# U.S. Commission on Civil Rights

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**U.S.Commission on Civil Rights**

**Making a Good IDEA Better: The Reauthorization of theIndividuals with Disabilities Education Act**

**April12, 2002**

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**An Overview of the Law and Critical Civil Rights Issues**

The U.S. Commission on Civil Rights (Commission) has longmaintained an active interest in both education and disability as sources ofcritical civil rights concerns.[1]At the intersection of these two concerns are educational opportunities forstudents with disabilities. In 1997, as a component of a series of reports onequal educational opportunity, the Commission examined the enforcement ofSection 504 of the Rehabilitation Act of 1973.[2]In that report, the Commission also examined related issues under theIndividuals with Disabilities Education Act.[3]At this juncture, with the IDEA up for reauthorization in Congress this year,the opportunity is present for continuing to examine the strengths andweaknesses of the legislation and its enforcement. The purpose of this briefingpaper is to apprise the Commission of the status of IDEA, to identify civilrights concerns that have arisen since it was reauthorized five years ago, andto make recommendations for how it might be strengthened and improved.

In the early days of public education in the United States,individuals with disabilities were largely denied access to formal education orwere consigned to institutions or residential facilities that seldom addressedtheir needs.[4] Even as recent as the1970s, children with disabilities were not afforded equal educationalopportunities and were often placed in institutions or segregated from theirnondisabled peers in separate facilities.

The Individuals with Disabilities Education Act (IDEA) was firstenacted in 1975 (then known as the Education for All Handicapped Children Act)in an effort to ensure that all children with disabilities between the ages of 3and 21 had access to a “free appropriate education” that met their educationand related service needs in the “least restrictive environment.”[5]It is upon these two substantive rights that the legislation is predicated. Byextending civil rights protections under the IDEA, Congress intended to end thehistory of segregation and exclusion of children with disabilities from thepublic school system in part through maximum interaction with nondisabledchildren.

At the center of the IDEA is the Individualized EducationProgram (IEP), which serves as a tool to ensure that an appropriate program andcurriculum is developed to meet each child’s unique needs. The IEP is awritten statement, produced in collaboration with parents, teachers, and serviceproviders, that represents the child’s needs, level of performance, annualgoals, and short-term objectives. It also explains the extent to which a childwill be integrated into classes with nondisabled students.[6]

The IDEA applies to every state that receives federal funds forthe provision and administration of special education for students withdisabilities, including state entities involved in education-related activities.This includes state and local education agencies, political divisions involvedin the education of children with disabilities, state agencies, such asdepartments of mental health, which provide educationally related services, andstate correctional facilities.

The IDEA contains four sections: (A) lists the generalprovisions of the law and its goals; (B) “Assistance for Education of AllChildren with Disabilities” describes the federal grant program to states, theresponsibilities of state education agencies to monitor implementation, and thebasic rights and responsibilities of students with disabilities and theirparents; (C) “Infants and Toddlers with Disabilities” describes the programfor addressing the needs of children from infancy to 3 years of age; and (D)“National Activities to Improve Education of Children with Disabilities”authorizes discretionary programs related to state improvement. Although Part Bdoes not have a reauthorization requirement, the reauthorization process forParts C and D provides an opportunity to examine and make changes to Part B aswell.

For more than 20 years, the IDEA remained largely unchanged, butin 1997, based on two decades of experience, the law was amended to clarify,strengthen, and provide guidance on its implementation. The 1997 amendmentsplaced emphasis on education results and improved quality of special educationand included tools for enforcement. Of particular concern at the time was theintegration of students with disabilities into regular schools and classrooms.The revised bill also addressed school discipline, giving educators moreflexibility in disciplining children with disabilities, while at the same timedirecting them to act in anticipation of challenging behavior rather thanpunishing children for misbehavior associated with their disabilities.[7]Now, five years after the 1997 reauthorization process, Congress is againassessing the law’s adequacy and determining how it can be strengthened.

