A. Introduction

Since the enactment of the Education for All Handicapped Children Act, the Department of Education (DoED) has been required to present to Congress an annual report "describing the progress being made in implementing the Act."[229] The Annual Reports are of critical importance, as they are the primary vehicles for communication between the Department of Education and not only Congress, but the public at large. They also provide a unique historical view of the implementation of the law.

B. Methodology

This analysis took a longitudinal view of the Annual Reports in an effort to trace the progress made in implementing the Individuals with Disabilities Education Act (IDEA) over a twenty-year period. The Annual Reports included statistics on the number of children in various disability categories who receive services, as well as descriptions of new services being developed and numbers of personnel devoted to special education. Monitoring the performance and implementation of the law at the state level is crucial to "our nation's progress in providing a free and appropriate public education [FAPE]"[230] for all children with disabilities. Such monitoring should reveal deficiencies, violations of the law, trends in these areas across states and over time, corrections that have taken place, and progress toward compliance. Thus, this section of the analysis focuses on those portions of the Annual Reports devoted to the monitoring function of the Department of Education between 1978 and 1998.

C. Procedural Focus

Annual Report sections centered on OSEP monitoring were primarily procedural rather than substantive, making it difficult to draw any longitudinal conclusions about progress in implementing FAPE. For example, the 1990 report states that "OSEP uses a program review process to determine if SEAs are carrying out their responsibilities" and then explains that "those program review procedures are described in this section."[231]

D. Definition of Monitoring

The identification of the discussion of monitoring in each Annual Report was hampered by the lack of a standard reporting structure and a changeable definition of the monitoring function. At times, monitoring broadly included review of states' annual plans, yearly program compliance review, processing of individual complaints, and technical assistance to the states.[232] At other times, monitoring was defined as a narrow aspect of DoED's or the Office of Special Education Programs' (OSEP's) administrative role in overseeing IDEA.[233] For example, in 1983 such overall administration encompassed complaint management, technical assistance, discretionary contract/grant program operation, and policy review.[234]

Later, monitoring was treated as a subset of federal review of state activities.[235] For example, in 1986 the Report stated that "the program review process has two parts... review of plans submitted by states. . . and monitoring to assure adherence to state plans."[236] When viewed as part of a general review of the states, monitoring was often treated as secondary to review of "annual" state plans that were submitted to DoED by each state every three years for funding approval. Monitoring activities were often named "compliance review," as distinguished from "plan review."

In the 1990s, references in the Annual Reports to monitoring were sometimes explicit and sometimes imbedded in descriptions of the overall federal review process. The 1990 report acknowledged the difficulty in pinning down the monitoring function, as "the federal program review activities . . . are closely related to other OSEP activities. . . as part of a comprehensive system of overall assistance to the states."[237]

This section of the analysis uses the term "monitoring" to apply to the federal assessment of the states' compliance with the provisions of IDEA, including an assessment of the SEAs' activities to ensure the compliance in their respective states of all the public agencies responsible for providing educational services for children with disabilities in accordance with Part B requirements.

E. Procedural Changes

When the Department of Education reported on its monitoring activities, a large portion of the discussion was devoted to the procedural aspects of monitoring rather than results or findings. Further, procedures for monitoring were modified frequently (as exemplified by this year's retooling of the process, discussed elsewhere). These modifications not only required explanation within each of the Annual Reports, but also hampered efforts to compare results of the monitoring process from year to year.

In 1979 and 1980, it was not surprising that DoED focused on the development of procedures. During these years, the Bureau (as OSEP was then named) established a system of regular visits to half of the states each year, consisting of a five-day stay by four or more staff members and including visits to local programs, state programs, and state agencies, as well as interviews with state and local officials, program administrators, parents, teachers, and an advisors' panel.[238] In 1980, the Bureau reiterated that it "attempts" regular one-week visits to half of the states each year, using the same basic procedure as described for 1979. That year, an extra emphasis was placed on technical assistance to SEAs during these visits.[239]

The 1980 Annual Report also provided an example of the Reports' somewhat cursory description of results of monitoring, as compared to the detailed descriptions of procedural matters. In 1980, the substantive analyses of the outcome of earlier visits were as follows: states "performed well" in development of Annual Program Plans, reporting, and administration of funds;. IEPs were in place but not in compliance; LRE policies at the state level were good, although individual schools were "having difficulty" implementing them;[240] complaints, while monitored by the Bureau, were handled at the level of the state departments of education. The Annual Report states that 320 complaints were processed between October 1978 and July 1979, and that most complaints were about appropriate placement of children, but results of the processed complaints are not mentioned.[241] The substantive discussion of findings by the Bureau appeared to concentrate on procedural matters, such as successful design of rules, fund administration, and timely processing of complaints. This characteristic was repeated in most Reports in the past 20 years, as in the Eighth Annual Report, which gave "a detailed description of SEP's revised comprehensive compliance review system."[242]

The emphasis on procedure increased as DoED refined its monitoring procedures to involve less scrutiny of outcomes. In 1981, DoED stated that "the Office will redirect its monitoring procedures . . . to focus on assuring that states are effectively monitoring local education agencies." DoED appeared to have increased its reliance on information provided directly by states themselves.[243] The following year, DoED explained, "OSEP's role has necessarily changed. In fact, federal efforts since the enactment of P.L. 94-142 have periodically been modified to provide the states with increasing flexibility to implement the law in a manner consistent with local precedents and resources."[244] The Report continued, "It should be noted that the current regulations were never expected to survive indefinitely without change."[245] Understandably, procedures underwent annual alterations in the early stages of the implementation of IDEA; since then, such changes have continued. The 1985 Report stated that "internal SEP concerns supplemented by questions from . . . Congress resulted in an intensive analysis of monitoring procedures that may lead to certain revisions in the process."[246] The following year, OSEP began a staggered state plan schedule, as permitted by the Education Department General Administrative Regulations (EDGAR) to "allow for better coordination between the state plan and monitoring procedures."[247] The 1990 substantive discussion of the effectiveness of IDEA changed little. Most of the comments were praiseworthy but vague and directed at successful structures, such as "types and numbers of personnel providing services," and "continuing growth in SEA [state education agency] capacity to assess and assure conformity with EHA-B [Education for All Handicapped Children Act] requirements."[248] Another procedural accomplishment highlighted that year was the elimination of a backlog of incomplete monitoring reports.[249] The 1990 Report also stated that "it is anticipated that the monitoring process will continue to evolve and undergo adjustments in response to changing management needs."[250] The 1997 Report stated that "over the past four years, OSEP has worked intensively to reorient and strengthen its monitoring system."[251]

F. Lack of Trend Analysis

The Annual Reports noted that corrective actions with deadlines were established by OSEP for noncompliant programs. Each state created and submitted a Corrective Action Plan (CAP), which was followed by a verification visit by OSEP for evidence of completion submitted by the state.[252] Successive Annual Reports did not give information about these verification visits or evidence from the states. In 1981, DoED began a policy of individualizing monitoring to "take into account the particular conditions and variations that exist among the states."[253] That policy hampered the ability to make progress comparisons between states. Because OSEP visited one half of the states in a given year, at most, no follow-up of individual state progress could be gleaned by comparing one year's Annual Report with the next. Because states were not individually named in summaries of compliance review findings, only OSEP had the information to trace such progress. While OSEP looked first at a state's Annual Program Plan, then monitored its compliance, and then watched for implementation of a Corrective Action Plan, it did not appear to link its findings from one stage to the next. In fact, one report noted, "this information cannot be used as a basis for conclusions regarding compliance," but "it will be used as a basis for discussing trends that may reflect problems in the implementation of federal requirements."[254] This discussion was not found.

