Statement of Law

The least restrictive environment (LRE) principle in IDEA creates a presumption in favor of educating students with disabilities in the same programs as students without disabilities. Thus, to the maximum extent appropriate, a student with a disability is to be educated with students who do not have disabilities. IDEA requires that the student's removal from the regular educational environment may occur only when the nature or severity of the student's disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. Secs. 1412 (5)(B) and 1414 (a)(1)(C)(iv)). In addition, State and local education agencies must maintain a continuum of placements (34 C.F.R. Part 300, Secs. 300.17 and 300.551). The continuum includes instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions.

Under IDEA, a student's placement should be determined annually, be based on the student's IEP, be as close to the student's home as possible, take into account any potential harmful effect on the student or the quality of services the student needs (34 C.F.R. Sec. 300.552), and the likelihood that the student will be so disruptive in a regular classroom that the education of other students will be significantly impaired (note to 34 C.F.R. Sec. 300.552).

Benefits of Integration

At every hearing, witnesses offered strong support for IDEA's fundamental assumption that the first placement option to be considered for students with disabilities should be the regular classroom the student would attend if he or she were not disabled. Such placement was variously referred to as "integration" or as "inclusion" by witnesses in their descriptions regarding the benefits of such placements.

Toni Robinson is a parent and educator at the Parent Training and Information Center in North Carolina. Her eleven-year-old son, Ted, has Down syndrome and is in his second year at a regular elementary school:

Over the last year, I have learned that IDEA works, and the least restrictive language in IDEA, in my opinion, is just fine as it is. I can tell you that supported inclusion, which entails support for students and parents, for my kid, I can tell you that it works, period. I have a kid. My kid has a life. And I can say to you honestly I really feel like now I have a child instead of a walking disability: walking Down syndrome. And a year later, I have those feelings corroborated by folks at the school, who say, "I wish we could have videotaped this child every day since he walked in the building, because no one would believe the progress." (Toni Robinson, Charlotte, NC)

Many other witnesses described the benefits of integration:

Had I been placed in that special classroom, would they have taught me to expect the same things for myself that children without disabilities take for granted, or to accept a standard that was less? Would I have learned to climb stairs, or would they not have taught me because, like the public school nurse, they would be afraid I might fall? Would having attended a special classroom [have] prepared me for college, or would it have ended my chance for a bachelor's degree before it was begun? (Bernadette Griffin, Philadelphia, PA)

Experiences with Keith's new teacher and his classmates leads me to understand inclusion, like education for any typically developing child, is a process in which placement is crucial. Disability is real. It's educational implications cannot be ignored. However, we already have demonstrated adequately that poor quality of life outcomes can be predicted by mindlessly segregating individuals with disabilities. (Walter Theis, New York, NY)

The main "benefit" Darcy drew form her experience in segregated education was the internalized idea that she could not do what other children could do and was somehow not equal to them. (Leslie Reed, Denver, CO)

In every step of her education, there have been other parents who came to me privately and thanked me for allowing their children a first-hand human experience of the children who for so many years were relegated to special classrooms, other campuses, for separate--but not equal--education. (Lindsay Merryman, Berkeley, CA)

For many witnesses, placement in the least restrictive environment meant placement in a regular classroom in the neighborhood school they would attend if they were not disabled:

Integration into home schools results in education of the community to the sensitivities of children with disabilities. (Mark March, Des Moines, IA)

While having Alex attend his neighborhood schools has not been a popular idea, we have settled for nothing less than being given the opportunity to go to the same school he would attend if he did not have a disability. (Greg Omori, Des Moines, IA)

Parents whose children were placed in local neighborhood schools were pleased and convinced of the many benefits of such placements. Not only does the community learn to accept the particular student, but the student also gains socially and emotionally by having companions in the neighborhood that attend the same school. One little girl testified that she was very thankful that she was able to go to her neighborhood school. She expressed sympathy for another girl she knew who attended a segregated school because she did not have this opportunity and has no friends to play with in the neighborhood.

A majority of witnesses who testified on the subject of least restrictive environment indicated strong support for integrated placements. This support was based on a variety of factors. Many parents of students with disabilities stated that their children made greater gains academically and socially in integrated settings than they had in segregated settings. Parents emphasized the friendships their children had made with nondisabled students that would not have occurred in segregated placements. Parents reported that their children were happier and were eager to be doing what their peers were doing.

Catherine Jortner, President of the Connecticut Coalition for Inclusive Education for Students with Disabilities, spoke on behalf of the parent of a student with autism. The parent had spent five years in due process proceedings, trying to have her son included in a regular classroom setting. She was successful and reported that the five years of struggle had been worth it, as it offered irreplaceable social benefits to her son, Jay.

For the first time, at age 16, Jay went out with friends. He went to a football game with some classmates. It's funny, we were always told that regular education kids just don't want anything to do with special education kids. The kids at the high school have been wonderful. Adults could learn a lot from them. He has friends. Now we have hope for his future. (Catherine Jortner, Boston, MA)

Furthermore, students with disabilities and their parents indicated that academic standards are higher in integrated settings and that students are motivated to achieve at higher levels, whatever their initial level of ability and functioning. Witnesses also reported that integrated placements often led to a greater ability to achieve independence and employment as adults.

Kathleen Fitzgerald is both a teacher and a parent. Her daughter, Kara, who has both mental retardation and autism, was successfully included in a regular classroom:

We saw more progress in that one year of inclusion than we saw in six or seven years of very intensive one-on-one special education. So I feel very strongly that IDEA certainly helped me, and the new...recognition of autism helped me to be able to get my district to look at including my child with very obvious behavioral and autistic tendencies in a regular classroom. [It] was unbelievably successful! (Kathleen Fitzgerald, Anchorage, AK)

Both parents and students stated that they preferred a real-life environment with a diverse population because integration helps students without disabilities to become more compassionate and understanding. Linda Frederick is a parent who, in 1971, worked in an institution for people with mental retardation, including people with Down syndrome. She now has a son with Down syndrome and is very pleased that he is being educated in an integrated environment, remembering the institution where she once worked. She feels fortunate to have great teachers and services that have been especially beneficial to her son's socialization. She says that her son will learn a lot from the kids, a little from the specialists, and a little from the general education teacher.

My son, our family, his friends, and his school are all the beneficiaries of his inclusion at Columbine. I no longer fear for his future. His inclusion in school will ensure that he's included as an adult. There's no better feeling than to know that. Most important of all, he will learn about finding his place in the world, and his friends will learn about finding their place in the world. (Linda Frederick, Denver, CO)

The costs associated with integration can be modest, with possible savings because of fewer due process hearings, fewer mediations, fewer referrals to special education, fewer non-public school placements, and lower transportation costs.

Oakland's current inclusion program at the elementary level serves 27 students at eight schools. Over 60% of the Severely Handicapped (SH) students living in those eight attendance areas attend regular education classes in their neighborhood school with the support of supplemental aids and services...This year OUSD [Oakland Unified School District] will spend about $800 per inclusion student less than the cost of educating them in SDCs [Special Day Classes]. This is due largely to transportation savings ($2,310/student) offsetting additional costs due to staffing ($1,370/student), planning, and training.

As more students are included across the district and at all grade levels, there will be additional costs for equipment (averaging up to $250 per included student), ability awareness training (about $20,000 per year district-wide), and reduced savings on transportation at the secondary level. However, any additional costs should be completely offset by projected savings from:

• reduced escalation to more intensive services (e.g. about $32,000 per student per year not referred to non-public school);
  
  
• reduced legal fees associated with mediations and fair hearings (typically $2,000 - $10,000 per case);
  
  
• reduced need for expansion of facilities ($55,000 per classroom);
  
  
• reduced facilities usage ($960 per class per year); and
  
  
• the effects of economies of scale (e.g. potential for reducing staffing at $1,370 per student per year).

