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Published in Print: December 6, 2000, as Schools Grapple With Reality Of Ambitious Law

Schools Grapple With Reality of Ambitious Law

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President Gerald R. Ford didn't hide his skepticism as he signed the Education for All Handicapped Children Act into law on Nov. 29, 1975.

Even though Public Law 94-142 championed a noble goal—establishing a national system of special education and opening classroom doors to a multitude of previously excluded children with disabilities—it would be impossible for the federal government to fully finance and for schools to live up to, President Ford declared.

"Unfortunately, the bill contains more than the federal government can deliver, and its good intentions could be thwarted by the many unwise provisions it contains," the president said during an unceremonious signing aboard Air Force One. "Even the strongest supporters of this measure know that they are falsely raising the expectations of the groups affected."

For 25 years, administrators, teachers, advocates, and parents have often expressed frustration over the very problems that President Ford flagged in the law now known as the Individuals With Disabilities Education Act. School administrators say they struggle daily with worries about the IDEA's legal intricacies and the threat of litigation. They also wrestle with properly accommodating students with disabilities in general education classrooms, finding enough qualified staff members to work with such students, and then, perhaps hardest of all, finding the money to pay for everything.

"I'm not sure we've implemented the full intent of IDEA," said Carol Ann Baglin, Maryland's assistant superintendent for special education and early-intervention services, echoing many administrators on what they see as the consequences of tight budgets and inadequate federal funding for special education.

"Even though it was exciting that [the Education for All Handicapped Children Act] passed, it was a lot of detail and was very heavy on the administrative process," Ms. Baglin added. "I wish I could say that that has changed, but it hasn't."

Finding compromise for improving the system has been difficult, administrators and policy experts say, because of the strong feelings among educators, parents, and disability-rights advocates.

"There is a tremendous amount of emotion around this issue, understandably," said Andrew J. Rotherham, the director of education policy for the Progressive Policy Institute, the think tank of the centrist Democratic Leadership Council.

Funding Woes

After the Education for All Handicapped Children Act was passed, 1 million children who had not been receiving any educational services were identified and brought into public schools.

Excerpt

The following is an excerpt from President Gerald R. Ford's statement upon signing the Education for All Handicapped Children Act into law on Nov. 29, 1975:

"I have approved S. 6, the Education for all Handicapped Children Act of 1975.

"Unfortunately, this bill promises more than the federal government can deliver, and its good intentions could be thwarted by the many unwise provisions it contains.

"Everyone can agree with the objective stated in the title of this bill—educating all handicapped children in our nation. The key question is whether the bill will really accomplish that objective.

"Even the strongest supporters of this measure know as well as I that they are falsely raising the expectations of the groups affected by claiming authorization levels which are excessive and unrealistic. ... "

Today, more than 6 million students are identified as having disabilities under the IDEA, with a 30 percent increase just in the past 10 years. Five of the disability categories under the IDEA have grown by 20 percent or more in the past 10 years, an indication of shifts in the identification of disabilities. The categories that have experienced such marked growth are: specific learning disabilities, emotional disturbance, multiple disabilities, orthopedic impairments, and other health impairments. The last category includes students with attention deficit hyperactivity disorder, a condition that can entitle students to services under the IDEA depending on its severity.

Complicating the rise in the number of students with disabilities is what many administrators and school board members see as a failing on the part of the federal government to provide necessary funding. Many have lobbied Congress for more money for what they see as a federal obligation.

"School board members would not deny that they are delighted to fund an education for these children," said Betsy Kaplan, a member of the Miami-Dade County school board who has a grown child with disabilities. "But when Congress enacted this, they guaranteed 40 percent of the cost, and they have never gotten anywhere near that."

There is still disagreement today on the federal government's funding role. Much of the debate centers on what the law's original drafters envisioned.

Relying on the formula for the federal Title I program, which serves disadvantaged students, to estimate districts' additional expenses for special education students, the law originally said the federal government would pay 40 percent of schools' excess special education costs by 1982, based on the national average for per-pupil expenditures. But Congress later amended the law to say that the federal government must pay a "maximum" of 40 percent of per-pupil costs. Today, the federal government pays about 12 percent of the costs. ("GOP Puts Priority on Raising IDEA Funding,"May 20, 1998.)

Regardless of how much federal aid they receive or how financially strapped they are, though, school districts must cover the cost of a "free, appropriate public education" for their students with disabilities because the IDEA essentially created a civil right for such students—one not subject to budgetary vagaries.

Under the law, each student identified as disabled must have an "individualized education program," or IEP, that spells out the educational services he or she needs in order to obtain the mandated free, appropriate public education. The law guarantees those services for the student, and if a school fails to provide them as spelled out, it can be taken to court.