The Eleventh Annual Report compiled data from 1985 to 1988 on noncompliance problems, noting particular trouble with SEA monitoring procedures, but the data were not examined longitudinally, and states were not individually identified. The 1990 report held that "by reviewing and assessing these data, OSEP may identify trends that raise concerns about the implementation of federal law,"[255] but went on to say that "issues or concerns" could not be found because "from year to year the problems identified change and the problems differ from state to state as well."

G. Charts on Monitoring Findings

The most straightforward method of conveying results from monitoring activities is through graphs or charts. As might reasonably be expected, for the first few years, no charts tallied information collected from monitoring of the states.[256] In the following years, many charts focused, like the accompanying text, on procedural matters, such as the timeliness of complaint turnaround, steps of the monitoring process, and schedules of past and future reviews. Out of the nineteen Reports, less than one half contained charts actually listing areas of state level noncompliance.[257] Seven Reports listed areas of state plan deficiencies; however, these charts addressed plan policies that were corrected prior to a state receiving funding, but did not address the effectiveness of implementation of those policies.[258] For instance, in 1996 state plans were deficient in providing for procedural safeguards, individualized education programs (IEPs), least restrictive environment (LRE), right to education, private school participation, confidentiality, and general supervision. These deficiencies required "clarification or revision," and all such problems were resolved prior to final plan approval.[259]

From 1990 to 1993, such plan deficiency charts were included, but no chart summaries were given reflecting results of compliance monitoring. More recently, the Reports returned to including charts on noncompliance along with, or in place of, plan deficiency summaries. These charts lacked detail, and the categories of noncompliance were broad and undefined, varying from year to year and making longitudinal analysis difficult. Also, the tallies of states that failed to ensure compliance for each category did not identify which states were in violation of their plans. Reports never contained follow-up charts on corrective actions taken by those states found to be out of compliance.

H. Intra-Departmental Policy Conflicts

The Office for Civil Rights (OCR) first became involved in the administration of IDEA in 1981. The Annual Report for that year stated that OCR now had the opportunity to review state annual program plans, but assured that its review of the plans must not exceed 75 days.[260] At that time, OCR was not involved in the complaint management process, but eventually would take over those complaints involving Section 504. OSEP received complaints filed by individuals or entities against SEAs or Local Education Agencies (LEAs). An OSEP "specialist" corresponded with the complainant and forwarded the complaint to the state to resolve. Although OSEP monitored each case until it was resolved, all follow-up action was taken by the state education agency.[261]

From October 15, 1980, until September 1, 1981, OSEP handled 150 complaints and referred to OCR 105 others that also alleged a violation covered by Section 504.[262] Of the 105 referred complaints, 70 concerned placement or related services. In the 1982 Annual Report, DoED reported that OCR had returned or closed 41 cases by August 3, 1981.[263] DoED also reported that OCR took an average of four months to close each case.[264] While no review of OSEP's management of the complaint process was given, the Report discussed problems between OSEP and OCR producing "inconsistent policy interpretations" on "identical issues," leading to the creation of a task force.[265]

In 1983, the Annual Report again analyzed complaints sent to OCR and OCR's turnaround record, although there was no discussion of complaints handled directly by OSEP.[266] Suggestions of cooperation between the two offices appeared in the Eighth Annual Report, which reported data from both offices being used in combination by OSEP to assist states "in improving information collection and remedying the possible problems the information suggest[ed]."[267] While some tension may have existed between OSEP and OCR regarding policy interpretations of the law in the complaint-handling process, it was largely resolved through a Memorandum of Understanding (MOU) between the two offices.[268]

In later Annual Reports, the IDEA complaint process was rarely discussed except in the context of evaluating SEA policies for addressing complaints. Although DoED retained authority to involve itself in complaints based on IDEA that did not involve Section 504, one problem at the state level was a "failure to inform complainants of their right to request that the U.S. Secretary of Education review the state's handling of the complaints."[269] This state responsibility was eliminated, however, with the passage of IDEA '97. OSEP remains "responsible for ensuring that each SEA . . . implements a complaint-management system that satisfies the requirements" set forth in 76.780 B 76.782 of EDGAR.[270]

I. Reports Demonstrate the Evolution of DoED's View of Its Mandate

The Department of Education has moved from a somewhat regulatory to a more cooperative stance vis-a-vis the state programs it oversees. Changes in monitoring procedures, often at the behest of the states, demonstrated the shift in focus, as did the change from language about "rights" and "oversight," to the language of "outcomes" and "efforts."

IDEA anticipated that DoED would play a dual role of assisting states and enforcing the law with respect to the states. Several Annual Reports provided explanations of the law's withholding provision as prologues to discussions of monitoring, but then made no further reference to actual or contemplated use of that provision.[271] Other reports acknowledged that primarily "review activities provide information."[272] DoED's ambiguity about the purpose of monitoring in these contexts suggested a disconnect between monitoring and enforcement.

J. Language Changes

The language in the Table of Contents of the Annual Reports reflected a gradual shift in emphasis. Monitoring discussions were found under the following headings and accompanying subheadings each year:

Table 22: Headings in Annual Reports

DoED moved from labeling its activities as "administration," suggesting federal control, to "assisting," indicating more state control. Additionally, it began by referring to "monitoring" states, implying enforcement, and then shifted to the more open-ended language of "review" and "teams." For instance, "when the SEA is asked to correct identified deficiencies, the PAR (Program Administrative Review) team works with the state by providing technical assistance that enables the SEA to comply with the law."[273] By 1990, enforcement seemed secondary to teaming with and assisting states; review was described as "verification and support of the Corrective Action Plan,"[274] and OSEP began to hold "biannual meetings to exchange information with SEA officials."[275]

K. Trend Toward Partnership with States

Initially, Program Review involved lengthy visits to states and meetings with a variety of stakeholder groups, including teachers and parents. Visits to some LEAs occurred in each state.[276] Program Plans were reviewed each year before money was released to the states.

