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Paved With Good Intentions: The Federal Role in the Oversight and Enforcement of the Individuals With Disabilities Education Act (IDEA) and the No Child Left Behind Act (NCLB)


by Arun K. Ramanathan - 2008

Context: The context for this article is the public response to the federal role in the oversight and enforcement of the Individuals With Disabilities Education Act (IDEA) and the No Child Left Behind Act (NCLB). This response has been characterized by a tension between concerns about federal interference in public education and support for federal activism. Despite a number of similarities between the state and local responses to the two laws, research on the federal role in implementing NCLB has largely disregarded the long record of federal oversight and enforcement of IDEA.

Purpose: The purpose of this analytic essay is to address this omission through a comparative policy analysis of the oversight and enforcement mechanisms in IDEA and NCLB, the evolution of these mechanisms in the legislative process, their implementation by the Department of Education, and the interest group and academic responses to this implementation.

Research Design: The research design consists of a review of the statutes, Congressional documents, governmental reports, interest group position papers, policy analyses, press reports, and relevant academic literature. The author discusses the implications of this analysis for the future of the federal role in the oversight and enforcement of NCLB, and the recently reauthorized IDEA and the federal focus on improving educational outcomes. The author argues that the design of NCLB’s outcomes-based accountability model, combined with its dependence on the Department of Education to provide oversight and enforcement, has produced unintended consequences at the state level, including regulatory incoherence and incentives for “gaming the system.” He notes that similar problems can be projected for the implementation of the new outcomes-based oversight and enforcement model in IDEA 2004.

Recommendation: The author recommends that Congress turn the accountability model in NCLB “inside out,” establishing national standards, a single national performance assessment, fixed and achievable targets for proficiency, and predefined subgroup sizes while devolving responsibility for the details of the district- and school-level accountability system to the states. In IDEA’s case, he recommends setting national targets for a small number of outcome indicators while maintaining the current system of focused monitoring. He argues that this model, in combination with federal incentives for meeting performance targets, would provide for a more realistic and effective federal role in improving public education.



INTRODUCTION


In 2004, press reports on the implementation of the No Child Left Behind Act (NCLB) began to highlight a widening rift between the federal government and the states.1 In Utah, the Republican-dominated legislature passed a law allowing state laws and regulations to trump federal ones. Connecticut filed a lawsuit challenging the law as an unfunded mandate. Six states, including Arizona and Hawaii, considered bills or resolutions to “opt-out” of the law by refusing federal Title I funding.2 And in a majority of states, legislators criticized the law and considered resolutions or memorials requesting flexibility or waivers from its requirements.


Much of this opposition was motivated by concerns about NCLB’s “high-stakes” accountability mechanisms. NCLB compels states to test students and sanction school districts and schools that are poor performers. The law also requires the U.S. Department of Education (DOE) to provide oversight of state implementation of the law and punish states that fail to fulfill the law’s requirements by withholding Title I funding.


According to NCLB’s architects in the Bush administration and Congress, this focus on accountability for educational results was long overdue. Upon signing NCLB, President Bush praised the law as a “new path of reform and a new path of results.”3 His optimism about the law’s prospects was shared by the many Congressional Democrats who had collaborated with him to pass the bill. None of these early supporters of NCLB expressed any reservations about the accountability provisions and their potential effect on the relationship between the federal government and states. None of them projected the level of controversy that would be provoked by the federal role in the implementation of the law.


Had the framers of NCLB taken a look back and reflected on the circumstances that accompanied the passage and implementation of another education law with an idealistic title, they might not have been so optimistic. Like NCLB, this law passed both houses of Congress with near-unanimous majorities. In a nation in which public education had traditionally been the responsibility of states and local school districts, it gave unprecedented oversight and enforcement powers to the federal Department of Education.4 Its implementation provoked immediate controversy and, in some cases, active resistance from states and school districts, who decried it as an unfunded mandate and an unwelcome federal intrusion into public education. One prominent critic asserted that the law “promises more than the federal government can deliver  . . . [and] contains a vast array of detailed, complex, and costly administrative requirements which unnecessarily assert federal government control over traditional state and local government functions.”5


The critic was President Gerald Ford, and the bill was PL 94-142—the law that would later be titled the Individuals With Disabilities Education Act (IDEA).6 Ford’s dour appraisal stood in sharp contrast to the enthusiasm of the bipartisan coalition of lawmakers who had collaborated on the bill’s passage. Like the framers of NCLB, they were convinced of the virtue of their work. Congressman George Miller of California, later a major sponsor of NCLB, expressed the sentiments of many of his colleagues when he praised IDEA as a civil rights and education reform that would result in fundamental improvements in the lives of students with disabilities (Hehir & Gamm, 1999).


These two perspectives, the reservations expressed by President Ford about federal interference in public education and Miller’s support for federal activism, have been a constant in the 30-year history of IDEA. They have also characterized the response to NCLB. Yet, despite these similarities, recent analysis of the initial federal role in the implementation of NCLB displays a curious myopia regarding IDEA, making little or no mention of special education policy—even when describing effects of federal oversight similar to those identified by both critics and supporters of IDEA (Center on Education Policy, 2004, 2005; Kim & Sunderman, 2004).


This lack of intersection between the debates over NCLB and IDEA is not surprising. Reform movements in special and general education have often mimicked the “parallel play” of young children, using identical means to achieve similar goals while rarely communicating (Ysseldyke, Algozzine, & Thurlow, 2000). Still, the apparent failure of both the framers of NCLB and its current supporters and detractors to reference and draw lessons from the long history of federal oversight of IDEA is a troubling omission. More than any other education legislation, the history of IDEA offers a number of important lessons for the viability of federal oversight and enforcement of NCLB.


I will address this omission through a four-stage policy analysis. I will begin with a comparative review of the oversight and enforcement models in IDEA and NCLB, based on a review of the statutes from their inception to their current versions and the academic literature on federal oversight and enforcement in education policy.


Second, I will examine their historical and legislative roots through a review of the academic literature on the development of NCLB and IDEA, Congressional Research Service (CRS) reports and the Congressional Record and conference committee reports from the passage of NCLB, previous reauthorizations of the Elementary and Secondary Education Act (ESEA), and each reauthorization of the IDEA.


Third, I will review their implementation, using the history of the oversight and enforcement of IDEA prior to the recent 2004 reauthorization, to provide context for the much shorter history of the implementation of NCLB. This analysis is based on the scholarly literature on the DOE’s role in the implementation of IDEA and NCLB and a number of interest group and governmental reports on the DOE’s performance of its oversight and enforcement responsibilities.


Fourth, I will consider the responses to the laws, again using the history of IDEA to provide context for the interest group and academic responses to the federal oversight and enforcement of the accountability model in NCLB. This analysis is based on a review of the academic literature on the federal role in public education policy, press reports and position papers, and policy analyses posted on the Web sites of Washington education interest groups in both special and general education.


My analysis is grounded in the multiple streams theory of policy development (Kingdon, 1995). This theory identifies three “streams” in policy development: (1) problem recognition, (2) the formation and refinement of policy proposals, and (3) politics. These streams align during the opening of a policy window to produce the impetus for the selection of a solution. In the first two stages of this analysis, I focus on the policy window that produced the enforcement and oversight models in IDEA and NCLB. In the last two stages, I identify problems produced by the implementation of the existing oversight and enforcement models and policy proposals intended to address these problems, and I review the political response to their implementation.


I will conclude by reviewing the implications of this comparative analysis for the implementation of the oversight and enforcement model in each law and for the future of the federal role in K–12 education policy.


ENFORCEMENT AND OVERSIGHT MODELS


The typical fragmented analyses of special and general education policy that view IDEA and NLCB as separate entities ignore the many commonalities in their development processes. These include their shared Congressional committees of jurisdiction and the often interchangeable cast of characters in the education policy community, including committee chairmen, congressional and committee staff, and education interest groups. These commonalities can produce “spillover” effects from one piece of education legislation to another as legislators, committee staffers, and policy entrepreneurs in interest groups cognizant of the latest innovations in general education policy apply them to special education and vice versa (Kingdon, 1995; Zahariadis, 1999). Below, I will review the incremental statutory evolution of the oversight and enforcement models in NCLB and IDEA, addressing their similarities and differences from their legislative precursors and from each other.


NCLB reauthorized Title I of the ESEA. For much of the law’s history, the federal government passed Title I grants to the states and then school districts, with limited programmatic strings attached (Debray, McDermott, & Wohlstetter, 2005). Federal oversight of Title I and other ESEA grants focused on the details of funding applications and grant expenditures. Federal enforcement was predicated on a state’s failure to spend Title I grants in accordance with the law’s requirements.


The passage of IDEA in 1975 altered this dynamic in education legislation. Congress developed IDEA as a voluntary grant program to provide supplementary funding for special education costs (Alping & Jones, 2002; Chambers, Parrish, & Harr, 2002; Martin, 1996).7 IDEA grants are not passed through from states to local districts with limited external oversight.8 Before a state can receive IDEA funding, it must submit a plan indicating that its special education laws and regulations are aligned with federal law and that it has established a system to monitor and enforce the law’s requirements (Mayes & Zirkel, 2000). The law requires the DOE to monitor the implementation of state plans, determine whether states are in compliance, and apply sanctions, including the withholding of funds from states determined to be out of compliance.


The 1994 reauthorization of the ESEA, the Improving America’s Schools Act (IASA), shifted the oversight and enforcement model in Title I toward the IDEA model. For the first time, Congress placed an extensive series of programmatic preconditions on Title I funding.9 Though the bill provided flexibility at the school-district level by allowing districts to spend federal dollars on a schoolwide rather than student-level basis, it required states to alter their education systems in ways that impacted all public schools through the development of educational standards and statewide testing systems.


The impact of the IASA was mitigated by the law’s weak enforcement mechanisms. When states failed to comply with the law’s testing and standards requirements, the DOE did little in response (Rudalevige, 2003; West & Peterson, 2003). The passage of NCLB in 2001 altered this dynamic through the inclusion of mandatory enforcement mechanisms predicated on state compliance with federal requirements. The law’s outcomes-based approach requires states to define student proficiency in math and English language arts; establish a series of targets termed Adequate Yearly Progress (AYP) toward full proficiency for all students; monitor and disseminate local district and school performance; and enforce a strict accountability system.


