|
REMARKS by DAVE BROWN Member, National Council on Disability I am Dave Brown, a member of the National Council on Disability. On behalf of the Council, I thank you for allowing me the opportunity of participating in this panel presentation. In addition to serving on the Council, my work history has included research on the transition of youth with disabilities from school to work, directing disabled student services at a regional institution of higher education and working in a variety of positions to improve people with disabilities' access to state government employment and services. Currently, I manage the disability initiative of the WA State Dept of Social and Health Services. Approximately one-half of all state employees are employed by DSHS, and the department provides services to 1 out of 5 state residents each year. What is NCD? NCD is an independent federal agency establish in 1973, as part of the Rehabilitation Act. Council members are appointed by the President of the United States and confirmed by the U.S. Senate. NCD's mission is to advise the Congress and President by providing a voice for all people with disabilities in the development of policies and delivery of programs that affect their lives. We make recommendations to the President, Congress and Federal agency officials concerning ways to better promote equal opportunity for all individuals with disabilities. In February, NCD published a report on implementation of the IDEA. I understand that many special education professionals are concerned with the report's findings and feel that it--unfairly--focuses only on limited data available through the Dept of Ed. First, let me emphasize that the report was not designed to give a broad overview of the success or failures of IDEA implementation. This report is one of several studies NCD has undertaken of how select federal agencies are doing at enforcing particular laws. Since the focus is on the agency's performance, we narrowed the focus to data we were given by the Dept of Ed. As your report noted, there are problems with this data. It does not give the entire picture. The mandate for these reports came out of a National Summit on Disability Policy. In 1996, NCD convened a diverse group of more than 300 leaders from the disability community from across the country at this National Summit. The purpose of the summit was to gain consensus and a roadmap for where the disability rights movement should go over the next ten years. Summit participants examined a wide-range of public policy issues (education, employment, health care, housing, transportation, etc.). Generally, regardless of the issue being considered, consensus was reached that there was not a need for new laws. However, there was a need to improve the enforcement of the existing laws. The NCD report Achieving Independence:... summarizes recommendations that emerged from the summit. Based on a Summit recommendation, NCD determined that, our next goal should be to gather objective data on the performance of select federal agencies in enforcing various disability rights laws. These reports would give us a basis of information of determining problems and possible solutions to improve enforcement efforts. The IDEA report was one such report. In addition to the Air Carriers Access Act and IDEA reports, NCD is finalizing a report on federal efforts to enforce the Americans with Disabilities Act (ADA), and have began work on reports that will look at the federal enforcement of the Fair Housing Act Amendments and Section 504 of the Rehabilitation Act. In addition to these individual reports that focus on specific laws and agencies, NCD will soon be putting together a report that synthesizes the findings of all the individual reports, and the findings of the NCD Minority Think-Tank and the NCD Civil Rights Retreat. As a part of the synthesis report, we are holding hearings in each region of the nation to hear from pwds, their families and friends and, certainly, from professionals in the field. On behalf of NCD, I want to invite you and your members throughout the US to attend these hearings and give us the benefit of your insights on IDEA and any other programs related to persons with disabilities. NCD's most recent education report, Back to School on Civil Rights, is the second in our "Unequal Protection Under Law" series of independent analyses of federal civil rights enforcement for Americans with disabilities. Back to School on Civil Rights deals with Federal enforcement of the Individuals with Disabilities Education Act (IDEA), a law that affects six million children with disabilities in this country. Growing-up with a disability myself--well in advance of the passage of P.L. 94- 142--I am well aware of how effective implementation of the law can make a meaningful difference in the lives of persons with disabilities. Although I have a progressive eye condition, the school district I attended placed a high value on the ability to read print materials. In junior high, my classmates attended English classes where they learned to write, I was assigned to sit in a storage room, reading 4th grade readers, the only large print books that were readily available. While well intentioned, this decision presented a significant barrier to completion of my formal education and advancement of my professional life. Basically, I had to learn these writing skills while attending college, later in life. Although some may think NCD's report makes it seem as if IDEA has been ignored to a great degree over the past twenty-five years, we concur that there have been many successes for children with disabilities. IDEA has had a tremendous impact. Millions of children with disabilities, once legally excluded from public schools, now go to school every day. The number of young PWDs who find jobs after completing their education has doubled since IDEA became law in 1975. The number who go on to post-secondary education programs has also increased substantially. During the course of our research we learned that parents of children with disabilities are enthusiastic supporters of the law. They think it's a good law. I can personally attest to the benefits of the law. I worked in higher education at the time the first generation of students to benefit from IDEA transitioned into higher education. Most disabled students entering college at this time had a sound educational base to work from. Further, they understood the accommodations they would need to access the educational process. However, even with the law, I cannot help but remember the young woman who had received straight "A's" in English, but did not know what a noun was, or the student who had spent his four years in high school walking up and down the hall ways delivering notes. Despite these important improvements, the NCD report also notes that the drop out rate for students who receive special education continues to be far higher than that of students who receive general education services. Diploma rates for special education students is far lower than for their peers enrolled in general education services. Unemployment among those with disabilities who want to work, but can't find a job, is approximately 70%. Countless numbers of children with disabilities, especially those from low-income, ethnic and racial minority, or rural communities, are still not receiving the full benefit of the law. They and their families struggle daily to obtain the services and supports they need to learn. As a last resort, many