In 1982, Annual Program Plans begin to receive three-year approval to reduce time and paperwork for states.[277] Additionally, the Bureau's monitoring activities "focused predominantly on assuring and strengthening state capacity to effectively monitor LEAs and public and private agencies."[278] Parent involvement and visits to LEAs were no longer emphasized. DoED put greater emphasis on off-site monitoring of information submitted and data collected, describing those methods as "less intrusive" but "more continuous." It concentrated on developing procedures and obtaining information to create individual state profiles to be regularly reviewed and updated.[279] These changes were made in response to an executive order of January 29, 1981, to reduce the burden and cost on the states and to ensure that regulations were no stricter than the demands of the statute.[280]

By 1983, monitoring consisted of developing screening documents, plus three options: (1) off-site monitoring, (2) on-site monitoring at the state level, or (3) on-site monitoring at the state and local level, although an on-site review was required for each state at least once every three years.[281] After such program review, the SEAs responded with voluntary implementation deadlines, requests for technical assistance, and self-imposed deadlines.[282] These changes seemed to reflect more state autonomy and less direct enforcement. The 1990 Report cited EHA-B 612(6) as "specifically designat[ing] the SEA as the central point of responsibility and accountability."[283] Nonetheless, the Eleventh Annual Report gave reassurance that the review procedure "has the capacity to verify that the requirements of the Act are being carried out."[284] The Report further stated that OSEP would "determine with states the appropriate remedial measures that must be taken to correct identified discrepancies between the requirements and states' policies and procedures."[285] In 1990, a new procedure was implemented.

DoED considered increased reliance on states to perform enforcement activities an appropriate response "to the growing capacity of state education agencies to assure the availability of a free appropriate public education to all handicapped children."[286] "Federal efforts since the enactment of P.L. 94-142 had periodically been modified to provide the states with increasing flexibility to implement the law in a manner consistent with local precedents and resources,"[287] another Report noted. Technical assistance was also increasingly targeted to problems of individual states and coordinated with monitoring activities. In one of the few places an Annual Report focused on a specific problem area, it was discussed in the technical assistance section. The 1983 Report found that states were still "experiencing some difficulty with certain requirements of the laws."[288]

L. Findings and Recommendations

Finding # IV.1A

There was no consistency in either format or content for reporting about IDEA monitoring in the Annual Reports to Congress between 1978 and 1998.

The changing definitions and language used to describe monitoring from one Annual Report to the next made it difficult to compare the status of monitoring/compliance findings over time. Major variations in the content organization of reports published in different years further challenged the reader in locating the information on monitoring.

Finding # IV.1B

The Annual Reports did not provide a picture of how compliance with IDEA changes over time.

A historical or longitudinal analysis of compliance is not required in the Annual Report by law.

Recommendation # IV.1

The Department of Education and the Department of Justice should issue an annual report to the President and Congress on IDEA monitoring, compliance, enforcement, and technical assistance.

The Annual Report issued by DoED is not required to, and therefore does not, report on federal and state level enforcement activities or the due process/judicial system. A joint report by DoED and the Department of Justice to address this information void is needed. This proposed joint report should include a description of all monitoring activities for the year (including corrective action plan follow-up visits), the findings of the monitoring activities in terms of compliance and noncompliance, and a description/analysis of cases in which the Department of Justice is involved. Complaints and investigations of the Department of Education's Office for Civil Rights that are IDEA-related should be presented. The report should present the current activities and findings in a context and format that will allow for historical/longitudinal analysis.

Finding # IV.2

There was little information in the Department of Education's Annual Reports to Congress about the relationship among findings of state noncompliance with IDEA, technical assistance used by states to achieve compliance, and enforcement actions taken for failure to correct noncompliance.

Links between compliance monitoring, technical assistance, and enforcement action were not evident in the Annual Reports, making it difficult to piece together a picture of the state of IDEA compliance across the nation. Reporting on enforcement authority and activity at the federal or state levels, the due process/judicial system, or even court cases in which the Department of Justice is involved is not required by law.

Recommendation # IV.2

The Department of Education and the Department of Justice should routinely issue reports that provide longitudinal analyses tracking noncompliance findings, informal and formal enforcement actions taken by the Federal Government and use of technical assistance resources to correct noncompliance with IDEA for each state over time.

These reports would enable the reader to determine how states have responded to corrective action, technical assistance, and enforcement actions. These reports would provide the data needed to document progress and achievements as well as identify areas that need continued improvement.

Part V presents an overview of some private litigation challenging states' failures to ensure compliance with Part B of IDEA, and describes, in part, the outcomes of key cases impacting state monitoring systems.

V. IDEA Litigation Challenging State Noncompliance

A. Introduction

Under the Individuals with Disabilities Education Act (IDEA), parents and families of children with disabilities play a key role in enforcing the law. They initiate litigation and raise issues that otherwise may not gain attention. In order to pursue these issues, parents must find attorneys who are knowledgeable about IDEA and willing to accept cases where fee payment may be deferred or delayed until the case is settled. In other words, the attorney may not get paid unless the client wins and the court awards attorney's fees. Damages are rarely awarded in these cases, which are often protracted and expensive. During the pendency of the cases, until they are settled, the attorneys must be in a position to work without compensation.

Litigating attorneys in the private bar who are experts on IDEA are not commonplace. Frequently specialty public interest organizations will accept such cases. The Protection and Advocacy systems (P&As), which provide legal representation and advocacy for people with disabilities in every state in the country, represent families in many special education cases.

"As you look at the priorities that are being set by the [P&As], almost all of our cases now are expulsion/suspension cases. We're just trying to keep kids in the classrooms."--Curt Decker, Executive Director, National Association of Protection and Advocacy Systems (NAPAS), on the need for OSEP to fund legal advocacy for parents[289]

They are federally funded to provide such support. Nonprofit organizations such as the Disability Rights Education and Defense Fund (DREDF), the contractor for this report, also provide such representation, but usually without federal funding. Both organizations report that they do not have sufficient resources to respond to all the requests for assistance that they receive from parents of students in special education. Without adequate support these organizations are unable to assist parents in raising issues, such as the following ones, which generate IDEA compliance.

B. Summary of Litigation in California, Illinois, and Texas

In three recent cases, parents have challenged their state's monitoring and enforcement system in failing to address local noncompliance. Although the local education agency (LEA) and, ultimately, the state education agency (SEA) have responsibility for ensuring FAPE to all children with disabilities in the state, when the LEA fails in its responsibility to provide services and the SEA fails to properly monitor and enforce the law, as the following cases reflect, the burden of enforcement falls on parents.

