U.S. Commission on Civil Rights Recommendations for the Reauthorization of the Individuals with Disabilities Education Act
On May 17, 2002, the following letter with attachment was sent to:
The Honorable Edward M. Kennedy
Chair, Committee on Health, Education, Labor and Pensions
United States Senate
The Honorable Judd Gregg
Ranking Minority Member
Committee on Health, Education, Labor and Pensions
United States Senate
The Honorable John A. Boehner
Chair, Committee on Education and the Workforce
United States House of Representatives
The Honorable George Miller
Ranking Minority Member
Committee on Education and the Workforce
United States House of Representatives
Dear Senators and Representatives:
The U.S. Commission on Civil Rights (Commission) commends the bipartisan spirit with which Congress passed the No Child Left Behind education reform initiative earlier this year. Now the nation must ensure that students with disabilities have equal access to the education these reforms make possible. As the nation’s governmental conscience on civil rights, the Commission urges members of Congress to consider the civil rights implications of any revisions to the Individuals with Disabilities Education Act (IDEA) now before you for reauthorization. The Commission is continuing to work on these issues and will continue to consider ways to improve the enforcement of IDEA. However, we ask that you strengthen the protections afforded to students with disabilities under this landmark civil rights legislation during this reauthorization period.
The IDEA was enacted to (1) ensure that all children with disabilities have access to a free appropriate education that (2) meets their education and related service needs in the least restrictive environment. By extending civil rights protections under IDEA, Congress intended to end the history of segregation and exclusion of children with disabilities from the public school system in part by facilitating maximum interaction with nondisabled children.
The IDEA helped schools make tremendous strides toward improving the education of students with disabilities. Today, more than six million students benefit from IDEA funding, and integration has proven critical to students who have disabilities, as well as those who do not. Despite measurable progress and widespread agreement among educators, parents, and lawmakers that the law itself is good, there are problems that warrant attention. Educational outcomes remain less for students with disabilities than for other students, often leaving them unprepared to graduate and subsequently transition to work or secondary education. Congress must focus on ways to strengthen IDEA and build on the successes that have been achieved thus far.
In anticipation of IDEA reauthorization, the Commission engaged in fact-finding activities, including a briefing at which members received information from special education experts representing the interests of researchers, advocates, practitioners, and parents. With additional research, the Commission has identified several areas critical to the preservation of civil rights.
Implementation of IDEA and the provision of adequate special education services require collaborative efforts between federal, state, and local education agencies, parents, teachers, and school administrators. The recommendations presented here, in keeping with the Commission’s mandate, focus largely on what can be done at the federal level to improve implementation and outcomes. We respectfully request that you consider these recommendations as you undertake the reauthorization process:
IDEA should be fully funded immediately, and a federal safety net should be established to help states with small populations and school districts faced with children who require significant resources.
Support programs funded through Part D discretionary funds should receive increases comparable to increases in the Part B state grants. This should include increased funding for teacher recruitment, preparation, and training.
More money should be allocated for IDEA research, including the development of a single uniform data collection effort nationwide.
Adequate resources must be provided for state and federal monitoring and enforcement programs, including increased funding for the Department of Education’s (DOEd) Office of Special Education Programs (OSEP).
A complaint-handling process should be established at the federal level, and state complaint systems should be monitored by OSEP for efficiency and effectiveness.
State-supported mediation should be an available alternative for parents to utilize voluntarily when seeking to remedy a problem without participating in a full due process hearing.
National compliance standards should be established along with improvement measures and indicators that will trigger enforcement sanctions based on levels of noncompliance.
States must be held accountable for ensuring access to services required under the law, and for conducting ongoing progress assessments of students with disabilities. The federal government must help states develop infrastructures to support IDEA programs, achieve compliance, provide technical assistance, and identify best practice models.
States should be responsible for scrutinizing school district expenditures and allocating or withholding funds accordingly.
The reauthorized IDEA should give increased attention to racial, ethnic, and linguistic diversity to prevent inappropriate overreferral of students of color.
Teachers must receive better training in diagnosing disabilities and recognizing cultural misconceptions that lead to misdiagnosis.