If a state fails to meet the requirements of the law, the DOE must withhold a portion of its Title I funding. This does not mean that the DOE will withhold funds from low-performing states. Rather, this indirect outcomes-based approach focuses on whether states and school districts are enforcing the requirements of the federal accountability model to address poor performance.


The 2004 reauthorization of IDEA shifted the focus of DOE monitoring and enforcement toward a similar outcomes-based approach. Although IDEA has always required states to provide evidence of compliance, the new Individuals With Disabilities Improvement Act requires states to establish quantifiable indicators for their performance toward “measurable and rigorous targets” and develop strategies to monitor local educational agency (LEA) performance on these indicators.10


On one level, this model is similar to NCLB because states are responsible for establishing their targets and assessing their performance. On another, IDEA 2004 represents a step forward from NCLB because it requires the DOE to monitor and possibly sanction states based on their performance on outcomes. Under this direct outcomes-based accountability model, the DOE determines whether a state has met its targets, requires assistance to meet targets, or should be subject to a series of possible sanctions when it persistently fails to meet targets.


At each level of determination, the DOE is required to take some action based on specific triggers. If, after 2 consecutive years, the secretary of education determines that a state “needs assistance” to meet its targets, she must choose one or more the following options: advise the state of available technical assistance; direct it to pay for technical assistance; and/or impose special conditions on its grant. If the secretary determines, after 3 consecutive years, that a state “needs intervention,” she must choose one or more of these options: require the state to prepare a corrective action plan to fix the problem within one year; withhold federal funds; recover previously disbursed funding; and/or refer the matter to the Department of Justice (DOJ) for action. If at any point, the secretary of education determines that a state needs “substantial intervention,” IDEA 2004 requires the DOE to recover or withhold federal funding, or refer the matter to its inspector general or the DOJ for action.11


For both laws, the DOE’s authority to exercise its oversight and enforcement powers is dependent on a state’s acceptance of federal funding. Because IDEA and NCLB are voluntary grant programs rather than federal mandates, states that refuse the federal grant are not expected to meet the law’s requirements.12 Although this may seem an appealing option to states complaining about federal micromanagement, declining federal funding would not release a state from responsibility for meeting the requirements of other similar federal statutes. In IDEA’s case, two other federal laws, Section 504 of the Rehabilitation Act of 1973 and the Americans With Disabilities Act of 1990, have statutory and/or regulatory requirements that overlap parts of IDEA and are subject to oversight by other federal agencies (Hehir & Gamm, 1999; Palmaffy, 2001). In NCLB’s case, a number of federal formula grants would be affected by a state’s refusal to accept NCLB funding,13  but the only federal law that may have a similar overlapping impact are the parts of IDEA 2004 that refer to the ESEA (Alping, 2001).


Despite persistent state and local complaints about the effects of IDEA, the history of law provides scant evidence that states will decline federal education funds. For several years after the passage of PL 94-142, New Mexico did decline IDEA grants and, in subsequent years, other states have threatened to opt out of parts of the grant program (Hehir, 2002; Palmaffy, 2001). Each of these efforts was short lived because of the work of advocacy groups, the state education agency’s (SEA) interest in acquiring the funding, and the mitigating impact of overlapping statutes on any perceived benefits derived from opting out.


Although the option of declining Title I funding to avoid the NCLB’s requirements has been under consideration in several state legislatures,14 the decision would be affected by many of the same issues that have averted efforts to decline IDEA funds. These include state and local interest in acquiring the funding, the possible overlapping effects of other federal statutes,15 and the presence in most states of accountability models that predate NCLB and contain many of the same requirements.


In one important respect, IDEA’s oversight and enforcement model differs from NCLB and other federal education laws. It provides individual due process rights to parents. Through the exercise of these rights, parents and advocacy organizations can force the implementation of IDEA at the individual student and school levels (Hehir, 1992).


This form of accountability did not emerge by accident. The framers of IDEA did not expect the federal government to take the lead in enforcing the law. They created the quasi-contractual Individual Education Program (IEP)16 and provided parents with due process rights, knowing that doing so would spur enforcement of the law from below (Kelman, 2001; Meyer, 1986). In this effort, parents and advocacy groups have been remarkably successful. Because school staff must consider the potential for a due process filing, they are likely to be cognizant of the law’s procedural requirements. As they develop and implement IEPs, they may engage in “preventative compliance” to avoid the potential negative consequences of a due process filing, including the unwelcome attention it attracts from above (Benveniste, 1986; Berman, 1986).


In spite of their long history, IDEA’s due process provisions have continued to provoke controversy. Critics have attacked them for fostering an antagonistic relationship between parents and school staff and for imposing unreasonable financial burdens on districts (Hess & Brigham, 2001; Lanigan, Audette, Dreier, & Kobersy, 2001; Neal & Kirp, 1986). Although there is anecdotal evidence that some parents have exploited these mechanisms to force districts to pay for high-cost services with limited educational validity, research indicates that they have minimal financial impact on school districts17 (Chambers, Harr, & Dhanani, 2003) and are only used by a small minority of parents.18


NCLB contains no similar bottom-up oversight and enforcement mechanism. The law requires school districts to provide parents in failing schools with processes such as access to supplementary educational service and the option to transfer to another school but depends on oversight and enforcement from above to ensure that they are implemented (Citizens Commission on Civil Rights, 2004). In the absence of an individual due process right, it is unclear whether a parent of a child eligible for transfer or supplementary services would have any legal recourse beyond the right to complain to the state or federal authorities about local noncompliance.19 In the absence of procedures for an individual parent to seek a remedy for noncompliance, it is similarly unclear what any level of government could do to help them.


HISTORICAL ROOTS


The circumstances of the emergence of the policy windows for the oversight and enforcement mechanisms in NCLB and IDEA have important implications for their implementation. In both cases, the recognition of a problem did not result from a single clarifying event, as was the case for math and science education after the launch of Sputnik, but the incremental collection of evidence that a problem existed and a perception that comprehensive federal legislation was the solution.


PROBLEMS


The intersection of three “problems” provided the impetus for the passage of IDEA. Foremost among these was the civil rights problem of the exclusion of millions of children with disabilities from public schools (Hehir & Gamm, 1999; Kelman, 2001; Martin, 1996; Neal & Kirp, 1986; Weintraub & Ballard, 1982; Zettel & Ballard, 1982).


In the early 1970s, Congress sought to address this problem with three legislative precursors to IDEA: PL-91-230, PL 93-380, and Section 504 of the Rehabilitation Act. These laws functioned as “early warning legislation” to the states (Ballard, Ramirez, & Weintraub, 1982). In language that presaged IDEA, PL 93-380 added the notion that students with disabilities should receive an “appropriate” education in the least restrictive environment, and Section 504 of the Rehabilitation Act prohibited discrimination against any handicapped individual in any program receiving federal funding, such as public education20 (Hehir, 2002; Yell, 1992). In combination, these laws should have resulted in universal changes in state behavior, but because PL 91-230 and PL 93-380 lacked preconditions for federal funding and enforcement mechanisms, they had little effect. Similarly, the powerful mechanisms in Section 504 were rendered impotent by a long delay in the publication of its implementing regulations.21 By 1975, the lack of effectiveness of these legislative precursors contributed to the perception that some states would not address the problem of exclusion without more vigorous federal legislation.


During the same period, advocates for children with disabilities were aggressively challenging their exclusion from public education. Their efforts bore fruit in a series of “right to education” class actions and the passage of special education laws by the majority of state legislatures (Hehir & Gamm, 1999; Neal & Kirp, 1986). Despite this progress, in the mid-1970s, over 1.75 million children with disabilities continued to be excluded from schools or confined to institutions. Many more were not receiving an appropriate education or did not have access to services because their disability had not been identified.22


This situation was compounded by two additional problems: the regulatory incoherence produced by the patchwork of laws and requirements resulting from state special education laws and right to education settlements,23 and concerns about the costs of special education24 (Jones, 1995). Together, these problems produced a widespread recognition on the part of Congress, the states, and public of the need for a comprehensive special education law that would provide students with disabilities and their parents with an educational bill of rights, and states with regulatory coherence and financial relief (Zettel & Ballard, 1982).


The “problems” that spurred the development of NCLB were not as neatly defined. Title I had the implicit civil rights agenda of addressing the negative effects of racial discrimination and poverty on the educational opportunities of poor children. Title I funding sought to ameliorate these effects by providing extra resources to schools with high concentrations of children in poverty (McDonnell, 2005). In the 1980s and 1990s, educational reformers questioned whether additional funding was by itself sufficient to improve educational quality. They argued that the poor performance of American public schools on international tests and the increasing minority achievement gap were caused by a lack of high academic standards, rigorous assessments, and accountability for student performance (Hess, 2003; Resnick & Zurawsky, 2005). Like IDEA, this perception of a “problem” first produced action in states such as Texas and Massachusetts in the form of education reform laws that established high standards and accountability systems. At the federal level, it produced the IASA of 1994, which promoted efforts by states to address the problem of poor student performance; however, like the precursors to IDEA, it did not require the federal government to dole out sanctions when states failed to comply with its requirements (O’Day, 2002). Some states took the law seriously and developed accountability systems. Most did not, and the DOE did little in response. As with IDEA, this result fed a perception on the part of Congress and the executive branch that states would not address the problem of low educational performance without a more vigorous federal solution (Rotherham, 1999; Rudalevige, 2003). Unlike IDEA, this situation did not produce a concomitant recognition on the parts of states and school districts of the need for comprehensive federal legislation (Hochschild, 2003).


SOLUTIONS


The appearance of widespread Congressional support for a federal solution to the problems of children with disabilities in the 1970s and the problems identified by education reformers in the 1980s and 1990s did not indicate similar agreement on the specifics of their solutions. These evolved during the legislative bargaining process and reflected the interests and goals of “policy entrepreneurs” (Kingdon, 1995; Zahariadis, 1999) in Congress and influential interest groups.


In IDEA’s case, an early Senate version of the law contained an aggressive federal enforcement role that projected federal influence to the school district level through an oversight mechanism requiring local school districts to send millions of IEPs to the DOE for review (Neal & Kirp, 1986). Although this proposal was eventually dropped, the version that passed the Senate included “a state level planning and advisory panel”25 that would conduct evaluations of state implementation of IDEA, receive complaints about violations of the law, and be empowered to take steps to “assure that such violations are corrected.”26


The original House bill had a more deregulatory bent, envisioning IDEA as a block grant, similar to Title I, that would disburse special education funding with limited strings attached (Gartner & Lipsky, 1987). Rather than providing oversight and enforcement responsibilities to the federal government, it created a local school district grievance procedure (Neal & Kirp, 1986).


