's guarantee of equal protection under law and the constitutional power of Congress to authorize and place conditions on participation in federal spending programs. It is complemented by the federal civil rights protections contained in section 504 of the Rehabilitation Act of 1973, as amended, and Title II of the Americans with Disabilities Act.

This report, the second in a series of independent analyses by the National Council on Disability (NCD) of federal enforcement of civil rights laws, looks at more than two decades of federal monitoring and enforcement of compliance with Part B of IDEA.[1] Overall, NCD finds that federal efforts to enforce the law over several Administrations have been inconsistent, ineffective, and lacking any real teeth. The report includes recommendations to the President and the Congress that would build on the 1997 reauthorization of IDEA. The intent is to advance a more aggressive, credible, and meaningful federal approach to enforcing this critical civil rights law, so that the nation's 25-year-old commitment to effective education for all children will be more fully realized.

Background

In 1970, before enactment of the federal protections in IDEA, schools in America educated only one in five students with disabilities. More than 1 million students were excluded from public schools, and another 3.5 million did not receive appropriate services. Many states had laws excluding certain students, including those who were blind, deaf, or labeled "emotionally disturbed" or "mentally retarded." Almost 200,000 school-age children with mental retardation or emotional disabilities were institutionalized. The likelihood of exclusion was greater for children with disabilities living in low-income, ethnic and racial minority, or rural communities.

In the more than two decades since its enactment, IDEA implementation has produced important improvements in the quality and effectiveness of the public education received by millions of American children with disabilities. Today almost 6 million children and young people with disabilities ages 3 through 21 qualify for educational interventions under Part B of IDEA. Some of these students with disabilities are being educated in their neighborhood schools in regular classrooms. These children have a right to have support services and devices such as assistive listening systems, braille text books, paraprofessional supports, curricular modifications, talking computers, and speech synthesizers made available to them as needed to facilitate their learning side-by-side with their nondisabled peers. Post-secondary and employment opportunities are opening up for increasing numbers of young adults with disabilities as they leave high school. Post-school employment rates for youth served under Part B are twice that of older adults with disabilities who did not benefit from IDEA in school, and self-reports indicate that the percentage of college freshmen with a disability has almost tripled since 1978.

Findings

As significant as the gains over time are, they tell only part of the story. In the past 25 years states have not met their general supervisory obligations to ensure compliance with the core civil rights requirements of IDEA at the local level. Children with disabilities and their families are required far too often to file complaints to ensure that the law is followed. 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. Although Department of Education Secretary Richard W. Riley has been more aggressive in his efforts to monitor compliance and take formal enforcement action involving sanctions than all his predecessors combined, formal enforcement of IDEA has been very limited. Based on its review of the Department of Education's monitoring reports of states between 1994 and 1998, NCD found:

Every state was out of compliance with IDEA requirements to some degree; in the sampling of states studied, noncompliance persisted over many years.[2]

Notwithstanding federal monitoring reports documenting widespread noncompliance, enforcement of the law is the burden of parents who too often must invoke formal complaint procedures and due process hearings, including expensive and time-consuming litigation, to obtain the appropriate services and supports to which their children are entitled under the law. Many parents with limited resources are unable to challenge violations successfully when they occur. Even parents with significant resources are hard-pressed to prevail over state education agencies (SEA) and local education agencies (LEA) when they or their publicly financed attorneys choose to be recalcitrant.

The Department of Education has made very limited use of its authority to impose enforcement sanctions such as withholding of funds or making referrals to the Department of Justice, despite persistent failures to ensure compliance in many states.

DoED has not made known to the states and the public any objective criteria for using enforcement sanctions, so that the relationship between findings of noncompliance by federal monitors and a decision to apply sanctions is not clear.

DoED Monitoring Model

The oversight model adopted by the Department of Education is multitiered and multipurpose. The Office of Special Education Programs (OSEP) distributes federal IDEA funding to the states and monitors the SEAs. The SEAs in turn monitor the LEAs to make sure they are in compliance with IDEA. In this tiered oversight model, the same Department of Education office (OSEP) distributes federal funds, monitors compliance, and enforces the law where violations are identified. The politics and conflicts inherent in administering these three disparate functions have challenged the Department's ability to integrate and balance the objectives of all three.

Data Sources and Summary of Analyses

As mentioned above, NCD found that the most recent federal monitoring reports demonstrated that every state failed to ensure compliance with the requirements of IDEA to some extent during the period covered by this review. More than half of the states failed to ensure compliance in five of the seven main compliance areas. For example, in OSEP's most recent monitoring reports, 90 percent of the states (n = 45) had failed to ensure compliance in the category of general supervision (the state mechanism for ensuring that LEAs are carrying out their responsibilities to ensure compliance with the law); 88 percent of the states (n = 44) had failed to ensure compliance with the law's secondary transition services provisions, which require schools to promote the appropriate transition of students with disabilities to work or post-secondary education; 80 percent of the states (n = 40) failed to ensure compliance with the law's free appropriate public education requirements; 78 percent of the states (n = 39) failed to ensure compliance with the procedural safeguards provisions of the law; and 72 percent of the states (n = 36) failed to ensure compliance with the placement in the least restrictive environment requirements of IDEA. In the two remaining major compliance areas, IEPs and protection in evaluation, 44 percent of the states (n = 22) failed to ensure compliance with the former and 38 percent of the states (n = 19) failed to ensure compliance with the latter.

Enforcement Authority

Currently, the U.S. Department of Education has neither the authority nor the resources to investigate and resolve individual complaints alleging noncompliance. The Department does consult with and share some of its enforcement authority with the U.S. Department of Justice (DOJ), which has no independent litigation authority. Yet between the date it was given explicit referral authority in 1997 and the date this report went to the printer, DoED had not sent a single case to DOJ for "substantial noncompliance," and had articulated no objective criteria for defining that important term. The Department of Justice, whose role has been largely limited to participation as an amicus in IDEA litigation, does not appear to have a process for determining what cases to litigate.