Judgment as to whether a child has a cognitive disability or emotional disturbance should be withheld until he or she has received high-quality instruction in the general education setting. More prereferral interventions should be implemented at the local level, and better evaluative tools, that are culturally and linguistically sensitive, should be devised.
Racial and ethnic data collected by OSEP should be disaggregated by gender. DOEd should fund research that tracks by race/ethnicity students who are wrongly identified as needing special education.
Schools with disproportionate representation in special education should be subject to federal evaluations to determine whether individual placements are appropriate. Where overreferral is found, districts should be required to develop plans for better evaluative tools and reintegration of misclassified students in regular education.
Federal funding should be available to encourage and reward districts that develop successful plans for reducing rates of overreferral and that engage in activities targeting underserved populations.
OSEP should develop culturally and linguistically appropriate technical assistance materials, and develop programs to better serve students living on or near Indian reservations.
The discipline provisions of the 1997 amendments should not be significantly changed, although they should be clarified and simplified. The no cessation provision should be retained.
Appropriate funding should be allocated for the development of behavior management programs that promote schoolwide models of positive behavior strategies and assessments.
DOEd should carefully examine the use of alternative schools to ensure that they are not in violation of the least restrictive environment provision of IDEA, and should promote other school models that prove effective.
Attached, for your reference, is a detailed presentation of these recommendations and a discussion of the critical civil rights issues that warrant consideration as legislation is developed. The pending reauthorization of the IDEA is an opportunity to strengthen the national resolve to leave no child behind, including one with disabilities. The Commission urges Congress to ensure that this mandate is fulfilled.
Respectfully for the Commission,
Mary Frances Berry
U.S. Commission on Civil Rights Recommendations for the Reauthorization of IDEA
Following is a detailed discussion of the recommendations presented by the U.S. Commission on Civil Rights (Commission) on the reauthorization of the Individuals with Disabilities Education Act (IDEA). These recommendations largely focus on the civil rights implications of the legislation and the federal role in its implementation. Four areas of particular interest to the Commission are funding, enforcement and compliance monitoring, the overrepresentation of minority students in special education, and discipline of students with disabilities.
Congress has authorized the federal government to pay 40 percent of each state’s excess cost of educating children with disabilities. However, actual funding has consistently fallen well below the amount authorized and, despite increases in recent years, the 40 percent threshold remains far from being met. In addition, funding for IDEA Part D (support programs), which requires resources for professional development, technical assistance, and dissemination of promising practices, has remained inadequate for many years.
For the current academic year (2001–2002), the average per pupil expenditure for students with disabilities is estimated at $7,300. Were Congress fully funding states at the 40 percent allocation designated under the statute, it would need to provide approximately $18 billion in federal funds; instead, schools are only receiving $7.5 billion, or nearly 17 percent. The Commission commends Congress for the significant increases in IDEA allocations in the last few years; however, a 139 percent increase is still needed for IDEA to be funded at the level mandated by the original legislation.
Thus, the Commission strongly urges Congress to fully fund IDEA immediately, not incrementally. Under an incremental model, students who are currently receiving special education services will have completed their schooling by the time full funding is achieved. They, like millions before them, will have been denied the opportunity to benefit from the programs to which they are entitled. The Commission also finds that requiring states to make up the difference has a negative impact on students who live in states with smaller populations and states that have larger numbers of students with special needs. Congress should consider creating a federal safety net to support school districts, smaller districts in particular, that educate children who have extraordinary needs and require more resources. States should also be provided adequate funds, above and beyond the mandated funding allocated in Part B (the state grants program), for the administration of federal grants to ensure appropriate allocation and monitoring expenditures at the local level.
Enough money should be allocated to both mandatory and discretionary funds to allow states and local school boards the flexibility to respond to local needs. The federal role in IDEA, as outlined by the 1997 amendments, includes: research, technical assistance, technology, teacher preparation, and parent education. These services, which are largely supported through discretionary funds identified in Part D, provide the necessary support for the implementation of Part B (state grants), and should be funded accordingly. It follows that when Part B funding is increased, a comparable percentage increase should be allocated to Part D support programs. In addition, more money should be allocated to preparing special education teachers, providing continuing education for practicing teachers, and attracting more qualified individuals to the field of special education, such as through loan forgiveness programs and grants to universities.
