Saturday, February 5, 2011

Middle Ground on FAPE: Why the Statutory Preamble Isn't Enough

Unofficial seal of the United States CongressImage via Wikipedia
Many readers have reacted to my call for a higher standard for FAPE by saying that the law already provides a potential maximizing standard.  They refer to the Congressional findings in IDEA.

One legal point here.  The courts rarely put any importance in the Congressional findings.  They are largely considered symbolic efforts by our elected representatives.  Why many of you have asked does Congress bother to stuff laws with nice sounding language that really doesn't do any good?  I suggest that you ask your congressman.  If you get a good answer, I'd love to hear it. Remember the old saw - there are two things that nobody such ever see being made: sausage and legislation.  I apologize in advance to those who feel that this is an insult to sausage.

The following is a quote from IDEA regarding the Congressional findings.  Tell me what you think,       

(c) Findings.--Congress finds the following:
(1) Disability is a natural part of the human experience and in no way diminishes the right of individuals to participate in or contribute to society. Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.
(2) Before the date of enactment of the Education for All Handicapped Children Act of 1975 (Public Law 94-142), the educational needs of millions of children with disabilities were not being fully met because--
(A) the children did not receive appropriate educational services;
(B) the children were excluded entirely from the public school system and from being educated with their peers;
(C) undiagnosed disabilities prevented the children from having a successful educational experience; or
(D) a lack of adequate resources within the public school system forced families to find services outside the public school system.
(3) Since the enactment and implementation of the Education for All Handicapped Children Act of 1975, this title has been successful in ensuring children with disabilities and the families of such children access to a free appropriate public education and in improving educational results for children with disabilities.
(4) However, the implementation of this title has been impeded by low expectations, and an insufficient focus on applying replicable research on proven methods of teaching and learning for children with disabilities.
(5) Almost 30 years of research and experience has demonstrated that the education of children with disabilities can be made more effective by--
(A) having high expectations for such children and ensuring their access to the general education curriculum in the regular classroom, to the maximum extent possible, in order to--
(i) meet developmental goals and, to the maximum extent possible, the challenging expectations that have been established for all children; and
(ii) be prepared to lead productive and independent adult lives, to the maximum extent possible;
(B) strengthening the role and responsibility of parents and ensuring that families of such children have meaningful opportunities to participate in the education of their children at school and at home;
(C) coordinating this title with other local, educational service agency, State, and Federal school improvement efforts, including improvement efforts under the Elementary and Secondary Education Act of 1965, in order to ensure that such children benefit from such efforts and that special education can become a service for such children rather than a place where such children are sent;
(D) providing appropriate special education and related services, and aids and supports in the regular classroom, to such children, whenever appropriate;
(E) supporting high-quality, intensive preservice preparation and professional development for all personnel who work with children with disabilities in order to ensure that such personnel have the skills and knowledge necessary to improve the academic achievement and functional performance of children with disabilities, including the use of scientifically based instructional practices, to the maximum extent possible;
(F) providing incentives for whole-school approaches, scientifically based early reading programs, positive behavioral interventions and supports, and early intervening services to reduce the need to label children as disabled in order to address the learning and behavioral needs of such children;
(G) focusing resources on teaching and learning while reducing paperwork and requirements that do not assist in improving educational results; and
(H) supporting the development and use of technology, including assistive technology devices and assistive technology services, to maximize accessibility for children with disabilities.
(6) While States, local educational agencies, and educational service agencies are primarily responsible for providing an education for all children with disabilities, it is in the national interest that the Federal Government have a supporting role in assisting State and local efforts to educate children with disabilities in order to improve results for such children and to ensure equal protection of the law.
(7) A more equitable allocation of resources is essential for the Federal Government to meet its responsibility to provide an equal educational opportunity for all individuals.
(8) Parents and schools should be given expanded opportunities to resolve their disagreements in positive and constructive ways.
(9) Teachers, schools, local educational agencies, and States should be relieved of irrelevant and unnecessary paperwork burdens that do not lead to improved educational outcomes.
(A) The Federal Government must be responsive to the growing needs of an increasingly diverse society.
(B) America's ethnic profile is rapidly changing. In 2000, 1 of every 3 persons in the United States was a member of a minority group or was limited English proficient.
(C) Minority children comprise an increasing percentage of public school students.
(D) With such changing demographics, recruitment efforts for special education personnel should focus on increasing the participation of minorities in the teaching profession in order to provide appropriate role models with sufficient knowledge to address the special education needs of these students.
(A) The limited English proficient population is the fastest growing in our Nation, and the growth is occurring in many parts of our Nation.
(B) Studies have documented apparent discrepancies in the levels of referral and placement of limited English proficient children in special education.
(C) Such discrepancies pose a special challenge for special education in the referral of, assessment of, and provision of services for, our Nation's students from non- English language backgrounds.
(A) Greater efforts are needed to prevent the intensification of problems connected with mislabeling and high dropout rates among minority children with disabilities.
(B) More minority children continue to be served in special education than would be expected from the percentage of minority students in the general school population.
(C) African-American children are identified as having mental retardation and emotional disturbance at rates greater than their White counterparts.
(D) In the 1998-1999 school year, African-American children represented just 14.8 percent of the population aged 6 through 21, but comprised 20.2 percent of all children with disabilities.
(E) Studies have found that schools with predominately White students and teachers have placed disproportionately high numbers of their minority students into special education.
(A) As the number of minority students in special education increases, the number of minority teachers and related services personnel produced in colleges and universities continues to decrease.
(B) The opportunity for full participation by minority individuals, minority organizations, and Historically Black Colleges and Universities in awards for grants and contracts, boards of organizations receiving assistance under this title, peer review panels, and training of professionals in the area of special education is essential to obtain greater success in the education of minority children with disabilities.
(14) As the graduation rates for children with disabilities continue to climb, providing effective transition services to promote successful post-school employment or education is an important measure of accountability for children with disabilities. 