Overall Enforcement Action

Despite the high rate of failure to ensure compliance with Part B requirements indicated in the monitoring reports for all states, only one enforcement action involving a sanction (withholding) and five others involving imposition of "high risk" status and corrective action as a prerequisite to receiving further funds, have been taken. The only withholding action occurred once for a temporary period and was overruled by a federal court. Overall, the DoED tends to emphasize collaboration with the states through technical assistance and developing corrective action plans or compliance agreements for addressing compliance problems. There appear to be no clear-cut, objective criteria for determining which enforcement options ought to be applied and when to enforce in situations of substantial and persistent noncompliance.

Recommendations for Strengthening Federal Enforcement

NCD makes the following recommendations to strengthen the capacity of both the Department of Education and the Department of Justice to more effectively enforce IDEA:

Congress should amend IDEA to create a complaint-handling process at the federal level to address systemic violations occurring in a SEA or LEA. Congress should designate the Department of Justice to administer the process and allocate adequate funding to enable the Department to take on this new role. This new federal complaint process should be designed to complement, not supplant, complaint procedures and the due process hearing at the state level. The federal process should be simple to use and easy to understand by parents and students.

Congress should amend IDEA to provide the Department of Justice with independent authority to investigate and litigate cases brought under IDEA. The Department of Justice should be authorized to develop and disseminate explicit criteria for the types of alleged systemic violation complaints it will prioritize given its limited resources.

Congress should include in the amendment that the Department of Education and the Department of Justice shall consult with students with disabilities, their parents, and other stakeholders to develop objective criteria for defining "substantial noncompliance," the point at which a state that fails to ensure compliance with IDEA's requirements will be referred to the Department of Justice for legal action.

Congress should ask the General Accounting Office (GAO) to conduct a study of the extent to which SEAs and LEAs are ensuring that the requirements of IDEA in the areas of general supervision, secondary transition services, free appropriate public education, procedural safeguards, and placement in the least restrictive environment are being met. In addition, the DoED Office of Inspector General (OIG) should conduct regular independent special education audits (fiscal and program). The purpose of the audits would be to examine whether federal funds granted under IDEA Parts B and D (State Program Improvement Grants) have been and are being spent in compliance with IDEA requirements. These audits should supplement OSEP's annual compliance-monitoring visits, and the audit results should be in DoED's annual report to Congress. To the extent that the DoED OIG lacks the subject-matter expertise to conduct program audits under IDEA, the OIG should contract with independent entities having such expertise when a program audit is necessary.

The Department of Education should establish and use national compliance standards and objective measures for assessing state progress toward better performance outcomes for children with disabilities and for achieving full compliance with Part B.

The Department of Education should consult with students with disabilities, their parents and other stakeholders in developing and implementing a range of enforcement sanctions that will be triggered by specific indicators and measures indicating a state's failure to ensure compliance with Part B.

When Congress and the President approve an increase in the funding to be distributed to local schools under Part B, Congress and the President should appropriate at the same time an amount equal to 10 percent of the total increase in Part B funding to be used to build the Department of Justice's and the Department of Education's enforcement, complaint-handling, and technical assistance infrastructure to effectively enable the federal agencies to drive improvements in state compliance and ensure better outcomes for children.

Personnel Training Needs

Regular and special education teachers in many states are frustrated by the mixed messages regarding compliance from school administrators, local special education directors, state oversight agents, school district attorneys, and federal oversight agents. Teachers ultimately bear the responsibility to implement interventions and accommodations for students with disabilities, often without adequate training, planning time, or assistance. They must function within an educational system that often lacks adequate commitment, expertise, or funding to deliver appropriate services to every child who needs them. School administrators, special education directors, school principals, and agents of federal, state, and local governments must stop working at cross purposes and commit to working together to resolve, not conceal or ignore, these very real problems. If the Federal Government continues to refrain from taking enforcement action in the face of widespread failures to ensure Part B compliance, this atmosphere of questionable commitment to the civil rights of students with disabilities will continue.

Advocacy Service Needs

Pervasive and persistent noncompliance with IDEA is a complex problem with often dramatic implications on a daily basis for the lives of children with disabilities and their families. Too many parents continue to expend endless resources in confronting obstacles to their child's most basic right to an appropriate education, often at the expense of their personal lives, their financial livelihoods, and their careers. Students are frustrated--their skills undeveloped and their sense of belonging tenuous. When informal efforts have failed to end unnecessary segregation or inappropriate programming for individual children, many have used the rights and protections afforded by IDEA to successfully challenge these injustices. Advocacy and litigation have been essential to ending destructive patterns of recurring noncompliance. Litigation has resulted in important victories for the children involved and better outcomes for other students with disabilities by exposing and remedying systemic noncompliance with IDEA. Yet legal services are often far beyond the financial reach of many families of students with disabilities.

Children with disabilities and their families are often the least prepared to advocate for their rights in the juvenile justice, immigration and naturalization, and child welfare systems when egregious violations occur. Children with disabilities and their families who are non-English speaking, or who live in low-income, ethnic or racial minority, and rural communities, are frequently not represented as players in the process. These individuals must be included and given the information and resources they need to contribute and advocate for themselves.

Recommendations for Training and Advocacy

Accordingly, NCD makes the following recommendations:

When Congress and the President approve an increase in the funding to be distributed to local schools under Part B of IDEA, Congress and the President should appropriate at the same time an amount equal to 10 percent of the total Part B increase to fund free or low-cost legal advocacy services to students with disabilities and their parents through public and private legal service providers, putting competent legal assistance within their financial reach and beginning to level the playing field between them and their local school districts.

The Department of Education should give priority support to the formation of a comprehensive and coordinated advocacy and technical assistance system in each state. The Department should develop a separate OSEP-administered funding stream to aid public and private advocacy entities in each state in collaborating to expand and coordinate self-advocacy training programs, resources, and services for students with disabilities and their parents throughout the state. Elements of the coordinated advocacy and technical assistance systems should include:

The availability of a lawyer at every state Parent Training and Information (PTI) Center, a protection and advocacy agency, legal services, and independent living center to provide legal advice and representation to students with disabilities and their parents in advocating for their legal rights under IDEA.

