Wrightslaw - IDEA Compliance Report - Back to School on Civil Rights, Part II

Back to School on Civil Rights

II. Grassroots Perspectives on Noncompliance and Federal Enforcement of IDEA

A. Obstacles Experienced by Students with Disabilities & 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.

Go to Part III-A, Grant Administration, Compliance Monitoring

Go to Part III-B, Complaint Handling and Enforcement

Go to TOC, IDEA Compliance Report


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