There is general consensus that the IDEA has made tremendousstrides toward improving the education of students with disabilities. Today,more than six million students benefit from IDEA funding, and the integration ofstudents has proven critical to students who have disabilities, as well as thosewho do not. It is commonly believed that integration fosters understanding andtolerance, better preparing students of all abilities to function in the worldbeyond school. According to one advocacy group:

> 
IDEA ensures that children with disabilities may attend publicschools alongside their peers. There is no question about it: students, schools,and communities are enriched when all children have a right to a free,appropriate public education.[8]

In addition, post-school employment rates for individuals servedunder the IDEA are twice those of older adults with similar disabilities who didnot have the benefit of the IDEA. Further, postsecondary school enrollmentsamong individuals with disabilities have also increased; the percentage offirst-year college students reporting disabilities has more than tripled since1978.[9]

Despite this progress, educators, parents, and lawmakers agreethat, while the law itself is good, there are unresolved problems that warrantattention. Educational outcomes remain less for students with disabilities thanfor other students, often leaving them unprepared to graduate and subsequentlytransition to work. For example, according to information compiled by theDepartment of Education (DOEd), Office of Special Education and RehabilitativeServices (OSERS):

> -  Many students with disabilities are still excluded from thecurriculum and assessments used with their nondisabled peers, limiting theirpossibilities of performing to higher standards.In the 1997–98 school year, only 25 percent of students ages17 and older with disabilities graduated with a high school diploma. Graduationrates varied by state, ranging from 6.8 percent to 45.5 percent.Twice as many children with disabilities drop out of school.Dropouts rarely return to school, have difficulty finding jobs,and often end up in the criminal justice system.[10]
Congress must focus on ways to strengthen the IDEA with moreguidance and build on the successes that have been achieved thus far. TheNational Council on Disability (NCD) cites 10 problems facing children withdisabilities in accessing public education. The problems existed before the IDEAand persist to some degree: exclusion, recognition of special needs,disciplinary exclusion, evaluation, educational goals, placement andsegregation, obtaining related services, parental involvement, access torecords, and due process.[11]

Civil rights concerns likely to surface in the reauthorizationdiscussions include: discipline of students with disabilities, overreferral ofstudents from linguistically and culturally diverse backgrounds to specialeducation classes, and monitoring and enforcement of the statute (which waslikewise a concern during the 1997 reauthorization). The pending reauthorizationof the statute is viewed by many as an opportunity to strengthen the nationalresolve to leave no child behind, including one with disabilities.

**Funding the IDEA**

Congress has authorized the federal government to pay 40 percentof each state’s excess cost of educating children with disabilities. Thatamount, often referred to as “full funding,” is calculated by multiplying 40percent of the national average per pupil expenditure by the number of childrenwith disabilities educated under the IDEA.[12]As the table and figures below indicate, Congress has never fulfilled thispromise. Actual funding has fallen well below the amount authorized for the last10 years and, despite increases in recent years, the 40 percent thresholdremains far from being met. In addition, funding for the IDEA Part D SupportPrograms, which provides resources for professional development, technicalassistance, and dissemination of promising practices, has remained stagnant formany years.[13]

 

**Table      1. IDEA Authorization Estimates, 1991–2002**

**FY**

**Per pupil      expenditure**

**IDEA       authorization       (in billions)**
**Actual IDEA       spending       (in billions)**
**% of per pupil       cost paid by       fed. gov’t.***
1991

$5,023

$6.98

$1.85

N/A

1992

$5,160

$9.37

$1.98

N/A

1993

$5,327

$9.37

$2.05

9.0%

1994

$5,529

$10.4

$2.15

8.0%

1995

$5,689

$11.7

$2.32

8.0%

1996

$5,923

$12.08

$2.32

7.4%

1997

$6,168

$13.82

$3.11

9.5%

1998

$6,407

$14.64

$3.80

9.5%

1999

$6,584

$15.35

$4.31

10.0%

2000

$6,821

$15.71

$4.99

13.0%

2001

$7,066

$17.35

$6.34

14.8%

2002

$7,320

$18.02

$7.53

16.7%

*      Data not available for 1991 and 1992.      Source: IDEA Funding Coalition, “IDEA Funding: Time for a New      Approach,” Mandatory Funding Proposal, February 2002, pp. 6–7.
Source: IDEA Funding Coalition, “IDEAFunding: Time for a New Approach,” Mandatory Funding Proposal, February 2002,pp. 6–7.