Self-advocacy training programs for students with disabilities and their parents focused on civil rights awareness, education and secondary transition services planning, and independent living in the community.

The establishment of a national backup center with legal materials, training, and other supports available for attorneys working on IDEA cases and issues at the state level.

Expansion of involvement by the private bar and legal services organizations in providing legal advice to students with disabilities and their parents in advocating for their legal rights under IDEA.

Training in culturally sensitive dispute resolution to meet the needs of growing populations of citizens from racial and ethnic backgrounds having diverse traditions and customs. Multiple language needs and communication styles must be accommodated in all training.

Full compliance with IDEA will ultimately be the product of collaborative partnership and long-term alliances among all parties having an interest in how IDEA is implemented. For such partnerships to be effective, all interested parties must be well prepared to articulate their needs and advocate for their objectives. To that end, coordinated statewide strategies of self-advocacy training for students with disabilities and their parents are vital. To make this happen, NCD recommends the following:

The Department of Education should fund additional technical assistance, training, and dissemination of materials to meet continuing needs in the following areas:

Culturally appropriate technical assistance, which should be available to ensure that American Indian children with disabilities, their families, tribal leaders, and advocates in every interested tribe can participate as full partners in implementing IDEA in their communities. Culturally appropriate training and technical assistance should be developed and delivered through the satellite offices of newly created disability technical assistance centers (DBTACs) managed and staffed primarily by Native Americans that serve American Indian communities around the country.

Training to enhance evaluation skills for parents to assess the effectiveness of their states' IDEA compliance-monitoring systems.

Training of the appropriate agents (officials, advocates, and other stakeholders) in the immigration and naturalization and child welfare systems in IDEA's civil rights requirements.

Training of the appropriate agents (officials, advocates, and other stakeholders) in the juvenile justice system in IDEA's civil rights requirements, how they apply within the juvenile justice system, and ways the law can be used to help minimize detention of children with disabilities in the juvenile justice system.

A Six-State In-Depth Sample

NCD looked in depth at a sampling of six states, using the last three monitoring reports to assess the compliance picture in those states over time. The first two of the monitoring reports for these six states (covering a period from 1983-1998) included failure to ensure compliance with a total of 66 Part B requirements. Only 27 percent (n = 18) of the 66 violations had been corrected by the time of the third report. Based on the reported data, in 73 percent (n = 48) of the 66 violations, either the six states still failed to ensure compliance or no compliance finding was reported at all in the last monitoring report.[3]

To date federal compliance-monitoring and enforcement efforts have not fully dealt with the root causes of widespread noncompliance, and children with disabilities and their parents have suffered the consequences. This report details NCD's findings and recommendations for improving the effectiveness of federal efforts to ensure state compliance with IDEA and related legislation. NCD calls on Congress and the President to work together to address the inadequacies identified by this report so that children and families will have an effective and responsive partner in the Federal Government when they seek to ensure that IDEA's goal s of enhanced school system accountability and improved performance outcomes for students with disabilities move from the language of the law to the reality of each American classroom.

IDEA mandates that school systems respond to the needs of individual children with disabilities, making education accessible to them, regardless of the severity of their disabilities. Teachers today know that education tailored to individual needs and learning styles can make all the difference in the quality of a child's learning, whether or not she has a disability. Very few public schools consistently and effectively deliver this individualized approach for all children. Accordingly, many children fall through the cracks, as performance on achievement tests across the nation demonstrates. Alternatives to traditional public education such as charter and private schools, as well as political calls for vouchers, indicate growing public dissatisfaction with schools that do not educate all children effectively. IDEA calls for a responsive public education system that meets the individual learning needs of students with disabilities. It also contains a blueprint for the future of public education--where no child is left behind, and all children have an equal opportunity to gain the knowledge and skills they need to fulfill their dreams.

Ultimately, the enforcement of the civil rights protections of IDEA will make a difference to every child, not only children with disabilities. At the national summit on disability policy hosted by NCD in 1996, more than 350 disability advocates called for a unified system of education that incorporates all students into the vision of IDEA. NCD's 1996 report, Achieving Independence, presents the outline of a system in which every child, with or without a disability, has an individualized educational program and access to the educational services she or he needs to learn effectively. IDEA leads the way in reshaping today's educational system from one that struggles to accommodate the educational needs of children with disabilities to one that readily responds to the individual educational needs of all children.

Introduction

Background of This Report

Since the 1980s, NCD has commissioned a number of reports on the implementation of IDEA and its impact on children with disabilities. These studies presented statistical and qualitative findings on state and local implementation of IDEA from formal research projects, scholarly publications, testimony from grassroots hearings, and input from national and state advocacy organizations. The statutory framework of IDEA envisioned states as the primary implementers of IDEA to ensure the protections of the law for children with disabilities. Yet the findings in some of these reports suggested states were falling far short of meeting these responsibilities.

In 1996 NCD convened a diverse group of more than 350 disability community leaders from across the country at a National Summit on Disability Policy. At the summit, members of the education policy working group had summarized the state of enforcement of IDEA and other civil rights laws related to education as follows:

Despite progress in the last decade in educating students with disabilities, current federal and state laws have failed to ensure the delivery of a free appropriate public education for too many students with disabilities. Students with disabilities often still find themselves in forced and inappropriate isolation, separated from their nondisabled peers. In other situations, students with disabilities are in regular classrooms with teachers with little or no training in how to educate students with disabilities and without the supports they need. Lack of accountability, poor enforcement, and systemic barriers have robbed too many students of their educational rights and opportunities and have produced a separate system of education for students with disabilities rather than one unified system that ensures full and equal physical, programmatic, and communication access for all students. Parents and students across the country express a high level of frustration with the continued barriers they face to full participation and effective instruction.[4]

In addition, many advocacy organizations have reported numerous situations where parents have been unable to secure appropriate educational services for their children. The Disability Rights Education and Defense Fund (DREDF) and the National Association of Protection and Advocacy Systems (NAPAS) have represented such parents and families in court. Year after year their dockets have been replete with cases where students have not received the free appropriate public education in the least restrictive environment that the law envisions. Complaints and due process hearings have been pursued by parents in every state in the country in hopes of ensuring that the promise of the law will become a reality for their children. (Appendix B provides a list of obstacles faced by students with disabilities and their families that were intended to be addressed by IDEA.) Problems in all of these areas persist today.