In Corey H. v. Board of Education of the City of Chicago, Chicago public school students with disabilities brought a class action against both the City of Chicago Board of Education (CBE) and the Illinois State Board of Education (ISBE).[290] The students sought declaratory and injunctive relief to correct CBE's and ISBE's widespread failure to educate children with disabilities in the least restrictive environment (LRE).[291]

Although CBE agreed to settle with an extensive plan for correcting the LRE violations, ISBE continued to argue that it fulfilled the IDEA's LRE mandate.[292] ISBE claimed that IDEA (20 U.S.C. 1412(6)) requires only that it provide oversight and general supervision of CBE's LRE efforts.[293] ISBE also argued that its monitoring efforts were adequate because OSEP had approved Illinois' state plan including its monitoring plan. The court, however, found that Congress intended to place final responsibility and accountability in one agency, and held that once ISBE had accepted IDEA funds, it was responsible to ensure compliance with the IDEA's LRE requirements.[294] As the court put it, "the evidence presented at trial demonstrates beyond doubt that, despite the fact that the LRE mandate has been on the books since 1975, the Chicago public schools have languished in an atmosphere of separate and unequal education for children with emotional, mental, and behavioral difficulties."[295] The fact that OSEP may have approved Illinois' plan was not dispositive.[296] The court affirmed the right of parents to enforce their children's rights and ensure compliance with IDEA independent of OSEP's actions or inaction. To the court, ISBE clearly violated its duty to establish its own effective monitoring and enforcement system.[297]

The Corey H. court found numerous systemic failures in ISBE's monitoring and enforcement of IDEA's LRE requirements: students with low-incidence disabilities were placed in highly restrictive placements, ISBE's funding formula perpetuated segregating children with disabilities, and when the CBE failures were pointed out to ISBE, ISBE took little or no action to ensure the failures were corrected.[298] The court ordered the ISBE to identify and correct its LRE violations, inform its teachers and administrators of their IDEA responsibilities regarding LRE implementation, certify teachers according to LRE requirements, and establish a state funding formula that reimburses local agencies for educating children in the least restrictive environment appropriate to their individual needs. The court has since appointed its own expert to develop an effective monitoring and enforcement system for Illinois. A monitoring system currently in development will closely follow the focused monitoring approach being tested in Texas.

Another recent case challenging a state's failure to monitor and enforce LEA compliance with IDEA is Angel G. et al. v. TEA. Filed in 1994, this case was brought by parents on behalf of their children who resided in Texas Residential Care Facilities (RCF). The case alleged that the Texas Education Agency (TEA) failed to meet three responsibilities required of a state education agency by IDEA: (1) child find, (2) development of interagency agreements, and (3) effective monitoring and enforcement of LEA compliance with IDEA.

In 1996, the court in Angel G. approved a settlement agreement that resolved both the child find and interagency agreement issues but left open the issue of the effectiveness of TEA's monitoring system. TEA continued to fail to assure that its RCFs provide a free appropriate public education (FAPE) to children and youth with disabilities who reside in these facilities. An independent consultant issued a report finding TEA's monitoring system to be "fundamentally flawed" and recommended that TEA convene a group of experts to develop a replacement or supplemental system of special education monitoring. TEA initially refused to implement this recommendation but later informed the court that it had made substantial changes to its current monitoring system to ensure compliance with IDEA. The court requested that each party submit their plans for an effective special education monitoring system and held oral argument on the adequacy of these plans. Following this hearing, the court issued an order setting the case for an evidentiary hearing to begin on August 9, 1999, and to continue as needed.[299] At this hearing, the court will examine "whether the components of the plan TEA filed in this case on August 14, 1998, are adequate to enable TEA to meet its burden as an SEA...."

In the most recent of these cases challenging the state's monitoring system, a group of eight children with disabilities in East Palo Alto, California, brought a class action lawsuit in November 1996 against their school district, the Ravenswood City Elementary School District, for extensive violations with all of the substantive and procedural requirements of IDEA;[300] (e.g., failure to provide FAPE, extensive LRE violations, failure to ensure parent participation, utilizing discriminatory evaluation procedures, etc.).

The plaintiff children in this case, Emma C. v. Eastin, also sued the California Department of Education (CDE) for failing to monitor and enforce the law despite repeated findings of noncompliance in the school district.

After a period of intensive law and motion activity, the U.S. district court made a number of critical rulings in Emma C. The court held that (1) all available remedies, including money damages and compensatory education, are available under IDEA against the CDE and against members of California's Board of Education in their individual capacities; (2) that the nature of the systemic problems alleged in the suit made exhaustion of administrative remedies futile and therefore unnecessary; and (3) that the CDE was at that time incapable of ensuring compliance in the district because of the substantial inadequacies in its own monitoring and complaint systems.[301] The court certified a class comprised of all past, present and future special education students in the district.

Following these court rulings, the plaintiff children in Emma C. and the CDE entered into a tentative settlement agreement in which CDE agreed to undertake a comprehensive step by step approach to bring Ravenswood into compliance. Plaintiffs also reached agreement with the district in which the district primarily agreed to abide by any corrective action plan developed by the state and independent monitors and provided for compensatory education to all eligible children.

Plaintiffs and the CDE are negotiating an agreement to change California's monitoring system to the focused monitoring approach proposed by the plaintiffs in the Angel G. litigation. The CDE has taken substantial steps already to convert to this approach, including commitment to a pilot program to test whether it will result in greater compliance.

C. Development of More Effective Monitoring Systems

A group of these experts convened by the plaintiffs designed a proposed focused monitoring system for Texas.[302] Known as the Chicago Group because the meeting was held in Chicago, these experts continue to flesh out the details of the system.[303] In addition, advocates and experts in the states of Texas, California, and Illinois are reviewing the proposed system to refine and delineate it and address the many related complex issues. The state of California has committed to adopting this focused monitoring system and planned to conduct its first pilot program in 1999. The following is an overview of the proposed focused monitoring system.

The Texas work articulated five principles that provide the underpinnings for an effective state IDEA monitoring system. The system must (1) address all legal requirements and educational results for students, (2) include public involvement, (3) build on existing student data to increase system efficiency, (4) direct resources to areas of greatest need, and (5) result in timely verification or enforcement of compliance. Their approach is based on the notion of continuous improvement with a data-based accountability system.[304]

The three components of the compliance monitoring system are (1) performance review, (2) policy review, and (3) complaint management. These three system components take place within the context of three ongoing activities: (1) the Comprehensive System of Personnel Development (CSPD), (2) oversight and enforcement, and (3) data design, analysis, and review.[305]

At the heart of this system is the performance review process, which works as follows. The state agency conducts a performance review of each LEA. The outcome of the review is used by the SEA, in part, to place LEAs into one of four categories: (1) Continuous Improvement District --no additional compliance activities required by the state agency; (2) Data Validation District--sixty LEAs randomly selected annually to verify reported data and examine procedural compliance; (3) At-Risk District--self-study supplement to district improvement plan required; or (4) Focused-monitoring district--on-site investigation of specific areas of noncompliance conducted by the state.[306]

