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**U.S. Commission on Civil Rights Recommendations for the Reauthorization ofthe Individuals with Disabilities Education Act**

**May 2002**

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On May 17, 2002, the following letter with attachment was sentto:

-  The Honorable Edward M. KennedyChair, Committee on Health, Education, Labor and PensionsUnited States SenateThe Honorable Judd GreggRanking Minority MemberCommittee on Health, Education, Labor and PensionsUnited States SenateThe Honorable John A. BoehnerChair, Committee on Education and the WorkforceUnited States House of RepresentativesThe Honorable George MillerRanking Minority MemberCommittee on Education and the WorkforceUnited States House of Representatives
Dear Senators and Representatives:

The U.S. Commission on Civil Rights (Commission) commends thebipartisan spirit with which Congress passed the No Child Left Behind educationreform initiative earlier this year. Now the nation must ensure that studentswith disabilities have equal access to the education these reforms makepossible. As the nation�s governmental conscience on civil rights, theCommission urges members of Congress to consider the civil rights implicationsof any revisions to the Individuals with Disabilities Education Act (IDEA) nowbefore you for reauthorization. The Commission is continuing to work on theseissues and will continue to consider ways to improve the enforcement of IDEA.However, we ask that you strengthen the protections afforded to students withdisabilities under this landmark civil rights legislation during thisreauthorization period.

The IDEA was enacted to (1) ensure that all children withdisabilities have access to a free appropriate education that (2) meets theireducation and related service needs in the least restrictive environment. Byextending civil rights protections under IDEA, Congress intended to end thehistory of segregation and exclusion of children with disabilities from thepublic school system in part by facilitating maximum interaction withnondisabled children.

The IDEA helped schools make tremendous strides toward improvingthe education of students with disabilities. Today, more than six millionstudents benefit from IDEA funding, and integration has proven critical tostudents who have disabilities, as well as those who do not. Despite measurableprogress and widespread agreement among educators, parents, and lawmakers thatthe law itself is good, there are problems that warrant attention. Educationaloutcomes remain less for students with disabilities than for other students,often leaving them unprepared to graduate and subsequently transition to work orsecondary education. Congress must focus on ways to strengthen IDEA and build onthe successes that have been achieved thus far.

In anticipation of IDEA reauthorization, the Commission engagedin fact-finding activities, including a briefing at which members receivedinformation from special education experts representing the interests ofresearchers, advocates, practitioners, and parents.[1]With additional research, the Commission has identified several areas criticalto the preservation of civil rights.