families find they must take legal action to force local school districts to comply with the law. Federal efforts over several Administrations to enforce IDEA in states where noncompliance persists have been inconsistent, often ineffective and without any real teeth. I want to stress that while the statutory framework of IDEA envisioned states as the primary implementers of IDEA, over five administrations, the federal government has fallen short in it's efforts to ensure the protections of the law for children with disabilities are enforced. We looked at the data published in reports by the Department of Education between 1975-1998. The study measured compliance in the areas of free appropriate public education (FAPE), least restrictive environment (LRE), individualized education plans (IEP), transition services, general supervision, procedural safeguards and protection in evaluation of students with disabilities. DATA AND SUMMARY ANALYSIS NCD found that the most recent federal monitoring reports demonstrated that every state failed to ensure compliance with the requirements of IDEA to some extent during the period covered by this review. More than half of the states failed to ensure compliance in five of the seven main compliance areas. For example, in OSEP's most recent monitoring reports, 90 percent of the states (n = 45) had failed to ensure compliance in the category of general supervision (the state mechanism for ensuring that LEAs are carrying out their responsibilities to ensure compliance with the law); 88 percent of the states (n = 44) had failed to ensure compliance with the law's secondary transition services provisions, which require schools to promote the appropriate transition of students with disabilities to work or post- secondary education; 80 percent of the states (n = 40) failed to ensure compliance with the law's free appropriate public education requirements; 78 percent of the states (n = 39) failed to ensure compliance with the procedural safeguards provisions of the law; and 72 percent of the states (n = 36) failed to ensure compliance with the placemen in the least restrictive environment requirements of IDEA. In the two remaining major compliance areas IEPs and protection in evaluation, 44 percent of the states (n = 22) failed to ensure compliance with the former and 38 percent of the states (n = 19) failed to ensure compliance with the latter. Currently, the U.S. Department of Education has neither the authority nor the resources to investigate and resolve individual complaints alleging noncompliance. The Department does consult with and share enforcement authority with the U.S. Department of Justice (DOJ). DOJ has no independent litigation authority. We found that, between the date it was given explicit referral authority in 1997 and the date this report was published, DoED had not sent a single case to DOJ for "substantial noncompliance," and had articulated no objective criteria for defining that important term. In turn, the Department of Justice, whose role has been largely limited to participation as an amicus in IDEA litigation, does not appear to have a process for determining what cases to litigate. Despite the high rate of failure to ensure compliance with Part B requirements indicated in the monitoring reports for all states, only one enforcement action involving a sanction (withholding) and five others involving imposition of "high risk" status and corrective action as a prerequisite to receiving further funds, have been taken. The only withholding action occurred once for a temporary period and was overruled by a federal court. Overall, the DoED tends to emphasize collaboration with the states through technical assistance and developing corrective action plans or compliance agreements for addressing compliance problems. There appear to be no clear-cut, objective criteria for determining which enforcement options should be applied and when to enforce in situations of substantial and persistent noncompliance. We worked with the Department for five months to ensure the technical accuracy of the report. We consulted with advocates from across the country on our recommendations. We have taken great pains to address research limitations in this report; limitations that are a reflection of idiosyncratic data and evaluation presentations found in original monitoring documents. Notwithstanding these research limitations, NCD believes that the Back to School on Civil Rights report paints a realistic picture of federal enforcement from 1975 until 1998, when a new system began to be implemented. RECOMMENDATION FOR STRENGTHENING FEDERAL ENFORCEMENT OF IDEA In the report, NCD makes the following general recommendations to strengthen the capacity of both the Department of Education and the Department of Justice to more effectively enforce IDEA:
CONCLUSIONS--FINAL REMARKS We acknowledge the Department of Education's new compliance and monitoring system initiative. We believe that any system that does not include national compliance standards, objective triggers for enforcement action, and consistent consequences for noncompliance will only perpetuate current and longstanding problems. Congress crafted a statute in 1975 that, if faithfully implemented, will produce quality outcomes for students with disabilities. The United States Code defines special education as "specially designed instruction" to meet the "unique needs" of these students; each student's individualized education program (IEP) is to set forth his or her unique needs and individually designed instruction; and, each student's placement is to be based on the IEP and no more restrictive than necessary (20 U.S.C. 1402(25); 34 C.F.R. 3000.552(a)(2)(b). If IEPs are based on the unique needs of students, if instruction is individually designed, if IEPs are faithfully implemented, and if the LRE requirements are followed, students will achieve quality outcomes while enjoying maximum interactions with their nondisabled peers. Compliance with these IDEA requirements is a sufficient condition for quality outcomes. Improvements in implementation of IDEA won't happen overnight. It will take the concerted efforts of parents, advocates, states and local school districts to make it happen. This is where NCD and the CEC can work together, focusing on our broad areas of policy agreement, rather than any narrow disagreements. Prior to attending this conference, I visited the website of the CEC to become more familiar with your organization. I was deeply impressed with CEC's mission statement. It is professionals, such as your members, that continue to make the difference in whether IDEA is fully implemented and children with disabilities receive the education they deserve. As the representative of NCD at this conference, I want to express our deep appreciation of the important work accomplished by your members. Without knowledgeable and committed professionals working with children with disabilities, they would have no real educational opportunity and the doors of their future would remain closed. Together, NCD and CEC can work to pry these doors open for all such children. It is our hope that this report will lead to dialogue, greater understanding of the issues and problems, and more importantly, to action. We ask you to join us in supporting the recommendations in this report and to action to make the promises of this law a reality for all children with disabilities. HOME | FAQs | NEWSROOM | SITE MAP | FEDERAL AGENCIES | RESOURCES |