In the final bill, the oversight and enforcement mechanisms conformed to the House version of the bill. This compromise derived from strong congressional concerns about the level of federal involvement projected in the Senate bill and was facilitated by a novel solution: the development of the quasi-contractual IEP and the provision of due process rights to students with disabilities and their parents (Neal & Kirp, 1986). These mechanisms allowed Congress to transfer much of the centralized oversight responsibility envisioned in the Senate bill to individual parents and the courts. Even so, PL 94-142 provided the Department of Education with distinct oversight and enforcement responsibilities and powers, including the ability to withhold federal funds from states.


The debate over the federal-level accountability mechanisms in NCLB was comparatively muted.27 In contrast to IDEA, in which the explicit civil rights goal of equal access provided much of the momentum for the law, a primary motivation for the development of NCLB was the issue of accountability, whether for federal dollars, student performance, or both (Rudalevige, 2003). This consensus on the goal of accountability for results among the chairmen and staff of the committees of jurisdiction in the House and Senate, and the president, trumped concerns about the expansion of federal oversight and enforcement powers from less influential members (Debray, 2006). Although the House and Senate versions of the local district and school-level accountability provisions such as the AYP requirements differed in important ways (Riddle & Stedman, 2001), the federal enforcement mechanisms in the original House and Senate bills were similar, with the House version, in contrast to IDEA, being the more aggressive of the two.


Both bills revised the weak enforcement clause in the IASA by specifying the conditions and type of withholding. Both limited the discretion of the DOE by changing the language of the enforcement clause from “may” 28 withhold to “shall.”29 The House went a step further by linking the enforcement mechanism directly to the existing requirements of the IASA,30 specifying the level of withholding, and expanding the basis for an enforcement action to the failure to meet any of the state-level requirements in the law.31 This simultaneously augmented the DOE’s oversight authority while limiting its enforcement discretion, indicating a concern on the part of Congress about both the willingness of states to comply with the law and the ability of the DOE to enforce it.


This model of expanding the DOE’s enforcement options while attempting to limit its discretion in their application is consistent with the pattern followed by Congress during the reauthorizations of IDEA in 1997 and 2004. The 1997 reauthorization increased the DOE’s enforcement options by providing the department with the flexibility to directly withhold funds from a noncompliant school district or state agency rather than the entire state.32 It also gave the secretary of education the power to refer a state with a record of noncompliance to the Department of Justice for enforcement action33 (Aleman, 1997). The House Report for the 1997 reauthorization stated that Congress expected the DOE to “utilize the broad enforcement authority available for ensuring compliance with [IDEA and determine] based on the level of noncompliance the level of funding to be withheld and the type of funding to withhold.”34


The 2004 reauthorization added few enforcement options but limited the DOE’s discretion in their application by adding triggers for enforcement actions based on state performance on outcomes within fixed timelines. As was the case with the original IDEA, the original Senate version of the 2004 reauthorization contained more aggressive enforcement mechanisms than the House version (Jones & Alping, 2003). In contrast to the original IDEA, the final version of the 2004 reauthorization retained the many of the aggressive Senate mechanisms and their enforcement triggers.35 This shift to a more vigorous federal enforcement model was prompted by the partial redefinition of the civil rights problem that had spurred the original bill to the same problem that had spurred NCLB: the apparent ineffectiveness of federal expenditures in improving student outcomes (President’s Commission on Excellence in Special Education, 2002; Wagner, Blackorby, Cameto, & Newman, 1993). As was the case with NCLB, Congress associated poor student outcomes with the failure of states and local districts to fully comply with IDEA and the DOE to provide vigorous oversight and enforcement.36 Also like NCLB, Congress directed its solution at both the states and the DOE through the development of oversight mechanisms that placed detailed conditions on federal funding, and enforcement mechanisms that both specified penalties for noncompliance and limited DOE discretion over their application. In sum, the legislative history of these laws indicates that Congress has responded to a perceived problem of educational equity by not only trying to manage the “solution” at the state level but also managing the manager of this solution at the federal level.


RECORD OF ENFORCEMENT


Congress may craft and pass legislation, but the executive branch is charged with their implementation. The gradual effort by Congress to limit the DOE’s discretion over the application of the enforcement mechanisms in IDEA and NCLB derives in part from the lackluster record of the DOE in exercising its oversight and enforcement authority (Government Accounting Office, 2004; McDonnell, 2005; National Council on Disability, 1995; 2000). Despite evidence of persistent state-level noncompliance with IDEA during both Republican and Democratic administrations,37 the DOE has largely abdicated its enforcement role to the federal courts (Hehir & Gamm, 1999; Mayes & Zirkel, 2000). Since the passage of IDEA, the DOE has exercised its authority to withhold federal funding from a state only once (Hehir, 2002).


This incident occurred in 1994. After Virginia refused to provide special education services to students with disabilities who had been expelled from school, the DOE moved to withhold $60 million in IDEA funding. This action provoked a strong backlash from the governor of Virginia and members of the state’s congressional delegation. Their reaction was not unprecedented; earlier decisions by the DOE to place Pennsylvania on high-risk status38 and seek a corrective action from California39 had provoked the ire of those states’ congressional delegations. In each case, the political resistance was bipartisan and included supporters of IDEA (National Council on Disability, 2000).


Although the DOE did ultimately pursue these enforcement actions, its efforts were contingent on the support of the president and his political appointees in the department. These appointees have considerable influence on agenda setting in the federal bureaucracy (Kingdon, 1995) and can produce major policy shifts even when the policy itself and the career civil servants responsible for its implementation do not change. Although the Clinton administration did not oppose a more vigorous federal role in the enforcement of IDEA, other administrations have viewed the role of the DOE through a far different lens. Five years after the passage of IDEA, the New Federalism movement of the Reagan administration sought to reduce the size and scope of the federal government by first scaling back, and then shifting much of the funding and responsibilities for, federal grant programs to the states (Clune, 1986; Kimball, Heron, & Weiss, 1984). Initially, the Reagan administration sought to consolidate IDEA funding into a single education block grant.40 When this effort was blocked by Congress, the DOE attempted to push through a wholesale deregulation of the law by publishing a new set of implementing regulations that would have gutted much of the law’s oversight and enforcement mechanisms during a congressional recess. Even though this effort was quickly halted by a bipartisan coalition of members of Congress who had collaborated to pass the bill (Kimball et al.; Noel, 1984), it provides evidence of the close correlation between the perspective of the executive branch on the federal relationship with the states and the behavior of the DOE.


In NCLB’s case, the Bush administration’s central role in the passage of the law and interest in its successful implementation has provided impetus to the DOE’s efforts to perform its oversight and enforcement responsibilities. The DOE has scrutinized state plans and applications for funding and at times rejected proposals and requests for waivers from specific requirements of the law (Center on Education Policy, 2005). In the area of the enforcement, however, the DOE’s record has been highly inconsistent. In several instances, the DOE has threatened enforcement actions against states or large urban school districts, only to pull back.41 In a few cases, most notably in Texas, the department withheld small amounts of funding because of a state’s failure to comply with the law’s mandates.42 Critics of the department have questioned whether it has allowed several states to establish artificially low standards of proficiency that violate the spirit of the law.43 The DOE has done little, and indeed, under the law’s provisions, may be able to do little to ensure that state plans include vigorous targets of performance.


Still, given its record of enforcement of IDEA,44 the DOE’s efforts to manage the implementation of NCLB are surprising. In an interesting twist, 20 years after the Republican Reagan administration sought to dismantle the oversight and enforcement mechanisms of IDEA because of concerns about federal interference in public education, the Bush administration, through NCLB, has raised federal involvement in education to unprecedented levels. The logic that inspired the Reagan administration’s efforts to dismantle the regulatory structure of IDEA has been relegated to the state and local levels, where it now informs much of the conservative anti-NCLB opposition.


INTEREST GROUP RESPONSE TO THE FEDERAL ROLE


The presence of political opposition to the DOE’s enforcement of IDEA in the 1990s has been cited as having a “chilling effect” on the department’s ability to enforce the law (Hehir, 2002). Though there is evidence to support this contention (National Council on Disability, 2000), there is no indication that the DOE was motivated by fear of a political backlash when it failed to apply the law’s enforcement mechanisms during the previous 20 years. Remarkably, this record has produced two alternative perspectives with strong theoretical underpinnings and associated interest groups; each perceives the DOE’s exercise of its oversight and enforcement authority as a different problem and proposes widely divergent proposals as solutions.


On one side is a deregulatory camp that perceives the federal role as overly intrusive and supports reducing the law’s procedural mandates (Benveniste, 1986; Clune, 1986; Duff, 2001; Finn, 1996; Hess & Brigham, 2001; Hill, 2000; Kagan, 1986; Lanigan et al., 2001; Neal & Kirp, 1986; Noel, 1984; Wolf & Hassel, 2001). On the other is an advocacy camp that criticizes the federal government for its inaction and favors a more active federal role in punishing state noncompliance (Council of Parent Attorneys and Advocates [COPAA], 2000; Gartner & Lipsky, 1987; National Council on Disability, 1995, 2000; Rosenfeld, 2000).


Each camp acknowledges the many gains made by students with disabilities and improvements in special education services since 1975, but neither offers any credit for these successes to the federal government. Both criticize the federal government for its failure to fulfill its “promise” to fully fund the law and agree that federal oversight has had negative consequences; where they differ is the nature of these consequences.


To the advocacy camp, the inadequacy of federal enforcement has produced an enforcement vacuum that forces parents to exercise their due process rights in order to address noncompliance (National Council on Disability, 1995). Some in this camp argue that the DOE purposely fails to enforce IDEA because it perceives the provision of technical assistance as its primary role, and oversight as secondary (Rosenfeld, 2000). These critics have proposed forcing the DOE to punish noncompliance through the development of automatic triggers for enforcement or bypassing the DOE entirely by establishing a federal-level complaint process (National Council on Disability, 2000). Some have even proposed punishing the DOE by providing parents with the right to sue it for a failure to enforce the law (COPAA, 2000).