Finally, appropriate funding should be allocated for the furtherance of IDEA research, including a sizeable sum for the development of a single uniform large-scale data collection effort across states. Valuable research and support have come from grants funded through Part D via the Department of Education’s (DOEd) Office of Special Education Programs (OSEP). State and local resources could be used more efficiently if guided by good research that is accessible to educators and parents.
ENFORCEMENT AND COMPLIANCE MONITORING
Of particular concern to the Commission is the role of the federal government in the oversight of IDEA implementation and the failure of DOEd to adequately monitor and compel compliance. While IDEA has yielded significant progress in securing educational rights for millions of students, the National Council on Disability (NCD), among other organizations, has found the inadequate enforcement of IDEA to be a major impediment to the civil rights guarantee initially intended with its passage.
In its 2000 study, Back to School on Civil Rights, NCD found that every state was out of compliance with IDEA requirements to some degree, and that federal efforts to enforce the law over several administrations have been “inconsistent, ineffective, and lacking any real teeth.” Despite the evidence of noncompliance, DOEd has made limited use of its authority to impose enforcement sanctions, such as withholding funds. As a result, the responsibility for enforcement has often been carried out by parents of disabled students who have invoked formal proceedings to ensure that their children’s needs have been met.
Funding and compliance should not be mutually exclusive, but rather intricately woven with accountability for positive outcomes. Moreover, funding sanctions must not be imposed at the expense of students. The Commission recognizes the difficulties associated with achieving the appropriate balance. Therefore, reauthorization provisions must include adequate resources to support state and federal monitoring and enforcement. For instance, the federal government has been criticized by states for monitoring that is neither effective nor timely, causing OSEP reports to be issued too late to be of any relevance. One of the problems is that OSEP is largely understaffed in relation to the magnitude of its mandate. Congress, in the appropriations process, should ensure that OSEP is funded at levels commensurate with its responsibilities.
Congress should amend IDEA to create a complaint-handling process at the federal level, similar to those that support the enforcement of other civil rights laws. The process should be used when a state complaint system fails to address an issue that is systemic in nature. Strong state complaint systems are also vital to the assurance that noncompliant school districts are held accountable. State complaint systems should thus be monitored and periodically evaluated by OSEP to ensure that complaints are investigated in a timely and thorough manner, and that appropriate resolutions are achieved. Congress might consider including a provision in the law allowing state-supported mediation to resolve special education conflicts at the request of a parent, not just after a due process hearing, as is commonly the case.
The federal government must ensure that state special education programs comply with IDEA by gathering adequate data on each state’s implementation and developing national compliance standards. DOEd should exercise its authority to sanction state and local education agencies that repeatedly fail to comply with IDEA by withholding allotments until compliance is achieved. To accomplish this, DOEd must conduct regular and thorough reviews of how states are spending federal funds. The amount of funds withheld should be based on level of noncompliance, and sanctions should be applied equally to all states. The Commission supports NCD’s recommendation that DOEd and the Department of Justice be directed to develop national compliance standards, improvement measures, and enforcement sanctions that will be triggered by specific indicators. Students, parents, and teachers should be consulted in the development of standards.
Compliance is best achieved through consistent federal enforcement bolstered by support activities performed by states. Accountability measures and performance outcomes must be established for school districts and states to ensure that students with disabilities have access to early intervention services and free appropriate education in the least restrictive environment, as required by the law. Such measures must also include accountability for achievement and ongoing progress assessments of students with disabilities. However, when states do not have adequate infrastructures for implementing IDEA, achieving compliance is difficult. Therefore, federal enforcement efforts should help states establish infrastructures and specific requirements for compliance. Working in collaboration, the federal government and states should develop timelines for building the infrastructure needed to conform to the established guidelines. Local teachers should have a clear role in the monitoring system and the development of compliance standards. Finally, OSEP should provide more technical assistance to states struggling with compliance and identify best practice models for replication.
Uneven implementation of the law from one district to another, in the absence of uniform enforcement, has the effect of flooding “good” districts with special needs students when surrounding schools fail. Thus, states should be given the same sanction authority as federal enforcement agencies to ensure that local special education programs comply with IDEA. States should scrutinize school district expenditures and allocate or withhold funds accordingly.
