Shared Responsibility Reconsidered: A Response to Professor Turnbull on IDEIA 2004 Accountability and Personal Responsibility

By Vitello, Stanley J

PROFESSOR TURNBULL’S (2005) ANALYSIS OF THE 2004 reauthorization of the Individuals with Disabilities Education Act, titled the Individuals with Disabilities Education Improvement Act (IDEIA), affirmed that more accountability and personal responsibility is expected from students with disabilities and their parents. He opined that this is a good thing. I largely concur but dissent in part. Our jurisprudence-especially on disability law-seeks social justice. Laws establish relationships among individuals and institutions. Rights are recognized, and obligations are enumerated. The goal is to obtain a fair and just result among the parties named in a case or statute.

Professor Turnbull argued that IDEIA and the 2001 No Child Left Behind Act (NCLB) imposed accountability on schools. Now IDEIA 2004 imposes “new accountability” and “personal responsibility” on students with disabilities and their parents. This wording suggests that prior to the recent reauthorization, students and their parents were not accountable or personally responsible. The written history of the parent and self-advocacy movements in the United States bear evidence that this is not historically accurate (Scotch, 2001).

The original intent of the 1975 Education for All Handicapped Children Act (EAHCA) was to balance decision-making power between parents and school districts. Parents were given the right to question a school district’s arbitrary decision making and to hold it accountable by seeking legal action, if necessary. What IDEIA 2004 does is to unfairly tip this balance of power back to school districts, holding them less accountable and weakening parental due process rights. Moreover, the call for “shared responsibility” has been forgotten in the era of high-stakes testing, in which more accountability from all stakeholders is required (Will, 1986). In the following sections, I address what accountability requires from these stakeholders.

FEDERAL GOVERNMENT ACCOUNTABILITY

Above all, IDEIA is a spending law (20 U.S.C. 1400 (d)(A)). That is, if a state makes application to comply with this federal law, it will receive funds to ensure that every student with a disability receives a free, appropriate public education. Despite the 1975 congressional promise (embodied in EAHCA) to fund 40% of the excess costs for educating students with disabilities, the actual rate has been less than half of what was guaranteed. Professor Tumbull is more sanguine than I am about the promise of full funding in the near future. In fact, President Bush has cut 2006 IDEIA funding by $20.6 million. Part B State Grants funds went from 18.6% to 17.8% of the excess costs of educating students with disabilities. For the foreseeable future, underfunded IDEIA federal mandates will continue to place a heavy financial burden on state and local school district budgets.

Giving state educational agencies (SEAs) and LEAs (local educational agencies) “more flexibility to use their federal funds as suitable to meet their particular needs, [so that] they will achieve more acceptable outcomes” (Turnbull, 2005, p. 321) is a subterfuge to shift more accountability onto the SEAs and LEAs absent sufficient federal funds. The statutory language reads, “it is in the national interest that the federal government have a supporting role in assisting state and local efforts to educate children with disabilities in order to improve results for such children and ensure equal protection of the law” ( 601(C) findings). This assurance has not been honored. The implementation of IDEIA starts with accountability from the federal government.

STATE AND LOCAL GOVERNMENT RESPONSIBILITY

A reading of the plain language of the statute places primary responsibility on SEAs and LEAs to provide all students with disabilities with a free, appropriate public education. Specific provisions require school districts to identify students with disabilities, conduct eligibility evaluations, develop an appropriate Individualized Education Program (IEP), and place students in the least restrictive educational setting. These duties have been increased with the alignment of IDEIA to NCLB. SEAs and LEAs must provide programs that enable students with disabilities to make adequate yearly progress on statewide tests, employ highly qualified teachers, use scientifically based instructional programs, and institute professional development plans. If more accountability is expected of students with disabilities and their parents, then even more accountability is contemplated from school districts.

A recent Supreme Court decision will make LEAs less accountable in fulfilling their responsibilities. IDEIA is silent on which party has the burden of proof in a due process hearing. Consequently, some states have placed the burden of proof on parents who challenge a school district’s decision, whereas other states have placed it on the school district to defend its decision. In Schaffer v. Weast, a 2005 case involving the placement of a student with learning disabilities, the Supreme Court held in a 6 to 2 decision that the burden of proof in an administrative hearing challenging an IEP is properly placed on the party seeking relief. The majority based its decision on the “ordinary default rule.” Although this rule permits exceptions, the court found none in the parents’ arguments. The parents averred that putting the burden of proof on school districts would ensure that children received an appropriate education. Their strongest argument was that fundamental fairness required that the burden of proof be placed on the school district.

Justice Ginsburg opined that the case warranted an exception to the default rule “on the ground of policy considerations, convenience, and fairness” (p. 7). She wrote,

The Individuals with Disabilities Education Act was designed to overcome the pattern of disregard and neglect children with disabilities historically encountered in seeking access to public education. The IDEA is atypical in this respect: It casts an affirmative, beneficiary-specific obligation on providers of public education. School districts are charged with the responsibility to offer to each child an individualized education program (IEP) suitable to the child’s special needs. The proponent of the IEP (is), it seems to me, properly called upon to demonstrate its adequacy, (p. 7)

Justice Ginsburg (with Justice Breyer) went on to argue that school districts’ “bigger guns” have better access to information, greater expertise, and an affirmative obligation to provide the contested services. She concluded that the school district has the burden “to explain persuasively why its proposed IEP satisfies IDEA standards” (p. 7). Taken together, the IDEIA 2004 and the Weast decision tip the power in favor of school districts. It will be more difficult for parents to question and prove that school district decisions do not measure up to the law’s requirements. In effect, school districts will be held less accountable.

PARENT AND STUDENT ACCOUNTABILITY AND RESPONSIBILITY

The 2004 IDEIA does call for more parent and student responsibility. Parents should respond to notices initiated by the school district, make their children available for evaluations, participate in IEP meetings, and help their children to meet higher academic and behavioral expectations. They should not unilaterally place their child in a private school before informing the school district about their dissatisfaction with the public school’s program, refuse to participate in mediation and resolution sessions, or encourage frivolous lawsuits. But parents also have a responsibility to request a due process hearing when they claim that a school district is not providing their child with an appropriate education. As noted, the Weast decision will make the discharge of this responsibility more difficult for parents.

There is no doubt that students with disabilities will have to work harder to meet NCLB academic standards that are now part of IDEIA requirements. Higher expectations for academic achievement and appropriate behavior are in order. But the so-called “one size fits all” measure of student progress contravenes the most fundamental principle of special education law and practice individualization. The mercurial debate about whether 1% or 2% of an SEA’s special education population can be exempted from statewide testing compromises the individualization principle that ensures that each student with a disability receives an appropriate education based on his or her abilities.

Professor Turnbull’s reference to the Horn and Tynan chapter that cast the “accommodation model” as detrimental to students with disabilities is another example of the violation of the individualization principle. Section 504 of the Rehabilitation Act of 1973, as well as the American with Disabilities Act of 1990, require that “reasonable accommodations” be made available to individuals with disabilities to further their social inclusion. Contrary to Horn and Tynan’s unsubstantiated claim that accommodations encourage dependency, the available evidence shows that people with disabilities have greater independence because reasonable acc\ommodations in schools, the workplace, and communities have been provided (U.S. Equal Employment Opportunity Commission, 2005).

CONCLUSION

This response to Professor Turnbull’s article cautions that more accountability and personal responsibility should be placed not only on students with disabilities and their parents but also on other special education stakeholders. To do otherwise would defy the spirit of collective responsibility embodied in the statute. More than ever, the continued success of IDEIA depends on collective accountability for service delivery.

Of greater concern to this writer is the use of such enabling terms such as normalization, empowerment, selfdetermination, accountability, and personal accountability and their manipulation in government plans to reduce or eliminate needed social programs. The consequence is to place more accountability and personal responsibility on those in greatest need of social supports. Professor Turnbull observed that changes in welfare law as reflected in the IDEIA reauthorization do just that. The ground rules of the new social contract are now “self-reliance precedes social support” (TVirnbull, 2005, p. 324). The danger is that a litmus test to determine “self-reliance” will deny people with disabilities needed services to mitigate the effects of their disability. The erosion of the social contract that obligated government to further the common good is on the wane. Thus, it is not surprising that students with disabilities and their parents are being asked to be more personally accountable and responsible.

REFERENCES

Americans with Disabilities Act, 42 U.S.C. section 12101.

Education for All Handicapped Children Act of 1975,20 U.S.C. 1400 et seq.

Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. 1400 et seq. (2004) (reauthorization of the Individuals with Disabilities Education Act of 1990)

No Child Left Behind Act of 2001, 20 U.S.C. 6310 e t seq. (2002)

Schaffer v. Weast (2005, November 14). Retrieved November 15,2005, from http://web.lexis-nexus.com/universe/document

Scotch, R. K. (2001). From good will to civil rights: Transforming federal disability policy. Philadelphia: Temple University Press.

section 504 of the Rehabilitation Act of 1973, 29 U.S.C. section 706.

Turnbull, H. R. (2005). Individuals with disabilities education act: Accountability and personal responsibility. Remedial and Special Education, 26. 320-326.

U.S. Equal Employment Opportunity Commission. (2005). Final report. Best practices for the employment of people with disabilities in state government. Washington, DC: Office of Legal Counsel.

Will, M. C. (1986). Educating children with learning problems: A shared responsibility. Exceptional Children, 52, 11-16.

STANLEY J. VITELLO, PhD, JD, is a professor of special education at Rutgers University, where he teaches and writes about disability law. He also mediates special education disputes. Address: Stanley J. Vitello, Rutgers University, Graduate School of Education, IO Seminary Place, New Brunswick, NJ 08903; e-mail: vitello@rci.rutgers.edu

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