Source: IDEA Funding Coalition, “IDEAFunding: Time for a New Approach,” Mandatory Funding Proposal, February 2002,pp. 6–7.

In 2002, the average per pupil expenditure for the academic yearis estimated at approximately $7,300. There are roughly 6.1 million studentsserved under the IDEA. If Congress were fully funding states at the 40 percentallocation designated under the statute, it would need to provide more that $18billion in federal funds; instead, schools are only receiving $7.5 billion, ornearly 17 percent.[14]While Congress has made significant budget allocations to the IDEA in the lastfew years (for FY 2002, Congress increased the Part B grants to states by 19percent, from $6.3 billion in 2001 to $7.5 billion), a 139 percent increase isneeded for the IDEA to be fully funded.[15]While there are many proposals for funding, there is strong support forspreading the increased funding out over the next several years through annualincreases and allocating the money to mandatory funds in addition todiscretionary funds.

By the end of this year, Congress is expected to approve thecontinued expenditure and use of federal funds to carry out discretionaryactivities under the IDEA. Herein lies a foremost point of disagreement: shouldCongress allocate more money to the IDEA without first repairing its problems,or can many of the problems be eliminated through full funding? According to astatement released by the chair of the House Education Committee, providingschools with guaranteed funding could have unintended consequences: schools mayidentify even more children as being in need of special education, when all theyneed is additional appropriate instruction.[16]The 1997 reforms changed the funding formula and required that students in needof additional reading, math, and English instruction not be identified forspecial education. There is some fear that mandatory funding would undo thesereforms.

On the other hand, many education and disability rightsadvocates argue that Congress must live up to its promised funding levels. Theyargue that for the entire 26 years of the IDEA, the federal contribution hasfallen far short of the congressional commitment to full funding, and as aresult, state and local budgets have had to absorb the shortfall.[17]The Council for Exceptional Children (CEC), an advocacy group working on behalfof students, issued a policy statement supporting the full funding of the IDEAto alleviate the budget crises that many departments of education and schoolboards face. In testimony before the Department of Education’s IDEAReauthorization Forum, the CEC executive director stated:

Mandatory full funding for state grants is essential to ensurethe federal government lives up to its commitment to children with disabilities.In addition, the Preschool Grants Program and Infants and Toddlers Program mustreceive full funding to assist young children with special needs to developtheir potential.[18]

According to a legislative specialist with the AmericanAssociation of School Administrators, despite the accomplishments made inspecial education over the last 25 years, largely due to the IDEA, there is muchmore that could be done if Congress would fulfill its funding obligations.[19]The 1997 amendments required that a study be conducted to determine the actualcost of educating students with disabilities so that the 40 percent fundinglevel could be reevaluated. This study is expected to be completed and releasedthis year.

**Enforcement and Compliance Monitoring**

While the IDEA has yielded significant progress in securingeducational rights for millions of students, the National Council on Disability,among other organizations, has found the inadequate enforcement of the IDEA tobe a large impediment to the civil rights guarantee initially intended with itspassage. The Office of Special Education Programs (OSEP) in the Department ofEducation is charged with ensuring the implementation of the law throughmonitoring and enforcement activities. However, the compliance/enforcementscheme for the IDEA is different than for other civil rights laws because thereis no individual complaint system in place. Under the IDEA, there are threetiers of enforcement, including the federal government, state governments, anddue process through the judicial system:
-  The federal government approves state eligibility, monitorsstate implementation, provides technical assistance, and issues reports ofnoncompliance. DOEd can withhold funds from states for substantial noncomplianceand can refer states to the Justice Department if failure to comply persists.This latter provision was added in the 1997 amendments to address the concernsof parents and advocates that the IDEA was not being effectively enforced.State governments ensure that IDEA requirements are met in eachstate, determine the eligibility of local education agencies, monitor localagencies for compliance, maintain complaints systems for parents, and establishpersonnel standards. The states may also withhold funds from local educationagencies and obtain corrective action plans.Parents of students with disabilities have a private right ofaction to pursue redress through the judicial process. They also can file acomplaint with the state education agency and often can pursue mediation oradministrative hearings.[20]
Of particular concern to the Commission is the role of thefederal government in the oversight of IDEA implementation and the failure ofDOEd to adequately monitor and enforce compliance. In its 2000 study, NCD foundthat every state was out of compliance with IDEA requirements to some degree.The study confirmed that too many students with disabilities do not receive freeappropriate public education (FAPE), are not educated in the least restrictiveenvironment, are not able to access transition services, and do not receive thebenefit of procedural safeguards in their evaluations.[21]Overall, NCD found that “federal efforts to enforce the law over severalAdministrations have been inconsistent, ineffective, and lacking any realteeth.”[22]Despite the evidence of noncompliance, DOEd has made limited use of itsauthority to impose enforcement sanctions, such as withholding funds. As aresult, the burden of pursuing enforcement of the law has often fallen to theparents of disabled students who must invoke formal proceedings to ensure thattheir children’s needs are met.

