Analysis of IDEA Reauthorization
[An IDEA analysis from the Disability Rights Education and
Defense Fund (DREDF), preserveIDEA@dredf.org, followed by a New York Times
analysis:]
IDEA Rapid Response Network (RRN)
News Briefing #37 November 21, 2004
ALL OVER BUT THE SHOUTING
IDEA was reported out of the conference committee on Wednesday, November 17,
2004. The House passed the conferenced bill with a vote of 397 - 3 on November
19, and the Senate agreed to it by unanimous consent on November 19. The IDEA
has been re-authorized.
WHAT DID WE LOSE AND WHAT DID WE GAIN?
The bill we ended up with looks very much like the Senate bill, with a lot of
refinements that occurred over the last months and weeks. DREDF will do a
complete analysis of the law that is emerging and what it means for our families
and supporters and children, as well as a post-mortem of the process, in the
fullness of time. But we can say now that the voices of parents and advocates
were heard loud and clear, that we DID make a difference in the outcome, and
that, given the political and strategic circumstances and the situation on the
Hill during this reauthorization process, our hard work and dedication paid off
in getting our children the best possible bill we could get. Is it perfect or
ideal? No. Is it fully funded? No. But we need to keep fighting and not be
defeated by any sense of despair or failure.
We lost some protections. It remains to be seen how "measurable annual goals"
and quarterly progress reports will work to replace short-term objectives and
benchmarks; up to 15 states may be granted an opportunity to pilot optional
three-year IEPs; students who violate school codes will have to remain in an
interim placement pending an appeal of the manifestation determination (a
hearing must occur within 20 days).
Yet we also held back ferocious assaults on discipline provisions and due
process protections, and we prevailed in several key areas, from an increase in
the number of certified special education teachers to expanded access to
assistive technology to sanctions on states that do not comply with the law. And
we retained continued services for students moved to alternate placements,
attorney fee reimbursements for parents who prevail in due process hearings, and
functional behavior assessments and manifestation determinations. As we said in
RRN #30 on September 30, 2003, there are also key improvements in this bill:
provisions for alternate assessments, positive behavioral supports, school to
life transitions, assistive technology, and personnel standards.
In RRN #31, from November 6, 2003, we wrote: ". . . we should consider ourselves
as having dodged a bullet if we can emerge from conference with a bill more
closely resembling the Senate's than the House's." We worked hard to dodge that
bullet, and we succeeded. A great deal of the credit for what we achieved goes
to Connie Garner, Senator Kennedy's Disability Policy Advisor and chief staffer
on the HELP Committee for IDEA. A parent herself, Connie Garner is a true
champion of children's rights, and the parent and advocacy communities are
indebted to her. We were happy to hear Senator Kennedy acknowledge her work both
in his conference speech and on the Senate floor.
WHAT HAPPENS NOW?
Everyone's efforts resulted in the bill being better than we feared, but not as
good as we would have liked. The first thing to say is that the voices of
parents were raised, we were heard, and we made a difference.
In the main, the principals of IDEA are preserved. The extremely negative
provisions in the House bill have been eliminated, and parents' rights remain
largely intact. The final bill does contain a few changes that are weaker or
that can be interpreted to be weaker than current law. Thus it is important that
parents and advocates have the best strategies to deal with these new
provisions. Now is the time to disseminate accurate information about the
changes, develop advocacy strategies, and ensure that parents of IDEA students
are trained in the new 2004 provisions.
Here are some examples:
1. Advocates fought against the early resolution meeting now set forth in the
bill on the grounds that parents may feel coerced to go to a meeting after the
filing of a complaint and be intimidated into signing a legally binding document
under duress. This concern is very real. Parents need to know that they can opt
out of this meeting if they choose to go to mediation. Parents must know that
they do not have to sign the document in the meeting, but should take it home to
consider.
2. The new manifestation determination does not specify that a manifestation
will be found if the child's disability impairs the child's ability to
understand or control the behavior or if the IEP has not been appropriately
implemented. Under the new language, a manifestation will be found any time the
conduct was caused by OR had a direct and substantial relationship to the
child's disability or the failure to implement the IEP. We should be arguing
that this standard is at least as strong as current law. If a child's disability
impairs the child's ability to understand or control his behavior, it
necessarily follows that the conduct was substantially related to the
disability.
3. The attorney fees provision has gotten a lot of attention. Parents should
know that the reauthorization did no more than incorporate civil rights attorney
fees law that has been established since 1978!
In other words, DON'T GIVE IN TOO EASILY. We can work with the new law! Our
children have not lost their rights.
DREDF will be developing more comprehensive materials on advocacy strategies.
TO JOIN THE RRN: Visit www.dredf.org and
complete our online subscription form. Earlier Briefings can also be found on
our website: www.dredf.org. We now have
over 4000 subscribers.
The RRN will continue to appear as the rest of the IDEA regulation process
unfolds, and DREDF will maintain this electronic communication list as a
mechanism for contacting parents whenever legal or legislative issues emerge
that concern special education and children with disabilities.
http://www.dredf.org
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November 22, 2004
Parts of Special-Ed Bill Would Shift More Power to States and School
Districts
By DIANA JEAN SCHEMO
The New York Times
WASHINGTON, Nov. 21 - In updating the law governing special education for the
nation's 6.5 million disabled students, Congress has given state and school
officials more power to shape the terms for providing services to disabled
children, paring down rights that advocates for such students had won during the
Clinton administration.