In order to determine the category of each LEA, the state must develop a template for analyzing special education performance data and measuring compliance. Critical variables or indicators must be determined. Variables could include measures of graduation rates, drop-out rates, academic achievement levels, and placement (LRE) data. Standards must be developed for three types of trigger values. The first trigger value, which would apply to each variable, is the "at-risk" trigger. This trigger identifies LEAs that are "at risk" in their performance in that area. Critical variables would receive one trigger in addition to the "at risk" trigger. The second trigger for critical variables is the focused monitoring trigger, which identifies the districts that will receive a focused monitoring visit. The third value is used as a benchmark for each critical variable. The benchmark serves as the statewide performance goal for the critical variables designed to improve the performance levels.[307]

The focused district monitoring occurs when an LEA exceeds the trigger for any critical data variable. The state creates an investigation plan that is tailored to the identified areas of noncompliance prior to the visit. The plan is individualized for each LEA and must incorporate several features including focusing on measurable data that indicate compliance or noncompliance with the identified issue, classroom observation, and input from parents and students. Districts that are designated as "at-risk" or "focused monitoring" must have plans for correcting areas of noncompliance. Technical assistance and personnel training should be provided to the LEA by the SEA if needed. The SEA must develop written procedures that outline the progression from noncompliance findings to enforcement so that they are consistently applied for each noncompliant LEA. These procedures should be clear to LEAs so that there is no doubt about the consequences for ongoing noncompliance.[308]

Likewise, the state must have a system of progressive sanctions to use whenever any LEA fails to correct noncompliance within a specific time line. The proposed range of sanctions is as follows in ascending order:

• Mandatory First-Level Sanctions require the state to send a letter of continued noncompliance to all families of students with disabilities served by the LEA and members of the state legislature.
  
  
• A public hearing is held by the district's school board and the noncompliance information is a consideration in the evaluation of the LEA superintendent and relevant principals.
  
  
• Mandatory Second Level Sanctions, which are to be implemented within 60 days of the first level of sanctions if noncompliance continues, require lowered accreditation of the noncompliant LEA and suspension or termination of responsible administrative officials.
  
  
• Mandatory Third Level Sanctions, which are imposed 60 days after Level 2 sanctions if noncompliance continues, require a choice of one of the following options: (1) transference of federal and state special education funds to a neighboring LEA for oversight of the provision of special education in the noncompliant district; (2) partial withholding of federal and state special education funds while the LEA must continue to provide required services; (3) withholding of all federal and state special education funds while the LEA must continue to provide required services; and (4) recovery by the state of previously awarded federal and state funds.[309]

The elements of this proposed system have potential for correcting some long-standing weaknesses in Texas, California, and Illinois state monitoring. The proposed system has been implemented on a "pilot" basis only in California; more time is needed to test its effectiveness.

D. Findings and Recommendations

Finding # V.1

Parent advocacy and litigation have been critical means for exposing and remedying persistent and systemic IDEA noncompliance.

The law depends on litigation in order to function effectively. Parents of children with disabilities are uniquely situated to identify and raise the legal issues related to persistent noncompliance with IDEA. Their financial situations, however, typically do not permit sustained private legal action, and not enough public resources are available to assist them.

Recommendation # V.1A

Whenever Congress and the President approve an increase in the funding to be distributed to local schools under Part B of IDEA, Congress and the President should appropriate at the same time an amount equal to 10 percent of the total Part B increase to fund free or low-cost legal advocacy services to students with disabilities and their parents through public and private legal service providers, putting competent legal assistance within their financial reach and leveling the playing field between them and their local school districts.

Litigation by parents is still a necessary recourse when administrative action at the state level to obtain FAPE for their child has failed. In some states, litigation has also been a vital catalyst to a more effective implementation of IDEA across the board. Access to legal assistance that could result in obtaining an appropriate education for their children remains beyond the financial reach of too many families. Federal funds currently available for low-cost legal services under the Developmental Disabilities Act, the Technical Assistance Act, the Rehabilitation Act, and the Protection and Advocacy for Individuals with Mental Illness Act must be supplemented to begin to address the need. This will be a start toward putting families on a more equal playing field with school districts that use tax dollars to hire legal counsel to assist them in avoiding compliance with IDEA requirements.

Recommendation # V.1B

OSEP should endorse the allocation of additional funding to public and private legal service providers, including the state PTIs, P&As, and IL centers, the private bar and nonprofit legal services centers, for the purpose of carrying out a coordinated strategy for making legal advocacy services more available to students with disabilities and their families.

Finding # V.2

Pilot programs in compliance monitoring and enforcement at the state level are testing the use of a broad range of flexible enforcement options in the context of corrective action plans linking specific noncompliance findings with agreed upon enforcement options and time lines.

Recommendation # V.2

OSEP should develop and test the use of state compliance agreements that incorporate appropriate sanctions selected from a broad range of enforcement options, and link them to the state's failure to correct specific noncompliant conditions within the agreed time frame.

OSEP should also encourage the state's use of sanctions in this manner when the state's compliance monitoring indicates that LEAs are failing to correct findings of noncompliance.

Part VI provides an overview of the role of the Department of Justice in enforcing IDEA through participation in litigation.

VI. The Role of the Department of Justice

A. Functions of the Department of Justice

Two divisions of the Department of Justice (DOJ) have participated in appellate litigation for the Individuals with Disabilities Education Act (IDEA) during the past 25 years--the Appellate Section of the Civil Rights Division and the Appellate Section of the Civil Division.[310] The Appellate Section of the Civil Rights Division indicates that it finds cases to participate in by searching legal publications and reports. The Civil Rights Division is rarely approached by advocates or outside attorneys for participation in a case, but has met with advocacy groups (e.g., P&As) to ask for their assistance in identifying cases that might permit amicus participation.[311] It intends to increase these kinds of outreach efforts to advocates in the future, as well as coordination with the Department of Education (DoED) on DOJ's amicus participation in IDEA cases.[312]

B. IDEA Litigation in Which the Department of Justice Has Participated

For this study, the National Council on Disability (NCD) requested a docket of IDEA cases in which the Department of Justice had participated since the law's enactment. DOJ did not have such a list, but constructed the following one for this study. It only includes cases at the Supreme Court and Appellate Court levels. While DOJ has participated in IDEA cases at the district level, a list of these cases was not provided. The Department suggested that project staff could find cases DOJ had participated in at the district level in WestLaw. While a number of district level cases were identified, a complete list is not included in this report.[313]

The following table lists 26 cases that DOJ provided for this study. DOJ participated in five cases heard by the Supreme Court and 21 appellate cases. Thirteen of the cases appear to support children's educational rights under IDEA. Several cases each concern private school placements and administrative issues. In one case, DOJ represented the Department of Education in its efforts to withhold IDEA funds from the state of Virginia for substantial noncompliance. While DOJ's role cannot be entirely deduced from the information available, attorneys familiar with IDEA litigation issues think DOJ has generally taken positions supporting the claims of students with disabilities and their families.