The mandate of the 1996 summit and the above findings led to this study, which focuses on the Department of Education's roles, policies, and procedures related to enforcement and their impact on states' implementation and compliance with IDEA.

Purpose of This Report

This report focuses primarily on the enforcement mechanism, policies, and activities of the Department of Education in relation to IDEA. Because of its integral relationship to enforcement, our researchers carefully evaluated the Department of Education (DoED) compliance-monitoring system in use at the time our research was conducted. In the fall of 1998, however, after the major research for the report had been completed, the Department began implementing a new continuous-improvement monitoring system. Unless stated otherwise, the findings in this report on DoED's compliance monitoring pertain to the system in effect from 1975 to the fall of 1998. Although the new system introduces new elements that deserve to be evaluated on their own merit in a later study, it retains many strategies used in the old system.

The report also examines the relationship between the DoED and the Department of Justice (DOJ) with respect to shared enforcement responsibility for IDEA. It also assesses the selected technical-assistance and public-information materials developed or funded by the DoED that are intended for students with disabilities, their families, and advocates. NCD assessed the following specific areas:

The effectiveness of the state monitoring and corrective-action processes in ensuring compliance with IDEA.

The utilization of sanctions for noncompliant states and the effect of such sanctions in bringing about compliance.

The utilization of high risk status, compliance agreements, and special conditions as enforcement mechanisms.

The utilization and effectiveness of the state complaint procedures.

The utilization of litigation to enforce the law.

The collaboration with the Department of Justice in enforcing IDEA.

The utilization of the Section 504 (Rehabilitation Act of 1973) complaint process for addressing IDEA/504 complaints.

The perspectives of students with disabilities, parents, the Consortium for Citizens with Disabilities, state special education directors, and other stakeholders in relation to IDEA enforcement.

The leadership effectiveness of DoED in ensuring compliance with the law and addressing obstacles encountered in ensuring nondiscrimination against students with disabilities in elementary and secondary education.

The quality and availability of public information to students with disabilities, their families, and advocates on the provisions of IDEA.

Report Structure

This report is presented in eight parts. Part I, "The Law, the Compliance/Enforcement Scheme, and the Context," considers the development of the original law, the Education for All Handicapped Children Act, and its evolution over the past 25 years. It describes the past and current need for the law and its regulations, the basic requirements of the law, and the issues raised by the 1997 reauthorization. It presents a summary of the statutory framework for IDEA enforcement, describing the compliance/enforcement scheme for IDEA and how the federal enforcement mechanism is organized, including the Department of Education's relationship with the Department of Justice. It discusses the role of parent advocacy in driving enforcement throughout the last two decades. And finally, it gives a brief overview of the DoED's enforcement activity and offers findings and recommendations.

Part II, "Grassroots Perspectives on Noncompliance and Federal Enforcement of IDEA," discusses the experiences and perspectives of students with disabilities, their families, and advocates on enforcement.

Part III, "Grant Administration, Compliance-Monitoring, Complaint-Handling, and Enforcement Functions," describes the processes in place within the Department of Education that are intended to carry out these functions and the extent to which they are utilized. This part includes a discussion of the grant-making, oversight (including federal monitoring and complaint processes), and enforcement activities related to IDEA. It offers a description of the funding vehicles, monitoring activities, complaint-handling functions, and enforcement activities of the Department and presents an in-depth analysis of the 50 most recent monitoring reports issued by the Office of Special Education Programs (OSEP), along with a summary of the noncompliance findings throughout the country. Appendix G provides a state-by-state summary of noncompliance findings from the most recent monitoring reports. In addition, an analysis of state findings addresses the extent to which states that are out-of-compliance come into compliance over time. Various perspectives on the impact of compliance monitoring are discussed. Appendix H contains an overview of the new continuous monitoring system that replaces the monitoring system studied in this report. Findings and recommendations are provided following the major sections of this part.

Part IV, "The National Compliance Picture Over Time: Analysis of Annual Reports to Congress 1978-1998," considers how the Department of Education has described its monitoring/compliance functions over time and how it has presented its monitoring/compliance results. Findings and recommendations are presented.

Part V, "IDEA Litigation Challenging State Noncompliance," summarizes three cases in which states have developed new approaches to compliance monitoring that are now being tested. Findings and recommendations are offered.

Part VI, "The Role of the Department of Justice," describes the functions of the Department of Justice in relation to IDEA and provides a list of IDEA litigation that the Department has been involved in since the enactment of the law in 1975. Findings and recommendations are offered.

Part VII, "Improving Public Awareness: Technical Assistance and Public Information for Students with Disabilities, Their Families, and Advocates," reviews the technical assistance and public information materials the Department of Education funds or provides to these target audiences. Findings and recommendations are offered.

Part VIII, "Summary and Conclusions," completes the report with a summary of the study and our conclusions.

Scope of This Report

While this report addresses federal enforcement of IDEA carried out by DoED, it does not cover several significant aspects of implementation or enforcement. Specifically, it does not analyze due process procedures and private litigation, which are important IDEA enforcement mechanisms available to students, parents, and families, except as they relate to the federal enforcement mechanism. The report does not assess the performance of local education agencies (LEA) in implementing the requirements of IDEA, but does discuss findings on LEA compliance published in the Department of Education's monitoring reports evaluating state monitoring and enforcement efforts. The report does not attempt to assess the individual state complaint systems that are required to be available to parents in each state. Nor does it address the activities of the federally funded protection and advocacy systems (P&As) in representing thousands of parents in IDEA administrative procedures and litigation every year and in every state,[5] although it briefly discusses P&As' technical assistance activities.