Inclusion represents a more efficient and effective utilization of educational resources. Furthermore, the substantial benefits attributed to inclusive education can be delivered for no additional expenditure of resources. (Mark Polit, Berkeley, CA)

Individuals from advocacy organizations also testified in favor of integrated settings. These advocates represented parents (including parents from diverse backgrounds), students with severe disabilities, and people with mental retardation. The few special education administrators who testified generally supported the concept of integration and emphasized the need for administrative support for integration within school districts.

Beyond the numerous statements of support for integration, many individuals also commented on the negative effects of segregated settings. Ellen Laurence is the parent of a daughter who was placed in a self-contained special education classroom after having been in an integrated setting. In the self-contained program, she was physically abused by staff. She testified that when she reported this to the Colorado Department of Education, she was told that abuse was not their problem, but that it was a personnel problem.

Students reported that they had been ridiculed and stigmatized for going to "the special education room" and that they were treated like second-class citizens. One student reported feeling psychologically malnourished when placed in a group made up only of other young adults with disabilities (Bill Rush, Des Moines, IA).

A number of witnesses stated that a separate special education system could never be equal to the regular system. Some stated that children with mental retardation in segregated settings frequently miss out on academics and the positive behavior modeling of nondisabled peers. Others stated that segregation may encourage nondisabled students to maintain harmful attitudes, because segregation demonstrates that it is acceptable to treat some students under different rules and because nondisabled students do not have the opportunity to know students with disabilities as peers and as individuals. Several individuals stated that segregation itself creates a further disability, perhaps worse than the original disabling condition. Thus, the supported integration of students with disabilities was described as not only producing better results for all students, but as a positive instrumental method of reducing the historical prejudice that has been directed toward people with disabilities in our culture.

Characteristics of Successful Integration

Once the child is there...[inclusion] sells itself. (Jan Miller, Berkeley, CA)

The teacher that honestly believes a child is an asset to the class and is a privilege to teach communicates much to that child, and sets an example for the rest of the class to value all people. (Gayle Underdown, Charlotte, NC)

Her team is creative, flexible and determined to make inclusion work. (Janet Schmitz, Berkeley, CA)

Primarily [it is] the kids who are really into, in fact, including Adam. They are the primary sources of strategies and ways to include him in all their activities starting from PE through their curriculum. (Joanna Cooper, Berkeley, CA)

A large number of witnesses who commented about the characteristics of successful inclusion credited staff members who work directly with students with disabilities. Positive attitudes were frequently mentioned as critical to the success of integration. Staff who want to make integration work, or even a single teacher who promotes positive attitudes about people with disabilities, can make all the difference. The quality and training of regular teachers, special education teachers and support teachers and staff in successful integrated placements is an important factor. So is collaboration among teachers, between teachers and parents, and between schools and agencies. Some individuals stated that support from the administration and school district is necessary, as is provision of adequate support services to the child and classroom teacher. Support services can include early intervention, paraprofessionals or aides, interpreters, buses for field trips, and education for nondisabled peers. Obviously, appropriate IEP goals and objectives are necessary.

The role of other students is also important. Social interactions between students with and without disabilities can be encouraged. Peers naturally provide motivation, can suggest curriculum modifications, and become friends of students with disabilities.

Diana Daggett is a parent and board member of the Autism Society of America. Her 15-year-old daughter, Allison, is succeeding in a regular school because she has proper support and her school is complying with IDEA:

Allison is living proof that with the proper supports and compliance by schools, children with special needs can succeed. What's important is the reputable fact that all children benefit from full participation of every student. There are important lessons to be learned early in life about the rights of all people. (Diana Daggett, Albuquerque, NM)

Barriers to Integration

While a large number of witnesses described the benefits of integrated education, many others described the many barriers that continue to impede (or serve to prohibit) the implementation of IDEA's requirements.

Attitudes of Professionals in Education

I tell you in my experience, I've heard such rhetoric as, "I'm getting tired of spending money on kids who aren't ever going to grow up and be anything." Holy cow, and that's coming from administration! (Mark Peterson, Des Moines, IA)

Attempts by parents for mainstreaming or inclusion are met with disdain and indifference. (Pam Clingenpeel, Charlotte, NC)

We've been told, "You're going to dump these children in our class and we're going to be responsible to teach them. If we don't, it will be our jobs." (Greg Omori, Des Moines, IA)

One parent was told from an administrator, "[Your son] can either go to his neighborhood school, where he will be teased and humiliated, or he can continue to go to the segregated school, where he will have the opportunity to be class president and captain of the basketball team." (E.J. Jorgensen, Des Moines, IA)

Of the approximately 50 people who discussed professionals' attitudes, several testified that many teachers are unhappy with inclusion and are not always receptive to having a child with disabilities in their classroom. One parent said that her daughter who has autism was subjected to regular classroom teachers who ignored her, blamed her for requiring special help, and pressured her parents to segregate her by taking her out of the integrated system. Another parent stated that in her city, the teachers' union wants a moratorium on inclusion and teacher "veto power" over the acceptance of students with disabilities into their classrooms, a situation that would be intolerable in the treatment of any other minority group. A father from Anchorage stated that he was afraid that his child would be excluded if his child's disability was identified due to the lack of personnel support for inclusion. A few people testified that, although some teachers initially support integration, they want to revert back to segregated programs as soon as any problems arise.

People compared the situation of children with disabilities with that of the discrimination that occurred against African Americans a few decades ago and stated the strong hope that it will not take decades for people to come to the understanding that children with disabilities belong in a classroom just as much as nondisabled children.

Inclusion must be a right for all and not a privilege for a few. (Kathie Snow, Denver, CO)

The inclusion of all of our kids hangs in the balance until districts and LEAs and SEAs stop seeing inclusion as a favor to be given or denied and see it as a right for all of our kids. (Cheryl Ogle, Des Moines, IA)

Why should parents have to struggle so hard to access inclusion when the original intent of IDEA was to make the regular classroom the first option of choice? (E.J. Jorgensen, Des Moines, IA)

Least restrictive placement is [considered] an earned privilege, not a right. Children must prove that they can attend, keep up with, and function as non-disabled students in the regular classroom or they do not have the right to attend. (Dawn Gloss, Des Moines, IA)

I've been watching inclusion evolve over the last six or seven years. Inclusion works wonderfully for students [who] have parents that have the time and energy to support their child. (Jane Thiboutot, Anchorage, AK)

Approximately two dozen witnesses testified on the negative attitudes of professionals as a barrier to inclusion. A large number of parents complained of having to fight--sometimes for years--for their child's right to integrated education. Several complained of having to hire attorneys to fight for integrated placements that were supposed to be their children's right. Furthermore, contrary to the provisions of the law, witnesses stated that the burden is often placed on students and families to "prove" they are "ready" for inclusion, and only then do they "earn" their way out of a segregated setting.

Parents expressed frustration that their children with disabilities had been sent to schools away from their brothers, sisters, and friends, especially when the appropriate services could be made available in their neighborhood school. General resistance to integration is a factor many believe to be the main obstacle behind administrative reluctance to integrate students with disabilities into regular schools.

While positive attitudes are a key element in reducing barriers to inclusive education, occasionally a witness noted that attitudes can be changed:

I used to think that teachers had to have the right attitude and the right training before kids could be included in their classroom. And what I found from experience is that sometimes when you include a child with diverse needs into their classrooms, their attitude changes, and they see the need for training and they will get it then. (Charmaine Thaner, Denver, CO)

Personnel Preparation

I don't get it. Why all the opposition? Aren't these people in a position they are in to help guide education to be the richest it can be? These people who oversee the education are, by example, teaching mediocrity, intolerance, and purposeful ignorance. (Elsie Mahler Scharff, Philadelphia, PA)

The problems with obtaining integrated placements, coupled with the poor and unsupportive attitudes of professionals, stem at least partially from a lack of training for educators and administrators on the purposes of integration and on techniques to implement this requirement of IDEA successfully.