IDEA §601(c)
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  1. The Persistence of Low Expectations in Special Education Law Viewed Through the Lens of Therapeutic Jurisprudence

    Richard M. Peterson
    Pepperdine University School of Law

    International Journal of Law and Psychiatry, Forthcoming
    Pepperdine University Legal Studies Research Paper No. 2010/18

    For more than thirty-five years a paradigm of low expectations has infected efforts to educate children with disabilities and has been a persistent and stubborn obstacle to the successful implementation of the Individuals with Disabilities Education Act (IDEA), and its predecessor, the Education of All Handicapped Children Act (EAHCA). This dilemma raises questions addressed in this paper: What is meant by low expectations in the context of Special Education Law? What are the root causes of this phenomenon, and what makes it so resistant to change? How does it impede implementation of the IDEA? And lastly, in what ways does the paradigm of low expectations impact children with disabilities socially, emotionally, and psychologically? The primary purpose of this paper is to consider these questions, particularly the last, utilizing therapeutic jurisprudence (TJ), a theoretical lens through which the emotional and psychological impact of the law and its processes upon those who interact in its context may be viewed and analyzed.

  2. Jim, Why
    do you say the courts rarely attach any importance to congressional findings and consider them largely symbolic? Congressional findings are negotiated just as intensively as the statutory language. Has any court really been confronted with the 2004 findings and said that? Granted, findings are not law, but the rules of statutory construction, restated in many dozens of cases, are that statutory language must be interpreted consistently with congressional intent. This is not just some committee report language or manufactured debate language -- it is written right into the law. Findings are properly utilized (and intended to be utilized) as an aid to construction of statutes, particularly in resolving vague and ambiguous language. Many cases say findings should be given great weight. In other contexts, the Supreme Court has relied on findings countless times to resolve conflicts in interpretation. See South Carolina v. Katzenbach (Voting Rights Act), US v. Turkette (interpreting federal racketeering law), Nevada Dept of Human Resourcs v Hibbs (Family and Medical Leave Act), US v. Lopez (execise of commerce clause). In Univ of Alabama v. Garrett and Sutton v. United Airlines, the Court reviewed the Americans with Disabilities Act and found the lack of congressional findings troubling -- it distinguished the Voting Rights Act with its extensive findings.