The deregulatory camp has a similarly negative perspective on the DOE’s role in the implementation of IDEA, characterizing it as overly aggressive and compliance driven. These critics argue that federal monitoring has produced negative consequences for children by removing discretion over educational decisions from education professionals and placing them in the hands of government bureaucrats (Finn, 1996; Hess & Brigham, 2001; Hill, 2000). This emphasis on regulatory compliance (Benveniste, 1986; Wolf & Hassel, 2001), in combination with the excessive legalism promoted by the law’s due process mechanisms (Lanigan et al., 2001; Neal & Kirp, 1986), forces states to “press school districts toward a defensive posture in which educators may spend more time attending to procedural needs” than the needs of their students (Hess & Brigham, p. 46). These critics recommend devolving both programmatic oversight and funding from the federal government to the states (Hassel & Wolf, 2001; Haynes, Bernard, & Johannesdottir, 1999).


The conflict between the advocacy and deregulatory camps has played out throughout the history of IDEA; periods of ascendance roughly correspond to party lines, with advocates gaining more influence under Democratic administrations and deregulators gaining under Republicans (Hehir, 2002). At a deeper level, the nature of disagreement between these two groups mirrors the parties in a typical special education dispute. Advocacy interest groups are disability-, parent-, and plaintiff-attorney oriented. The deregulatory perspective is pressed by state and school district organizations and teachers unions. Although the deregulatory camp would appear to be aligned with a conservative Republican perspective on the federal-state relationship, there are prominent Republicans with disability advocacy orientations45 (Shapiro, 1994). The political cross-pollination of these perspectives derives from the fact that disability does not differentiate by political party. Republicans are just as likely to be disabled and have children and family members with disabilities as Democrats. For individuals compelled by their personal experience with disability, the DOE’s lack of enforcement of IDEA constitutes a moral and legal abdication of responsibility. For those compelled by the professional narrative of educators, the DOE’s bureaucratic oversight of the law’s implementation undermines the educational purpose of special education.


In the 1990s, as the standards-based and the accountability movements gained influence in general education, deregulatory commentary on IDEA made a subtle shift from focusing on the negative effects of DOE monitoring on educators to focusing on its effect on student outcomes. The critique of the federal role that resulted from this convergence of the accountability and deregulatory movements argued that the federal government should diminish the compliance or procedural aspects of the law while adding a layer of accountability mechanisms based on performance on student outcomes (Wolf & Hassel, 2001; President’s Commission on Excellence in Special Education, 2002). These critics assert that the DOE should pursue an alternative monitoring strategy, commonly referred to as focused monitoring, based on a smaller number of indicators, quality data, the provision of technical assistance, and a strong federal accountability model focused on performance (Coulter, 2004). This outcomes-based perspective has partisans in both the advocacy and deregulatory camps. When combined with the advocacy camp’s recommendations for more aggressive triggers for enforcement, it produced the policy window for the accountability model in the 2004 reauthorization of IDEA.


In NCLB’s case, the DOE’s oversight and enforcement of the law have also produced deregulatory and advocacy critiques. Regular education advocacy groups such as the Education Trust have aggressively supported the law for providing public accountability for the performance of racial and ethnic minorities. Traditional special education advocacy groups have also become strong supporters of the law because of its role in forcing states and districts to focus on the educational performance of students with disabilities.46 Over the past 2 years, these groups have grown increasingly critical of the DOE as it has granted a series of waivers to states and districts from certain requirements of the law.47 They have also criticized states for “gaming the system” by establishing low standards of proficiency that allow large percentages of students to reach federal proficiency targets despite poor performance on other measures such as the National Assessment of Educational Progress (NAEP).48


On the deregulatory side, many of same state, school district, and school personnel interest groups that have criticized IDEA have indicated their opposition to NCLB49 (Center on Education Policy, 2005; Sunderman & Kim, 2004). These groups have been joined by some conservative proponents of deregulation in attacking the law as a federal imposition that undermines local control of education. During the first years of the implementation of NCLB, these groups criticized the DOE for being overly rigid in its oversight and enforcement. Though many of these critics have applauded the recent efforts of the DOE to add “flexibility” to its oversight of the law, they continue to be highly critical of the law itself and the specifics of its accountability system.50


Although the response to the federal role in the implementation of NCLB appears to correspond to IDEA, there are several important differences between the interest group dynamics associated with the laws. Traditional civil rights advocacy groups have not been as united in their support for NCLB as special education advocates have been for IDEA.51 This diversity in reaction may emerge from the different backgrounds and attributes of the laws. IDEA has an explicit civil rights orientation and enforceable individual due process rights. NCLB has the implicit civil rights goal of reducing the achievement gap in the aggregate and minimal enforceable rights. When there are explicit rights that must be enforced, advocates are less concerned about the subversion of local autonomy than the promotion of compliance through aggressive enforcement of the law. Without rights to enforce, advocates may focus on the justness of the overall system, both in terms of the quality of inputs such as funding and the attributes of the oversight and enforcement mechanisms.


From a special education advocacy perspective, IDEA benefits the disadvantaged by forcing states to address their needs. For some advocates, NCLB harms the disadvantaged by unjustly forcing them to take standardized tests for which they are unprepared; failing to provide their school systems with enough funding to improve the quality of education; and sanctioning them for failing to make enough progress. From this “input-oriented” advocacy perspective, federal micromanagement forces states and districts to replicate an unjust system that subverts the independence of schools and teachers (Goodman, Shannon, Goodman, & Rapoport, 2004; Meier, Kohn, Darling-Hammond, Sizer, & Wood, 2004).


Overall, the opposition to NCLB has been more broad-based than the opposition to IDEA. NCLB also lacks the personal element that has historically shielded IDEA from radical change. Although disability may not strike at the same rate as poverty, it is far more evenly distributed among the population and, thus, among the politicians and bureaucrats charged with IDEA’s development and implementation.


ACADEMIC RESPONSE TO THE FEDERAL ROLE


Academics and researchers can have a strong impact on the policy process if their analyses are disseminated and proposals adopted by influential policy entrepreneurs (Kingdon, 1995). A number of researchers have addressed the premise of the advocacy camp that increased external oversight and enforcement will lead to better compliance with a law or improved outcomes for students (Benveniste, 1986; Cohen & Spillane, 1993; Elmore, 1993; Elmore & Associates, 1990; Fuhrman, 1993; Fuhrman & Elmore, 1990, 1995; Kagan, 1986; Meyer & Rowan, 1978; Moe, 2003; Rowan, 1990, Weatherly & Lipsky, 1977). This literature provides several important insights. First, a bureaucratic emphasis on procedural compliance can have the effect of undermining the fundamental goal of a reform, such as improved student outcomes in the “regular program,” by constraining the options of educators and reducing their commitment to the reform (Elmore, 1986). For years, special educators have complained that IDEA’s many rules inhibit their ability to focus on instruction and student outcomes. In some cases, the sheer quantity of activities required under the law can force teachers into pro forma compliance (checking boxes) or avoidance of regulatory requirements (Study of Personnel Needs in Special Education, 2002).


Second, in the “loosely coupled,” compartmentalized culture of public schools (Weick, 1976), individual elements such as teachers tend to work in isolation (Elmore, 1990). This system protects its members from the change efforts of the more tightly coupled bureaucratic systems at the district and state levels. A federal policy that is translated through state and district bureaucracies with a high degree of fidelity will likely become partially diffused at the district level. It may then become more diffused at the school and classroom level as each individual actor makes a value judgment about its applicability to his or her practice and performs a cost-benefit analysis on the amount of effort required to implement the policy compared with the benefit for their school or students (Meyer & Rowan, 1978). As these “street-level bureaucrats” translate the regulatory mechanisms based on their local circumstances and individual and institutional capacity, they may produce variation in a law’s implementation (Berman, 1986; Weatherly & Lipsky, 1977).


For example, in special education, procedures for identifying disabilities appear to be standardized, but in practice, their application is often dependent on the mean performance of the student population and the perceptions of school personnel (President’s Commission on Excellence in Special Education, 2002). Thus, a student in a high-performing school who falls two standard deviations below the mean may be referred for testing and identified as eligible for special education. In another school with a large at-risk population, this same student might be considered typical. Similarly, research on the disproportional identification of minorities in special education has indicated widespread variation in disability identification rates by ethnicity in disability categories—such as mental retardation, learning disabilities, and emotional disturbance—that are heavily dependent on the clinical judgment of interdisciplinary IEP teams (Losen & Orfield, 2002; President’s Commission on Excellence in Special Education). Research indicates that African American students are more likely to be identified as learning disabled as their percentage of the school population decreases, possibility indicating that familiarity with a specific racial group may decrease the likelihood of their being identified as disabled (Oswald, Coutinho, & Best, 2002). No oversight agency can eliminate the effects of local and school context on a law’s implementation.


Given the size and diversity of the U.S. public school system and the long tradition of local control of education, some level of local variation in the implementation of a comprehensive law such as IDEA would be expected. What is surprising is the strong level of vertical integration between federal-, state-, and local-level translation of the law’s requirements (Elmore, 1986; Skirtic, 1991) and the high degree of fidelity between the expectations of federal policy and school-level implementation (Singer & Butler, 1987). Indeed, although “loose coupling” and “street-level bureaucratic” interpretation may result in a measure of policy diffusion, most of the special education policies and procedures promulgated at the federal level find their way down to the teacher level in a few months or years, where they are often implemented to the letter of the law.


This programmatic consistency has several different sources. First, IDEA has been in effect for 30 years. Although changes have been made in the statute, the law’s basic tenets of free and appropriate education, least restrictive environment, and individual due process have remained unchanged. This stability has promoted widespread understanding of the law’s requirements among special education staff. Second, and more important, the implementation of IDEA is not dependent on compliance reviews from above. Although the potential for top-down oversight has some effect on state, district, and school behavior, IDEA’s implementation has been more dependent on the bottom-up oversight provided by parents and advocacy organizations exercising the law’s due process mechanisms to address noncompliance with the law at the school and district levels (Hehir, 1992).


