A Renewed IDEA and the Need for More Ardent Advocacy

Vol. 32 No. 4

By

Stephen A. Rosenbaum is a staff attorney with Protection and Advocacy, Inc., in Oakland, California. He teaches disability rights and mental health advocacy at Stanford Law School and UC-Berkeley’s Boalt Hall and serves on the Special Education Advocate Training Project Curriculum Advisory Committee.

Almost a quarter century ago the U.S. Supreme Court put its mark on the federal special education statute, the Individuals with Disabilities Education Act (IDEA). In Board of Education v. Rowley, 458 U.S. 176 (1982), it held that states ac-cepting federal dollars must provide personalized instruction with sufficient support services to permit children with a disability to benefit educationally from that instruction. But the Court also said that Congress’s “intent was more to open the door of public education to handicapped children by means of specialized ed-ucational services than to guarantee any particular substantive level of education once inside.” Id. at 192. Allowing extensive participation by parents at every juncture of the ad-ministrative process is just as important as measuring the resulting Individualized Education Program (IEP) against substantive standards. Id. at 205–6. The Court also assumed that parents “will not lack ardor in seeking to ensure that handicapped children receive all of the benefits to which they are entitled by the Act.” Id . at 209.

That ardor may not be enough. After hearing its first IDEA case in many years, the Court recently upheld a Court of Appeals decision placing the burden on parents, rather than the school district, when they challenge the appropriateness of their child’s educational program. Schaffer v. Weast, __ U.S. __, 126 S. Ct. 528 (2005).

Students and parents are also ap-prehensive in the wake of the IDEA reauthorization last December, which went into effect during the summer of 2005, a few months before the thirtieth anniversary of the original act. Many special education supporters think the extensively recast Individuals with Disabilities Education Improvement Act of 2004 spells trouble. The reauthorization contains provisions that appear to dilute important values rooted in federal statutory and case law, such as procedural safeguards to ensure that parents are involved in the educational planning process and that students are not easily expelled—the very protections touted in Rowley and other Supreme Court jurisprudence. This will likely have its heaviest impact on parents at the margins—those with minimal education, limited English language proficiency, and little income.

The national trend toward standards-based testing of students as a means for making teachers and ad-ministrators more accountable and closing the achievement gap—as embodied in the controversial No Child Left Behind Act (NCLB)—was also a contributing factor in the IDEA reauthorization. Lastly, Congress has failed once more to appropriate adequate school-based funding at the same time it revisited the special ed-ucation statute.

Advocates must now engage in new tactics to mitigate what they see as damagingchanges and yet be open to honest and critical reflection on changes that may be harmless or even beneficial. I recommend a four-step approach: (1) embrace some of IDEA’s new provisions and make the best of others, (2) ensure that parental zeal is not lacking when challenging school district practices, no matter how the law is read by the Court, (3) aggressively monitor the NCLB, and (4) effectively use interest group organizational strategies to effect change.

When George W. Bush established the President’s Commission on Ex-cellence in Special Education, he proclaimed his support for “creating and maintaining a system of public education where no child is left behind. Unfortunately, among those at greatest risk of being left behind are children with disabilities.” 66 Fed. Reg. 51,287 (Oct. 2, 2001). The commission found that while IDEA generally provided basic legal safeguards and access for disabled children, it “place[d] process above results, and bureaucratic compliance above student achievement, excellence and outcomes.” Id.

Commissioners also called for early and simplified identification of eligible children, increased and more flexible financing, better preparation, recruitment and retention programs for teachers and administrators, and reduced paperwork. These themes were foreshadowed in a 2001 private think tank report, “Rethinking Special Education for a New Century.” Many of the core principles for reform articulated in the report seem sensible: make IDEA standards based and performance based; use Section 504 of the Rehabilitation Act of 1973, as amended as the civil rights underpinning of special education; streamline the number of eligibility categories based on the need for prevention or intervention, remediation, and/or accommodation; focus on prevention and early intervention, using research-based practices; encourage flexibility, innovation, and choices in placement and services; and provide adequate funding.

Curiously, almost none of the recommendations made by the presidentially appointed National Council on Disability found their way into the re-authorization, even though the council issued two reports on IDEA in the last decade, with suggestions on how to better enforce IDEA through such means as federal funds withholding and increased legal aid to parents.

Inside the New IDEA