I think it's important to teach teachers disability awareness. Non-disabled teachers probably don't have an idea of the personal psychological effects of disabilities. (Julie Redenbaugh, Albuquerque, NM)

[At the college I attend,] they teach that including students with disabilities is against the LRE requirement and that segregated classes and schools are the best environments for students with moderate or severe disabilities. (Patty Gilg, Des Moines, IA)

Over 20 people identified the need for improved personnel preparation in (1) working with students with disabilities and their families, (2) learning about disabilities in general to promote understanding, (3) understanding IDEA and the requirements of LRE, (4) focusing on the students' abilities as well as understanding their disabilities, and (5) training administrators. Administrators need to become more familiar with what is involved in including a child in the regular classroom. It is only then that they will have a foundation to be able to support teachers in the inclusion of students with disabilities in their schools.

Jane Burke is a parent whose seven-year-old son experienced successful integration in kindergarten because the teacher was accepting, tried hard to address him in her lessons and activities, and modified his assignments to give him work at his level. She testified, however, that in a different grade, the teacher was inflexible and unwilling to adopt or modify the curriculum or produce incentives for good behavior:

In my experience, the real barrier to children with disabilities being placed in a regular classrooms is unaccepting attitudes of school personnel. It is difficult for people to change. It's been easy for them to hand children over to special education and not have to deal with anyone with different needs. It is our job to show teachers and school administrators that we believe all children can learn and deserve to learn together. (Jane Burke, Philadelphia, PA)

Funding and Costs ⁽⁷⁾

It is clear that current funding patterns create incentives for segregated special education and disincentives for integrated education.

If we look at the bottom line--money--Iowa's system is set up, "The more you segregate, the more money we will give you. We will give you more money if you separate the children." (Greg Omori, Des Moines, IA)

These laws are wonderful, and yes, they work, but they don't work without money. (Kathleen Fitzgerald, Anchorage, AK)

More than 40 persons testified about the issue of financial disincentives to integrated education. In many States, school districts receive more State funds by labeling and segregating students with disabilities than they do for integrating these students into regular school environments. This type of State funding practice causes local education agencies to segregate students with disabilities because districts cannot afford the supports and services necessary for quality inclusionary services with no (or reduced) State funds. One parent commented that in order to have his son integrated, he had to discover a way that the school district could still receive its money while integrating his son. Another described her experience as follows:

Our first introduction to our district came with our son being labeled as S.H. For those who don't know, "severely handicapped." He had never received such a label before. We were given a cursory explanation that in California, this label was used primarily as a funding mechanism, not as a placement tool. But we quickly learned that our son had a bounty on his head. (Cecily Purcell, Berkeley, CA)

To provide an incentive for schools to follow IDEA, one witness recommended pooling the resources of different categorical programs. The effect would be to eliminate the negative reaction that often exists when regular education funds are used for special education.

But [successful inclusion] cannot happen unless the board provides the resources, the training for the staff, and there is an attitude change in terms of staff and personnel as to the possibilities of children being allowed to function in a regular classroom situation. (Sonia Ortiz-Gulardo, New York, NY)

In addition, the current lack of resources in general and special education alike can prevent the effective and appropriate inclusion of students, because the appropriate services are not always available. For example, one mother said that her daughter who has a learning disability was mainstreamed, but did not have a consultant teacher because there was not enough money in the budget to pay for one. While a lack of resources is not an acceptable excuse under the equal protection provisions of the Constitution upon which IDEA is based,⁽⁸⁾ school districts continue to use this excuse to deny services to students with disabilities.

Many witnesses stated that resources need to be allocated for personnel preparation, particularly for the education of professionals in the integration of students with disabilities and for collaboration between regular and special education teachers in order to monitor and improve integration efforts.

Partial Integration

Some witnesses commented specifically on the unsatisfactory implementation of the LRE through only partial or poorly supported integration:

I've been in some classrooms where there are children who stay in the back of the room in the corner and are ignored for a couple of hours at a time... that's not inclusion. (Jane Thiboutot, Anchorage, AK)

Even though students might be physically integrated into a regular school program, accommodations may not be made in order for these students to access effective instruction and social supports. For example, one witness expressed concern regarding the lack of academic integration. Too often, children are integrated only in classes such as art, gym and music. Another witness was dismayed that her child was allowed social interaction only during lunchtime.

While placement in a regular neighborhood school does not dictate that a student with disabilities spend every minute of the day in regular classes, it is also the case that the ability of students with disabilities to participate in regular--and challenging--classes within the regular school should not be prejudged.

Being Treated as a "Burden" to Regular Education

Congress included an exception to the IDEA provisions regarding least restrictive environment to address the rare situation where a student's behavior in a particular placement might be considered dangerous to the student or to other students. Unfortunately, this exception has been sometimes used to exclude students whose behavior would not be construed as dangerous (see the "Zero Reject" chapter). While it may be necessary to continue this exception in the law (although such behavior is covered under other laws), its interpretation should at least be restricted to those situations for which it was intended:

We feel that the IDEA adequately addresses the issue of children having dangerous behaviors by the process that school districts can get an injunction for a child who is dangerous. (Teresa Holt, Anchorage, AK)

Parents reported that in some situations, they had been made to feel that the presence of their child in a regular school environment would hinder the progress of other students or that the "burden" of providing services to their child would take resources away from other (presumably, more worthy) students.

Continuum of Services

When IDEA's predecessor, the Education for All Handicapped Children Act, was written 20 years ago, Congress mandated State and local education agencies to provide a continuum of services in educating students with disabilities. This continuum included a graduated series of increasingly restrictive and segregated placements for students with disabilities, ranging from placement in regular education classrooms to institutions. This requirement continues in effect to this day.

[It is not possible to have] a one-size-fits-all educational philosophy. (Stella Sanfratello, Denver, CO)

[Inclusion] is not the answer for every child or for every parent. We have children that are benefitting from inclusion, but we have many children who are vegetating in the backs of classrooms. (Julia McCarthy, Boston, MA)

I have some serious concerns about the current movement to adopt inclusionary practices as a single, universal concept to meet the needs of deaf and hard of hearing. (Timothy Jaech, Milwaukee, WI)

Some witnesses at the hearings testified in favor of maintaining the continuum of services. Their comments were often based on the type of disability that their child had. For example, individuals who were deaf and parents of students who were deaf constituted the majority of the individuals who wanted to maintain the continuum. Some parents of students with multiple disabilities also supported the maintenance of the continuum. Individual parents and persons representing other disability groups--such as blindness or visual impairment, mental retardation, other developmental disabilities, attention deficit disorder or autism, and dyslexia (in decreasing order of frequency)--also testified on behalf of the continuum.

Several witnesses offered explanations as to why they wanted to maintain the continuum. Some stated that their child's needs simply had not been met in the regular classroom, primarily because the school failed to appropriately educate them by not providing necessary services. This comment was especially frequent for individuals who were either blind (or visually impaired) or had multiple disabilities. Others stated a general need for flexibility and parental choice in the matter. One woman commented that her daughter became frustrated in the regular classroom trying to keep up with the other students, but once she was placed in a segregated school, she started learning again. A few parents of children with multiple disabilities commented that they preferred separate placements because of the medical supervision provided for their child. Individuals who were blind or visually impaired expressed their concern that braille education simply had not been made available in integrated settings. One individual stated that he had been integrated and had benefitted socially, but that he lacked a lot of necessary skills.

Witnesses concerned with students who are deaf cited several reasons for maintaining the continuum: the lack of language education in many integrated settings, isolation from peers because of communication barriers, and underdeveloped self-esteem due to a lack of role models. Additionally, they valued the availability of direct communication with the teacher and peers without having to rely on interpreters to communicate.

The individuals who testified in favor of the continuum did not express a desire to eliminate inclusion. As noted above, many indicated that they had chosen other placements because appropriate supports and services had not been made available to them within regular education settings. In the case of deaf students, Cliff Moers explained that the development of communication skills was paramount:

When there is communication, then they will learn. There is no way to learn except through communication. Compared with other children with disabilities, our group is unique, and our needs are related to communication and communication barriers. That's our biggest problem. (Cliff Moers, Denver, CO)

Thus, it is the case that 20 years after the passage of the law, there are students who are not being served well--or served at all--by the public schools. However, given the existence of highly successful models of inclusive education for students with all types and severity levels of disabilities all across the nation, the time is long overdue that, with the possible exception of deaf students, the focus of the placement question evolve from the initial assumption that the nature or severity of a disability determines a certain placement on the continuum to a focus on the availability of appropriate supports and services within a given local education agency.