**Disproportionate Classification of Minority Students in SpecialEducation**

The IDEA amendments of 1997 required that states report thenumber of students with disabilities served by race/ethnicity. Recent researchcommissioned by the Harvard University Civil Rights Project and another study bythe National Academy of Sciences determined that students of diverse racial andethnic backgrounds are more likely to be placed in special education classesthan their white peers. National statistics compiled by the Department ofEducation outline the disparities. For the 2001–2002 school year:
-  Black (non-Hispanic) students account for 14.8 percent of thegeneral population of students, but make up nearly 20 percent of the specialeducation population.Black students’ representation in the mental retardationcategory is more than twice their national population estimates, and theirrepresentation in the developmental delay and emotional disturbance categoriesis nearly two-thirds higher.Asian American/Pacific Islanders represent 3.8 percent of thegeneral student population, but make up less than 2 percent of the populationreceiving special education services.American Indian students are also slightly overrepresented inspecial education in almost every disability category.[23]
Table 2 demonstrates the extent of the disparities in specialeducation for each specific type of disability. For every type of disabilityexcept for two (orthopedic impairment and deaf-blindness), African Americanstudents make up a larger proportion of the students with special needs thantheir representation in the overall student population. Asian American students,on the other hand, are less likely to be identified as having a disability inevery category with the exception of three—deaf-blindness, hearingimpairments, and autism—compared with their representation in the studentpopulation. Hispanic students are generally represented in special education innumbers proportionate to their overall student population, with the exception ofthree categories in which they are overrepresented: specific learningdisabilities, hearing impairments, and deaf-blindness.

**Table      2. Percentage of Students Ages 6–21 Served Under the IDEA, Part B,****by      Race/Ethnicity and Disability, 2000–2001 School Year**

 

**American Indian/      Alaskan****

**Asian/Pacific       Islander**

**Black**

**Hispanic**

**White**

**% of all      students*** **
Specific      learning disabilities
1.5
1.6
18.0
17.6
61.3
4.4Speech      or language impairments
1.2
2.5
15.6
13.0
67.7
1.7
Mental retardation

1.1

1.7

33.8

11.2

52.2

0.9

Emotional disturbance

1.2

1.3

26.7

8.1

62.7

0.7

Multiple disabilities

1.5

2.2

20.2

14.2

61.8

0.2

Hearing impairments

1.3

4.5

15.8

18.4

60.1

0.1

Orthopedic impairments

0.8

3.0

14.2

15.5

66.5

0.1

Visual impairments

1.1

3.4

16.8

15.4

63.3

0.0

Autism

0.7

4.8

18.3

9.4

66.9

0.1

Deaf-blindness

2.0

3.9

14.1

17.4

62.5

0.0

Traumatic brain injury

1.7

2.2

16.4

11.4

68.2

0.0

Developmental delay

1.3

2.1

25.5

6.3

64.8

0.0

Other health impairments

1.1

1.5

15.0

8.3

74.1

0.4

All disabilities

1.3

1.9

19.9

14.5

62.5

8.6
Population      estimates for children 6–211.03.814.817.5*
62.95
100
Note:      These estimates include the 50 states, the District of Columbia, and      Puerto Rico. 