Table 23: IDEA Litigation in Which DOJ Has Participated

C. Findings and Recommendations

Finding #VI.1

The Department of Justice does not have independent authority under IDEA to pursue IDEA investigations and enforcement against noncompliant educational entities.

The Department of Justice can pursue enforcement action against state educational entities only if a referral is made from the Department of Education.

Recommendation # VI.1

Congress should amend IDEA to provide the Department of Justice with independent authority to investigate and litigate against school districts or states where pattern and practice violations of IDEA exist.

The Department of Justice should play a greater role overall in the enforcement of IDEA. DOJ is not plagued by the conflicting roles of grant manager and law enforcer with the same entity. As an agency that specializes primarily in enforcing the law, DOJ's first responsibility is to those protected by the laws it enforces. DOJ is not as susceptible to political pressure from states and their Congressional delegations when initiating enforcement action because it has no pre-existing economic relationship (grant maker-grantee) with the defendant. DOJ can initiate an investigation upon receiving a complaint or other information and coordinate with the Department of Education throughout case development. Information about coordinated enforcement activities should be included in DOJ's Annual Report to Congress.

Finding # VI.2

The Department of Justice has played a minimal role in IDEA litigation, participating in only 26 IDEA cases at the Supreme Court and Appellate Court levels in the past 25 years.

Recommendation # VI.2

The Department of Justice should exercise greater leadership in IDEA enforcement by initiating litigation against noncompliant states, publicizing its actions, and collaborating with stakeholders on their legal stance and its implications.

The Department of Justice should take the initiative to identify key cases involving noncompliance with important provisions of IDEA, such as LRE, and aggressively litigate to put noncompliant states on notice that the law is now being enforced. In doing so, DOJ should actively seek the input of key stakeholders on their legal positions vis-a-vis these cases and the policy implications.

Finding # VI.3

The Department of Justice has no structured mechanism for finding or determining what IDEA cases to participate in, other than reviewing legal journals and networking informally with advocacy groups.

Recommendation # VI.3

The Department of Justice should develop a system for tracking and monitoring litigation related to IDEA and articulate explicit criteria for determining DOJ participation.

Part VII examines a variety of technical assistance vehicles and initiatives funded by the Department of Education and makes recommendations concerning the targeted use of specifically designed technical assistance programs to improve compliance nationally.

VII. Improving Public Awareness: Technical Assistance and Public Information for Students with Disabilities, Their Families, and Advocates

A. Department of Education--Overview

The Individuals with Disabilities Act (IDEA) has always authorized technical assistance initiatives. Some are directed to states and other service-providing entities; others are intended for the public generally. Still others are directed to addressing the technical assistance needs of students with disabilities, their families, and their advocates in obtaining the services and supports that must be made available to students with disabilities under the law. For Fiscal Year 1999, $44.5 million was appropriated for IDEA technical assistance and dissemination. These funds provide for "technical assistance and information, through such mechanisms as institutes, Regional Resource Centers, clearinghouses, and programs that support states and local entities in building capacity, to improve early intervention, educational and transitional services, and results for children with disabilities and their families and address systemic-change goals and priorities."[314] In accordance with this authority, the Office of Special Education Programs (OSEP) has funded three primary technical assistance programs for Fiscal Year 1999 for students with disabilities, their parents and families, and advocates. They are the National Information Center for Children and Youth with Disabilities (NICHCY); The Families and Advocates Partnership for Education (FAPE) project of the Minnesota parent organization (the PACER Center); and the Parent Training and Information (PTI) centers, including the Technical Assistance Alliance, also managed by the PACER Center, which provides technical assistance to the PTIs.

As a result of the 1997 Reauthorization, OSEP funded Partnership Projects to provide technical assistance to membership associations representing four different stakeholder groups involved with the implementation of IDEA: families and advocacy groups, service providers, local school administrators and policy-makers. Begun in October 1998, Partnership Projects consists of collaborative initiatives by all four stakeholder groups to ensure that their grassroots constituents get consistent information about the Reauthorization changes, as well as best practices for effectively implementing IDEA. The Partnership initiative also has a coordinating committee that works on addressing implementation issues raised by any stakeholder group from all stakeholder perspectives.

Under other legislative authorities, the National Institute on Disability & Rehabilitation Research (NIDRR), the Rehabilitation Services Administration (RSA), and the Department of Education's (DoED's) Office for Civil Rights (OCR) each also play a role in providing IDEA- or education-related technical assistance, information, and materials for students with disabilities, their parents, and families.

1. OSEP

a. National Information Center for Children and Youth with Disabilities

The National Information Center for Children and Youth with Disabilities (NICHCY) is an information and resource clearinghouse. NICHCY is an OSEP initiative that provides information on children and youth with disabilities (birth to age 22). In Fiscal Year 1999, NICHCY received $1.1 million to operate a clearinghouse that offers a toll-free number and a web site providing information and materials about children and youth with disabilities, special education, IDEA, and related matters. NICHCY receives about 40,000 contacts per year-- including phone calls, e-mail, and mail requests for referral, information, or technical assistance. About half of these contacts are from professionals and about half from children with disabilities and their families. NICHCY's web site provides descriptions of and price information about all printed publications that it makes available. Most are accessible at the web site and can be printed out free of charge. NICHCY's web site also offers a text-only version for individuals with vision disabilities who may be using a screen reader. Materials provided by NICHCY are available on computer disk by request.

b. The Families and Advocates Partnership for Education (FAPE) Project

In 1998 OSEP awarded $6 million in grants for national education and outreach about IDEA 1997. Four grants of $1.5 million each per year for up to five years were awarded to three organizations. Of the three grantees, the parent-run PACER Center based in Minneapolis, Minnesota, provides material and information specifically for students, their families, and advocates. The other grantees were the National Association of State Directors of Special Education and the Council for Exceptional Children, which was awarded two grants.

c. Parent Training and Information (PTI) Centers and the Technical Assistance Alliance

The largest source of technical assistance and information for students, families, and their advocates is the OSEP Parent Training and Information (PTI) centers funded at $18.5 million for Fiscal Year 1999 through the OSEP Parent Program. There is at least one PTI center in each state. Also supported under this funding initiative is the Technical Assistance Alliance managed by the PACER Center, which provides technical assistance to the PTIs. Parent Training and Information centers typically provide training and information about various special education topics for parents, families, and children living in the areas served by the individual centers.