Recommendations: Least Restrictive Environment

To date, most governmental parties involved in implementing the requirement that students receiving special education be educated in the least restrictive environment have consistently failed to live up to their responsibilities regarding this requirement. Twenty years after the passage of Federal special education legislation requiring placement in the least restrictive environment, many local education agencies continue to routinely place students with special needs in segregated categorical programs with virtually no consideration of less restrictive placements. State agencies continue to reward this noncompliance in many parts of the country by providing financial incentives for segregated placements. The Federal government has failed to enforce the law in any substantive manner, thus aggravating the situation.

In spite of this, thousands of students with all types of disabilities, including those with the most severe levels of disability, are being well supported--and are thriving--in full-time regular class placements across the country every day. Clearly, we have gone beyond the point where arguments can be effectively made that some students simply cannot be served in integrated placements because of the nature or severity of their disabilities. And yet, the entire national architecture of special education continues to be based on a structure known as a continuum, which was originally developed on the assumption that the nature and severity of a disability should determine the degree of integration or segregation a student experiences in education.

Continuing noncompliance with the least restrictive environment provisions of IDEA is particularly troubling in light of the provisions of the Americans with Disabilities Act of 1990 (ADA). One of the core goals of the ADA is a significant increase in the participation of all Americans with disabilities in the lives of their local communities. In stark contrast to this, most public schools continue to segregate large numbers of students with disabilities from participation in the lives of their neighborhood schools, and sometimes even their communities. This continued segregation may be construed as a de facto violation of the civil rights of students with disabilities under the ADA. Clearly, special education law should not promote service structures that justify and promote the segregation of students on the basis of the existence, nature, or severity of their disabilities.

Accordingly, a major goal in improving the implementation of IDEA should be replacing the requirement that State and local education agencies must provide a continuum of services with a requirement that State and local education agencies must provide for an "array of support services designed to maximize the student's participation in regular education environments and activities." A continuum, by definition, is constructed with a series of steps leading away from regular class placement. An array, on the other hand, can be conceptualized as having a wide variety of individually accessible, discrete support services that can be accessed freely from a regular educational environment. Under a continuum model, students are incrementally removed from typical educational environments and they and their parents must accept all of the features provided within their "step" on the continuum. With an array model, students and parents can stay where they are and access only those services and supports they need, not the whole "package" which, in the case of special education delivered under a continuum model, almost always involves segregation.

The implementation of the current regulatory requirement that school districts must provide a continuum of services has served as a substantial barrier to achieving the overall intent of this section of the law, namely, to promote the maximum participation of students with disabilities in regular education, with removal occurring only after it has been clearly demonstrated that appropriate supplementary aids and services have failed to work. To this day, all school districts are required to have ready a series of increasingly more segregated options, including institutions.⁽⁹⁾ Over the years, a "continuum of services" has become equated with a "continuum of placements," the result being a drainage of energy and resources away from neighborhood schools into segregated settings. Ironically, the implementation of the regulations has apparently thwarted the intent of the law.

There will be situations where parents will want substantially separate placements, usually because school districts have not offered appropriate supports within the regular school environment. Other times, parents might request such placements based on the nature of their child's disability (e.g., deafness). At this point in history, such requests might be appropriate. However, this should not obstruct the overall process of rebuilding special education as a high-quality support service available in every public school building in America. The problem at present is not a lack of options to segregate students with disabilities from their peers; rather, it is a lack of options to include students with disabilities in the ongoing lives of their schools and communities.

Therefore, in order to improve and strengthen the provisions of IDEA regarding placement in the least restrictive environment, the Federal government should implement the following recommendations:

1. The goals, purposes, rights, and protections afforded under the Americans with Disabilities Act should be incorporated throughout IDEA through preambular language stating this fact.
   
   
2. The requirement that State and local education agencies must provide a continuum of services should be replaced with a requirement that State and local education agencies must provide an "array of support services designed to maximize the student's participation in regular education environments and activities." While it may be necessary to maintain many of the current features of the "continuum" as a transition to a "supports and services" orientation takes place, and it may be the case that a relatively small number of students might continue in substantially separate placements (e.g., deaf students), the requirement that a wide array of supports and services be available in regular school buildings will better address the intent of IDEA and other legislation in eventually reducing the number of more restrictive placements.
   
   
3. State and local education agencies should be required to develop funding policies and procedures that are at least "placement neutral". That is, funds should be allocated to meet the needs of individual students, not the needs of individual programs. At least the same amount of funding should be available to support a student in an integrated regular education environment as in a segregated program.
   
   
4. Removal of a student with a disability from the regular education environment should be documented with a written report attached to the student's IEP. The written report should include: a statement of the supplementary aids and services considered, but rejected, by the IEP team; a statement of the reasons why these supplementary aids and services are not capable of assisting the child within the regular education setting; and a statement as to when appropriate supplementary aids and services will be made available to transition the student back to the regular education environment.
   
   
5. The IEP for any child with a disability who is to remain in the regular education setting should list necessary aids and services with the same specificity as the listing of necessary related services, including the time and frequency of delivery of such aids and services.
   
   
6. The Department of Education should significantly expand its monitoring and enforcement activities related to implementing the least restrictive environment requirements of IDEA. Given the extreme variability of student placement patterns from district to district and State to State, specific plans and goals for reducing the number of students placed outside of regular education settings should be developed, with receipt of future Federal funding contingent upon meeting these goals.

No parent is ready or trained to be a parent of a special needs child. (Mary Ann Egger, Milwaukee, WI)

I looked for information. It wasn't there. I didn't get anything from the school districts, from any of the support people they put me in touch with. They were all bureaucrats. I got my best information from other parents, and so I think it's important that new parents, parents just coming into the system, are matched up with other parents. (Lisa Reader, Albuquerque, NM)

I have been quite a successful education story. But I think that is only because my parents are both very well educated and relatively wealthy, certainly upper middle class. And they had the ability and the knowledge to essentially face down the educational system and say, "No. You're incorrect. This is what he needs, that will not be enough," and I was able to get the kinds of services that I needed. (Dave Gordon, Boston, MA)

Despite all the wonderful changes, many parents are still not given the respect they deserve as experts about their own children. Many fathers are still left out of the process entirely. And many parents are subjected to humiliating, destructive encounters with education and health care professionals. I believe that this is because well-intentioned professionals are not sufficiently trained on how to communicate with and collaborate with parents. Accordingly, I urge that the reauthorization legislation mandate training of this kind. (Stanley Klein, Boston, MA)

Statement of Law

One of the six principles of IDEA is that parents and (where appropriate) students have a right to share decision making with educators. This principle--sometimes called parent participation or parent-educator collaboration--serves two purposes. First, it facilitates informed decisions by knowledgeable people and thereby advances the student's appropriate education in the least restrictive environment. Second, it creates a system of checks and balances, so that parents and students on the one hand and educators on the other can hold each accountable for the student's education.

IDEA authorizes several types of shared decision making. It requires the State education agency to establish procedures for consulting with persons involved in or concerned with the education of students with disabilities, including individuals who themselves have disabilities or are parents or guardians of students with disabilities (20 U.S.C. Sec. 1412(7)); to make the State's special education plan available to the public and parents (34 C.F.R. Part 300, Sec. 300.284); to hold public hearings on the State plan and to give notice of those hearings (34 C.F.R. Part 300, Sec. 280); and to allow the public and parents to comment on the State plan before it is adopted (20 U.S.C. Sec. 1412(7)). Similar participation and consultation requirements exist for local education agencies (20 U.S.C. Sec. 1414(a)(1)(C)(iii)). In addition, the State education agency must create an advisory panel on special education, consisting (in part) of parents (20 U.S.C. Sec. 1413(a)).