The IDEA is unique in that it is at the same time a state grant program and civil rights statute, requiring a balance between the flexibility necessary in the former with the uniform requirements of the latter. Federal standards of sufficiency are needed, but at the same time states should have the discretion to meet the unique needs of their districts and enforce compliance locally. The Commission finds that compliance with civil rights statutes such as IDEA requires proper implementation, not just adherence to procedural requirements. In other words, outcomes are as important as the process by which they are achieved. State education officials should be charged with developing plans that lead to the desired outcomes.
DISPROPORTIONATE CLASSIFICATION OF MINORITY STUDENTS IN SPECIAL EDUCATION
The IDEA Amendments of 1997 required states to report by race/ethnicity their numbers of students who have disabilities and are served in special education. Research commissioned by the Harvard University Civil Rights Project and another study by the National Academy of Sciences determined that students of diverse racial and ethnic backgrounds are more likely to be placed in special education classes than their white peers. For example, in the 2001–2002 school year, black (non-Hispanic) students account for 14.8 percent of the general population of students, but make up nearly 20 percent of the special education population. Additionally, black students’ representation in the mental retardation category is more than twice their national population estimates, and representation in the developmental delay and emotional disturbance categories is nearly two-thirds higher.
In addition to disparities in the identification of students’ needs and abilities, there are distinct differences in educational placement. Data compiled by the Department of Education reveal that African American students with disabilities are more likely than white students to be placed in special education environments outside the regular classroom, including residential facilities, separate schools, and correctional facilities. Further, researchers have found that white students are more likely to receive services such as counseling and therapy than are black students, and for longer periods of time, thereby improving their likelihood to succeed during school and after graduation. The reasons for the disparities are complex. Factors contributing to overreferral include:
Historical discrimination based on race, ethnicity, and gender, which is reflected in the decisions of educators, biased tests, and the structure of the special education system.
Poor quality “regular” instruction, which causes low achievement and misbehavior, triggering more referrals to special education.
Poorly trained teachers and diagnosticians.
Lack of adequate school resources and the subsequent use of special education as a form of discipline.
Diagnosis and Placement
The presence of racial disparities in special education raises many complex questions. A significant part of the problem is the quality of general education available in many minority communities. Overreferral is evident when there exists poor general education coupled with poorly trained evaluators and teachers who are unable to teach to diverse populations. The Commission firmly believes that, as the most basic of civil rights promises, all students must be served according to their educational needs regardless of race, ethnicity, or gender. The reauthorized IDEA should give increased attention to racial, ethnic, and linguistic diversity to prevent inappropriate overrepresentation, or in some cases underrepresentation, of minority children in special education.
There are preventive measures that educators can employ to prevent misdiagnosis. Judgment as to whether a child’s impairment is due to a cognitive disability or emotional disturbance should be withheld until he or she has received high-quality instructional and behavioral support in the general education setting. All teachers, including special education and general curriculum instructors, must receive better training in recognizing and diagnosing true disabilities. University schools of education should be encouraged to include in their curricula advanced studies on recognizing cultural misconceptions and identifying special education needs.
To guard against inappropriate referrals, unnecessary testing, and misclassification, prereferral interventions should be implemented at the local level. States and school districts should be required to engage in more prereferral processes before students are identified as needing special education to ensure that students are not incorrectly placed. States, with guidance from DOEd, need to develop and use better evaluative tools. Only reliable and valid measures of student performance that are culturally and linguistically sensitive, and allow for appropriate accommodation, should be used. Students from diverse backgrounds should be included in state- and districtwide assessments that determine the efficacy of special education evaluative tools and programs.
Continued and improved data collection is essential to assess national progress on the issue of overrepresentation of minority students in special education and the reasons behind such trends. The racial/ethnic data collected by OSEP should also be disaggregated by gender. In addition, DOEd should award a one-time research grant to track by race, ethnicity, and gender data on students who are wrongly identified as having special needs. This would better enable researchers to assess the root causes of overreferral and help OSEP determine which districts warrant closer scrutiny.