Neither bottom-up nor top-down oversight and enforcement in special education can address organizational barriers to the law’s implementation in general education (Skirtic, 1991). Special and general education have long existed as separate entities (McLaughlin & Verstegen, 1998; Milofsky, 1974). IDEA attempts to break down these barriers by promoting the placement of students with disabilities in the least restrictive environment, beginning with the general education classroom, and providing them with access to the general education curriculum. During the IEP, special and general education school staff are expected to collaborate on the development of an educational plan for an individual student. After the meeting, they are expected to extend this collaboration to the classroom. As more students with disabilities enter general education, efforts to implement their special education IEPs have broken down because of resistance from general education personnel (Meredith & Underwood, 1995; Nagle & Crawford, 2004). Similarly, efforts to promote special education reforms, such as improved identification and placement processes to address negative effects such as racial disproportionality, have broken down because these run counter to general education goals to move out of general education and into a special education setting those students who exhibit low performance or atypical behavior. In these cases, there is little that a department of special education can do to remedy the situation because the mechanisms of control and accountability in IDEA focus almost entirely on special education. Many of the problems that have arisen during the implementation of IDEA have resulted from this decoupling of special education’s integrationist goals from the segregationist needs of general education (Skirtic, 1991).


The accountability model in NCLB addresses this decoupling by requiring states and school districts to assess the performance of subgroups, such as students with disabilities, on statewide assessments. There is evidence that these subgroup requirements have forced education systems to attempt to improve the performance of students with disabilities through increased integration in general education and exposure to grade-level curriculum (Nagle, 2005; Nagle & Crawford, 2004). On the other end of the spectrum, some researchers have argued that the these requirements may provide schools with an incentive to rid themselves of subgroups such as special education students, whom they fear will cause them to fail to meet performance targets (Kane & Stager, 2003).


As with IDEA, academic analyses of the types of outcomes-based accountability mechanisms found in NLCB have questioned whether they have positive effects on the behavior of their intended targets or simply produce pro forma compliance (Cohen & Spillane, 1993; Elmore, 1993, 1996; Elmore, Abelmann, & Fuhrman, 1996; O’Day, 2002; O’Day & Smith, 1993). These analyses see little benefit in compliance with regulation and focus instead on whether the law’s accountability mechanisms promote instructional improvement. In a similar vein, critics of the accountability models in both laws charge that they fail to address the “capacity” of states and districts to achieve their goals52 (Center on Education Policy, 2005; Mathis, 2005; McCombs & Carroll, 2005; Sunderman & Kim, 2005).


States, districts, and schools exist within a resource-constrained environment and an ongoing cycle of budget crisis (Hess, 1999). They may make a good faith effort to fully comply with a law, yet, even after cutting funding in other areas, budgetary limitations may limit their ability to fully comply with its mandates (Cohn, 2005). There are also resource limitations that no state or school district can overcome, such as the nationwide shortage of certified special education teachers and speech therapists, or the lack of qualified general educators willing to teach in isolated rural areas. A district’s ability to comply with regulatory requirements may also be limited by the knowledge of school personnel, particularly in schools where a lack of knowledge is one aspect of a larger organizational failure (O’Day, 2002).


Neither IDEA nor NCLB focuses much attention on enhancing pedagogy or instruction through its accountability mechanisms. All the data collected for the purposes of oversight or enforcement consist of system-level output indicators such as graduation rates or statewide assessment results. Beyond limited mechanisms associated with the provision of technical assistance to low-performing schools in NCLB and states determined to “need assistance” in IDEA, the emphasis of the laws’ enforcement and oversight provisions is on punishment rather than capacity building. As both analyses of IDEA and NCLB have indicated, there is little evidence that sanctioning an organization for failure to comply with a law because of a lack of expertise, funding, or circumstances beyond its control will achieve the goal of improving student outcomes.


IMPLICATIONS


The characteristics of the oversight and enforcement models in NCLB and IDEA, their legislative histories, their implementation, and the interest group and academic responses to the efforts of the Department of Education have a number of implications for the future of the laws. I will address the implications of findings in each area after summarizing their similarities and differences.


OVERSIGHT AND ENFORCEMENT MODELS


IDEA and NCLB are voluntary grant programs that states can choose to decline. Both laws require states to follow a series of procedural and expenditure-oriented requirements and implement an elaborate oversight and enforcement model. Both allow states to set their targets for their performance outcomes and collect data on their progress. The DOE is responsible for approving state plans, providing oversight of their implementation, and enforcing the law when states fail to follow process or expenditure requirements. NCLB uses an indirect outcomes-based oversight and enforcement model that focuses on the application of the accountability model developed by the federal government. The DOE does not punish states for poor performance but for their failure to ensure that districts and schools are implementing the steps of the federal accountability model. IDEA 2004 takes the federal outcomes-based model one step further by providing for direct federal oversight of state performance on outcomes. IDEA 2004 also establishes federal triggers for enforcement based on state performance that should, in theory, limit the discretion of DOE over their application. In addition, IDEA’s oversight and enforcement model uses both the top-down mechanism of bureaucratic oversight and the bottom-up mechanism of individual due process rights. By placing a source of oversight and enforcement outside the education bureaucracy, it removes the onus for full accountability from the DOE. NCLB contains no such mechanism for bottom-up oversight, placing much of the onus for enforcement on the federal government. Finally, the incentive to take IDEA funding is supported by the overlapping requirements of other federal laws such as the Americans With Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. With the possible exception of parts of IDEA, there are no similar overlapping statutes that would diminish a state’s or district’s incentive to decline NCLB funding if the costs of the law to a state were perceived to exceed its benefits. The combination of these overlapping statutory requirements, the direct outcomes-based federal accountability model with its enforcement triggers, and the law’s bottom-up oversight and enforcement mechanisms provide IDEA with a stronger basis for state and local implementation in alignment with its requirements and goals than the additional funding and top-down oversight associated with NCLB.


HISTORICAL ROOTS


Both NCLB and IDEA were constructed in part as a response to a civil rights problem. In IDEA’s case this problem was explicit: the exclusion of children with disabilities from public education. This problem intersected with two additional problems: the regulatory incoherence resulting from the existing patchwork of special education laws, and resource constraints resulting from a lack of funding for local special education responsibilities. For NCLB, the civil rights problem was implicit: the negative effects on educational and other opportunities associated with the minority achievement gap. This problem intersected with concerns about American competitiveness due to low standards for performance, a lack of educational accountability, and a poor “return” on the federal investment. In both cases, these problems produced legislative precursors at the federal level that resulted in little change in state behavior and were characterized by limited DOE enforcement. In IDEA’s case, Congress attempted to address these problems by providing the DOE with specific oversight and enforcement powers, including the ability to withhold federal funding from noncompliant states. In NCLB’s case, Congress took this model one step further by limiting the DOE’s discretion when confronted by state noncompliance and forcing states to adopt an outcomes-based model of accountability based on district and school performance. A few years later, when Congress debated the IDEA reauthorization, the problem of access to education for children with disabilities had been superseded by the concerns over the poor results of special education and the failure of the DOE to enforce the law. In the 2004 reauthorization of IDEA, Congress sought to address these problems by shifting the law’s oversight and enforcement mechanisms to an outcomes-based accountability model based on state performance and by limiting the DOE’s discretion over enforcement through the inclusion of enforcement “triggers.” Just as NCLB represented an evolution in the federal oversight and enforcement model from IDEA, the reauthorized IDEA represents the next step in this evolution from NCLB. It remains to be seen whether this process of leapfrogging accountability models will have any implications for the reauthorization of NCLB. Still, the record indicates that having developed a solution to a problem facing children, Congress will have a strong incentive to see it implemented and may attempt to both manage the solution to the problem and manage the manager of the solution. For NCLB, a mitigating factor in this evolution could be the law’s comparatively narrow base of support outside Congress and the executive branch.


RECORD OF OVERSIGHT AND ENFORCEMENT


Over the past 30 years, the enforcement of IDEA has been dependent on the attitude of the executive branch toward the role of the federal government in public education. Although this attitude has varied through various Republican and Democratic administrations, the willingness of the DOE to enforce the law has not. Despite evidence of persistent state and local noncompliance with IDEA, the DOE has engaged in few enforcement actions. On the whole, this performance was predictable. Political context has a strong effect on the ability of the DOE to engage in oversight and enforcement (Elmore, 1990; Fuhrman, 1993; Hehir, 2002; Hochschild, 2003; Moe, 2003). Because sanctions are “costly to apply, time-consuming, procedurally complex and often have political repercussions that are difficult to predict,” (Elmore, 1990, p. 90), they are rarely used. In the absence of such sanctions, the process of compliance is characterized more by “bargaining and negotiating across governments” based on “calculations of benefits and costs of enforcement and compliance than it is on the authority of one level of government over another” (Elmore, p. 90). The history of DOE enforcement of IDEA has been characterized by far more bargaining and negotiating than enforcement. Based on the record of the past 2 years, this has also been the case for NCLB. Although the DOE pursued a more forceful enforcement role than with IDEA, its response has been inconsistent. Some states and districts have been provided with waivers from requirements, and others have had their funding withheld. Some states have been allowed to pursue alternative models of tracking student performance, others have not. It also appears that some states have “gamed the system” by setting artificially low standards of proficiency that allow them to avoid the negative political consequences of sanctioning districts for poor performance, reap the political benefits of “improvements” in student performance, and avoid federal government scrutiny. Because their standards were approved by the DOE, there is little it can do or has done to respond. Instead, the DOE appears to be forced by the law’s requirements to focus attention on states with more vigorous standards and assessments that produce more evidence of failure. The combination of a variable response by the DOE in response to state and district pressure, combined with the variability of results produced by state-level accountability models, has produced regulatory incoherence and strong political and practical disincentives for any state to pursue the type of vigorous “results-based” model of improvement intended by the law’s framers. In this context, the widespread negative reaction to the federal government’s role in the law’s implementation by state and local interests is unsurprising. In IDEA’s case, if states respond to the 2004 reauthorization with a similar level of variation in the quality of their outcome targets, the DOE will be placed in the similarly awkward position of sanctioning states that fail to achieve high standards while applauding states that achieve weak ones. This effect could be more pronounced than with NCLB because of the law’s triggers for enforcement. These triggers may force the DOE to shift away from a bargaining process with state officials that limits the negative effects of the inequality produced by state-driven performance targets. Rather than being able to grant a waiver to a high-standard, high-outcome state with quality data that fails to achieve its target after several years, it may be forced to punish it. As with NCLB, this behavior may produce a negative political response that lends momentum to efforts to once again revise IDEA’s oversight and enforcement mechanisms.