Supporters of the bill said the new law was aimed at reducing costs, red tape
and the adversarial relationship between parents and school districts.
But advocates for disabled children said the bill, which both houses of Congress
passed Friday, would make it harder for dissatisfied parents to sue to obtain
services for their disabled children. For one thing, they will have to submit to
mediation or other meetings to give school officials a last chance to resolve
disputes before the courts may intervene.
And if the courts deem a suit frivolous, or aimed at harassing a school system,
the bill allows school districts to recover legal costs from parents or their
lawyers.
Though courts have in the past meted out such penalties on a case-by-case basis,
the threat of huge legal fees will now be written into the federal law, a
victory for school districts that some advocates for children fear will be used
to intimidate parents.
"For parents and children, this bill represents a step backwards," said Calvin
Luker, a lawyer and founder of Our Children Left Behind, a Web site for
special-education parents that has monitored the Congressional reworking of the
29-year-old law, known as the Individuals with Disabilities in Education Act.
"In a sense, we do feel that it's painting lipstick on a pig," Mr. Luker added.
"It's still taking away rights, making it easier for the school districts to do
what they want to do, and making it more difficult for parents to protect the
rights of their children."
School officials, however, were pleased to see Congress restoring powers schools
lost in 1997, when Congress last updated the law on special education.
"They've cleaned up so many things and made the law less adversarial," said
Bruce Hunter, a lobbyist for the American Association of School Administrators.
Mr. Hunter said superintendents and principals were glad that parents would now
have to spell out their criticisms precisely before they can sue and stick to
their original charges in seeking redress, making it easier for school systems
to anticipate and contain legal challenges.
The law also gives schools greater latitude to remove disabled children who
misbehave, shifting to parents the burden of proving that a disability caused
disruptive behavior. Previously, it was up to the schools to demonstrate that
the misbehavior was unrelated to the student's medical condition and to show
they had done everything in their power to help the child.
Mr. Hunter also said the requirements that parents and senior school officials
make a last-ditch effort to resolve complaints before going to court would "save
a ton of dough, and in my judgment, solve problems."
Despite their unhappiness over the changes, parents and advocates expressed
relief that the final bill abandoned what they saw as the most troubling
proposals in an earlier version approved by the House in April 2003.
That version, which was widely supported by school and state officials, would
have permitted schools to oust disabled children who violated behavior codes,
without considering whether the misbehavior was caused by their disability. It
would also have allowed states to limit reimbursements to lawyers who win suits
for disabled children against school systems.
Instead, the final bill largely followed the more moderate version that won
bipartisan approval in the Senate last May. And given the more conservative
makeup of the House and Senate in the next Congress, groups representing
children in special education said they would have fared worse had Congress been
forced to start rewriting a bill from scratch again next year.
"All the people on the advocate side were protective of current law," said
Kathleen H. McGinley, deputy executive director for public policy at National
Association of Protection and Advocacy Systems. "But this is the best we could
do in this environment, and I don't think it's likely we would do better
starting over next year."
There are some features in the new law that please advocates for the disabled.
One, aimed at reducing the over-identification of African-Americans for special
education, requires the federal government to better monitor special-education
enrollment and investigate racial disparities. Another creates new demands for
states to publicly report on the academic progress of disabled students.
Elaine Roberts, a lawyer based in Houston who represents disabled children, said
that with the growing importance of standardized exams in rating school
performance, schools had tended to exclude disabled students from accountability
systems, instead opting to give them alternative exams that can be more open to
manipulation.
Parents who insist their children take grade-level exams instead find themselves
"quickly outnumbered" in meetings with school officials, she said, adding, "The
parents are looking for something meaningful."
One of her clients, Kelli D., a 16-year-old in Texas found to have attention
deficit hyperactivity disorder, bipolar disorder and clinical depression, was
forced out of her neighborhood school after she was accused of buying
antidepressants from another student. Kelli now attends an alternative school
for children who have discipline problems. She says that long before that, the
schools had given up on her, promoting her from one grade to the next whether or
not she advanced academically.
"They pass me and they don't really care," Kelli said. In school, she said, her
younger brothers learn important things, like how to write in script. She
cannot.
"That's all that really matters to them at school, how to get rid of me," she
said.
Her parents agreed, saying that Kelli had not brought home homework since the
third grade. "For all practical purposes they just continue to push Kelli up and
move her on," her father said. "They're not educating her."
The law also takes aim at the disproportionate share of minority students
tracked for special education. According to the Civil Rights Project at Harvard
University, schools are up to three times more likely to label African-
Americans than whites as mentally retarded, and twice as likely to label blacks
emotionally disturbed.
Nevertheless, the quality of special-education services available to them is
often "grossly inadequate," said Dan Losen, a legal and policy research
associate at the Civil Rights Project. The project estimates that 60 percent to
80 percent of young blacks who wind up incarcerated have learning disabilities.
The strengthened federal role the new law details, which permits Washington to
withhold money from districts that come up short, has infuriated some state
officials. They say Congress, since it first passed the law in 1975, has
consistently failed to sufficiently finance special education.
David Shreve, the education lobbyist for the National Conference of State
Legislators, said that when schools or states failed to fulfill their
obligations to educate a disabled child, "you've got to back all the way up the
system and figure out why is the promise broken."
"Many promises are broken because the resources aren't there to follow through
on the promise," Mr. Shreve said.
http://www.nytimes.com/2004/11/22/education/22special.html
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Last Updated on
12/09/04
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