This report briefly examines the overlapping enforcement within the Department of Education of IDEA, the Americans with Disabilities Act (ADA) Title II, and Section 504 of the Rehabilitation Act. Data about complaints received under Title II and Section 504 were collected and analyzed, and the findings appear in Appendix I. However, a full examination of federal enforcement of education-related Title II and Section 504 requirements is beyond the scope of this report.

Enforcement Research Perspectives

IDEA enforcement activities are considered from two perspectives. The whole agency approach examines the effectiveness of the DoED and all its components in achieving the enforcement objectives for which it is responsible. The whole law approach considers the overall effectiveness of DoED's external coordination and collaboration (i.e., interagency, with private organizations and with other levels of government) in achieving the enforcement objectives of the law.

Research Methodology

Several research approaches were used to conduct this study, namely (1) archival analysis, involving 62 OSEP Monitoring Reports, 19 Annual Reports by the Office of Special Education and Rehabilitative Services (OSERS) to Congress, and Office for Civil Rights (OCR) complaint data reviews; (2) qualitative analysis involving more than 25 interviews with DoED representatives, 14 interviews with state parent advocates representatives, and at least six interviews with representatives from various other national and state advocate constituencies; (3) a national town hall meeting with about 100 participants representing students with disabilities and parents from around the country; and (4) legislative analysis of IDEA and related legislation. The research activities for this study included the following:

Identifying the functions and organizational components of federal enforcement activities in the U.S. Department of Education.

Identifying, collecting, and analyzing material related to IDEA compliance monitoring and enforcement including the most recent monitoring reports for all states; all monitoring reports and corrective action plans in the possession of the Department of Education for six states (Oregon, Texas, California, Vermont, New York, and Illinois); enforcement and compliance correspondence between the DoED and states.

Collecting and analyzing information related to state applications for IDEA Part B funding and enforcement activities that have flowed from that application process.

Collecting information related to the general complaint process and the secretarial review process in DoED's Office of Special Education Programs.

Collecting and analyzing Section 504 complaint data from the DoED's Office for Civil Rights.

Collecting and analyzing annual reports to Congress and the President on IDEA from 1978-1998 to gain a historical perspective of how the federal monitoring and enforcement role is depicted for the public over time.

Identifying, collecting, and analyzing information on DoED's IDEA public information activities.

Conducting interviews with the responsible agency staff to understand the monitoring process and departmental functioning in relation to enforcement.

Conducting interviews with staff in the Department of Justice responsible for IDEA litigation and gathering information about that litigation.

Analyzing interactions and interrelationships of enforcement functions and their net impact in addressing noncompliance;

Reviewing and evaluating of overall enforcement operations in light of the requirements, legislative history, and judicial interpretations of the law.

Identifying issues and areas for improvement in the enforcement mechanisms and operations (e.g., gaps, duplication, overlaps, inconsistencies, and inadequacies).

Conducting interviews with parents, advocates, and a representative of state directors of special education to discern their views of federal monitoring and enforcement of IDEA.

Deriving conclusions and developing recommendations for the entire analysis.

Consulting with stakeholder consultants on key findings and recommendations.

National town meeting of students with disabilities, parents, and stakeholders for their input on report findings.

In summary, this report is intended to provide a picture of the status of the enforcement mechanism, including monitoring, related to IDEA in the Federal Government. It also presents an overview of the technical assistance information available to parents and families of children with disabilities that is funded by the Federal Government. The report considers how monitoring and enforcement activities have been carried out since the law's inception in 1975, and provides recommendations for improving federal compliance and enforcement efforts to support improvement of educational outcomes for students with disabilities.

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

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 Responsibilities

The 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.

II. Grassroots Perspectives on Noncompliance and Federal Enforcement of IDEA

A. Obstacles Experienced by Students with Disabilities and Their Families

Almost a quarter century following the passage of the Individuals with Disabilities Act (IDEA), students with disabilities and their families still commonly face obstacles to securing the free appropriate public education (FAPE) that the law promises. The impact of noncompliance with IDEA is difficult to overestimate. Every Parent Training and Information (PTI) center in the country hears daily about the toll taken on students whose educational and related services needs are not being met and on the parents who expend incredible amounts of energy advocating for basic access to educational programs for their children. Appendix B provides a general list of the obstacles faced by students with disabilities and their families that were intended to be addressed by IDEA. Problems in all of these areas persist today.

The experience of many parents gives the impression that compliance with the law is the exception rather than the rule. Parents frequently face repeated challenges year after year, sometimes throughout the entire elementary and secondary educational experience of the child. The stress of working with a recalcitrant school system that appears to not want to work with a parent to educate a disabled child can be tremendous. The recent controversy over the discipline provisions in IDEA has fueled special education cases related to suspension and expulsion of students.

The following situations are examples of what many students and families in this country experience when working with special education systems. These experiences demonstrate that even the most basic promises of the law are too often not being met.

1. Noncompliance with Least Restrictive Environment

In California, a first-grade student with significant mental impairments was placed in the regular classroom for the full day. The school district thought that the placement was wrong for the student and claimed that she was not receiving academic benefit from her placement. In addition, the district held that the girl's presence had a detrimental effect on her teacher and classmates. A hearing officer determined that the regular classroom was indeed the correct placement for the girl and outlined approp riate supports that had to be provided. The school district appealed the decision. Eventually the girl's family moved to a neighboring district and enrolled the child in a regular education class there, where she is doing well.[66]

In another situation, in Indiana, a student who is blind sought to attend his local school. The school district required the child to travel 25 miles away from home to a residential school for the blind to receive the educational services he needed. A hearing officer determined that the child must be served in his home school, which is the least restrictive environment. The school district has appealed the ruling.[67]

In New Jersey, a very bright elementary-age child with dyslexia was in a resource room several periods a day. In more than two years she had not shown progress in reading. Her parents sought training for the teachers on how to best instruct children with dyslexia in reading. The school system responded by seeking to place the child in a self-contained classroom. The school contended that it teaches all children to read by the same method. The parents prevailed in court and were awarded instructional compensation for the child over the summer.[68]