*Because      Puerto Rico is included, the Hispanic population numbers may be slightly      inflated. 

**Note      that a large number of American Indian/Native Alaskan students with      disabilities are served by the federal Bureau of Indian Affairs and are      therefore not included in state counts.

***Based      on 2000 Census figures. 

Source:      U.S. Department of Education, Office of Special Education Programs, Data      Analysis System (DANS), accessed at <http://www.ideadata.org>.

In addition to disparities in the identification of students’needs and disabilities, there are distinct differences in educational placement(see table 3 below). The IDEA requires students with disabilities to be educatedin the least restrictive environment and with the most interaction with theirnondisabled peers as possible. However, data compiled by the Department ofEducation reveal that African American students with disabilities are morelikely to be placed in special education environments outside the regularclassroom, including residential facilities, separate schools, and correctionalfacilities. Conversely, white students with disabilities are more likely to beintegrated into regular classrooms; they spend less than 20 percent of theschool day in designated special education classrooms at a rate that exceedstheir proportion of special education students. Further, researchers have foundthat white students are more likely to receive services such as counseling andtherapy than are black students, and for longer periods of time, therebylimiting black students’ success in and after school.[24]

**Table      3.****Percentage of Children      Ages 6–21 Served in Different Educational Environments by      Race/Ethnicity, 1999–2000 School Year**

 

**American       Indian/      Alaskan**

**Asian/      Pacific       Islander**

**Black**

**Hispanic**

**White**

Special ed. outside      class less than 20% of day

1.3

1.8

14.9

12.5

69.6

Special ed. outside      class 21%–60% of day 

1.5

1.7

20.2

14.5

62.1

Special ed. outside      class more than 60% of day

1.0

2.0

30.7

19.1

47.2

Separate public      school

0.9

1.9

25.5

12.4

59.3

Separate private      school

0.6

1.8

27.3

12.3

58.1

Public residential      facility

1.8

1.4

32.2

10.6

53.9

Private residential      facility

1.2

1.6

25.1

9.7

62.5

Homebound/hospital

1.0

1.8

19.7

16.7

60.8

Correctional      facility

1.4

1.2

46.4

15.5

35.6

Private school not      placed by public agency

0.3

2.2

9.8

5.9

81.7

Total

1.2

1.8

20.1

14.4

62.5

Source:      U.S. Department of Education, Office of Special Education Programs, Data      Analysis System (DANS), accessed at <http://www.ideadata.org>.

The reasons for the disparities are complex. Some scholars arguethat the disproportionate identification of African American students,particularly as emotionally and behaviorally disturbed, is the result of acombination of “risk factors both at school and in the community, misinformeddecisions and judgments by education, mental health and juvenile justiceprofessionals, and the impact of race, class, and culture across multiple socialfields including the school.”[25]Other factors contributing to overreferral include:
-  Historical discrimination along race, ethnicity, and genderlines, which is reflected in the decisions of educators, biased tests, and thestructure of the special education system.Poor quality “regular” instruction, which causes lowachievement and misbehavior, triggering more referrals to special education.Poorly trained teachers and diagnosticians.Schools lacking adequate resources, thereby using specialeducation as a form of discipline.[26]
According to researchers, the success of most districts incorrectly identifying children with special needs is limited at best.[27]

Schoolpersonnel not only fail to identify students with disabilities, but they alsofail, with surprising frequency, to diagnose and address disabilities correctly,while in some cases identifying black students as having [emotional andbehavioral disturbances] or mental retardation rather than learningdisabilities.[28]

Educators agree that the results of misperceptions andmisidentification of students’ competencies can be devastating to students whoare inappropriately placed.[29]Thus, the Council for Exceptional Children identifies the elimination of“inappropriate, disproportionate representation of students from diversebackgrounds in special education” as a reauthorization priority.[30]

**Discipline of Students with Disabilities**

One of the key elements of the original IDEA, as conceived in1975, was the recognition that, for children with behavioral disorders, accessto school is meaningless if it does not include programming to addressbehavioral needs.[31]The issue of discipline for students with disabilities remains a concern oflawmakers, educators, and parents. Many schools still fail to appropriatelyaddress the behavioral consequences of disability by focusing on controllingstudents rather than addressing a child’s unique social and emotional needs.Behavior that can be attributed to a disability is commonly characterized asmisconduct and treated with discipline rather than appropriate special educationand related services.[32]

