Back to School on Civil Rights
I. The Law, the Compliance/Enforcement Scheme, and the Context
A. Introd uction 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), 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, and Title II of the Americans with Disabilities Act (ADA). 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. 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?" 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. 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  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 , 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." 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.
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." 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." 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: (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. Further, any public agency that refers a child to a private program must ensure that the child's rights are protected in that setting.
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. 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) in response to the Smith v. Robinson  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.
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. 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.
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]." 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. " 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
1. Federal Government Role
2. State Government Role