These situations, all related to the "least restrictive environment" mandate, persist case after case and year after year despite repeated rulings for integrated placements. In one of the best known cases, Rachel Holland and her family spent five years fighting in court for her right to be educated in a regular classroom. The school district in California insisted that Rachel, then a seven-year-old girl with mental retardation, be educated in a separate special education classroom. Her parents held that she should be educated in a regular classroom with support. In 1992, the district court ordered an aide and special education consultant to work part-time with Rachel's teacher and held that she should be placed in a regular classroom. The school district appealed this decision all the way to the Supreme Court, which declined to hear the case, thus affirming the lower court's decision. Rachel and her parents were engaged in pursuing their child's right to an integrated education for more than five years. For two of those years, they were in a position of defending against appeals by the school system. During the pendency of the case, the Hollands placed Rachel in a regular private school, at their own expense, where she was in a regular classroom with supports. She continues to thrive today in a regular public education classroom.[69]

2. Noncompliance with Free Appropriate Public Education

A special education student in East Palo Alto, California, Empris Carter, is not receiving the education and related services she requires. She and her family are embroiled in a lawsuit with the school district over her services. She may be speaking for many of the nation's special education students as she reflects on her situation as follows:

Early in the game I discovered that many of my teachers felt that I was a nice, respectful, and intelligent young girl. However, they had some doubts about my capabilities and immediately began to label and set limits on my future role in society. Instead of helping me to find ways to learn, they moved me to a special class where kids were not expected to learn. I would get angry about their doubts and my self-esteem was low. My mother would fight back with encouraging words and my self-esteem would rise again. After being encouraged by mother's words, I again realized that I am the key person in my future.

Learning comes easy for some and is more difficult for others. Education plays a major role in everyone's future. I, Empris Carter, have a place in the future. In order for me to function properly and be able to contribute something positive to our society, I, too, must have the opportunity to receive the best education possible.[70]

Saundra Lemmons, a 17-year-old high school student and basketball champion in Washington, DC, told her story to politicians in February 1999.[71]

Lemmons was misdiagnosed as mentally retarded in the first grade and for years was improperly placed. While she has language processing problems, she never received speech and language therapy. Teachers allowed her to pass from grade to grade as "a gift." Finally, during the 1998-99 school year, Lemmons began receiving speech and language therapy. She hopes to play basketball in college, but fears that her low academic skills will prevent her from succeeding in life. After 12 years in special education, she has reached only a fourth-grade reading level. "The school system has not given me what I needed," she said. "I feel as though no one really cares. If they did care, I would be reading a lot better," she added.

Cases related to suspension and expulsion are increasing. In New Jersey, a middle school student was receiving special education because of multiple disabilities, including behavior problems. After an incident in the classroom where the child threw something (not harming anyone) and tipped over a chair, the child was suspended and then expelled and placed on home instruction. The child is currently in a self-contained setting in a different school district. The child did not have a behavioral plan as part of his Individualized Education Program (IEP), nor has he had a functional behavioral assessment.[72] In Delaware, parents successfully challenged a school district's failure to provide special education services to students with disabilities who are expelled.[73]

Parents have a reasonable expectation that the federal and state agencies charged with monitoring and enforcement will do their jobs. But as these cases demonstrate, parents throughout the country cannot be sure that the rights of their children are protected in school districts and states. Noncompliance in many states is still too common, even after more than two decades of implementation.

The following section discusses the experiences of parents and others in their roles as advocates in obtaining services and supports under IDEA for children with disabilities.

B. Advocacy Perspectives

1. Parent Advocates Working with PTI Centers

This section highlights major themes and concerns raised by 14 parents of children with disabilities from nine states who were specifically interviewed for this study. A number of these parents were also directors of Parent Training and Information centers in their states. They were chosen because of their active involvement with and knowledge about federal monitoring and enforcement of IDEA in their states before 1999 and because they represented a geographic range of states. The parents interviewed were from California, Florida, Illinois, New Mexico, New York, North Carolina, Pennsylvania, Texas, and Vermont. The National Council on Disability (NCD) made connections with most parents through the network of PTIs across the country. While this was clearly not a representative sample of parents, their insights offered a valuable perspective on the monitoring and enforcement of IDEA. Because several of these parents expressed concern about having their identities disclosed in the report, NCD has chosen not to attribute remarks to individual parents.

Their concerns were echoed by many of the parents and others who attended the NCD-sponsored Town Meeting on Federal Enforcement of the Individuals with Disabilities Education Act sponsored by NCD in Washington, DC, on September 22, 1999. Their comments are highlighted to underscore concerns raised throughout this section.

a. Parental Involvement and Communication with OSEP

Most of the parents interviewed commended the current administration of OSEP for their concerted effort to solicit information and input from parents. They cited improved coordination and collaboration with OSEP monitors in recent years, and appreciated the opportunity to contribute to the monitoring process. This sentiment, however, was not shared by all parents. Several parents, especially those at the NCD Town Meeting, expressed continued frustration over OSEP's failure to facilitate parental input and participation.

"Parents are disenfranchised. .... with minority parents, particularly, the information is not disseminated. We have not been included certainly in the monitoring process in Texas. And I'm just wondering what kind of effort is going to be made to include those really, truly minority grassroots programs and parents working in these communities, and visible to the school districts. They know who we are. We're not getting the information, so it needs to come from maybe another source other than the school district." - Parent from Texas on the failure to involve parents, especially in minority communities, in monitoring IDEA[74]

Other barriers to meaningful parental involvement in the monitoring process cited included the following:

• Approximately one-half of the parents interviewed said that notification of public meetings came too late for them to notify and organize other parents to testify. These parents would like to be notified several months in advance of the meeting.
  
  ".....in the state of Maryland, we were not notified of the meeting. ...The only parents that showed up were the ones that found out secondhand." - a parent from Maryland on the invitation to public participation in the monitoring process[75]
  
  
• Three parents specifically mentioned that the presence of district representatives instructed to take notes at the public meetings heightened fears that school districts would retaliate against their children. Several of the PTI directors underscored this admission by commenting on parents in their states who were reluctant to testify at the meetings for fear of retaliation.
  
