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Remarks by Martin Gould I am Martin Gould, a research specialist at the National Council on Disability (NCD). On behalf of NCD, I thank you for allowing me the opportunity of participating in this hearing today. In addition to working at NCD, my work history has included administration of public school programs in a large urban school district, directing outcomes research for a national non-profit agency, teaching education and research at a state university, and serving as a state-level hearing examiner for special education. Currently, I work in the areas of education, telecommunications, assistive technology, and fair housing for NCD. What is NCD? NCD is an independent federal agency established 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. 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. Because the focus is on the agency's performance, we narrowed the focus to data we were given by the Dept of Education. 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 Think-Tank 2000 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 persons with disabilities, 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. 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 persons with disabilities 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. 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 SEP.'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 placement 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. In terms of the State of Tennessee, I would refer you to the full report (2 boxes of 16 reports/box) mailed to you last Friday. I would also refer you to Table 5 of that report for a snapshot of state-by-state noncompliance in the areas of: FAPE, LRE, IEPS, Transition, General Supervision, Procedural Safeguards, and Protection in Evaluation. On page 91 of that report you will see that Tennessee identified as being in non-compliance in all areas except IEPs, and that area is coded as not having enough information (from the OSEP monitoring report of 1996) to make a determination. For more detailed information about your State, I would refer you to page 323 of the report which outlines the Tennessee data in more specificity. Finally, for the greatest level of detail, I would refer you to your State's most recent (1996) OSEP monitoring report. 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. Prior to attending this hearing, I visited the website of the Tennessee Legislature and the Select Committee to become more familiar with your organization. I was impressed with the issues your are tackling on behalf of your constituents. It is policymakers, such as your members, that can make the difference in whether IDEA is fully implemented and children with disabilities receive the education they deserve. It is our hope that this report will lead to dialogue, greater understanding of the issues and problems, and more importantly, to action. We hope you are able to support the recommendations in this report and can take action to make the promises of this law a reality for all children with disabilities. HOME | FAQs | NEWSROOM | SITE MAP | FEDERAL AGENCIES | RESOURCES |