Prior to the 1997 IDEA amendments, the issue of discipline wasonly addressed as it pertained to taking action against a student who brought agun to school; the law allowed school personnel to remove a child to an interimalternative educational placement for up to 45 days.[33]The 1997 IDEA amendments clarified disciplinary policy, authorizing schools toremove a student for up to 10 days for minor disciplinary infractions and for upto 45 days for behavior involving weapons or drugs. However, a child with adisability cannot be suspended long term or expelled for behavior that is amanifestation of his or her disability. In addition, schools were authorized toask a hearing officer to remove students who are likely to injure themselves orothers. Educational services are not required during the first 10 days in agiven school year that a student is removed from class. If a child issubsequently removed for 10 or fewer additional school days for a violation ofschool conduct codes, services must be provided to enable him or her to continueto progress in the general curriculum.[34]

Schools are alsorequired to assess each child’s behavior and develop positive behavioralinterventions. The amendments describe how to determine whether the behavior isrelated to the child’s disability.[35]The IDEA requires behavior-related needs or disabilities to be addressed as aneducation matter, in the same manner as other disabilities. As such, studentswith behavioral needs must be afforded the same opportunity to learn in thegeneral curriculum and be evaluated on a regular basis to determine theirpotential and needs as expressed in their Individualized Education Programs. The1997 amendments to the IDEA clarified that when a child’s behavior impedes thelearning of self or others, “special factor” strategies must be considered.According to one legal and education expert, improvements have been reportedamong schools and parents who have taken part in new behavioral interventions.[36]

One complaint of the discipline provisions of the 1997amendments is that they are too complicated and confusing, and therefore shouldbe reviewed during reauthorization.[37]According to the Assistant Secretary for Special Education, the department’sexperience with the implementation of discipline provisions has highlighted theneed for schools to focus on improved classroom management, schoolwide models ofpositive behavior strategies, and the use of behavioral assessments.[38]

In 2001, the U.S. General Accounting Office (GAO) issued areport on discipline under the IDEA after surveying a national sample of middleand high schools. GAO found that, of the schools that responded to its survey,81 percent reported one or more incidents of serious misconduct in the1999–2000 school year. Students in special education were more likely tocommit such misconduct—50 incidents for every 1,000 special education studentsas compared with 15 incidents per 1,000 regular education students.[39]GAO also found that, according to the reports of principals who responded to thesurvey, special education students involved in serious misconduct are beingdisciplined in a similar manner to regular education students. The length ofsuspension for each group is roughly equal, and less than half of suspendedstudents in each group receive educational services during suspension. The sameproportion of each group of students (about one in six) is expelled from schoolor placed in an alternative educational setting.[40]

Overall, the results of GAO’s study indicate that the IDEA hasplayed a limited role in affecting schools’ ability to discipline students (aswas a concern of those who thought the law created a double standard), but atthe same time it also appears that school administrators fail to considerwhether the consequences of discipline may be more detrimental to students withdisabilities. Schools may not be doing enough to ensure that students withspecial needs, who are already at an academic disadvantage, are being providededucational services during suspension.

Moreover, evidence suggests that disciplinary action differsamong students in special education, with race/ethnicity being a determiningfactor in the severity of punishment. According to data released by theDepartment of Education, in the 1999–2000 academic year, Latino, AmericanIndian, and African American students with disabilities were substantially morelikely than white students to be suspended, removed by school personnel, orremoved by a hearing officer. African American students were three times morelikely than white students to be given short-term suspensions. Similardisparities held true for long-term suspensions, with American Indian students(2.7 times) and African American students (2.6 times) more likely to be removedfor 10 days or longer.[41]

**Reauthorization Timeline**

In recent testimony before the Senate Committee on Health,Education, Labor and Pensions, the Assistant Secretary for Special Educationstated:

We know that we will never improve outcomes for students withdisabilities by focusing on special education alone. We must look at the wholeeducation system, and see whether we are providing the right services to theright children, at the right time, in the right settings, and with the rightpersonnel to achieve the right results.[42]

He identified the following implementation challenges: highlyqualified and well-trained teachers and administrators; accountability systemsand assessments; access to and participation in the general curriculum;transitional services from school to work or postsecondary education; andidentification of students with disabilities. All of these issues are likely tosurface during reauthorization discussions.