But while the average cost of educating a student with disabilities is roughly twice the cost for a general education student, some IEPs can cost a lot more. For instance, in Ms. Kaplan's 361,000-student Florida district, one severely emotionally disturbed student's IEP dictates an out-of-state residential placement, which costs the district about $250,000 a year for tuition, transportation, and other services.

In some communities, such costly accommodations have fueled a backlash against special education. School officials and local taxpayers see the price tag—and realize that they are obligated to provide the services even if that means taking money away from general education.

Many educators and members of Congress argue that, unless the federal and state governments step up their commitments to special education funding, the costs of educating children with disabilities will eat up local school budgets and deprive other students of services they, too, deserve.

"Most superintendents are very cautious—they're not going to say, 'Well, we had to eliminate the soccer team because we had to fund Billy Joe's treatment,'" said Benny Gooden, the superintendent of the 12,500-student Fort Smith, Ark., district and an IDEA supporter who regularly lobbies for more federal aid. "But in a systemic sense, when you look at how much money it takes, you find yourself saying, 'Boy, we could have lowered the teacher-student ratio, or we could have purchased another $1 million in technology,'" if it hadn't been for local money spent on special education.

Mr. Gooden added that he and many other superintendents are extremely concerned about court cases, such as Cedar Rapids Community School District v. Garret F. which was decided by the U.S. Supreme Court last year. That case pitted a severely physically disabled student who required a nursing aide at his side at all times against the Cedar Rapids, Iowa, district, which maintained that health agencies, not the school district, should be responsible for the cost of the boy's medical services. The Supreme Court, though, said that the district must pay for the aide and other medically related services. ("Districts Must Pay Nursing Costs of Medically Fragile Students, High Court Rules," March 4, 1999, and "Educators Say Ruling Could Drain Budgets," March 10, 1999.)

That could spell disaster for some districts that have severely disabled students who require expensive treatments, Mr. Gooden said. As medical technology improves, districts are enrolling more students with severe disabilities—students who might not have survived infancy or early childhood some years ago—and those youngsters can require extremely expensive medical services. For instance, in the Cedar Rapids case, school officials said it could cost the district up to $40,000 a year to hire a full-time nurse for the severely disabled student.

"Now we find ourselves coming into the medical-services arena, and there seems to be no end to what a 'related service' is," Mr. Gooden added. The IDEA requires schools to cover the costs of the services "related" to educating children with disabilities.

Administrative Burdens

But there are some problems that money alone can't fix, said Thomas Hehir, a former director of the federal Department of Education's office of special education programs in the Clinton administration.

"The federal government putting more money into IDEA is not necessarily going to improve results for kids with disabilities," said Mr. Hehir, now a lecturer at Harvard University's graduate school of education.

In 1997, Congress amended the IDEA and put a new focus on achievement for students with disabilities, ensuring that they would take state and local assessments alongside their general education peers. But the early results of those assessments have shown large gaps in achievement, Mr. Hehir said, and schools are struggling to find ways to better teach special education students.

One of the problems most readily cited by districts has been a national shortage of qualified special education teachers—and the high burnout rate of those already in the field. Without properly trained teachers, advocates and educators agree, students with disabilities will have a hard time catching up and keeping up with their classmates in general education. ("All Classes of Spec. Ed. Teachers in Demand Throughout Nation," March 24, 1999.)

The burden of paperwork, a fear of litigation, and overcrowded classes of students with a range of disabilities are the main factors driving teachers out of special education, or discouraging them from entering the field altogether, according to a recent study by the Council for Exceptional Children, an advocacy group for educators and parents based in Reston, Va.

And it's not just the special education teachers who are shouldering the law's burdens. General education teachers are also responsible for implementing the law, keeping track of paperwork, and attending IEP team meetings.

"Both special education and general education teachers are being asked to do things they have not necessarily been trained to do," said Suzanne Shaw, the senior research associate who handles special education for the 1 million-member American Federation of Teachers.

But all the paperwork is necessary to prove that schools are complying with the law. If a school does not keep meticulous records for each special education student, it runs the risk of being cited by the state for failure to comply with the law, or losing a court battle should a lawsuit arise.

It's hard to determine the exact number of lawsuits related to the IDEA each year, said Perry Zirkel, a professor of education and law at Lehigh University in Bethlehem, Pa. Many cases are not reported, but according to research Mr. Zirkel has conducted, there have been significant increases, from a low of 246 special education decisions reported between 1991 and 1993 to 805 decisions reported between 1997 and 1999.

"In recent years, there has been an overall decline in education litigation, but the one exception is special education," he said. And although Congress' 1997 amendments to the IDEA were designed to cut back on litigation, that has not happened. "It certainly has not stemmed the tide in any way, nor has it led to any tremendous increase," Mr. Zirkel said.

Administrators often maintain that the number of lawsuits would be higher if it weren't for the tendency of districts to provide services they believe are excessive, simply to avoid protracted court battles.