    Surely "FAPE", and certainly the word "appropriate" are vague and ambiguous -- we have decades of litigation illustrating that. And since 2004, we have an express congressional statement of frustration with the low expectations that have impeded the implementation of IDEA since 1975, and a clear statement of intent as to how the law is to be interpreted -- with high expectations, to ensure that students are supported in the general curriculum in order to meet the challenging expectations that have been set for all students. This time around, Congress provided several paragraphs that help to clarify what it considers to be "appropriate education". How many times does Congress have to repeat "maximum extent possible" before hearing officers and courts begin to pay attention?

  3. I really don't think Congress has any genuine interest in raising the bar here (and even less interest in helping LEA's pay for it). If Congress was truly interested in doing so, they'd quit providing easy outs and eliminate statements such as "maximum extent possible." I also feel that any attempts Congress has made to clarify "appropriate education" are still unacceptably vague, in a deliberate attempt to give the courts flexibility to interpret these statutes as they see fit. They continue to take the easy way out rather than taking discretion away from the courts.

  4. You have made valid point after valid point. The issue that is pervasive and extremely troubling is the rate of low-income African-American and English Language Learns being diagnosed with special needs. Most of these students do not meet the requirements but are presented as being behaviorally and educationally challenged because they lack basic skills that were not taught to them at an early age. As you mentioned legislation is intentionally ambiguous to not only cover any issue that arises but to also appear as though something is being done. When legislation is not working to guide our students to a higher level of rigorous education that is relevant to becoming competitive. We continue to see that special education students are not truly receiving the support that they deserve. The IDEA Act has statutes that dictate what is suppose to happen but in retrospect it is very difficulty to truly enforce the intent of the law when special education continues to be viewed as a separate entity.

  5. Professor Peterson,

    Thanks for the comment.

    Please say hello to my buddy Greg Ogden.


  6. Anon,

    Thanks for the comment.

    See the Rowley decision which defines FAPE. There the high court paid no atte -ntion to the congressional findings- or even the legislative history of the Act. Perhaps I should specify that I am only talking about special ed law.

    Thanks for the citations.


  7. Mike,

    Thanks for your comment.

    Many people agrre with you.


  8. Nique,

    Thanks for your comment.

    i appreciate it.


  9. Jim --
    You say "See the Rowley decision which defines FAPE. There the high court paid no attention to the congressional findings or even the legislative history of the Act." Really? Please reread Rowley. The Court actually extensively considered both the Congressional findings and the legislative history of the Act. The problem was the Court found them both to be silent regarding whether FAPE prescribes a "substantive standard". On using findings and legislative history to interpret FAPE, the Court said: "Like many statutory definitions, this one tends toward the cryptic, rather than the comprehensive, but that is scarcely a reason for abandoning the quest for legislative intent....Other portions of the statute also shed light upon congressional intent. ... When these express statutory findings and priorities are read together with the Act's extensive procedural requirements and its definition of "free appropriate public education," the face of the statute evinces a congressional intent to bring previously excluded handicapped children into the public education systems of the States and to require the States to adopt procedures which would result in individualized consideration of and instruction for each child. ... Noticeably absent from the language of the statute is any substantive standard prescribing the level of education to be accorded handicapped children. Certainly the language of the statute contains no requirement like the one imposed by the lower courts -- that States maximize the potential of handicapped children...." That was in 1982. Since then, in 1997 and 2004, the Congress has added significant additional findings and legislative history that might well give the Court a strong basis for determining that its previous interpretation of FAPE now requires modification.

  10. Anon,

    Thank you for your comment.

    I do agree that we should all reread Rowley. I do so at least once a year.


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