Implementation of IDEA and the provision of adequate specialeducation services require collaborative efforts between federal, state, andlocal education agencies, parents, teachers, and school administrators. Therecommendations presented here, in keeping with the Commission�s mandate,focus largely on what can be done at the federal level to improve implementationand outcomes. We respectfully request that you consider these recommendations asyou undertake the reauthorization process:
-  IDEA should be fully funded immediately, and a federal safetynet should be established to help states with small populations and schooldistricts faced with children who require significant resources.Support programs funded through Part D discretionary fundsshould receive increases comparable to increases in the Part B state grants.This should include increased funding for teacher recruitment, preparation, andtraining.More money should be allocated for IDEA research, including thedevelopment of a single uniform data collection effort nationwide.Adequate resources must be provided for state and federalmonitoring and enforcement programs, including increased funding for theDepartment of Education�s (DOEd) Office of Special Education Programs (OSEP).A complaint-handling process should be established at thefederal level, and state complaint systems should be monitored by OSEP forefficiency and effectiveness.State-supported mediation should be an available alternative for parents to utilize voluntarily whenseeking to remedy a problem without participating in a full due process hearing.National compliance standards should be established along withimprovement measures and indicators that will trigger enforcement sanctionsbased on levels of noncompliance.States must be held accountable for ensuring access to servicesrequired under the law, and for conducting ongoing progress assessments ofstudents with disabilities. The federal government must help states developinfrastructures to support IDEA programs, achieve compliance, provide technicalassistance, and identify best practice models.States should be responsible for scrutinizing school districtexpenditures and allocating or withholding funds accordingly.The reauthorized IDEA should give increased attention to racial,ethnic, and linguistic diversity to prevent inappropriate overreferral ofstudents of color.Teachers must receive better training in diagnosing disabilitiesand recognizing cultural misconceptions that lead to misdiagnosis.Judgment as to whether a child has a cognitive disability oremotional disturbance should be withheld until he or she has receivedhigh-quality instruction in the general education setting. More prereferralinterventions should be implemented at the local level, and better evaluativetools, that are culturally and linguistically sensitive, should be devised.Racial and ethnic data collected by OSEP should be disaggregatedby gender. DOEd should fund research that tracks by race/ethnicity students whoare wrongly identified as needing special education.Schools with disproportionate representation in specialeducation should be subject to federal evaluations to determine whetherindividual placements are appropriate. Where overreferral is found, districtsshould be required to develop plans for better evaluative tools andreintegration of misclassified students in regular education.Federal funding should be available to encourage and rewarddistricts that develop successful plans for reducing rates of overreferral andthat engage in activities targeting underserved populations.OSEP should develop culturally and linguistically appropriatetechnical assistance materials, and develop programs to better serve studentsliving on or near Indian reservations.The discipline provisions of the 1997 amendments should not besignificantly changed, although they should be clarified and simplified. The nocessation provision should be retained.Appropriate funding should beallocated for the development of behavior management programs thatpromote schoolwide models of positive behavior strategies and assessments. DOEd should carefully examine the use of alternative schools toensure that they are not in violation of the least restrictive environmentprovision of IDEA, and should promote other school models that prove effective.
Attached, for your reference, is a detailed presentation ofthese recommendations and a discussion of the critical civil rights issues thatwarrant consideration as legislation is developed. The pending reauthorizationof the IDEA is an opportunity to strengthen the national resolve to leave nochild behind, including one with disabilities. The Commission urges Congress toensure that this mandate is fulfilled.

Respectfully for the Commission,

Mary Frances Berry*Chairperson*

 

Attachment

[1]       A complete transcript of the briefing is available on the Commission�s Web       site, which can be accessed at www.usccr.gov. 

 

**ATTACHMENT**

**U.S. Commission on Civil RightsRecommendations for the Reauthorization of IDEA**

Following is a detailed discussion of the recommendations presented by the U.S. Commissionon Civil Rights (Commission) on the reauthorization of the Individuals withDisabilities Education Act (IDEA). These recommendations largely focus on thecivil rights implications of the legislation and the federal role in itsimplementation. Four areas of particular interest to the Commission are funding,enforcement and compliance monitoring, the overrepresentation of minoritystudents in special education, and discipline of students with disabilities.

**FUNDING IDEA**

Congress has authorized the federal government to pay 40 percent of each state�s excesscost of educating children with disabilities. However, actual funding hasconsistently fallen well below the amount authorized and, despite increases inrecent years, the 40 percent threshold remains far from being met. In addition,funding for IDEA Part D (support programs), which requires resources forprofessional development, technical assistance, and dissemination of promisingpractices, has remained inadequate for many years.

For the current academic year (2001�2002), the average per pupil expenditure forstudents with disabilities is estimated at $7,300. Were Congress fully fundingstates at the 40 percent allocation designated under the statute, it would needto provide approximately $18 billion in federal funds; instead, schools are onlyreceiving $7.5 billion, or nearly 17 percent.[1]The Commission commends Congress for the significant increases in IDEAallocations in the last few years; however, a 139 percent increase is stillneeded for IDEA to be funded at the level mandated by the original legislation.

***Full Funding***

Thus, the Commission strongly urges Congress to fully fund IDEA immediately, notincrementally. Under an incremental model, students who are currently receivingspecial education services will have completed their schooling by the time fullfunding is achieved. They, like millions before them, will have been denied theopportunity to benefit from the programs to which they are entitled. TheCommission also finds that requiring states to make up the difference has anegative impact on students who live in states with smaller populations andstates that have larger numbers of students with special needs. Congress shouldconsider creating a federal safety net to support school districts, smallerdistricts in particular, that educate children who have extraordinary needs andrequire more resources. States should also be provided adequate funds, above andbeyond the mandated funding allocated in Part B (the state grants program), forthe administration of federal grants to ensure appropriate allocation andmonitoring expenditures at the local level.