The goals of the Parent Program are to provide information, training, and support to the families of children with disabilities in becoming more effective advocates for the supports and services their children need to receive the benefits of a free appropriate public education under IDEA. The Parent Program recognizes the critical role of parents in their children's education and aims at preparing them to be active participants in the Individualized Education Program (IEP) process, eligibility, and placement decisions. Most important, the program seeks to impart information about the procedural safeguards available when the system is out of compliance with the law. These goals are accomplished through general and specific training, workshops, and presentations, as well as through printed material(s), newsletters, web sites, and individual support and advocacy. This training and support focuses on both individual advocacy and systems advocacy.[315]

PTI services, therefore, can include assisting parents in understanding the nature of their child's disability and education needs; providing information about ways parents can communicate effectively with service-providing personnel; helping parents participate in the IEP process; assisting parents in obtaining appropriate information about the range of options, programs, services, and resources available; helping parents understand IDEA procedural safeguards; and assisting parents in understanding IDEA and participation in school reform activities.[316]

The PTIs are currently assembling a comprehensive list of their combined technical assistance, training, and informational materials for parents and families. The list had not been completed nor was preliminary information available during the course of this study. The PTIs are also working on a report showing how many students, parents, families, and others annually receive some form of technical assistance from the various centers, but it also had not yet been completed at the conclusion of this study, and preliminary data were not available.

d. The Technical Assistance Alliance for Parent Centers

The Technical Assistance Alliance for Parent Centers (the Alliance) has served as the coordinating office for the Technical Assistance to Parent Projects since October 1, 1997. The Alliance provides technical assistance for establishing, developing, and coordinating Parent Training and Information centers under IDEA. The Alliance maintains a web site with links to PTIs and other parent resources and organizations. The site is available in a text-only as well as a graphic format. On request the Alliance provides technical assistance materials on audiotape and in large print, and audio described and captioned videos.

e. Technical Assistance to Indian Communities

OSEP has worked closely with parents, educators, tribal leaders, and advocates in the Native American community. For example, OSEP staff participated in the National Indian School Board Association's 1997 and 1998 annual conferences and the National Indian Education Association's 1998 conference, conducting focus groups and individual meetings with parents, tribal leaders, and advocates. In 1999, OSEP provided an intensive two-day training for Bureau of Indian Affairs (BIA) staff, including non-central office staff. OSEP has also worked with BIA staff in providing training to OSEP monitoring staff regarding Native American cultures. OSEP will be working closely in the future with BIA's newly created special education advisory board.

Despite OSEP's increased efforts, Native American leaders report a lack of general knowledge among local people about the law, their rights under the law, and the role of BIA in ensuring that all requirements of Part B are met. Improved implementation of IDEA in Native American communities depends, in part, on effective participation by parents of children with disabilities, tribal leaders, and representatives from national Indian education organizations on the advisory boards and steering committees directing BIA efforts.

2. National Institute on Disability and Rehabilitation Research (NIDRR)

The National Institute on Disability and Rehabilitation Research (NIDRR), one of three OSERS programs, undertakes research related to the rehabilitation of individuals with disabilities. Some NIDRR projects include the development of training, technical assistance, and other general materials related to IDEA or other special education issues. Some projects develop materials specifically for parents and families. Others are aimed at various professional audiences but may be of general interest to parents. NIDRR also administers the Protection & Advocacy for Assistive Technology (PAAT) program, created in 1994 when Congress expanded the Technology-Related Assistance for Individuals with Disabilities Act (Tech Act) to include funding for Parent and Advocacy systems (P&As) to "assist individuals with disabilities and their family members, guardians, advocates, and authorized representatives in accessing technology devices and assistive technology services" through case management, legal representation, and self-advocacy training.

3. Rehabilitation Services Administration (RSA)

RSA administers the Protection and Advocacy for Individual Rights (PAIR) program, established by Congress as a national program under the Rehabilitation Act in 1993. PAIR programs were created to protect and advocate for the legal and human rights of persons with disabilities who were not covered by previous legislation.

4. Office for Civil Rights

The Office for Civil Rights (OCR) regularly provides technical assistance to parents and educators on rights under Section 504 and Title II of the Americans with Disabilities Act (ADA) through presentations at conferences, community meetings, published materials, and posting of information on DoED's web site. A toll-free number, staffed at the OCR headquarters office in Washington, DC, handled nearly 5,000 inquires in FY 1998.[317] OCR staff members at headquarters and in the 12 enforcement offices throughout the country handle many more inquiries from students and parents by telephone, written correspondence, and electronic mail. In addition, OCR provides technical assistance on the rights of students with disabilities to the students themselves, their families, and educators in conjunction with the investigation of disability complaints, which make up 60% of OCR's total complaint receipts.[318]

5. Department of Health and Human Services--Administration on Developmental Disabilities

The Administration for Children, Youth, and Families' Administration on Developmental Disabilities (ADD) administers the Protection and Advocacy for Persons with Developmental Disabilities (PADD) program, a system in each state and territory that provides protection of the rights of persons with disabilities through legally based advocacy. The P&As system was created by the Developmental Disabilities Assistance and Bill of Rights (DD) Act of 1975.

The National Association of Protection and Advocacy Systems (NAPAS) reports providing about 250,000 individuals annually with information, technical assistance, and referral to other resources. Of this number, approximately 40,000 students with disabilities, their parents, and their families are provided with information related to their educational rights and responsibilities under IDEA. NAPAS also reports representing approximately 19,000 students with disabilities in IDEA matters either with informal or formal advocacy, or representation at administrative hearings or in court.[319]

B. Resource List of IDEA and Education-Related Technical Assistance, Training, and Informational Materials Collection Approach

In an effort to identify federally funded IDEA- and education-related technical assistance and informational materials for students with disabilities, parents, and families, lists of materials were collected from sources that could verify federal support for the creation of the documents. These sources included NICHCY, the National Rehabilitation Information Center (NARIC)--a NIDRR project that collects and disseminates the results of federally funded research projects-- some individual PTI centers, the Technical Assistance Alliance, NAPAS, and several NIDRR-funded grantees. A database was created that assigned the titles to one of two audience categories: Category One--students, parents and families, and advocates; Category Two--general audience. Those titles included in the general audience category were also considered useful to parents, although they are not the intended primary audience as far as could be discerned from indicators such as the works' title, abstract, source, and keywords.

Titles were not included when professionals were clearly the intended audience, or applicability to and interest for parents and families was not apparent. If the information was available, the database also includes a notation if the materials are available in languages other than English, and whether the list's source--web site or larger databases such as found on NARIC for example--indicated whether the materials are available in alternative formats such as audiotape, disk, or Braille.

Two hundred eighteen federally funded education or IDEA technical assistance, training, public, or general information titles were identified that were either created for parents and families or that are potentially useful to them. Of these, 66 appear aimed at either a general or a professional audience, but could be of interest to parents and families; and 152 were specifically created for students with disabilities, their parents and families, and advocates. Three are advertised as available in Braille; four are videos; three of the videos provide captioning. Forty- eight titles are available in languages other than English; 90 titles are available in full text format on the web. The titles were assigned to the 24 content categories in the following table:

Table 24: IDEA/Education-Related Technical Assistance Materials and Information

C. Findings and Recommendations

Finding # VII.1

During 1999, OSEP committed about one-third of its technical assistance resources to informational programs for students, parents, and families--an increase from previous years.