INTEREST GROUP RESPONSE


The response to the federal oversight and enforcement of IDEA has been characterized by two camps: a deregulatory camp and an advocacy camp. Because of the nature of disability, the debate over IDEA has transcended political lines and generally mirrored the divide in a typical special education dispute with district-, state-, and teacher-level groups on one side and parent groups on the other. In NCLB’s case, the law’s implementation has also produced deregulatory and advocacy critiques. Advocates have criticized the DOE for providing waivers to states and districts from the law’s requirements and for allowing some states to set low standards for performance. Deregulatory critiques have attacked the law for undermining local control of education. Despite these similarities in the interest group responses to the laws, there has been more variation in the response to NCLB than IDEA. Traditional civil rights groups have not been united in their support for NCLB for reasons including opposition to standardized testing, concerns about lack of funding, and questions about the “justness” of the federal accountability model. In addition, because NCLB lacks the additional layer of bipartisan protection afforded to IDEA by the universal nature of disability, the opposition to the federal role in the implementation of NCLB has been more broad-based and its support more skin-deep. This lack of a personal connection between those charged with writing and implementing a law and those affected by it may have important implications for NCLB’s future. Unlike IDEA, NLCB has been heavily dependent on the bipartisan support of its authors in Congress and the White House (Debray, 2006). They have shielded the law from changes and pushed for its implementation over state and local objections. During the upcoming reauthorization of the law, they are likely to face considerable pressure from both deregulatory and advocacy-oriented interest groups to reconfigure the federal oversight and enforcement role. The absence of the type of personal connection to NCLB’s intended beneficiaries that has characterized IDEA’s bipartisan support may undermine the support of these and other defenders of NCLB for a vigorous federal role in the law’s oversight and enforcement, and intensify political squabbling over hot button issues such as vouchers.


ACADEMICA RESPONSE


An emphasis on procedural compliance with a law can have a number of negative effects, including undermining the commitment of educators to the reform or promoting pro forma compliance. Because of the loosely coupled nature of public education, any federal policy is likely to become diffused at the district, school, and teacher level as each actor makes a value judgment about its applicability to his or her practice and adapts it to meet local circumstances. Despite evidence of these effects on the implementation of IDEA, there has been a remarkable level of fidelity between the law’s requirements and its state and local implementation. Some measure of this fidelity can be attributed to the law’s long history and the effects of compliance reviews from above. A larger measure is associated with the bottom-up oversight produced by the exercise of the law’s due process mechanisms by parents. Unfortunately, most of these effects have been limited to special education. The general education establishment has resisted IDEA’s push for integration because of strong incentives to maintain a decoupled special education system in which it can remove its “problems.” NCLB addresses this decoupling by holding districts and schools accountable for the performance of students with disabilities. Although there is evidence that school districts are reacting to the law by providing students with disabilities with greater access to general education classrooms and curriculum, there is also evidence that some states have sought to minimize the effects of the performance of students with disabilities on school performance by setting their subgroup reporting targets at a high level.53 In these states, schools may have an incentive to remain under the subgroup threshold by either failing to identify students with disabilities or moving them to other schools. Though this response appears to undermine the intent of the law, it can also be characterized as an effort to cope with a lack of local capacity to meet the law’s AYP requirements for students with disabilities. Neither NCLB nor IDEA devotes much attention to improving state, district, or school capacity to achieve their requirements. Their oversight and enforcement models focus on punishment. In NCLB’s case, this emphasis on punishment and optimistic targets for performance have produced strong incentives for states to shift their focus from improving educational outcomes to the type of pro forma procedural compliance that has long characterized state and district efforts to comply with IDEA. In fact, because those states with the type of vigorous accountability systems envisioned by the law have produced the most evidence of failure and attracted the most public and federal scrutiny, their efforts to lower their targets or request waivers from the law’s requirements have been predictable. By recalibrating their accountability systems to make it easier to meet the law’s targets, states can provide evidence of compliance to the federal government and avoid public scrutiny while protecting schools and classrooms from the law’s impact (Elmore, 1990; Weick, 1976). Because the NCLB accountability model does not provide for the type of bottom-up enforcement offered by IDEA, such efforts are unlikely to attract the attention of parents and advocates. If, as noted earlier, states react to the outcomes-based model in IDEA 2004 with a similar level of variation in their state plans, a comparable situation will arise. The DOE will be forced to scrutinize states with vigorous targets while ignoring the possibly lower performance of states with weaker ones. In these cases, some states may react by following the NCLB path of requesting waivers, lowering their targets, or altering their methods of data collection. Although such efforts might be complicated by the impact of IDEA’s bottom-up enforcement mechanisms and the interest of local-level advocates in maintaining the highest possible outcome targets, there is little evidence that the DOE is capable of holding the line against state modifications. In the long term, IDEA 2004, like NCLB, may provide states with far more organizational and political incentives to game the system to show artificial progress than to comply with the results-based intent of the law.


CONCLUSION


The more active federal role in public education that emerged after the civil rights movement of the 1950s and 1960s was prompted by the resistance of states and local districts to altering their segregated systems of public education. The Civil Rights Act provided the lever to the open the schoolhouse door for African American students, and Title I of the Elementary and Secondary Education Act provided additional funding to address the inequality produced by decades of segregation (McDermott & Jensen, 2005). The first IDEA, the Education for All Handicapped Children Act (EAHCA) was constructed on a foundation built by these laws. It ended the segregation and exclusion of children with disabilities from state-run systems of public education and provided additional funding to ease the effect of their integration on local budgets. Despite this explicit civil rights goal and the extra funding it has provided, IDEA has continued to provoke state and local opposition as an unfunded mandate and an unwelcome federal intrusion into local control of education.


These arguments rest on the shaky premises that IDEA is a mandate and that Congress reneged on its “promise” to cover 40% of the additional cost of special education. Because acceptance of IDEA funding is voluntary, the law cannot be a mandate.54 Because authorization levels for any law are proposed targets rather than requirements, they are better characterized as “white lies” than promises (Alping, 2001). Indeed, because the record of court rulings prior to IDEA’s passage indicated that states would soon have been forced to provide a free public education to children with disabilities, federal funding for special education should be characterized as a boon rather than a burden. In this context, protests about unfunded mandates and broken promises appear to be driven more by the details of the federal solution to the state-level problem rather than federal involvement itself. Had the framers of IDEA chosen to follow the old Title I model of simply passing through special education grants to states and districts, ensuring that it was spent on the “right” children and providing occasional technical assistance, it is doubtful that the law would have provoked the same level of criticism. The effect of this model in both constraining the choices of state and local officials and holding them accountable for their actions is what produces the persistent complaints about federal interference, not the law itself.


By tacking toward the IDEA oversight and enforcement model and radically diverging from the history of Title I as a grant with minimal strings attached, NCLB has provoked the same type of criticism. Predictably, the attacks on the law as an unfunded mandate or federal intrusion into local control of education rest on the same flimsy premises. There is every indication that the federal government can attach strings to its grants to ensure that states meet certain standards (McDermott & Jensen, 2005). Given the widespread acceptance of federal funding, the question that needs to be asked is whether the federal role in education as configured in IDEA and NCLB is beneficial.


In IDEA’s case, at least until the 2004 reauthorization, the answer is Yes. Although there is no doubt that both governmental and parental oversight have had some negative effects, the law has addressed the problems that provided the impetus for its existence. It ended the wholesale segregation of children with disabilities, provided millions of children with access to services to which they had previously been denied, and established a national system of special education.55 This progress toward achieving its civil rights goals is underscored by the fact that the debate over special education has shifted from the issue of access to the question of the outcomes.


In NCLB’s case, the answer is a qualified No. On some levels, the law appears to be wildly successful in its implementation. The language of adequate yearly progress, proficiency levels, and subgroups has entered the lexicons of educators at all levels. Nearly every state has established a standardized testing system, disaggregated their results to identify low-performing schools, and focused increased attention on the performance of subgroups such as students with disabilities (Matthews, 2005). Yet, despite these advances, there is little real indication that the law has made progress in correcting the performance gap and addressed concerns about the return on the federal investment in education. Although the outcomes-based model of oversight and enforcement holds great promise, its incarnation in NCLB has proved ineffective because its mechanisms for assessment of progress contradict its fundamental premise of providing accountability for performance. By leaving decisions on standards of proficiency, subgroup levels, testing, and the use of accountability mechanisms to states, it has emphasized the impact of local politics on the education system in ways that have promoted the dumbing down of standards, weakening of assessments, and packaging of data to suit political needs for evidence of progress (Ravitch, 2005). This, in combination with its lack of capacity-building mechanisms, externally imposed outcome targets, and emphasis on punishment, has produced considerable negativity toward the law from those states and districts that took the law seriously and established high standards and vigorous assessments


Second, by making the federal government the sole source of oversight and enforcement, NCLB leaves the Department of Education in the untenable political position of responding to both legitimate complaints from states about the differential effects of this accountability model and the typical IDEA-style complaints about its effect on state control of education systems. Given the DOE’s historically undistinguished record of oversight and enforcement and the political pressures it faces from states, Congress, and the White House, its efforts to address these complaints under the guise of promoting “flexibility” have been predictably incoherent, producing widespread confusion and cynicism about the law’s requirements (Davis & Hoff, 2005). Many of the same problems can be projected for the future implementation of the outcomes-based model in IDEA 2004 because its mechanisms allow for state-defined targets for performance.


Although there are a number of interests that would prefer to see the outcomes-based accountability model in NCLB collapse and that are actively promoting policy proposals to eviscerate it, it would be a mistake for Congress and the executive branch to allow this to happen. In the coming years, a number of factors—from financial constraints placed on states and local districts from pensions and health care costs56 to aging populations with increasing political clout, in combination with increasingly immigrant student populations (Frey, 2000) to unpredictable state education funding models based on gimmicks such as lotteries and gambling—will render both the federal contribution to public education and a stable federal role in ensuring a quality education system ever more important. Considering these stakes and the changes wrought by rapid technological change and foreign competition, it will be incumbent on Congress, the president, and the states to continue to strive to achieve the goals of NCLB to establish high educational standards, track student outcomes, provide accountability for performance, and reduce the persistent racial achievement gap.