***Discretionary Funds***

Enough money should be allocated to both mandatory and discretionary funds to allowstates and local school boards the flexibility to respond to local needs. Thefederal 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 fundsidentified in Part D, provide the necessary support for the implementation ofPart B (state grants), and should be funded accordingly. It follows that whenPart B funding is increased, a comparable percentage increase should beallocated to Part D support programs. In addition, more money should beallocated to preparing special education teachers, providing continuingeducation for practicing teachers, and attracting more qualified individuals tothe field of special education, such as through loan forgiveness programs andgrants 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-scaledata collection effort across states. Valuable research and support have comefrom grants funded through Part D via the Department of Education�s (DOEd)Office of Special Education Programs (OSEP). State and local resources could beused more efficiently if guided by good research that is accessible to educatorsand parents.

**ENFORCEMENT AND COMPLIANCE MONITORING**

Ofparticular concern to the Commission is the role of the federal government inthe oversight of IDEA implementation and the failure of DOEd to adequatelymonitor and compel compliance. While IDEA has yielded significant progress insecuring educational rights for millions of students, the National Council onDisability (NCD), among other organizations, has found the inadequateenforcement of IDEA to be a major impediment to the civil rights guaranteeinitially intended with its passage.

In its 2000 study, *Back to School on Civil Rights*, NCD found that every statewas out of compliance with IDEA requirements to some degree, and that federalefforts to enforce the law over several administrations have been�inconsistent, ineffective, and lacking any real teeth.� Despite theevidence of noncompliance, DOEd has made limited use of its authority to imposeenforcement sanctions, such as withholding funds. As a result, theresponsibility for enforcement has often been carried out by parents of disabledstudents who have invoked formal proceedings to ensure that their children�sneeds have been met.

Funding and compliance should not be mutually exclusive, but rather intricately wovenwith accountability for positive outcomes. Moreover, funding sanctions must notbe imposed at the expense of students. The Commission recognizes thedifficulties associated with achieving the appropriate balance. Therefore,reauthorization provisions must include adequate resources to support state andfederal monitoring and enforcement. For instance, the federal government hasbeen 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 theproblems is that OSEP is largely understaffed in relation to the magnitude ofits mandate. Congress, in the appropriations process, should ensure that OSEP isfunded at levels commensurate with its responsibilities.

***Complaints Processing***

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. Theprocess should be used when a state complaint system fails to address an issuethat is systemic in nature. Strong state complaint systems are also vital to theassurance that noncompliant school districts are held accountable. Statecomplaint systems should thus be monitored and periodically evaluated by OSEP toensure that complaints are investigated in a timely and thorough manner, andthat appropriate resolutions are achieved. Congress might consider including aprovision in the law allowing state-supported mediation to resolve specialeducation conflicts at the request of a parent, not just after a due processhearing, as is commonly the case.

***Compliance Standards***

The federal government must ensure that state special education programs comply withIDEA by gathering adequate data on each state�s implementation and developingnational compliance standards. DOEd should exercise its authority to sanctionstate and local education agencies that repeatedly fail to comply with IDEA bywithholding allotments until compliance is achieved. To accomplish this, DOEdmust conduct regular and thorough reviews of how states are spending federalfunds. The amount of funds withheld should be based on level of noncompliance,and sanctions should be applied equally to all states. The Commission supportsNCD�s recommendation that DOEd and the Department of Justice be directed todevelop national compliance standards, improvement measures, and enforcementsanctions that will be triggered by specific indicators. Students, parents, andteachers should be consulted in the development of standards.

***Federal-State Partnerships***

Compliance is best achieved through consistent federal enforcement bolstered by supportactivities performed by states. Accountability measures and performance outcomesmust be established for school districts and states to ensure that students withdisabilities have access to early intervention services and free appropriateeducation in the least restrictive environment, as required by the law. Suchmeasures must also include accountability for achievement and ongoing progressassessments of students with disabilities. However, when states do not haveadequate infrastructures for implementing IDEA, achieving compliance isdifficult. Therefore, federal enforcement efforts should help states establishinfrastructures and specific requirements for compliance. Working incollaboration, the federal government and states should develop timelines forbuilding the infrastructure needed to conform to the established guidelines.Local teachers should have a clear role in the monitoring system and thedevelopment of compliance standards. Finally, OSEP should provide more technicalassistance to states struggling with compliance and identify best practicemodels for replication.