This increase showed a clear commitment to enhancing the ability of students and parents to participate in the educational planning process by developing and disseminating training and informational materials and resources, providing peer and professional support, and strengthening parent organizations through capacity building.

Recommendation # VII.1

The Office of Special Education and Rehabilitative Services (OSERS) should strongly promote inter- and intra-agency collaboration to leverage existing resources available to help states correct areas of noncompliance. The objective of this collaboration should be to make available the technical assistance materials and programs state education agencies (SEAs) and local education agencies (LEAs) may request or be required to accept in order to correct specific noncompliance problems.

Finding # VII.2

Only 2 percent of OSERS' resource list publications provided support and information to students themselves in planning their own educational and transition programs.

OSERS' resource materials and programs needed greater emphasis on helping students with disabilities to understand and advocate for their civil rights as students in public schools, and in the transition to living as adults with disabilities in their communities. As OSERS continues to stress transition from school to work and community life, students and their parents must understand how IDEA, ADA, the Fair Housing Act (FHAA), and Section 504 of the Rehabilitation Act affect their opportunities for meaningful integration, employment, and access to post-secondary educational programs.

Recommendation # VII.2

OSERS should prepare students for effective self-advocacy in their education planning and transition to employment and independent living by (1) expanding its resource publications dealing with these issues, (2) developing training initiatives and technical assistance materials, and (3) supporting model student-led self-advocacy programs.

OSEP should develop materials and provide training for students with disabilities and their parents about the provisions of the ADA, Section 504, FHAA, and other pertinent disability laws to help young adults with disabilities understand their civil rights and inform them about the programs available to assist their transition from school to independent living in the community, employment, and post secondary education. Greater emphasis on self-advocacy also will prepare students with disabilities and their families to support state and federal compliance monitoring and enforcement activities more effectively.

Finding # VII.3

OSEP's outreach priorities and resource materials did not address judicial interpretations of IDEA and OSEP policies in a way that assists students with disabilities and their parents in understanding of their implications.

Since schools are familiar with legal developments, students and parents can be disadvantaged without this same information.

Recommendation # VII.3

OSEP should fund the development of materials and provide training and technical assistance for parents and students on the implications of judicial interpretations of IDEA court cases and OSEP policies.

Finding # VII.4

Current technical assistance initiatives have not met the need for materials, training and technical assistance to help students with disabilities and their parents understand and evaluate their states' monitoring system.

Recommendation # VII.4

OSEP should initiate and develop a program to train students with disabilities and parents in evaluating the effectiveness of their state's IDEA compliance monitoring systems and their state's self-assessment process.

Finding # VII.5

Twenty-two percent of technical assistance and informational materials from the resource list were either directed to non-English speaking audiences or available in languages other than English.

Recommendation # VII.5

OSERS should continue to expand its initiatives to serve non-English speaking groups and create culturally appropriate training materials by (1) increasing outreach to minority students and parents, (2) enhancing the capability of the Technical Assistance Alliance, PTIs, the National Rehabilitation Information Center (NARIC), and NIDRR research projects to create culturally appropriate non-English language materials, and (3) translating more existing materials into languages other than English.

This percentage is a notable increase from previous years, yet there are still too few culturally appropriate materials available in languages other than English in relation to the number of students and their families needing them.

Finding # VII.6

The need for training of students with disabilities and their parents in the requirements of IDEA is especially urgent in communities where noncompliance persists over time. Despite a steady increase over time in the amount of technical assistance materials available to under-served populations of students with disabilities and their families, noncompliance still tends to persist at a higher rate and over longer periods of time in these communities.

The resource list shows that materials are still scarce for students with disabilities in the juvenile justice, immigration, and naturalization and child welfare systems, as well as for students attending schools operated or funded by the BIA. Multicultural and language-appropriate materials for these groups are scarcer still.

Recommendation # VII.6A

OSEP should expand its program support for initiatives that promote educational opportunities and rights for under-served populations of children and youth with disabilities and their families. More programs are needed to explain IDEA's requirements in light of the unique needs of students with disabilities involved in the juvenile justice, immigration, and naturalization and child welfare systems, as well as in schools operated or funded by BIA, to their families and advocates, as follows:

• culturally appropriate technical assistance to ensure the ability of Native American children with disabilities, their families, tribal leaders, and advocates in every interested tribe to participate as full partners in implementing IDEA in their communities. Culturally appropriate training and technical assistance should be developed and delivered through the satellite offices of disability technical assistance centers (DBTACs) around the country that are managed and staffed primarily by Native Americans.
  
  
• training of the appropriate players in the juvenile justice system, including judicial and institutional personnel, in IDEA's civil rights requirements, how they apply within the juvenile justice system, and ways the law can be used to help minimize detention of children with disabilities in the juvenile justice system.
  
  
• training of the appropriate players in the immigration and naturalization and child welfare systems, including federal and state agency, judicial, and institutional personnel, in IDEA's civil rights requirements.

Recommendation # VII.6B

OSEP, in conjunction with the Department of Justice Office of Juvenile Justice and Delinquency Prevention (OJJDP), should also fund training programs for special education lawyers on applying IDEA in the criminal justice system, and for public defenders and staff on IDEA's educational requirements to enable both to advocate more effectively for the educational rights of students with disabilities involved in state and local criminal justice systems.

Finding # VII.7A

The Department of Education's IDEA technical assistance program addressed a wide range of important information and training needs. The overall strategy, however, did not seem to place priority on developing a comprehensive, coordinated, and targeted technical assistance system in each state focused on empowering students with disabilities and their families for effective self-advocacy to address documented areas of noncompliance state-wide.

Finding # VII.7B

The advocacy training programs and services available in most states fell far short of the existing need.

Recommendation # VII.7

The Department of Education should give priority support to the formation of a comprehensive, high quality, and coordinated technical assistance system in each state by developing a separate OSEP-administered funding stream to aid federally funded advocacy groups in coordinating and making available self-advocacy training programs, resources, and services to students with disabilities and their parents throughout the state. Elements of the coordinated technical assistance systems should include the following:

• The availability of a lawyer at every state PTI center, protection and advocacy agency, and independent living center able to provide competent legal advice to students with disabilities and their parents in advocating for their rights.
  
  
• Self-advocacy training programs for students with disabilities and their parents focused on civil rights awareness, education and transition planning, and independent living in the community.
  
  
• The establishment of a national backup center to make legal materials, training, and other supports available for attorneys working on IDEA cases and issues at the state level.
  
  
• Expansion of involvement by the private bar and legal services organizations in providing legal advice to students with disabilities and their parents in advocating for their legal rights under IDEA.