Mr. Zirkel said that many more districts began to settle special education cases after 1986, when the IDEA was amended to stipulate that schools would pay for the parents' legal fees if the district lost. He added that a problem with settling lawsuits is that it sometimes provokes other parents to ask for more services.

Disability-rights advocates, however, say that many of the lawsuits are justified.

Paul Marchand, the chairman of the Washington- based Consortium for Citizens with Disabilities and a lobbyist for the original IDEA, argued that the number of lawsuits is not consequential, considering how many students are educated under the IDEA. And he is not swayed by the contention that schools often give in to parents' excessive demands just to avoid a court fight.

"They caved in on what the child should have gotten in the first place," Mr. Marchand said.

Meanwhile, paperwork remains a constant source of frustration for teachers and administrators—and no end is in sight, they say.

"IDEA has created a very wonderful thing; however, it has been loaded with paperwork and compliance issues," said Ronald Felton, the director of special services for the Miami-Dade district.

Gayden Carruth, the superintendent of the 9,000-student Park Hills, Mo., district near Kansas City, noted that it takes an enormous amount of work simply to change one class in the high school schedule of a student with disabilities.

"You can't just call the parents," Ms. Carruth said. "You have to send a notice of action and then convene an IEP team meeting. ... I don't think that's in the best interest of serving children."

At a recent IDEA event, Rep. Bill Goodling, the Pennsylvania Republican who chairs the House Education and the Workforce Committee and steered the 1997 amendments to passage, said he believed the new law had helped ease the paperwork burden. His remarks were met with jeers.

"I have not heard anyone say that the IDEA has reduced paperwork," Ms. Shaw of the AFT said.

Discipline Backlash

Another tough issue for school officials is how to discipline students with disabilities who are violent or bring drugs or weapons to schools. Getting those students removed from classrooms takes too much time and red tape, many administrators argue.

Educators often use a simple scenario: If two high school students bring illegal drugs to school, and one is classified as disabled and one is not, the nondisabled student will likely be expelled. But the school would have to conduct a review to determine if the disabled student's offense was related to his or her disability, and, if so, he or she could only be suspended for a maximum of 10 days. If the offense was not related to the disability, the student could be suspended for up to 45 days, but the school would have to convene an IEP team meeting to discuss a change in placement.

If the school authorities chose to expel the student with disabilities, they would have to figure out a way to provide him or her with educational services, such as a home tutor or alternative school.

Advocates for students with disabilities argue that keeping such students in school is paramount—without an education, they are likely to be an even greater problem for society, the advocates say. And, they say, without special protections for such students, schools could use the law to unfairly expel youngsters they simply do not want to educate.

Many problems in disciplining special education students have arisen because of a lack of knowledge about the complicated procedures in the law, some experts say.

"Originally, there was nothing about discipline [in the IDEA]," said Myrna R. Mandlawitz, a special education consultant based in Washington. "What I think the discipline debate was about all along probably was a misnomer—that special education kids get special privileges."

During the most recent reauthorization of the IDEA, which Congress began in 1995 and completed in 1997, lawmakers became embroiled in debate over how to discipline special education students, particularly those students who bring guns or illegal drugs to school in incidents unrelated to their disabilities.

Many administrators express frustration that they cannot punish students with disabilities according to the same standard governing other students. They believe those constraints send a negative message to students, parents, and the community.

"It's a constant irritant because of the dual discipline standard," Mr. Gooden of the Fort Smith district said. "It's difficult to explain that down at the Rotary Club."

Hoping for the Best

Many school leaders say they are holding on to hopes that, in the next Congress, federal lawmakers will figure out better ways to protect the civil rights of students with disabilities while reducing the day-to-day problems and bureaucracy associated with the IDEA.

Congress, meanwhile, has already begun working on the federal funding issue, ordering record-high increases for special education in recent years.

For the fiscal 2001 education appropriations bill, which is not yet final, Republicans on Capitol Hill have proposed another record increase for special education state grants, to $6.6 billion. That's more than double the $3 billion given five years ago, in fiscal 1996—a surprise to some observers because Republicans took control of Congress in 1995 with threats to slash the education budget and even eliminate the Education Department.

Now, some of the biggest advocates for more IDEA funding are staunch conservatives such as Sen. Judd Gregg, R-N.H. Republicans argue that, by raising federal special education funding, they will free more local dollars to cover other education expenses.

Other groups are weighing in as well.

For instance, the Progressive Policy Institute and the Thomas B. Fordham Foundation, a conservative-leaning think tank, held a conference in Washington last month to drum up fresh solutions to the problems in special education. The two organizations are planning to publish a journal with new research and recommendations in coming weeks.

"There are not easy answers to any of these questions," Mr. Rotherham of the PPI said. "These are extremely thorny issues with legitimate claims on all sides."

Vol. 20, Issue 14, Pages 1,27-29

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