Uneven implementation of the law from one district to another, in the absence ofuniform enforcement, has the effect of flooding �good� districts withspecial needs students when surrounding schools fail. Thus, states should begiven the same sanction authority as federal enforcement agencies to ensure thatlocal special education programs comply with IDEA. States should scrutinizeschool 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 civilrights statute, requiring a balance between the flexibility necessary in theformer with the uniform requirements of the latter. Federal standards ofsufficiency are needed, but at the same time states should have the discretionto meet the unique needs of their districts and enforce compliance locally. TheCommission finds that compliance with civil rights statutes such as IDEArequires proper implementation, not just adherence to procedural requirements.In other words, outcomes are as important as the process by which they areachieved. State education officials should be charged with developing plans thatlead to the desired outcomes.

**DISPROPORTIONATE CLASSIFICATION OF MINORITY STUDENTS IN SPECIAL EDUCATION**

The IDEA Amendments of 1997 required states to report by race/ethnicity theirnumbers of students who have disabilities and are served in special education.Research commissioned by the Harvard University Civil Rights Project and anotherstudy by the National Academy of Sciences determined that students of diverseracial and ethnic backgrounds are more likely to be placed in special educationclasses than their white peers.[2]For example, in the 2001�2002 school year, black (non-Hispanic) studentsaccount for 14.8 percent of the general population of students, but make upnearly 20 percent of the special education population. Additionally, blackstudents� representation in the mental retardation category is more than twicetheir national population estimates, and representation in the developmentaldelay and emotional disturbance categories is nearly two-thirds higher.

In addition to disparities in the identification of students� needs andabilities, there are distinct differences in educational placement. Datacompiled by the Department of Education reveal that African American studentswith disabilities are more likely than white students to be placed in specialeducation environments outside the regular classroom, including residentialfacilities, separate schools, and correctional facilities. Further, researchershave found that white students are more likely to receive services such ascounseling and therapy than are black students, and for longer periods of time,thereby improving their likelihood to succeed during school and aftergraduation. The reasons for the disparities are complex. Factors contributing tooverreferral include:
-  Historical discrimination based on race, ethnicity, andgender, which is reflected in the decisions of educators, biasedtests, and the structure of the special education system.Poorquality �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 formof discipline.
***Diagnosis and Placement***

The presence of racial disparities in special education raises many complexquestions. A significant part of the problem is the quality of general educationavailable in many minority communities. Overreferral is evident when thereexists poor general education coupled with poorly trained evaluators andteachers who are unable to teach to diverse populations. The Commission firmlybelieves that, as the most basic of civil rights promises, *all*studentsmust be served according to their educational needs regardless of race,ethnicity, or gender. The reauthorized IDEA should give increased attention toracial, ethnic, and linguistic diversity to prevent inappropriateoverrepresentation, or in some cases underrepresentation, of minority childrenin 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 disabilityor emotional disturbance should be withheld until he or she has receivedhigh-quality instructional and behavioral support in the general educationsetting. All teachers, including special education and general curriculuminstructors, must receive better training in recognizing and diagnosing truedisabilities. University schools of education should be encouraged to include intheir curricula advanced studies on recognizing cultural misconceptions andidentifying special education needs.

To guard against inappropriate referrals, unnecessary testing, andmisclassification, prereferral interventions should be implemented at the locallevel. States and school districts should be required to engage in moreprereferral processes before students are identified as needing specialeducation to ensure that students are not incorrectly placed. States, withguidance from DOEd, need to develop and use better evaluative tools. Onlyreliable and valid measures of student performance that are culturally andlinguistically sensitive, and allow for appropriate accommodation, should beused. Students from diverse backgrounds should be included in state- anddistrictwide assessments that determine the efficacy of special educationevaluative tools and programs.

***Data Collection***

Continued and improved data collection is essential to assess national progress on theissue of overrepresentation of minority students in special education and thereasons behind such trends. The racial/ethnic data collected by OSEP should alsobe disaggregated by gender. In addition, DOEd should award a one-time researchgrant to track by race, ethnicity, and gender data on students who are wronglyidentified as having special needs. This would better enable researchers toassess the root causes of overreferral and help OSEP determine which districtswarrant closer scrutiny.