Congress is just beginning the reauthorization process and isholding a series of hearings that began in March and will run through July 2002.On October 2, 2001, the President issued an executive order creating thePresident’s Commission on Excellence in Special Education, which is assignedto collect information and release a report with recommendations for the IDEA byJuly 1, 2002.[43] Although there is noestablished timeline for the reauthorization to be complete, it is expected thatlegislative proposals will be presented in July or September 2002, and it islikely that the process may continue into the next legislative session.

[1] The Commission and some of    its State Advisory Committees have studied disability rights and issued    numerous reports, including *Civil Rights Issues of Handicapped Americans:    Public Policy Implications*, May 1980; *Accommodating the Spectrum of    Individual Abilities*, September 1983; *Protection of Handicapped    Newborns*, hearings, June 12–14, 1985, and June 26–27, 1986; *Handicap    Protection for AIDS Victims in Washington, DC*, May 1989 (District of    Columbia Advisory Committee report); *Medical Discrimination Against    Children with Disabilities*, September 1989; *Helping Employers Comply    with the ADA*, September 1998;*Helping State and Local Governments    Comply with the ADA*, September 1998; *Employment Rehabilitation    Services in Michigan*, March 2000 (Michigan Advisory Committee report); *Sharing    the Dream: Is the ADA Accommodating All*? October 2000.

[2] Pub. L. No. 93-112 § 504,    87 Stat. 355 (codified as    amended at 29 U.S.C. § 794 2000 (2000 and Supp. 2001)). *See* U.S.    Commission on Civil Rights, *Equal Educational Opportunity and    Nondiscrimination for Students with Disabilities: Federal Enforcement of    Section 504*, September 1997 (hereafter cited as USCCR, *Equal    Educational Opportunity*).

[3] Education of the    Handicapped Act Amendments of 1990, Pub. L. No. 101-476, 104 Stat.    1143 (codified as amended at 20 U.S.C. §§ 1400–1485 (2000 & Supp.    2001)), *amended by* Individuals with Disabilities Education Act    Amendments of 1997, Pub. L. No. 105-17, 111 Stat.    37 (2000 & Supp. 2001).

[4]*See* USCCR, *Equal    Educational Opportunity*, pp. 10–16.

[5] 20 U.S.C. §§ 1401(8),    1412(a)(5) (2000 & Supp. 2001).

[6] National Council on    Disability, *Back to School on Civil Rights: Advancing the Federal    Commitment to Leave No Child Behind*, Jan. 25, 2000, p. 30 (hereafter    cited as NCD, *Back to School on Civil Rights*).

[7] Ibid., pp. 33–36.

[8] IDEA Funding Coalition,    “IDEA Funding: Time for a New Approach,” Mandatory Funding Proposal,    Feb. 20 2001, p. 2.

[9] U.S. Department of    Education, IDEA 25th Anniversary, “Lesson 1: History and Impact,”    accessed at <http://www.ed.gov/offices/OSERS/Policy/IDEA25th/lesson1_History.html>.

[10] U.S. Department of    Education, *To Assure the Free Appropriate Public Education of All    Children with Disabilities*, 22nd Annual Report to Congress on the    Implementation of the Individuals with Disabilities Education Act, 2000, p.    xxxvi (hereafter cited as DOEd, 22nd Report to Congress on IDEA); U.S.    Department of Education, Office of Special Education and Rehabilitative    Services, “IDEA ’97 General Information,” accessed at <http://www.ed.gov/offices/OSERS/Policy/IDEA/overview.html>.

[11] NCD, *Back to School on    Civil Rights*, pp. 246–48.

[12] National Council on    Disability, “IDEA Reauthorization,” working paper, accessed at    <http://www.ncd.gov/newsroom/reauthorizations/idea/idea_workingpaper.html>    (hereafter cited as NCD, “IDEA Reauthorization”).