  
• Parents from the rural areas said that the burden of traveling to the meetings can be prohibitive and expressed frustration that their school districts are commonly overlooked in the monitoring process.
  
  
• The PTI directors reported that many of the parents in their states were frustrated that monitoring has not led to more comprehensive enforcement of IDEA or improvement in the education of their children, and therefore believed that it was a waste of time to testify at the public meetings.

b. Monitoring reports

i. Acquisition of reports

Our interviews found that the distribution of final monitoring reports to parent advocates was highly inconsistent. Some of the PTI directors interviewed said that they never received a copy of the monitoring reports, which contributed to their feelings of being excluded from the monitoring process and deprived of feedback. Those who did receive the reports commended OSEP for their improved speed of publishing and disseminating copies to parent and advocacy organizations.

ii. Quality of reports

Of the parents who did receive the monitoring reports, many found them useful in holding their states accountable and pressuring them to improve compliance. One parent, however, criticized the reports as "poorly written, giving SEAs and LEAs room to discredit the reports and the federal monitoring." She explained that the findings of the reports are presented in a way that they "appear anecdotal and are easily dismissed by states and districts." She was further concerned that the organization of the monitoring reports and data were not standardized. From her perspective, a standardized approach to presenting data in the reports would allow a comparison of basic findings on the same requirements for the same and different states, as well as a comprehensive national picture of IDEA compliance, to emerge over time. The current method of presenting data in different formats from one monitoring cycle to the next undermines the credibility and impact of the monitoring findings.

c. Evaluating the Monitoring Process and Corrective Action

i. "Just going through the motions"

Without exception, the parents felt that there was no clear nexus between monitoring and enforcement. One parent from Illinois commented:

"OSEP monitors did paint a very accurate picture of what was going on [in the state]. But, that's where it broke down. The same districts are cited for the same violations year after year, and there are no consequences for noncompliance, no incentives to do good."

This concern over the apparent lack of consequences and enforcement as a result of the monitoring process was undeniably the strongest and most common concern expressed by parent advocates who were interviewed.

"I've turned green when somebody says we're going to do technical assistance [to remedy noncompliance]. For 24 years this has been the law. How much technical assistance do we do? What does it take until you get it? Our kids are only in school until 21 but we've got 24 years of technical assistance. Come on, guys. I want to see accountability. You deliver the mail or you don't get the money!" - parent from Florida on the minimal impact of technical assistance on correcting noncompliance in her state[76]

ii. An unrepresentative picture of compliance in rural and larger states

The PTI directors from larger or more rural states were concerned that the design of the monitoring process, which relies on snapshots of circumstances in a handful of schools and districts to get a representative picture of the whole state, was less effective in soliciting input from stakeholders or getting an accurate picture of special education in their districts and states, and overlooked many rural districts.

iii. Tension between federal law and state autonomy

Parents in a number of states felt that school administrators in their states and districts were hostile to IDEA and didn't take it seriously. One parent advocate from California explained that "simply by being there and throwing their weight around, [the federal monitors] promote change." Other parents felt that the monitoring visit was beneficial because it provided a model of effective monitoring procedures for SEAs. They expressed the need for OSEP to convey the seriousness of monitoring and compliance to the local districts.

"Noncompliance occurs at the school site level, at the district level, and at the state level, and if all levels are not monitoring and ensuring, it cannot fall on the backs of parents to remedy. You have to take out some of those states or districts and then start setting an example." - Parent from California on the need for DoED to change its heavy reliance on parent enforcement of IDEA[77]

iv. The need for ongoing, targeted monitoring

Several of the PTI directors were concerned that the four-year cycle employed by OSEP failed to direct the monitoring process and resources appropriately. They suggested that it be supplemented with, or replaced by, more ongoing and "target-driven" monitoring, an approach OSEP is attempting to implement in its new monitoring system. In their view, if a state is failing to ensure compliance with the law, OSEP must continue to monitor it, applying pressure and offering assistance until compliance is achieved. Along these lines, parents favored ongoing monitoring, technical assistance, and follow-up visits. One parent explained, "The federal monitors come in and say that a state or district is doing it wrong and then they leave without providing real support or follow-up. These states and districts need more guidance in implementing an enforcement plan."

One parent suggested, "We need incentives for those who are doing it right and have promising practices, and ongoing technical assistance for those who aren't."

d. Corrective Action Plans

All of the parents NCD spoke to reported that there was little or no parental involvement in the corrective action plans (CAPs). One parent expressed concern that because every state has a CAP, its potential for facilitating compliance may be significantly limited. She explained that when her state is confronted with a report showing noncompliance, "the first question that the state asks is how many other states are out of compliance. When the answer is all of them, it seriously weakens the ... incentive to do something about it."

e. The Need to Create Consequences

Most of the parents were extremely frustrated by the lack of enforcement and skeptical as to when they would see full implementation and enforcement of the law. Several have urged OSEP to find a way to create sanctions that would improve accountability and compliance. At the same time, however, they were conflicted over whether to withhold funds. Some parents felt that it was crucial that OSEP exercise this enforcement mechanism and put some power behind the law, while others feared that this would only harm the students that IDEA is meant to serve.

They clearly expressed their sense of urgency about the need to follow through:

"Currently there are no administrative standards or accountability. Monitoring is okay, but how do we take it to the next step? We've got to hit them in the pocketbook. There are consequences of noncompliance for our kids, and there should be consequences for the districts."

"There is no enforcement, no teeth. It's like making the speed limit on the highway 55 mph but taking away all of the police. Why do we have laws if no one is going to follow them?"

"It's a good law, make it work!"

f. Monitoring at the State Level

There was widespread agreement that effective monitoring at the state level has been hindered by state reform initiatives and budgetary cutbacks that leave SEAs with a lack of staff and resources to perform adequate monitoring of local districts. A number of parents felt that the Federal Government needs to convey the importance of monitoring and enforcement to the state and local leaders and provide technical assistance to increase compliance. A handful of parents reported that their states conducted partial monitoring of districts that had received an unusual number of complaints and suggested that OSEP institute this practice on the federal level.