Monitoring and Evaluation
All schools identified as having disproportionate representation in special education should be subject to federal evaluation to ensure that placements are in fact appropriate. Districts that are found to have engaged in overreferral should be required to develop plans to reduce overrepresentation, develop better evaluative tools and processes, and reintegrate students who do not require special education. Timelines for completion should be established and observed. DOEd, in the disbursement of discretionary funds, should focus on traditionally underserved populations, allocating adequate money to improving the assessment process. Perhaps a percentage of federal funding could be used to tie demographic and income data to state and local performance plans or strategies designed to overcome overrepresentation or inappropriate categorization. Monetary bonuses could be awarded to districts that develop programs specifically to serve underserved communities, for example, by creating inner-city or rural parent training centers.
OSEP should develop culturally appropriate technical assistance and training materials to reach underserved populations, including non-English-speaking groups. In addition, OSEP should develop initiatives that focus attention on the needs of special education students on and near Indian reservations, and should work with the Bureau of Indian Affairs as well as tribal governments, to ensure that the needs of these communities are met. In response to the problem of disproportionality, there should be increased emphasis on outcomes and improving access to effective regular education and special education services.
DISCIPLINE OF STUDENTS WITH DISABILITIES
One of the key elements of the original IDEA, as conceived in 1975, was the recognition that, for children with behavioral disorders, access to school is meaningless if it does not include programming that addresses behavioral needs. Many schools still fail to appropriately accommodate the behavioral consequences of disability by focusing on controlling students rather than addressing unique social and emotional needs. Behavior that can be attributed to a disability is commonly mischaracterized as misconduct and treated with discipline rather than appropriate services.
The 1997 amendments to IDEA require behavior-related needs or disabilities to be addressed as an education matter, in the same manner as other disabilities. Schools are now required to assess each child’s behavior and develop positive behavioral interventions. While schools and parents have reported improvements as a result of the amendments, one complaint of the 1997 discipline provisions is that they are too complicated and confusing, and therefore should be reviewed, clarified, and simplified for better implementation.
Moreover, evidence suggests that disciplinary action differs among students in special education, with race/ethnicity being a determining factor in the severity of punishment. According to data released by the Department of Education, in the 1999–2000 academic year, Hispanic, American Indian, and African American students with disabilities were substantially more likely than white students to be suspended, removed by school personnel, or removed by a hearing officer, and were more likely to be given both short- and long-term suspensions.
Positive Behavior Strategies
In testimony before the Senate Education Committee, the Assistant Secretary for Special Education stated that DOEd’s experience with the implementation of discipline provisions has highlighted the need for schools to focus on improved classroom management, schoolwide models of positive behavior strategies, and the use of behavioral assessments. The Commission supports this approach to the discipline process and recommends that appropriate funding be allocated to develop behavior management programs that take a holistic approach to discipline. District discipline policies should be proactive, research-based, and schoolwide, and promote positive behavioral support. OSEP can play an important role in providing guidance to states and school districts as uniform discipline guidelines are developed.
The current discipline provisions of the IDEA effectively strike a balance between protecting students and protecting school administrators, and should not be significantly changed, other than for the purpose of clarification. It is important that Congress preserve the no cessation provision of the law, which ensures the continuation of educational services to students removed from school for extended periods of time, so that these students most in need of structured education do not fall further behind.
The Commission encourages DOEd to look carefully at state and local programs that allow the placement of students with disciplinary problems in alternative schools. Removing students from an integrated setting may not always be an appropriate response, particularly given the fact that many alternative schools provide less than adequate education. Alternative schools only work if there are adequate resources to ensure their proper function. DOEd should monitor districts that use alternative schools to ensure that they are not in violation of least restrictive environment requirements of the IDEA. Other models, such as schools within schools, may work without having the effects of complete segregation and should be examined by OSEP for potential replication.
Approximately 6.1 million students are served under the IDEA. At $7,300 per
student, the total expenditure is roughly $44.5 billion, 40 percent of which
(the federal obligation) is $17.8 billion.
 See the Civil Rights Project at Harvard University, “Minority Issues in Special Education,” conference Nov. 17, 2000, publication forthcoming, accessed at <www.law.harvard.edu>; and M. Suzanne Donovan and Christopher T. Cross, eds., Minority Students in Special and Gifted Education (National Academy Press, 2002).