Parents have the right to access the State or local agencies' system-wide records on special education, but not the records of individual students except their own child (20 U.S.C. Secs. 1412(2)(E), 1414(a)(3) and (4), and 1417 (c)). They have access to their own child's records and may restrict (to a fairly significant extent) access to those records by other individuals (20 U.S.C. Sec. 1417(c) and 1232).

In consideration of the fact that shared decision making creates opportunities for collaboration between parents and educators and that part of collaboration is the provision of related services to students and their parents or other family members, IDEA requires early intervention programs (for infants and toddlers, from birth to age 3) to fashion, with the parents' participation, an individualized family service plan (IFSP) (20 U.S.C. Sec. 1477). IDEA also authorizes some "related services" to be provided to parents if those services are part of the student's individualized education program (20 U.S.C. Sec. 1401(a)(17), (19), and (20); 34 C.F.R. Part 300, Secs. 300.6 and 300.16).

General Issues Concerning Collaboration

During the hearings, parents and students described their experiences in attempting to collaborate with school districts in various aspects of special education. Many witnesses addressed the issues of interdisciplinary and interagency collaboration.

In many schools it is still us (regular ed) versus them (special education). Students with disabilities in particular lose in this meaningless conflict. The essence of the IDEA is to move away from this mindset into one that emphasizes collaboration. (Mike Remus, Des Moines, IA)

I go to PETs with families who have children who have neurobiological disorders like my son, and I sit there and I get angry, and actually I get physically sick because I don't care what school district I sit in, what child we're representing, I hear the same comments from education professionals that [are] just plain ignorant. The things I hear about these children and heard about my own child is...that they're "unwilling," they're "manipulative," and they "don't want any responsibility," and the parents "won't take any responsibility" and a lot of negative things instead of, "Gee, what are we doing wrong [and] how can we make it right. (Cindy Sirois, Boston, MA)

Collaboration between schools and parents does not happen easily. Historically, schools have been viewed as the "experts" in education, with parents playing a minor role. To be effective, collaboration must be planned and supported, especially through training and sharing information between parents and professionals.

Training and Information Issues

Most of these parents are either unaware of their rights under IDEA, or have been pressured into accepting less than an appropriate placement for their children. Many not only do not believe their rights, but they fear retribution if they apply pressure for appropriate supports and placements. (Diana Daggett, Albuquerque, NM)

[Families] are being denied their rights through lack of being educated on their rights. (Patrick Owen, Anchorage, AK)

In our school system parent training is virtually nonexistent. Appropriate services for children cannot exist when parents are without any meaningful information about their child's participation in special ed. (Linda Speich, Charlotte, NC)

You do it yourself is what it comes down to. And fortunately, you have your rights under the IDEA, but finding out what they are and how they apply to your particular situation is entirely up to the individual parents. (David LaDue, Berkeley, CA)

There's a lot of kids that are included here locally in school primarily because of parent advocacy. So it's one child at a time. (Carl Evertsbusch, Anchorage, AK)

The PTI...has been an invaluable resource to our family. We are an educated couple, and I believe that we are relatively intelligent. However, we have needed the support and the interpretation of all the special ed language and procedures that have been thrown at us as a family, and PEAK [a PTI] has been there to provide that to us. (Ellen Laurence, Denver, CO)

To advance parents' rights to shared decision making, Congress authorized the creation of parent training and information centers (PTIs) more than a decade ago. The PTIs are parent-directed and are responsible for providing education and training to parents on their rights under IDEA. In some circumstances, they also advocate for parents and students. There is at least one center in every State, and recently Congress authorized centers to be created on behalf of traditionally underserved or minority populations.

According to witnesses, the PTI Centers' roles are indispensable. They are the major--and sometimes the only--source for parents to learn about their children's special education needs and rights. Many parents testified that the knowledge they acquired through information dissemination and training activities of the PTIs served to prepare them to be effective in their collaboration efforts with professionals.

Witnesses had several suggestions for strengthening parent training under IDEA:

Strengthen the discretionary programs that support the parent resource centers...get information out to parents...create ways for parents to network so they can share tips and things that they've learned. (David Maltman, Anchorage, AK)

I believe we need a greater commitment to develop parent materials through interactive technology that could accommodate the various communication levels of parents and students. I also believe that...the school district should give parents information about available advocacy organizations, who may represent families in need of such assistance. (Timothy Jaech, Milwaukee, WI)

If there were any incentives for school districts to add parents to the team and either at the local, district,...or even [in] region in-service types of activities, it would be much appreciated. (Mike Remus, Des Moines, IA)

Witnesses expressed concerns regarding a lack of successful collaboration among parents, education professionals, and staff of disability service and other related service agencies across all major areas of IDEA. A sampling of their comments is provided below.

Zero Reject

The chasm between parents and the school districts is getting wider. It's not getting closer...the needs of the child are seldom mentioned during an IEP meeting: only, "School policy says..." Some schools are getting no direction on how to interpret IDEA or what it means. They have no vision for our children, nor do they have a sense of purpose. Outcomes are seldom looked at. Schools are not held accountable for the product, which is to help each of our children reach their full potential. Instead, what seems to be coming from them is to put our families through either the judicial system or the social [service] system. Either way, our families are spending their time fighting these two systems instead of raising and educating their children. (Larry Fuller, Albuquerque, NM)

Children cannot receive the education to which they are entitled unless they are first admitted into school programs. Family members testified that, much to their amazement, some children are not being allowed into schools. Their testimony illustrates how important parent participation is in the enforcement of the zero reject principle:

Two weeks ago, I saved two children from going to State custody because [their parents] were told that's the only way they could access services. There is [also] a child with MS. He has never gotten any service at all. (Michael Kidd, Charlotte, NC)

The burden...has been totally put upon me and my wife. And given that, I'd have to say God help the child that doesn't have parents with the awareness, the knowledge, the commitment, whatever it takes to do this. (Richard Curtis, Boston, MA)

Assessment for Eligibility and Nondiscriminatory Evaluation

Unfortunately, [during] his first eight years of schooling I didn't know as a parent that I had any rights or any power or responsibilities. At that time I was undereducated myself. I had a ninth grade education and I sat at PETs with people who I perceived to have the knowledge to teach my child and felt that, even though my gut told me it wasn't right, they must know. (Cindy Sirois, Boston, MA)

Parents want to be able to participate throughout each step of their child's special education process, including being a part of identifying their child's abilities and challenges. They need to be a vital part of the evaluation and assessment process.

Appropriate Education

So I ask my team each year, "What we do? Where do we go?" I did not go to college to come a special education teacher, so I look to the professionals for the answers. I've contacted my senators, my legislators, my State Department of Education, the Board of the Blind, the New England Center for Deaf/Blind Services, my local school system, including the head of special services, the administrator of special education and teachers of many special education students, and I get that same blank stare...I find the education system to be a maze of laws, paperwork, politics and bureaucrats. Everyone has a different finger to point, a new evaluation to do, another meeting to attend, and another phone call left without a response. (Catherine Reed, Boston, MA)

Individualized Family Service Plans and Individualized Education Programs

At every hearing, the importance of parents' participation in developing their children's IFSPs and IEPs was reiterated. Regulations in IDEA ensure the right to full participation for parents in the IFSP and IEP processes. However, witness after witness offered examples of how this right is not automatically assumed and acted upon for families:

Referring to parents participating in IEPs without education or training or information beforehand: it's like showing up at a restaurant [where] you read the name over the door and you have to decide what they serve and whether we want it or not. That's about what happens at your typical IEP. (David LaDue, Berkeley, CA)

We had to endure three different staff meetings with 12 to 14 people between the spring and fall of this year before we had an adequate IEP design. The entire IEP process was not an exercise in team building nor reinforcement of our daughter's strengths. We depended on the provisions of the IDEA to reinforce our points throughout the entire course of events. I would plead that any provisions of IDEA which discourage families from playing an active respective role in the educational planning process for the children be modified. Make it perfectly clear to the educational community that families and children drive this process and not bureaucratic requirements grounded in Federal legislation. (Joe Wild Crea, Denver, CO)

