Print this page

**********

No Child Left Behind is a good law. Enforcement of this law (as with enforcement of IDEA) will be a problem.

Some of us old-timers remember the early 1970’s, before the special education law was passed. It was perfectly legal for schools to expel children with disabilities permanently for reasons related to their disabilities.

You may know Judy Heumann, former head of special ed for the U. S. Department of Education. Because she was in a wheelchair, she was not allowed to attend school in New York City - she was deemed a "fire hazard."

When Public Law 94-142 (now IDEA) was passed in 1975, schools complained loudly, just as they are complaining about No Child Left Behind today. Initially, several states refused to accept federal special ed funding so they would not have to comply with the law.

During the early 1980s, children with autism in Virginia were deemed to be suffering from a medical condition, and not to have educational disabilities. Decision after decision upheld school districts' right to deny special education services to children with autism.

We’ve come a long way.

Enforcement Problems

Some people say that if the U. S. Department of Education will not enforce the No Child Left Behind Act, it is a bad law. Enforcement has always been a problem with IDEA. Enforcement will be a problem with No Child Left Behind. This does not make NLCB a bad law.

I think it is unrealistic to expect the U. S. Department of Education to do this. As a practical matter, they view themselves as educators, not as law enforcers or prosecutors. They are different from the investigators and attorneys with the U. S. Department of Justice - and that's a problem.

From the passage of P.L. 94-142’s in 1975, move forward 25 years to 2000, when the National Council of Disability published their explosive report, “Back to School on Civil Rights” (also called the IDEA Compliance Report).

On January 25, 2000, the National Council on Disability reported to the President and Congress that as “a result of 25 years of nonenforcement by the Federal Government, parents are still a main enforcement vehicle for ensuring compliance with IDEA.(Report, page 70)

In their report, NCD explained that a fundamental problem with IDEA is that the U.S. Department of Education is a funding and programmatic agency, not an enforcement agency.

“This report focuses primarily on the enforcement mechanism, policies, and activities of the Department of Education in relation to IDEA. Because of its integral relationship to enforcement, our researchers carefully evaluated the Department of Education (DoED) compliance-monitoring system in use at the time our research was conducted.” (Report, page 18)
. . .

“DoED has been monitoring states and states have been monitoring local education agencies since the mid-1970s as intended by law. As part of its responsibility for the administration of IDEA, DoED has been issuing monitoring reports that detail state noncompliance and deficiencies for more than 20 years.” (Report, page 40)
. . .

“Unlike some other agencies, such as the Equal Employment Opportunity Commission and the Department of Justice, its core activity is not civil rights enforcement. Civil rights enforcement is a secondary task of the DoED; its primary activities are programmatic.” (Report, page 40)

“The 1997 amendments to IDEA explicitly authorize the Department of Education to refer noncompliant states to the Department of Justice for investigation, litigation, or both. While the Department of Education has likely always had this authority, the 1997 amendments make such authority explicit and statutory.” (Report, page 45)

The above quotes from "Back to School on Civil Rights" are from a brief I filed with the U. S. Court of Appeals for the Fourth Circuit in successful reversal of a NC District Court case a couple of years ago. I used language from the NCD report in my brief. During oral argument, it was clear to me that the three Judge panel had read the NCD report.

You can read the IDEA Compliance Report, "Back to School on Civil Rights" on the National Council on Disability site. The full text of the Report is also available on the Wrightslaw site.

Feds Withold Funds

While I do not expect the feds to do any real enforcement of NCLB, I was pleasantly surprised when they turned down Virginia's requests for Reading First funds - twice - because Virginia wanted to use the funds for reading programs that are not research based.

Using NCLB in Special Ed Litigation

I am now using language from No Child Left Behind in special ed cases.

Reading, Reading Programs, Research

In a recent due process case, we raised No Child Left Behind issues in correspondence before we requested the hearing.

I wrote a letter to the special education director to request information about their reading program and quoted portions of NCLB as a basis for my request. This letter began to create the theme of the case - that the child did not learn to read because the school district failed to use a research based reading program. I included the definition of scientifically based reading research and the definition of essential components of reading instruction, per the statute, in my letter. (see 4 Great Definitions About Reading in No Child Left Behind)

Unqualified Staff

I also raised questions about using an aide who did not meet the minimal qualifications for a paraprofessional under No Child Left Behind. In addition to verbatim quotes from NCLB, I attached copies of the critical NCLB statutes to my letter. (My letter is one of 15 sample letters in Chapter 11 of Wrightslaw: No Child Left Behind)

When the parents requested the due process hearing, the school had still not provided the requested information, so I wrote a letter to the school board attorney, with a copy to the Hearing Officer. I included a copy of my earlier letter, quoted a portion of it, and explained that:

“We are waiting for the 'scientifically based research' that was relied upon to support the continued use of ‘Patterns for Success’ with K.”

“Please advise if you are willing to stipulate for the record that the York County School Division: