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"Hey, Mr. President, Don’t leave the disabled kids behind!"
By Phil Stinson, Esq.

After one week on the job, President George W. Bush had proposed dramatic changes into the funding and accountability of public education for children in the United States. President Bush’s proposal, called "No Child Left Behind," is designed to:

• Increase Accountability for Student Performance
• Focus on What Works
• Reduce Bureaucracy and Increase Flexibility
• Empower Parents

These program priorities do not address reforms in every federal education program, and principally address a general vision for reforming the Elementary and Secondary Education Act ("ESEA") and linking federal funding to specific performance goals to ensure improved results. The President’s proposal does not address any substantive details relating to the reform of federal programs relating to children with special needs, including the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §1401, et seq.; Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. §794; the Family Education Privacy Rights Act ("FERPA"), 20 U.S.C. §1232g; and the Americans with Disabilities Act (ADA), 42 U.S.C. §12101, et seq.

The President’s proposal includes seven performance-based areas of reform:

• Improving the academic performance of disadvantaged students
• Boosting teacher quality
• Moving limited English proficient students to English fluency
• Promoting informed parental choice and innovative programs
• Encouraging safe schools for the 21^st Century
• Increasing funding for Impact Aid
• Encouraging freedom and accountability

The proposal is comprised of a variety of key components, many of which would be implemented during the re-authorization of the ESEA. First, the President proposes to close the achievement gap by accountability for high standards as measured by annual academic assessments in reading and math, as well as consequences for schools that fail to education disadvantaged schools.

Second, the President proposes to improve literacy for creating a new emphasis on reading in early grades and Early Childhood Reading instruction.

Third, the President proposes to expand program flexibility and reduce government bureaucracy by allowing commingling of Title I funds with other federal and state funds, increasing funding for technology grants, reducing duplicative efforts by consolidation of grant programs, and creating a charter option to limit requirements of grants for those state and local educational agencies willing to be subjected to rigorous standards of accountability.

Fourth, the President proposes to reward success and sanctioning failure by developing a system of accountability rewards through annual assessment of students in grades 3-8, "No Child Left Behind" rewards for schools that have made the greatest progress in improving the achievement of disadvantaged students, and reduction of federal funds at the discretion of the Secretary of Education for states that fail to meet their performance objectives and demonstrate results in academic achievement.

Fifth, the President proposes to promote informed parental choice by mandating access to parents of school-by-school reports on student achievement for all groups of students, federal funding for the creation of charter schools, and grants for innovative efforts to expand parental choice and to conduct research on the effects of school choice.

Sixth, the President proposes to improve teacher quality by giving state and local educational agencies flexibility in the use of federal funds so that the educational agencies may focus more on improving teacher quality, setting high standards for professional development to ensure research-based, effective practice in the classroom, and strengthening math and science education.

Finally, the President proposes to make schools safer for the 21st Century by empowering teachers to remove violent or persistently disruptive students from the classroom, increasing federal funding for safety and drug prevention programs at schools, providing safe alternatives for students trapped in persistently dangerous schools, and providing federal funds for development of character-building lessons and activities in the classroom.

The President’s "No Child Left Behind" program is silent on how the program initiatives will impact on children with special needs that are entitled under existing federal law to receive a free appropriate public education in the least restrictive environment. In order to ensure the provision of a free appropriate public education for children with disabilities that require either specially designed instruction and/or reasonable accommodations, any legislation to implement the President’s educational initiatives must include the following:

• assurances that the "No Child Left Behind" initiatives do not impact on the entitlement of a "free appropriate public education" in the "least restrictive environment" under the IDEA and Section 504;

• assurances that the "No Child Left Behind" initiatives do not violate the due process rights of children by allowing teachers to remove children from school without a fair hearing;

• assurances that the "No Child Left Behind" initiatives do not allow teachers discretion to unilaterally remove children from class or school for behaviors that are manifestations of a disability;

• assurances that the IDEA will receive full federal funding at the state and local level each year to ensure that all children with special needs are able to attend the school of their parent’s choice, including charter schools;

• assurances that children with disabilities are not "left behind" as the only disadvantaged students remaining in persistently dangerous or failing schools;

• assurances that FERPA is not amended so as to allow for the release of confidential information relating to children with disabilities or the improper release of information to juvenile justice or law enforcement authorities relating to behaviors that are manifestations of a child’s disability;

• revisions to the IDEA so as to allow for parental choice of implementation of Individualized Education Plans (IEPs) for children with disabilities in private schools, including religious and parochial schools, just as parents of non-disabled disadvantaged children will be able to elect to send their children to religiously affiliated schools; and,

• increased funding for legal representation of parents in disputes with public educational agencies relating to special education services for children with special needs, by way of grants by the Office of Special Education Programs ("OSEP") at the U.S. Department of Education to fund special education law clinics, as well as federal funding to establish special education law clinics to be staffed by legal aid attorneys employed by agencies funded by the Legal Services Corporation.

For more information on the President’s "No Child Left Behind" initiative, as well as updates on "Hey, Mr. President, Don’t Leave the Disabled Kids Behind!" go to http://www.specialedlaw.net

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Phil Stinson, Esq. is a senior partner at Stinson Law Associates, P.C., a Philadelphia-based law firm dedicated to representing parents of children with special needs in federal courts throughout the country, is Director of the Special Education Law Clinic in Chester, Pennsylvania, is President and General Counsel of the Center for Education Rights (http://www.edrights.org) and is the editor of SpecialEdLaw.net, a multidisciplinary Internet resource portal (http://www.specialedlaw.net). Parents of children with special needs may contact Phil Stinson by e-mail at stinson@specialchild.com.

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