I was one of those parents who left...IEPs like someone who has left a foreign movie without the subtitles. I felt a very small and incidental part of this procedure, and at times I felt a feeling that my daughter really wasn't getting her full share or placement of services. [It] wasn't until I started networking with other parents that I started feeling empowered to all the services she rightfully should have. (Diana Sullivan, Milwaukee, WI)

Parents Are Not Professionals

Parents have not received the formal education of professionals within the educational system, nor should they be forced to be professionals. Yet "becoming professional" is often part of what happens to parents:

We really need to put the responsibility again on the educators and not make all the parents professionals, because parents also have jobs, and the amount of time, energy, and emotions that every parent...has put into the education of our children's special needs [is] just tremendous. It shouldn't be that way. We really need to distribute that kind of energy more evenly. It's very frustrating. (Birgit Schweingruber, Berkeley, CA)

Parents, however, have to make a living and support a family at the same time their child is in need of a great deal of intervention. We need to find time, funding and resources to provide those parents with the on-going process of being a student, a student of being a parent of a person with a disability. (Brian Charleson, Boston, MA)

Program Methods

Many parents expressed frustration with the methods used in their children's programs. Methods such as the use of aversive procedures anger many parents, although some approve of them:

My son, with the severe aggressive dangerous behaviors that he has... improved, and he's learned and doing things we never dreamed....The quality of his life has been greatly improved by being managed on a drug-free program....I don't say that aversive is for everybody, I'm only saying that it's working for us. (Marie Washington, New York, NY)

However, many other witnesses testifying on the education of students with severe behavioral disabilities were adamant in their belief that those interventions, or other forms of behavioral, physical, or psychological control were damaging and abusive:

That following year, we had to go to due process...trying to force the school to stop using aversives on him...Tabasco sauce, vinegar, soap, paper towels down his throat, and physical restraint that was injuring him. We learned at that time that our son had been locked in a PE equipment closet throughout the winter and the spring. (Rainee Courtnage, Denver, CO)

He was duct-taped to a chair. His clothes were duct-taped on him. His shoes were duct-taped on him. (Jane Hasty, Charlotte, NC)

In the town of Cloudcroft, one kid that was classified as having ADD, was insulted by his teacher. In front of [the] whole class, [his teacher] called him stupid. That was the same week he killed himself. (Judy Bonnell, Albuquerque, NM)

When Annie was in sixth grade, she was physically abused at school by the teacher and the paraprofessional, as documented by the child abuse and neglect team and the local police department. (Ellen Laurence, Denver, CO)

I would like to talk about adding an amendment to the Individuals with Disabilities Act that would prohibit aversive procedures, including restraints within public institutions that educate children. (Carolyn Reed, Denver, CO)

Implementation of positive behavior modification techniques was recommended as an alternative to the use of aversive and other painful techniques in the education of students with severe behavioral disabilities.⁽¹⁰⁾ Another witness noted the importance of modifying the environment in order to foster positive behavioral change:

Teachers [of students with] serious emotional disorders concentrate on discipline and consequences, instead of modifying the environment, which is what our children need. (Betty Cope, Albuquerque, NM)

Parent input can greatly improve educational programs for students with disabilities. However, the current system has the potential to allow parents to request and receive program methods that are unproven, experimental in nature, or dangerous or harmful to the physical or psychological health of their child. While it is possible to understand the desperation of these parents, to share their exasperation with ineffective programs and treatments, and to sympathize with them in their frustration to locate appropriate programs, there are limits to what society can permit in the name of treatment. There are those in our society who would advocate for severe physical punishment or even the mutilation of prisoners convicted of what everyone would agree are heinous crimes. Yet these prisoners are afforded protection under the law from this treatment, even though there are those who would claim that such treatment would "teach them a lesson." Students with severe behavioral disabilities are not criminals, and yet present law allows them to be subjected to procedures which cannot be used on the most hardened criminals, or, in some cases, even on animals.

Public funds intended to provide positive educational experiences and results for children should not be expended to have these children subjected to unproven, experimental, dangerous, or violent program procedures which--by design--result in pain, physical injuries, psychological damage, hunger, social deprivation, or other such negative experiences, whether they are authorized by desperate parents or not. In any other context the use of these procedures would be considered child (or dependent) abuse or neglect. They should not be viewed as "treatment" just because a student has a disability. Under the present situation, the potential for abuse is great. Indeed, through its support of these procedures used on children with disabilities, the United States could be cited for human rights violations against people with disabilities under its own Country Reports on Human Rights published annually by the Department of State.

Beyond discussion concerning particular methods, parents would like to have input and give consent to teaching methods before they become a part of their child's daily life in programs at school. Often parents' suggestions for methods are ignored or blatantly turned down as viable suggestions. Parent participation in determining appropriate education is probably one of the most neglected area in special education practice today:

My wife and I are presently even discussing her going to school with my son on a full-time basis to be in the classroom so he can receive the support he needs in order to survive in that classroom. (Steve Konecny, Denver, CO)

Parents still have to push far too much to get academic skills into the curriculum in special education, and I think more parents, because of the advocacy programs, are aware that they can push and can get things into their child's curriculum that they thought were not available. (Ginny Gilman, Albuquerque, NM)

Clearly, added training and information dissemination for parents would help them feel much more comfortable in working as partners in the determination of appropriate educational methods for their children.

Least Restrictive Environment

I know that last year I felt like I was part of a creative, collaborative team, working together to figure out what would be the most interactive environment for my son. This year, I feel like a pest. This year, I think they are doing the best they can, and so I've given them lots more information. I've given them opportunities to hear people who have done it, to be with people who know how to do the curriculum adaptations, behavior modification, whatever it is that needs to be in place for him to be a part of the setting. It's taking a while...I think that people are given the opportunity to say, "No," too often to inclusive education. (Leah Phillips, Albuquerque, NM)

The most frequent area of testimony in the area of parent participation was the principle of the least restrictive environment and the movement for inclusion of children into regular education classes with supports. Many family members gave compelling stories of children's successes in inclusive environments. Some argued for a continuum of services. However, regardless of their perspectives, one point that came across loud and clear was the parents' desire to participate in decisions and to have their wishes heard and respected when professionals are deciding upon their child's placement in a special education program.

My daughter is eleven years old. She's autistic, mentally retarded and up until last year...was in self-contained classrooms. Last year we decided to attempt inclusion with lots of support through our UAP and our local school district. Kara had a remarkably successful year. We saw more progress in that one year of inclusion than we saw in six or seven years of very intensive one-on-one special education... (Kathleen Fitzgerald, Anchorage, AK)

Procedural Due Process

Witness after witness testified that procedural due process is one of the most important provisions of IDEA, as it is the avenue that allows parents to enforce their participation in their child's education. Without this part of the law, special education would not have produced its successes to date. Still, parents testified about problems in exercising this right:

A child's right to a free appropriate public education should not depend on the parent's ability to advocate for it. (Sue Endress, Milwaukee, WI)

I found that in signing my son into special education, I might [have] just as well signed away all my parental rights, as well as signing away my son's rights as a human being. (Dawn Gloss, Des Moines, IA)

Recommendations: Parent Participation and Shared Decision Making

Parent and student participation and collaboration in the design and delivery of special education services is essential, if these services are to be relevant and effective in maximizing a student's academic and social development. Congress was wise in its decision to include many avenues for parent and student involvement in the special education process and these requirements have resulted in a better quality of education for thousands of students. However, many shortcomings in this area continue to exist. In order to address these shortcomings, the Federal government should implement the following recommendations:

• Expand funding for the Parent Training and Information (PTI) program. PTIs can (and often do) serve as the primary information source for parents regarding special education and offer a cost-effective method of providing this information to parents and family members.
  
  
• Require State and local education agencies to provide parents of students receiving (or being considered for) special education with the name, address, and telephone number of the PTI serving their area. This could be far more cost effective for school districts and would result in improved comparability of information across the State.
  