[13] Ibid.

[14] IDEA Funding Coalition,    “IDEA Funding: Time for a New Approach,” p. 3.

[15] Ibid.

[16] John Boehner, chair,    House Education and the Workforce Committee, “IDEA Must be Fully    Funded—But First it Must be Fixed,” fact sheet, Sept. 18, 2001.

[17] IDEA Funding Coalition,    “IDEA Funding: Time for a New Approach,” p. 2.

[18] Council for Exceptional    Children, “CEC’s President Testifies on IDEA Reauthorization,” *CEC    Today*, vol. 8, no. 6 (February/March 2002), p. 4 (hereafter cited as CEC,    “President Testifies on IDEA Reauthorization”).

[19] American Association of    School Administrators, “National Summit Examines IDEA Implementation”    accessed at <http://www.aasa.org/issues_and_insights/instruction/IDEA_conf_06-20-01>.

[20] NCD, *Back to School on    Civil Rights*, p. 37, table 1.

[21] NCD, “IDEA    Reauthorization.”

[22]  NCD, *Back to School on    Civil Rights*, p. 5.

[23] U.S. Department of    Education, Office of Special Education Programs, Data Analysis System (DANS),    accessed at <http://www.ideadata.org>.*See also* DOEd, 22nd Report to Congress on IDEA.

[24] David Osher, Darren    Woodruff, and Anthony Sims, “Exploring Relationships between Inappropriate    and Ineffective Special Education Services for African American Children and    Youth and their Overrepresentation in the Juvenile Justice System,” draft    paper submitted to the Civil Rights Project at Harvard University,    publication forthcoming (hereafter cites as Osher et al., “Exploring    Relationships”).

[25] Ibid.

[26] Harvard University, Civil    Rights Project, “CRP Action Kit—Special Education,” accessed at <www.law.harvard.edu/groups/civilrights/actionkits/special_ed/spedques.html>.

[27] Osher et al.,    “Exploring Relationships.”

[28]  Ibid.

[29] NCD, “IDEA    Reauthorization.”

[30]  CEC, “President    Testifies on IDEA Reauthorization,” p. 4.

[31] Eileen Ordover,    “Behavior as an Education Issue Under the Individuals with Disabilities    Education Act,” issue brief prepared for the Center for Law and Education,    August 1999.

[32] Kathleen Boundy, Center    for Law and Education, “Disability, Behavior and School    Discipline—Current Law, Historical Context, Future Action,” proposed    position paper (hereafter cited as Boundy, “Disability, Behavior and    School Discipline”).

[33] U.S. Department of    Education, Office of Special Education Programs, “Discipline Procedures,    Changes from Proposed Rule,” topic brief, March 1999, accessed at    <http://www.ed.gov/offices/OSERS/policy/IDEA/brief5.html> (hereafter    cited as OSEP, “Discipline Procedures”).

[34] National Association of    State Boards of Education, “IDEA Regulations,” *Policy Update*,    vol. 7, no. 13 (July 1999), p. 2.

[35] OSEP, “Discipline    Procedures.”

[36]  Boundy, “Disability,    Behavior and School Discipline.”

[37]  Robert H. Pasternack,    Assistant Secretary, Office of Special Education and Rehabilitative    Services, U.S. Department of Education, testimony before the Senate    Committee on Health, Education, Labor and Pensions, Mar. 21, 2002, p. 8    (hereafter cited as Pasternack testimony, Mar. 21, 2002).

[38] Ibid.

[39] U.S. General Accounting    Office, *Student Discipline: Individuals with Disabilities Education Act*,    GAO-01-210, January 2001, p. 6.

[40] Ibid.

[41] Boundy, “Disability,    Behavior and School Discipline.”

[42]  Pasternack testimony,    Mar. 21, 2002.

[43] Executive Order 13227,    President’s Commission on Excellence in Special Education, 66 Fed. R.    51287 (October 2001), as amended in 67 Fed. R. 6157 (February 2002). The    President’s Commission will disband 30 days after submission of its final    report, unless extended by the President.