An overdue reauthorization of the main federal special education law sailed through the Senate last week, despite sharp disagreement over which approach to take to bring about more federal funding.
The Senate voted 95-3 on May 13 to approve the latest renewal of the Individuals with Disabilities Education Act, which has not been updated since 1997. The debate over the bill was marked by a spirit of bipartisan cooperation in nearly all areas except whether to provide what is considered full funding, a distinct difference from last year’s contentious House approval of a similar measure. (“Rewrite of Spec. Ed. Law Passes the House,” May 7, 2003.)
The two versions must now go to a conference committee of senators and House members who will try to hammer out the differences. Each chamber must pass the same version before the bill winds up on President Bush’s desk. And in a presidential-election year, some observers question whether the nation’s 6.7 million students with disabilities will see the IDEA reauthorization signed into law beforehand.
Among the new provisions in the Senate bill are a pilot program for 15 states to help reduce paperwork for special education teachers, new rules on disciplining students in special education, and an effort to reduce formal legal action. Some of the key differences between the Senate and House versions arise in the discipline provision and in language describing what constitutes a highly qualified special education teacher.
“IDEA says children cannot be cast aside ... just because they have a disability,” said Sen. Edward M. Kennedy, D-Mass., the ranking minority member of the Senate Health, Education, Labor, and Pensions Committee. “Those days are gone in America, hopefully forever.”
The Federal Share
The biggest Senate battle came over a proposal to incorporate “full funding” into the law, which was first passed in 1975 with what many saw as a promise that the federal government would contribute 40 percent of the national average of per-pupil spending on special education. But actual funding has never reached that mark. It currently hovers at about 18 percent, forcing the states to pick up what is often a costly tab for educating children with disabilities.
An amendment introduced by Sens. Chuck Hagel, R-Neb., and Tom Harkin, D-Iowa, called for mandatory spending to increase funds by $2.2 billion per year for the next six years in order to get the federal government to the 40 percent mark.
Though senators voted 56-41 in favor of that measure, it failed to win the 60 votes required to override the fiscal 2004 budget resolution. Instead, senators approved 96-1 a funding amendment by Sen. Judd Gregg, R-N.H., the chairman of the education committee. His measure proposes full funding of IDEA in seven years, but leaves open to Congress how to get there.
Mandatory funding for IDEA “may make us feel better politically,” Mr. Gregg said, “but it’s bad policy.”
Others disagreed. Sen. James M. Jeffords, the Vermont Independent who ultimately was one of only three senators to vote against the reauthorization, expressed frustration that Congress was still wrangling over the funding issues nearly three decades after the original law was passed.
“Quite simply, this should have been done a long time ago, and it pains me that we’re still debating this issue,” said Mr. Jeffords. His concern over special education funding was a key factor leading him to abandon the Republican Party in 2001, which briefly allowed Democrats to wrest control of the Senate. “Our children do not benefit from hollow promises.”
Sens. Patrick J. Leahy, D-Vt., and Debbie Stabenow, D-Mich., were the others who voted against the bill.
Bruce Hunter, an associate executive director of the Arlington, Va.-based American Association of School Administrators, said his organization would continue to raise the funding issue every year.
“We will find a vehicle, and we will raise that issue annually until we win,” he said.
Other amendments, however, were welcomed on both sides of the aisle, including one that sets up a pilot program for 15 states to lessen paperwork for special education teachers. Sen. Rick Santorum, R-Pa., the measure’s sponsor, estimated that some special education teachers spend 1½ days every week filling out paperwork instead of teaching children.
“This is a serious problem in trying to recruit and retain special education teachers,” he said. The bill calls for doing away with an 813-point procedural checklist that states must now fill out and would eliminate requirements for benchmarks and short-term objectives for students that contribute to teacher paperwork.
The legislation also tackles the issue of litigation and would require parents to attempt to resolve disputes with schools before resorting to formal legal action. For example, the bill would require complaints to be clear and specific before a due-process hearing takes place and would encourage timely resolution by setting a two-year limit for filing complaints and a 90-day limit for filing an appeal of an administrative ruling to a court. The bill would also require judges or others hearing special education disputes to make decisions based on the facts of the case and not on technical legal errors.
An amendment introduced by Sen. Gregg and agreed to by the Senate would require parents’ lawyers to pay school district expenses in the case of a lawsuit that was found to be frivolous.
The Senate bill also addresses school discipline of students with disabilities. Under the bill, schools could bar children who caused serious injuries to others or are involved with guns or drugs from school for 45 days while complaint and appeals processes were being carried out.
“There’s more flexibility for schools to discipline students so discipline is not used as an excuse to halt education services,” Sen. Kennedy said.
The House version would allow schools to suspend students with disabilities for up to 45 days not only for the most serious infractions, as current law allows, but also for any violation of student codes of conduct.
Hard Negotiations
Despite mostly wide-ranging support for the bill from education organizations, some groups weren’t so pleased. The National Conference of State Legislatures objects to several provisions that it says will adversely affect states.
Funding continues to be a problem, said David Shreve, an education lobbyist for the Washington-based group. But factor in a host of new requirements for state education agencies, such as reporting and data collection, and there is a “bad situation made worse,” he contended.
In addition, the bill would mandate that states provide funding for protection and advocacy agencies that dispense legal aid to parents, including helping them sue state and local education agencies.
And a little-noticed provision in the bill is also causing states consternation. The bill includes a clause that says if a state accepts IDEA money, it gives up its right to immunity from suits for damages in federal court. The NCSL believes the new language would guarantee parents the right to sue local and state agencies in federal court, Mr. Shreve said.
The NCSL does not support the Senate bill. Mr. Shreve said he believes a conference committee will have a lot of work to do merging the two versions of IDEA.
“There’s some hard negotiations that have to go on,” he said.
Nancy Reder, the deputy executive director of the National Association of State Directors of Special Education, said she, too, will be watching the conference process closely, especially regarding the definition of a “highly qualified” teacher. The House bill leaves the definition open-ended, while the Senate version says that a teacher without a special education certificate must have a “consulting” relationship with a teacher who is highly qualified. Ms. Reder and others said they expect that language to be refined in conference.
“We’re supporting the Senate bill,” she said, “but if none of our issues is addressed in conference, we will revisit our support.”