  
• Parent input can greatly improve educational programs for students with disabilities. However, the current system has the potential to allow parents to request and receive program methods that are unproven, experimental in nature, or dangerous or harmful to the physical or psychological health of their child. Accordingly, there should be an additional State Plan requirement which would require States to certify that no Federal funds will be used to support any individual, program, or practice that employs procedures such as systematic hitting or physical punishment, the application of noxious substances, extended restraint or seclusion, humiliation, and other techniques which--by design--result in pain, physical injuries, psychological damage, hunger, social deprivation, or other harm, that would otherwise be considered as constituting child (or dependent) abuse or neglect if the student were not disabled.
  
  
• The Department of Education should review data regarding the use of surrogate parents under IDEA in order to determine the frequency of use, the roles that surrogate parents actually assume in special education, levels of satisfaction of surrogate parents regarding their experiences with the special education system, and ways to support surrogate parents more effectively in their efforts to provide effective representation for students receiving special education.

Statement of Law

For those who pioneered the right-to-education doctrine, the procedures for implementing the right were as crucial as the right itself. Procedural due process is a means of challenging the multitude of discriminatory practices that the schools had habitually followed. It also is a way of enforcing the first four principles of IDEA and putting them to work (zero reject, nondiscriminatory evaluation, appropriate education, and least restrictive environment)....Procedural due process--the right to protest--is a necessary educational ingredient in enforcing every phase of the disabled child's right to an education. (Turnbull, 1994, p. 207 ⁽¹¹⁾

IDEA endeavors to ensure procedural due process in a multitude of ways:

• It requires education agencies (1) to secure parental consent before initially evaluating a child for special education placement or placing the child in special education; (2) to notify parents in the parents' native language or in other effective ways whenever they propose to change or decline to change the student's placement, evaluation, identification or appropriate education; (3) to consider independent evaluations of the student and, in some circumstances, to pay for those evaluations; (4) to appoint surrogate parents for students whose natural parents are unknown or unavailable and for students who are wards of the State; (5) to establish procedures for administrative due process hearings and for appeals to the State agency (after which lies appeal to a Federal or State court); and (6) to follow a "stay-put" rule that generally requires education agencies to leave a student in the student's present educational placement and program during the due process hearing and appeals (20 U.S.C. Secs. 1415(b) and (e), 1480(6)).
  
  
• IDEA also allows (but does not require) State and local education agencies to offer mediation in order to resolve disagreements between the agencies and parents.
  
  
• IDEA allows parents to recover their attorney fees if they prevail in a dispute against a State or local educational agency (20 U.S.C. Sec. 1415(e)). These fees may be awarded for attorneys' participation in mediation, due process administrative hearings and appeals, and court proceedings.
  
  
• Finally, IDEA establishes various other enforcement mechanisms, including State assurances of compliance with IDEA if it receives Federal funding and procedures for Federal monitoring of State compliance and withholding of Federal funds when a State is out of compliance with IDEA (20 U.S.C. Secs. 1412, 1413, 1414, and 1416).

In short, procedural due process is both a constitutional guarantee and a statutory right that Congress has fashioned as a comprehensive means for enforcing IDEA (Smith v. Robinson, 468 U.S. 992 (1984)).

Throughout the hearings, witnesses stated their distress about IDEA's enforcement and their belief that while IDEA's due process provisions are absolutely necessary, their implementation has been very problematic. Most of all, witnesses expressed resentment that they had to use due process: Why, many wondered, should they have to use due process to secure their children's rights guaranteed under the law? Shouldn't schools have to comply with IDEA?

Enforcement in General

I have come to the conclusion that I'm just not going to fight anymore. But I came today to let you know that your laws are not being followed through. (Marie Bauer, Milwaukee, WI)

We don't need more laws regarding educating children with disabilities; what we need is enforcement of the laws that are already on the books. (Christine Multra Kraft, Milwaukee, WI)

I think the issue is enforcement. Currently, with the law in Illinois, we file complaints with the Office of Civil Rights, and nothing ever gets done. We end up having to go to court. (Rene David Luna, Milwaukee, WI)

IDEA is a beautiful law. However, with the State and local education agencies' disregard of its most basic premises, it has not as yet become the law of the land. (Wendy Luckenbill, Philadelphia, PA)

More than two dozen witnesses testified that enforcement was critical to the success of IDEA. Their unanimous consensus was that, if the provisions of IDEA were enforced, due process hearings would be rare and the quality of education for children with disabilities would be greatly improved. All the witnesses who discussed procedural due process offered general ideas how enforcement could be improved:

• Dianne Taylor Owens testified that monitoring is needed to make sure children are not falling through the cracks (Albuquerque, NM).
  
  
• Janis Symanski advocated for monitoring through government agencies and the need for accountability of the qualifications of professionals (Boston, MA).
  
  
• Judy Gran stated that enforcing the law under the IDEA is extremely difficult. She added that if the State does not adequately enforce the requirements, then students and parents have little recourse (Philadelphia, PA).
  
  
• The March family recommended that an enforcement agency similar to the Occupational Safety and Health Administration be established to oversee school programs and impose penalties if needed (Des Moines, IA).
  
  
• Dee Estelle Alpert and Edris Klucher stated that the only way to achieve implementation of IDEA by the Office of Special Education Programs is to impose financial penalties for violations (New York, NY; Albuquerque, NM)
  
  
• Like Alpert and Klucher, Jean Parker of Denver also wanted a strict financial penalty for violations. She recommended that the Federal government take back all special education funding when a State does not comply with IDEA (Denver, CO).
  
  
• Maureen Hollowell agreed that Federal support should be discontinued if States violate IDEA (Philadelphia, PA).
  
  
• Nancy Baesman stated that increased enforcement from the Federal level would be more effective in bringing about change than parents using due process (Denver, CO).
  
  
• Beverly Roberts recommended outside monitoring to ensure compliance (Charlotte, NC).

Six other witnesses generally agreed that some sort of monitoring is needed and that without enforcement, the law has "no teeth." They all stressed enforcement as the key to a successful law. However, four parents testified that there was no enforcement even after due process had determined that there were violations. One of them testified that even after a school district had been found to be in violation of several laws, nothing happened to the district (Bonnie Weninger, Milwaukee, WI).

Other witnesses stressed the importance of parents knowing their rights and using them. Maureen Hollowell recommended one method parents can use to enforce IDEA. She said that she finally succeeded when she exercised her rights by refusing to sign the IEP until it provided an appropriate education for her child (Philadelphia, PA).

In sum, the parents who testified about enforcement were adamant that without monitoring and enforcement, IDEA will not be followed and individual due process attempts at securing enforcement will be futile for purposes of systemic change. Parents who have used due process complain that the victories are few, and when they do occur, the remedy is limited to that case and does not automatically cause positive changes to be implemented throughout a local or State school system.

The due process system may be adequate to resolve many discrete and simple issues, such as the student's classification or the amount or duration of services, but it cannot resolve systemic disputes. For example, disputes over inclusion, over the quality of instruction and over the adequacy of teacher training. The difficulty for parents in obtaining more changes in the system through the process is only reinforcing the status quo. (Judy Gran, Philadelphia, PA)

The general attitude of the witnesses was that parents and the Federal government must band together to ensure accountability in State and local agencies.