To achieve these goals, Congress should maximize the influence of federal policy by “finding the margin where [it] is likely to be most effective, rationing the use of federal resources to those purposes where they are most likely to have an effect, and avoid engaging in activities that erode the base of services upon which marginal federal resources operate” (Elmore, 1986, p. 185). Congress and the White House can begin by turning the existing outcomes-based accountability model in NCLB inside out and focusing, as is the case with IDEA 2004, on the state-level performance rather than the district- or school-level performance. This would mean working in collaboration with the governors and education leaders of states and local districts and representatives of prominent research and advocacy organizations to establish national standards, a single national performance assessment, fixed and achievable targets for proficiency, and predefined subgroup sizes while devolving responsibility for the details of the accountability system to the states. Instead of forcing a detailed, punishment-based federal accountability model that extends to the school level, the federal government should allow states to determine the consequences for districts and schools that fail to meet targets. Under this system, it will be clear who the failures are at the state and local level and it will be the responsibility of states to fix them through accountability models that account for local circumstances and capacity. Such a model would hark back to one of the initial motivations for the passage of IDEA: a desire to provide regulatory coherence and predictability for state education systems.


For IDEA, the 2004 reauthorization’s emphasis on educational outcomes and the DOE’s focused monitoring process are steps in the right direction, but the provision of responsibility for setting performance targets and validating the accuracy of data to the states is not. To avoid the types of problems provoked by NCLB, the law should establish fixed national targets in a limited number of areas and set high standards for data quality.


To motivate states to establish vigorous accountability systems, Congress should maximize its leverage and positive effects of its influence by increasing its financial contribution to both Title I and IDEA and providing incentives for improved performance. Given the political implications of low performance, current federal contribution levels may not provide a sufficient incentive for low-performing states to remain within a national system. By using both existing and additional funding to reward states that achieve national targets, the federal government can motivate states to improve performance. To address state concerns about the effect of local demographic differences on performance, such a policy would strive to place states on an even playing field by controlling for the effects of relevant demographic variables on performance. Unless the effects of these variables were accounted for, it would make little sense to compare the annual performance of states with large diverse populations, such as California, toward national targets against the smaller, more homogenous populations of states such as Kansas.


Under this model, the federal role as a provider of supplementary education funding would be explicit, thus diminishing complaints about unfunded mandates. States that are poor performers would continue to receive a base level of federal education funding premised on existing formulas but no more. To acquire additional funding, these states would need to improve performance and meet national targets. This would provide them with a strong incentive to target failure at the district and school through whatever capacity-enhancing or sanction-oriented strategies they expected to succeed. It would also devolve the locus of political pressure from the DOE to the state level. Under such a system, the DOE could be relegated to determining whether states were following the remaining process and expenditure requirements in the laws. To minimize the effect of politics, determinations on whether states achieved national targets and qualified for additional funding could be transferred to an independent nonpartisan panel similar to the National Assessment Governing Board. In the absence of a federal scapegoat, states that were persistent low performers and failed to secure additional funding would face the increased scrutiny of their citizenry. It would be their responsibility to make the difficult decisions necessary to improve poor performance.


In addition to turning the NCLB outcomes-based model inside out, Congress should heed the lesson offered by the history of IDEA about the importance of bottom-up accountability. NCLB provides parents with the right to transfer their child out of failing schools and to seek supplementary educational services. The design and implementation of these mechanisms has been fraught with problems that have impeded the ability of school districts to provide them and parents to access them (Center on Education Policy, 2005). At the design level, the premise that these services will benefit students suffering from educational deprivation in low-performing schools has limited empirical support (Casserly, 2004). Because the provision of supplementary services is predicated on school rather than student failure, it is unclear whether the services are directed at students in need of academic support. On an implementation level, if districts fail to provide these services, parents have not had any individual avenue of redress.


In a state-driven accountability system, the right to transfer or to seek supplementary services may no longer be available. Nevertheless, low-income parents of nondisabled children should have the same opportunity that parents of children with disabilities currently possesses to acquire those supplementary services that their children need to make educational progress. As is the case with students with disabilities, parents should be able to prove that their children need such services because of their child’s failure to make academic progress. In an accountability system in which poor student performance is clearly defined by national standards, making such a case should not prove to be burdensome. A model for such a system is already in place in most school districts through the prereferral intervention process for special education. Rather than providing supplementary services on a blanket basis, Congress should provide parents of children in Title I-eligible schools with the opportunity to apply for supplementary educational services prior to a referral for special education, or when there is clear evidence of persistent academic failure, and establish a simple avenue of redress for parents when their application is denied.


Such a mechanism would exert a powerful bottom-up pressure on districts to reform low-performing schools down to the classroom level. It would also have the positive effect of formalizing the prereferral intervention process by providing at-risk students with quality academic interventions, assessing the impact of these interventions on their performance prior to any referral for special education, and reducing those unnecessary referrals that disproportionately affect poor children of color. IDEA 2004 foresees such a model through its recommendation that states and districts shift from a disability identification system based on an assessment of a discrepancy between current performance and projected ability, to a model based on whether a student responds to a research-based educational intervention (RTI).57Congress can promote the development and implementation of this model by making the DOE responsible for establishing the requirements for a supplementary service to qualify as a research-based intervention. It should then provide states and local districts with increased flexibility to use both Title I and IDEA grants to fund a system that provides such services to eligible at-risk students in Title I schools, either upon parent application or on the recommendation of school staff.


A basic prerequisite for the success of this accountability model is the inclusion of all students. If the law excludes certain groups of students from its accountability model, it will provide states and districts with an incentive to place increasing numbers of low-performing students into those categories. To prevent this circumstance, Congress and executive branch should to continue to require states and districts to focus on the performance of subgroups such as students with disabilities. Through this requirement, NCLB has had the beneficial effect of promoting a more tightly coupled education system. It is important that Congress not remove this requirement nor retreat from its efforts to end the decades-long parallel play of special and general education policy. Rather, it should continue its efforts to create a single high-performing education system and provide states with the incentives they need to make this integration successful.


Notes


1 In 2001, NCLB reauthorized the Elementary and Secondary Education Act (ESEA). This article focuses on the oversight and enforcement provisions of Title I of NCLB. However, throughout the article, Title I of NCLB will be referred to as NCLB.


2 See National Conference of State Legislatures, No Child Left Behind: Quick Facts, 2004–05 to view a summary of state legislative activity on NLCB at http://www.ncsl.org/programs/educ/NCLB2005LegActivity.htm#legactivity04.


3 See “President George W. Bush: Record of Achievement, Chapter 12: Improving American Education” at http://www.whitehouse.gov/infocus/achievement/chap12.html.


4 It the time, the Department of Education was the Office of Education. In this article, I refer to the Office of Education by its current name.


5 See President Gerald R. Ford’s Statement on Signing the Education for All Handicapped Children Act of 1975, December 2, 1975, at http://www.fordlibrarymuseum.gov/library/speeches/750707.htm.


6 The law was initially titled the Education for All Handicapped Children Act (EAHCA) of 1975. The 1990 Amendments to EAHCA (PL 101-476) changed the name to the Individuals With Disabilities Education Act (IDEA). The recent 2004 reauthorization (PL 108-446) altered the name to the Individuals With Disabilities Improvement Act. For the remainder of the article, I refer to EAHCA and all following reauthorizations as IDEA.


7 IDEA grants must be used by states and local districts to supplement rather than supplant existing per-pupil expenditures. This means that IDEA funds can only be used to fund the excess or additional cost of educating students with disabilities over the state’s per-pupil funding amount.


8 See Sen. Rep. No. 168, 94th Cong., reprinted in [1975] U.S. Code Cong. & Ad. News, 1439, “The Senate believes that a simple pass through of all funds based on the populati on of an LEA fails to provide an adequate incentive for serving all children within the total time period specified in the bill.”


9 A variety of federal grants in areas ranging from transportation to welfare legislation have attached conditions of aid. See McDermott and Jensen (2005) for a discussion of the conditions of aid and federal education legislation. In addition, see Reichbach (2004) for a discussion of the legal underpinnings of conditional federal education grants.


10 PL 108-446  Sec. 616(b)(2).


11 Like earlier versions of the monitoring and enforcement provisions, states have an opportunity for a hearing with the secretary of education and may file a petition for a review of the secretary of education’s action with the U.S. Court of Appeals in the state’s circuit. In addition, the secretary must report to the Committee on Education, the Workforce of the House of Representatives, and the Committee on Health, Education, Labor, and Pensions of the Senate within 30 days of taking enforcement action on the specific action taken and the reasons why. See PL 108-446 Section 616(d).


12 Similarly, nothing prevents a state from taking NCLB or IDEA funding and establishing stricter standards than are present in the law.


13 One of the goals of the IDEA reauthorization in 2004 was to align the law with NCLB. See PL 108-446 Sec. 601(c)(5)(c) and Topic Brief, IDEA Reauthorized Statute, Alignment with the No Child Left Behind Act, available at http://www.ed.gov/policy/speced/guid/idea/tb-nclb-align.doc.


14 For recent examples of state-level debates on opting out of NCLB, see S. Rothschild, “Official Suggests Opting Out of ‘No Child’ Law,” Lawrence Journal-World, 12 October 2005; and A. Paulson, “An Education Rebellion Stirring,” Christian Science Monitor, 11 February 2004.


15 For a review of potential consequences to states for opting out of NCLB, see Council of Chief State School Officers, “Preliminary Analysis of State/District Nonparticipation in NLCB” at http://www.ccsso.org/content/pdfs/AnalysisEDletter.pdf; and Pennsylvania School Boards Association, “NCLB Opt-out Consequences for States and School Districts Outlined” at http://www.psba.org/issues-research/nclb-optoutconsequences.asp.


16 Each student found eligible for special education must be provided with an Individual Education Program (IEP) that is developed in collaboration with school staff and parents and that sets forth the student’s annual education goals and the special education services that the student will receive to achieve those goals. The full requirements for the IEP are set forth in PL 108-446, Section 614(d).


17 See Chambers, Parrish, and Harr (2004) for a thorough discussion of the actual cost of procedural safeguards in special education. Based on data from 1999–2000, they found that special education mediation, due process, and litigation expenditures account for only 0.3% of total special education expenditures. In terms of per-pupil spending, when applied to the entire special education population of nearly 6.2 million students, the expenditure per special education pupil on mediation, due process, and litigation activities was approximately $24.