***Monitoring and Evaluation***

All schools identified as having disproportionate representation in specialeducation should be subject to federal evaluation to ensure that placements arein fact appropriate. Districts that are found to have engaged in overreferralshould be required to develop plans to reduce overrepresentation, develop betterevaluative tools and processes, and reintegrate students who do not requirespecial education. Timelines for completion should be established and observed.DOEd, in the disbursement of discretionary funds, should focus on traditionallyunderserved populations, allocating adequate money to improving the assessmentprocess. Perhaps a percentage of federal funding could be used to tiedemographic and income data to state and local performance plans or strategiesdesigned to overcome overrepresentation or inappropriate categorization.Monetary bonuses could be awarded to districts that develop programsspecifically to serve underserved communities, for example, by creatinginner-city or rural parent training centers.

***Technical Assistance***

OSEP should develop culturally appropriate technical assistance and trainingmaterials to reach underserved populations, including non-English-speakinggroups. In addition, OSEP should develop initiatives that focus attention on theneeds of special education students on and near Indian reservations, and shouldwork with the Bureau of Indian Affairs as well as tribal governments, to ensurethat the needs of these communities are met. In response to the problem ofdisproportionality, there should be increased emphasis on outcomes and improvingaccess 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 recognitionthat, for children with behavioral disorders, access to school is meaningless ifit does not include programming that addresses behavioral needs. Many schoolsstill fail to appropriately accommodate the behavioral consequences ofdisability by focusing on controlling students rather than addressing uniquesocial and emotional needs. Behavior that can be attributed to a disability iscommonly mischaracterized as misconduct and treated with discipline rather thanappropriate services.

The 1997 amendments to IDEA require behavior-related needs or disabilities to beaddressed as an education matter, in the same manner as other disabilities.Schools are now required to assess each child�s behavior and develop positivebehavioral interventions. While schools and parents have reported improvementsas a result of the amendments, one complaint of the 1997 discipline provisionsis that they are too complicated and confusing, and therefore should bereviewed, clarified, and simplified for better implementation.

Moreover, evidence suggests that disciplinary action differs among students in specialeducation, with race/ethnicity being a determining factor in the severity ofpunishment. According to data released by the Department of Education, in the1999�2000 academic year, Hispanic, American Indian, and African Americanstudents with disabilities were substantially more likely than white students tobe suspended, removed by school personnel, or removed by a hearing officer, andwere more likely to be given both short- and long-term suspensions.

***Positive Behavior Strategies***

In testimony before the Senate Education Committee, the Assistant Secretary forSpecial Education stated that DOEd�s experience with the implementation ofdiscipline provisions has highlighted the need for schools to focus on improvedclassroom management, schoolwide models of positive behavior strategies, and theuse of behavioral assessments. The Commission supports this approach to thediscipline process and recommends that appropriate funding be allocated todevelop behavior management programs that take a holistic approach todiscipline. District discipline policies should be proactive, research-based,and schoolwide, and promote positive behavioral support. OSEP can play animportant role in providing guidance to states and school districts as uniformdiscipline guidelines are developed.

The current discipline provisions of the IDEA effectively strike a balance betweenprotecting students and protecting school administrators, and should not besignificantly changed, other than for the purpose of clarification. It isimportant that Congress preserve the no cessation provision of the law, whichensures the continuation of educational services to students removed from schoolfor extended periods of time, so that these students most in need of structurededucation do not fall further behind.

***Alternative Education***

The Commission encourages DOEd to look carefully at state and local programs thatallow the placement of students with disciplinary problems in alternativeschools. Removing students from an integrated setting may not always be anappropriate response, particularly given the fact that many alternative schoolsprovide less than adequate education. Alternative schools only work if there areadequate resources to ensure their proper function. DOEd should monitordistricts that use alternative schools to ensure that they are not in violationof least restrictive environment requirements of the IDEA. Other models, such asschools within schools, may work without having the effects of completesegregation and should be examined by OSEP for potential replication.

[1]    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.

[2]*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).