Due Process in General

Parents acknowledged that due process hearings were essential to enforce the rights of their children:

It's clear that without this safeguard, our son would have been relegated to a separate classroom for students with multiple disabilities for his entire schooling. (Barbara Buswell, Denver, CO)

Some parents were able to use the due process right as a threat to make the schools more responsive. Other parents testified that due process is more than a useful threat: It is, instead, a reflection of the adversarial stance that parents are often forced to assume when trying to work with educators. Indeed, many parents expressed dismay that schools had forced them to resort to due process:

Why do people have to go through what they go through to get the changes so that their child can benefit from a free appropriate public education? That's the sin that I see...Yes, due process protection does work, but the cost to families, emotionally, is not fair. (Amy Goldman, Philadelphia, PA)

I looked under the table. I actually was grabbing for a pen out of my briefcase yesterday, and found that the classroom teacher had placed under the table a tape recorder. I said, "Jim, what is that?" And he said, "Well, I'm protecting my civil rights." We've tried to work as partners with our teachers and principals, and in fact, I think that we have been extremely gentle in our approach most times, because I myself was a teacher for many years...But it was that teacher's interpretation of the law: that it was his rights that were being protected here, and that as parents, we were just pushy, unreasonable professionals rather than people who were very concerned about our child's outcome. (Mary McDonald Richard, Des Moines, IA)

Often families choose to ignore or forgive violations and try to move forward to achieve a free appropriate public education for their child. While I fully understand the decision to let bygones be bygones, and often support families who make those decisions, this distorts the reflection of violations when one looks at the body of complaints filed with the State education agency. (Maureen Hollowell, Philadelphia, PA)

Due process is accessible to those parents who have been able to learn the rules, and who have the emotional, intellectual and financial resources to take advantage of protection afforded them under the law and withstand the process. Thus, children with disabilities, of parents who are poor, or minority communities, have other family stress or have limited English proficiency, continue to be disenfranchised. (Amy Goldman, Philadelphia, PA)

Look at the enormous waste of time, money, and most importantly, the educational experience for my son. I do not have time to wait until tomorrow and tomorrow for my son to get the appropriate education he deserves. (Karen Robard, New York, NY)

Parents viewed the complaint and due process provisions in IDEA as a double-edged sword. Approximately 80 parents gave testimony regarding their frustrations with the due process aspects of obtaining a free appropriate education for their child. In general, however, they viewed due process hearings as necessary tools for bringing about the desired and intended benefits of IDEA.

Martha Beebe, a parent who also is a teacher, went through due process to get her child's IEP changed. It took ten months (rather than the mandated 45 days) to get a final decision: an entire school year. She stated her belief that the IDEA is full of promise, but must be enforced to become more than empty words on paper (Beebe, Boston, MA). Other witnesses underscored the need for due process and improved enforcement, a need created by school districts' reluctance to implement the provisions of the law properly:

I have come to call myself "Bonnie the bitch" because of what I have had to become to fight the system...I have contacted multiple State offices. I have followed through with every lead that anybody has ever given me. I have talked with the Governor's office here in the State. I have gone so far as to call the White House...I guess my feeling at this point is, is there anybody out there who really cares? I don't know what more to do. I, as a parent, have pursued every option. (Bonnie Weninger, Milwaukee, WI)

We have a teacher who refuses to follow an IEP. And then that's when the psychologist and the principal just throw up their hands and look at me [and say], "Well, we can't make her do it." And that is very frustrating. (Jill Rigsbee, Charlotte, NC)

Until the Federal government compels States and cities to comply with its mandates, IDEA will remain a haven for the few. (Walter Theis, New York, NY)

Witnesses stated that minority families (especially Native Americans) with children with disabilities often do not pursue due process or even get to the mediation process because of language barriers or cultural factors. Moreover, it was reported that many Native American parents with children who are not receiving needed special education services have relatives who work for the Bureau of Indian Affairs. Because of this, they do not complain about inadequate services because it may negatively impact upon their relatives. (Martha Johnson, Albuquerque, NM)

At every hearing, parents expressed fear over retribution and retaliation by the schools if they exercised their due process rights. In one situation, a parent reported that although she won a court battle to have her little boy placed into an inclusive kindergarten, the LEA retaliated by providing only narrow, technical compliance with the decision. The child was physically put into classroom where the teacher effectively segregated him by placing him in the back of the class and not allowing any real participation with the other children (Eleanor Voutsinas, New York, NY).

Another mother described her experience in attempting to exercise her due process rights as follows:

When you have to advocate for your child, you pay a high price for that in many ways. It's very stressful on the family....Because of the kind of advocacy work that I've had to do...I'm not able to teach anywhere locally. I actually teach school in Texas, which is a 30-mile drive in the time difference away from my home....My son suffers from bipolar disorder and numerous other difficulties. That illness itself is stressful, but when you have a vindictive, harassing, retaliatory school district to deal with, it makes your life completely miserable...that's what I've had to deal with. (Edris Klucher, Albuquerque, NM)

Unfortunately, retribution (or fear of retribution) is an issue. Indeed, one parent told how schools can use the "stay-put" provisions under due process to effectively impair students' rights. After expelling a student, a school then initiated a due process complaint, causing the child to be kept out of school one entire year during proceedings.

Due process is not working in my area. The stay put law is generally ignored, or the parents are urged to drop the children from their class. In my case...my son was kicked out of school completely. (Ann Williams, Denver, CO)

A lot of parents don't want to make waves. They don't want to say anything because it makes it worse on their child. Indeed, it does make it worse on the child. (Beth Gage, Philadelphia, PA)

When you have to advocate for your child, you pay a high price for that in many ways. It's very stressful on the family...when you have a vindictive, harassing, retaliatory school district to deal with, it makes your life completely miserable... that's what I've had to deal with. (Edris Klucher, Albuquerque, NM)

One mother, whose 15-year-old son with autism was moved out of a high school into a school for younger students (because there were "more openings" in the school for younger students) with only a one-week notice described her experience with due process as follows:

Throughout the due process, we were given notice about meetings practically at the last minute. No one encouraged us to bring an advocate to help us. There were people at the meetings who we did not know and who did not have any involvement with our son, particularly at the school-based level....The administrator in charge of handicapped students here in Charlotte told us that we could be arrested for truancy because we refused to place our son in a class, [when we] were not involved in the decision on change of placement. (Rachel Friedman, Charlotte, NC)

Moreover, due process, while necessary for many purposes, does not solve all school issues. In recounting the story of how her 14-year-old adopted son Adam (who has multiple disabilities) had been repeatedly battered and abused in school, Bonnie Weninger of Lomira, IL said she finally called the police, who informed her that there was nothing they could do.

I find out now, years later, that...our police departments have no jurisdiction to come into the public schools, that the only way I could have initiated an investigation was to hire private legal counsel, and I didn't. I didn't know that or I would have done that. (Bonnie Weninger, Milwaukee, WI)

Despite the problems the parents identified, they approved of all procedural safeguards, especially notice and the ability to obtain an independent evaluation.

As a minority person I'm really thankful for the independent evaluation in the law, because it does allow parents sometimes to have assessments by people who understand the child's culture. (Virginia Richardson, Des Moines, IA)

In making recommendations, witnesses called for better training and the appointment of independent ⁽¹²⁾ hearing officers to ensure impartiality. They advocated for stronger enforcement of the general provisions in IDEA, without fear of retaliation. Finally, they said that they do not want the general fear of violent behavior in the schools translating into harsher rules for children whose behavior problems stem from disability.

Mediation

By the time mediation comes and goes, the child is facing placement for the next year, and the process begins all over again. (Tammy Stuck, Denver, CO)

More than two dozen parents gave testimony regarding mediation as an alternative to formal procedural due process hearings. In general, they expressed many of the same concerns about mediation as they did about due process hearings.

One problem relates to the appearance of bias:

The mediation process was no more impartial than any of the other meetings the district had orchestrated. Mediators are trained by the Colorado Department of Education and are neither perceived to be nor are they...impartial third parties. In the reauthorization of IDEA, I hope to see the mediation process changed so that mediators will indeed be disinterested and unaffiliated third parties. (Marna Ares Thompson, Denver, CO)

Mediation needs to be "delegalized" as much as possible with parents feeling that they are in neutral territory and dealing with objective individuals. (Carol Gonsalves, Berkeley, CA)

Other concerns related to the issuance of "gag orders" on parents, the absence of official records of proceedings, and lack of follow through with mediated agreements.

Rarely does a hearing officer render a decision. My feeling on that is the school districts are sweeping their violations under the carpet. Parents are being placed under gag orders in order to get their children the appropriate services that they need, so parents can't even talk about it. (Bonnie Weninger, Milwaukee, WI)

One parent moved out of her