"Our constituency [children with disabilities] is not a strong constituency. It is not sexy to be for us. ....Teachers get their marching orders from principals, who get their marching orders from boards of education who respond to state legislatures...... It's got to be okay for a teacher to say okay, I will take a risk. For a principal to say, I'll take a risk..... If the state legislatures and the governors do not take that kind of stand, I'm sorry, folks, it's not going to happen. It hasn't happened in 20 years and it's not going to happen now. .. So, ..it is a political reality of [OSEP] approaching a legislature, of approaching governors and saying, 'Hey, guys, unless you give real credence to what we're doing, this is not going to happen no matter how many millions of dollars we filter down to you." - Parent from Florida on the need for OSEP to educate state legislatures about persistent noncompliance and its impact[78]

In recognition that the IDEA amendments of 1997 will require a concerted effort to fully implement the law and enable federal and state monitoring to truly achieve full compliance, the National Parent Network on Disabilities (NPND) (an organization that comprises Parent Training and Information centers around the country) has recommended the establishment of a "People's Monitoring and Compliance Project." This proposed project to promote greater grassroots involvement in monitoring would gather information about the status of monitoring, develop a report, transmit it to the Congress and the Administration, request oversight hearings in the Congress, request that the Secretary of Education set up a monitoring committee to report to him or her, and establish and convene a legal advocacy group. This project is still under development at NPND.[79]

2. Other Parent Advocates

Some parents report situations of systemic noncompliance. In Georgia, Linda Sheppard, the executive director of Parents Educating Parents and Professionals, reports that at least three counties in the state outright refuse to serve students with learning disabilities under IDEA. She notes that despite repeated complaints, school districts take the attitude of "go ahead and try to make me" serve learning disabled students. Sheppard also notes that this deficiency was cited in a federal monitoring report; however, it took the state two years to respond to the report because extensions continued to be granted. According to Sheppard, this lack of service to learning disabled students has persisted for at least five years and is growing worse. One result is students with learning disabilities are not learning to read, are becoming frustrated, and are increasingly dropping out of school.

Another concern cited by Sheppard is the racial discrimination faced by students with disabilities in southern Georgia. She notes that children who are African-American in south Georgia are too frequently labeled as behavior disordered or mentally retarded and then served in separate settings. There is one program that serves three- and four-year-old African-American children in a separate setting, she notes.[80] Reports from New Jersey also indicate that students with disabilities who are racial minorities are more likely to be in separate settings than those who are not racial minorities.[81]

3. Advocates for Children in the Juvenile Justice System, Minority and Rural Communities

In addition to the testimony of parents, special education advocates attest that inappropriate placement in separate settings and a lack of services for children with disabilities served in regular classrooms persist in many areas. Testimony of parents at public hearings, consultation with special education advocates serving rural, Native American, and other minority communities around the country, as well as studies by various government and advocacy organizations indicate that minority students are disproportionately represented in separate educational settings.[82]

"...there is a very big need on our reservation to have monitoring of our school districts. We've made it very clear to them that we have a need, that there are problems in our education system, and our children are not getting IDEA implemented there. And we're told by our district people that 'yes, we agree there is a problem.' Well, where do we go after we get the acknowledgment and there's nothing done about it?" - a Native American parent from Montana[83]

Other studies find that minority children are over-represented in institutions such as detention and correctional facilities where access to appropriate educational services is inadequate to nonexistent. That is especially problematic considering that 40 percent of youth held in detention are estimated to have some form of learning disability.[84]

The students whose stories and situations discussed above are just a few among many whose special education needs were not or are not now being met in their state educational systems.

C. Findings and Recommendations

Finding # II.1A

The ongoing struggles of many students with disabilities, their parents, and advocates to obtain services under IDEA leaves them with the impression that the Federal Government is not enforcing the law effectively.

Finding # II.1B

As a result of 25 years of nonenforcement by the Federal Government, parents are still a main enforcement vehicle for ensuring compliance with IDEA.

Recommendation # II.1A

The Department of Education must exercise leadership in enforcing the law, with parents as partners and resources in carrying out their enforcement mandate.

Recommendation # II.1B

The Department of Education should publicly articulate and implement an enforcement philosophy and plan that includes the strategic use of litigation and administrative sanctions.

When noncompliance is not corrected within the agreed upon time frame, the Department of Education should aggressively enforce the law, using clearly defined appropriate sanctions to improve accountability and achieve compliance with the law.

Finding # II.2

Parents have identified a number of obstacles to their participation as full partners in the IDEA monitoring and enforcement processes:

Parents have not been invited consistently to be involved in the monitoring process, and, if invited, have not consistently been given an opportunity to be heard.

Parents are not knowledgeable enough about either the requirements of IDEA or the monitoring and enforcement processes.

The presentation of compliance information in the monitoring reports is inconsistent from one monitoring period to the next, making evaluation of improvements over time difficult.

The recommendations below address how some of these obstacles can be corrected.

Recommendation # II.2A

OSEP should encourage the involvement of students with disabilities and their parents as resources to improve monitoring.

Parents stressed that they and their children have the "frontline" experience and expertise with the districts in their states and would like increased involvement in directing the monitoring process and resources to areas of noncompliance that they have already identified.

Recommendation # II.2B

Congress should direct a change in the mission of the Protection and Advocacy (P&A) systems and IL centers to include a priority focus on special education advocacy, and in collaboration with the PTIs, the development of a collaborative special education advocacy strategy for their states.

The combined resources of PTIs, P&As, and IL centers are needed to develop and maintain special education advocacy services and programs statewide at a level commensurate with the need of students with disabilities and their parents for assistance in obtaining services and supports under IDEA, as well as participating effectively in monitoring and enforcement.

Recommendation # II.2C

OSEP should standardize the presentation of the monitoring reports and data.

Such standardization is essential for accurate and credible evaluation of compliance from one monitoring period to the next.

Part III provides a more in-depth description and analysis of DoED's roles and responsibilities vis-a-vis the implementation and enforcement of IDEA.