18 Data from the National Longitudinal Transition Study II (2005) indicate that most parents surveyed (86%) were satisfied with special education their child received. Only 5.3% had been through a hearing and 10.6% through a mediation.


19 According to Reichbach (2004), the most likely mechanism for parents to use to force a government entity to enforce provision of NCLB would be “third party beneficiary theory,” which is based on the premise that the state or local entity that accepts federal funding is bound by a contract that can then be enforced by the intended third party beneficiary, such as a parent or child.


20 Defined broadly as a mental or physical impairment that “substantially limits one of more major life activities.” 29 U.S.C. • 794(a) (1973).


21 These regulations were not completed until 1977. Thus, many of the benefits that Section 504 would have conferred to students with disabilities were rendered redundant by the passage of IDEA in 1975.


22 See H. Rep. No. 332. 94th Cong., 1st Sess. 11. (1975); and S. Rep. No. 168, 94th Cong., 1st Sess., reprinted in [1975] U.S. Code Cong. & Ad. News, 1432–33.


23 See 143 Cong. Rec. S4357 (1997) (Remarks of Sen. Jeffords). In the debate over the 1997 reauthorization of the law, he noted that if Congress had not provided an authoritative federal standard, 16,000 districts would have promulgated 16,000 sets of rules, resulting in a bonanza of costly lawsuits and lawyers’ fees.


24 See 121 Cong. Rec. 23705 (1975) (Remarks of Rep. Jeffords). “An appropriate education has been mandated by the Courts. This is not some new program springing out of the imagination or the desires of Congress. . . . This is something that is going to be required in educational systems; so regardless who funds it . . . there is going to be an increase in expenditures.”


25 S. Rep No. 168, 94th Cong., reprinted in [1975] U.S. Code Cong. & Ad. News. 1449.


26 S. Rep No. 168, 94th Cong., reprinted in [1975] U.S. Code Cong. & Ad. News. 1450.


27 Although that debate was muted, the debate over funding was not, and the controversy explicitly linked IDEA and NCLB. The Senate had earlier passed the Harkin-Hagel amendment, which would have mandated increases in funding for IDEA to levels proposed in 1975. The amendment, however, was not included in the version of the bill that emerged from the House and Senate Conference Committee. As a result, Senator Jeffords, a longtime supporter of IDEA, voted against NCLB. For a description of this controversy, see Debray (2006).


28 PL 103-382 Sec. 1111 (d) (2)


29 107. S.1 Sec. 1111 (i)


30 See PL 107-110 Sec. 1111 (g) (1) (A): “If a State fails to meet the deadlines established by the Improving America’s Schools Act of 1994 (or under any waiver granted by the Secretary or under any compliance agreement with the Secretary) for demonstrating that the State has in place challenging academic content standards and student achievement standards, and a system for measuring and monitoring adequate yearly progress, the Secretary shall withhold 25 percent of the funds that would otherwise be available to the State for State administration and activities under this part in each year until the Secretary determines that the State meets those requirements.”


31 107. H.R. 1 Sec. 1111 (g) (1) (A)


32 PL 105-17, Sec. 616: “If the Secretary determines that it is appropriate to withhold further payments . . . the secretary may determine that the withholding will be limited to programs or projects or portions thereof, affected by the failure.”


33 H. Rep. No. 105, 95th Cong., reprinted in [1997] U.S. Code Cong. & Ad. News. 112.


34 H. Rep. No. 105, 95th Cong., reprinted in [1997] U.S. Code Cong. & Ad. News. 112.


35 PL 108-446 Sec. 616 (e)


36 See 150 Cong. Rec. S 11654 (2004) (Remarks of Sen. Bingaman). “Perhaps most importantly, this legislation holds States and school districts accountable for the academic and functional achievement of students with disabilities. It provides the Secretary of Education and the States with the authority and the tools to implement, monitor, and enforce the law.”


37 Both the National Council on Disability report and the U.S. Government Accountability Office report found widespread failure on the part of the Department of Education to address noncompliance with IDEA at the state level on a timely basis.


38 Pennsylvania was placed on high risk status because of its failure to provide general supervision under IDEA for the Harrisburg School District.


39 The corrective action plan for California focused on a broad variety of areas of noncompliance and the absence of state monitoring of LEAs.


40 See Notice of Intent to Develop Regulations, Interpretive Rules, or Policy Statements, 34 CFR Parts 104 and 300, December 24, 1980, and Notice of Proposed Rule Making, Assistance to States for Education of Handicapped Children, 47 FR 33836, August 4, 1982; also see CQ Congress Collection, Individuals With Disabilities Education Act (IDEA), 1981-1983, Legislative Chronology available at http://library.cqpress.com.


41 See L. Jacobson, “Federal Officials Say N.D., Utah Teachers Qualified After All,” Education Week, 9 March 2005.


42 See D. Hoff, “Education Department Fines Texas for NCLB Violations,” Education Week, 4 May 2005.


43 See S. Dillon, “Students Ace State Tests, but Earn D’s From U.S.,” Education Week, 26 November 2005.


44 In the years leading up to the 2004 reauthorization, the DOE began shifting its oversight of IDEA to a model of “Continuous Improvement and Focused Monitoring.” Although much of this model is now codified in the law, it does not appear to have produced any enforcement actions. For more information on focused monitoring, see “Implementation of the Office of Special Education Programs’ Continuous Improvement and Focused Monitoring System During Calendar Year 2004” at http://www.ed.gov/policy/speced/guid/idea/monitor/osep-memo-04-09.doc and “National Center for Special Education Accountability Monitoring, Focused Monitoring Information” at http://www.monitoringcenter.lsuhsc.edu/Focusedmonitoringinformation.htm.


45 See R. Wolf, “How One Boy Moved Congress,” USA Today, 27 June 1997. The article describes the pivotal role played by Republican Senator Trent Lott’s chief of staff David Hoppe in the speedy passage of the IDEA amendments of 1997. Hoppe has a son with Down Syndrome. Another prominent Republican with a son with Down Syndrome, Madeline Will, was assistant secretary of the Office of Special Education and Rehabilitation Services (OSERS) under President Reagan. Will, the wife of conservative columnist George Will, has played an active role in both defending and promoting IDEA.


46 This support includes both groups representing students with high incidence and low incidence. See “ ‘No Child Left Behind’ and Students With Learning Disabilities: Joint Statement of the Council for Exceptional Children’s Division for Learning Disabilities, International Dyslexia Association, Learning Disabilities Association of America and National Center for Learning Disabilities” at http://www.ld.org/advocacy/nclb_statement.cfm. Also see National Center for Learning Disabilities, “Why Students With Disabilities Need NCLB” at http://www.ncld.org, and National Down Syndrome Society, “NCLB Commission: Madeleine Will Testimony,” at http://www.ndss.org/index.php?option=com_content&task=view&id=1957&Itemid=209.


47 See “Letter to DOE Secretary” Margaret Spellings from James H. Wendorf at http://www.ld.org/advocacy/SpellingsLtr05.cfm.


48 The inclusion of students with disabilities in the NCLB accountability model has provoked considerable controversy. Critics argue that it is unfair to apply the same standard to nondisabled students as students with disabilities because of the effect that many disabilities have on academic performance. On the other side, advocates for students with disabilities argue that the vast majority can be tested if given appropriate testing accommodations. The DOE recently granted increased flexibility to states on testing requirements for children with disabilities. For an overview of the controversy, see C. Samuels, “Education Department Proposes Rule on ‘2 Percent’ Flexibility for Testing Students With Disabilities,” Education Week, 14 December 2005.


49 For a review of the reaction of governors to NCLB, see Fusarelli (2005).


50 See D. Hoff, “States to Get New Options on NCLB Law,” Education Week, 13 April 2005.


51 See S. Freedman, “Parting the Liberal Waters Over ‘No Child Left Behind,’” New York Times, 4 January 2006, and K. S. Reed, “Civil Rights Groups Split Over NCLB,” Education Week, 31 August 2005.


52 Though NCLB does not formally address the issue of local capacity, it does provide additional financial resources, such as the Reading First grant, that can be used to address capacity issues down to the school and classroom levels. For a discussion of the resources provided by NCLB to meet its requirements, see Peyser and Costrell (2004).


53 For a detailed discussion of the effect of establishing high subgroup sizes on providing accountability for the performance of students with disabilities in state accountability systems, see Simpson, Gong, and Marion (2005).


54 See Cong. Rec. S4361 (1997) (Remarks of Senator Harkin): “No matter how many times someone may say it or how strongly they may say it, this is not an unfunded mandate. The CBO . . . and the Supreme Court, have all said that this does not fall under the unfunded mandate legislation. So it is not an unfunded mandate. It is a civil rights bill; it is a law implementing the equal protection clause of the 14th Amendment.”


55 IDEA has also been criticized by some researchers for increasing segregation in American education because of the disproportional identification of racial groups, such as African Americans, as disabled. For a thorough discussion of this topic, see Losen and Orfield (2002), and for one of the earlier critiques of special education from this perspective, see Lytle (1988). Although Congress has focused attention on disproportional identification since the development of IDEA in 1975, the 2004 reauthorization makes reducing disproportionality a focus of the outcomes-based oversight and enforcement model.


56 For a discussion of the long-term effect of lifetime health care benefits and pension costs on municipalities, states, and school districts, see M. Freudman and M. Williams, “The Next Retirement Time Bomb,” New York Times, 11 December 2005, and P. Schrag, “Another Financial Threat to the Schools,” San Diego Union Tribune, 1 April 2005.


57 PL 108-446 Sec. 614(b)(6).


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Cite This Article as: Teachers College Record Volume 110 Number 2, 2008, p. 278-321
https://www.tcrecord.org ID Number: 14532, Date Accessed: 1/22/2022 11:02:57 PM

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About the Author
  • Arun Ramanathan
    Harvard Graduate School of Education and San Diego Unified School District
    E-mail Author
    ARUN K. RAMANATHAN, Ed.D has worked in a variety of capacities with children and adults with disabilities and non-disabled students in public schools and community settings. He has published research on inclusive education, for-profit charter schools and special education consent decrees. He received his Ed.D from the Harvard Graduate School of Education in 2007 and is currently the Executive Director of Government Relations for the San Diego Unified School District. His research focuses on the intersection between special and general education policy.
 
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