[Congressional Record Volume 144, Number 30 (Wednesday, March 18, 1998)]
[Senate]
[Page S2150]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




     INDIVIDUALS WITH DISABILITIES EDUCATION ACT AMENDMENTS OF 1997

  Mr. GORTON. Mr. President, last year the Senate approved the 
Individuals with Disabilities Education Act Amendments of 1997. I was 
the only Member to vote against this bill, not because I disagree with 
the premise of IDEA to ensure that children with special needs receive 
an education, but because its focus is so narrow it avoids entirely or 
interferes with the overall quality of education provided to all of our 
young people. This narrow focus also abrogates the rights of those who 
are closest to our children--their parents, teachers, school 
administrators and their elected school board members--to make 
judgments about how to provide the best possible education for the 
largest number of students.

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  The new law, like the previous statute, proposes a series of largely 
unfunded mandates on every school district in the Nation. What Congress 
did was to say to each school district: We know what is best for you. 
We are going to tell you what to do and how to do it, but we won't pay 
the costs associated with our decisions.
  I was so frustrated by this attitude that Washington, DC, knows best, 
that last year I offered two amendments, one on school safety and the 
other on school funding.
  The two amendments were based on the same philosophy: Education 
policies are best determined by those closest to our children--their 
parents, teachers, principals and school boards. Their ability to teach 
kids and to create safe and conducive learning environments shouldn't 
be stifled by mandates from Congress or overregulation by the 
Department of Education.
  While the school safety amendment was narrowly defeated by only three 
votes, the Senate approved my amendment to send K through 12 funding 
directly to local school districts. In addition to giving local 
educators the authority to spend education funds on their priorities in 
their school districts, the amendment repealed hundreds of pages of 
regulations handed down by the Department of Education, placing the 
focus on teaching kids and not on endless paperwork. There is clearly 
significant support in the Senate for giving control of the schools 
back to parents, teachers, and locally elected school board members.
  Unfortunately, if the proposed regulations for the new IDEA are any 
indication, it seems that the Department of Education didn't get that 
message. Instead of reducing regulations, it has increased them. 
Instead of simply providing an interpretation of the new law, the 
Department ignores congressional intent and creates its own policies. 
The new regulations are more than 25,000 words longer than the old 
ones--a 71 percent increase in words about which to argue, litigate, 
and otherwise divert resources from educating kids.
  Instead, our teachers and principals will be saddled with the 
implementation of a more complex set of federally imposed requirements, 
some created by the Federal bureaucracy and never voted on by any 
Member of Congress. One special ed director told me, ``At least 
monthly, one of my staff tells me he or she is leaving special ed 
because of the paperwork.'' And another superintendent echoed that 
frustration when he wrote that, ``A process which is supposed to result 
in an education program . . . becomes a battleground on which 
procedures become more important than educational results.''
  One district sent me the paperwork required just to start a child on 
special education programs. It is close to 40 feet long with one form 
pasted on to another. It is no wonder our educators are frustrated. I'm 
afraid that the new law, and most certainly the new regulations will 
not allow educators to focus on kids. Instead, they will have to focus 
on process and on ensuring that their district complies with myriad 
complex rules and procedures.
  Special ed teachers will continue to leave their profession in 
frustration; school districts will spend money on ensuring that ``I's'' 
are dotted and ``T's'' crossed to avoid litigation and kids won't 
receive the education they might otherwise receive in the absence of 
the regulations handed down by Washington DC bureaucrats.
  The 1997 amendments were developed in an unusual process in which the 
Department of Education had a seat at the table while the new law was 
being crafted. The Department knew where compromises were made, where 
Congress chose to act and where Congress intentionally remained silent. 
It is troubling, although perhaps not entirely unexpected, given the 
Department's past history, that the regulations seem to have turned 
into a vehicle for the Department to enact policies that it supports 
but that Congress specifically rejected. The proposed regulations 
include notes and previous policy letters, which instead of providing 
clarification, create new interpretations of the law. The Department of 
Education has also used these regulations to promote a particular 
approach to the provision of local services and to influence specific 
local educational decision making. These expansions beyond the Act not 
only continue the traditional federal overregulation in special 
education but also exceed the mission of the federal Department of 
Education in promoting or favoring a particular educational approach. 
All of this invites more litigation and less flexibility.
  The message these regulations send to each and every teacher and 
principal is that Washington DC doesn't trust you to do your job with 
care and compassion. Bureaucrats at the Department of Education are the 
best judge of what is necessary and appropriate at the local level and 
that uniform solutions can be applied to every situation. Who is more 
qualified to help our special needs students? Someone who dedicates 
each day to helping children learn? Or a faceless bureaucrat sitting 
behind a desk in Washington DC? Within the 110 pages of regulatory 
pronouncements there are literally hundreds of provisions of concern to 
the school districts in Washington state. There are simply too many to 
cover in the time I have on the floor, so I will focus on only a few 
issues.
  There is no other issue in IDEA as contentious as discipline 
procedures and there is no other area in regulation where the 
Department takes more liberty to act in defiance of Congressional 
intent. While I did not support the final provisions on discipline, 
they were the result of careful compromises on all sides--compromises 
in which the Department of Education was involved. Instead of honoring 
those agreements, the Department decided to legislate on its own.
  The Department decided that a child should be in an alternative 
education setting for no more than 10 school days in each school year. 
Congress based the length of a student's suspension on Honig v. Doe 
which allows a child to be placed in an alternative education setting 
or suspension for not more than 10 school days. Honig and thus the 
statute simply says 10 school days nothing more, nothing less. By 
overstepping its regulatory authority, the Department's proposal means 
that a young person with a few infractions during the school year such 
as smoking, cutting class, bad language and the like, could by the end 
of the school year commit the same minor infractions and be subject to 
no significant discipline or a very different one than his or her 
peers; and his or her peers would still be subject to the general rules 
established by the principal or school district. In effect we are 
telling these children, one set of rules applies to most kids and a 
very different, and much more lax set of rules applies to you.
  Once a child's disciplinary action exceeds the cumulative 10 days in 
a school year, the Department's regulations trigger a new array of 
requirements. Just a few disciplinary infractions within the 10 month 
school year could mean that a number of new, costly service and 
procedural requirements, including full educational services during 
suspension, IEP meetings, and assessment plans. The regulations also 
infer that a manifestation determination must be held for each 
infraction of school rules if the child has already exceeded this 10 
school day limit--even if the misbehavior is relatively minor and would 
only result in a disciplinary action of one or two days. Schools would 
be forced to decide whether or not to pay for the costs of the 
manifestation determination or simply letting the behavior slide. This 
again has no legislative basis and will be especially burdensome for 
small school districts and those in rural areas that can't afford to 
keep specialists on staff in the event they might be needed.
  Additional proposed regulations, without legislative sanction, 
include the requirement of a decision within 10 days of the request for 
an expedited hearing. The Department also specifically discourages home 
bound placement except for medically fragile children, ignoring that 
under certain circumstances for safety, home bound instruction may be 
appropriate. Another note encourages returning a child who has been 
placed in an alternative placement for 45 days back to the classroom 
once behavior interventions are in place. It should be 
remembered, however, that the child was removed from his or her regular 
classroom because of dangerous behavior, either a weapons or drug 
violation, not simply the need to develop new remedies.

[[Page S2149]]

  Both the law and the regulations set an almost impossible standard 
for schools to meet in establishing requirements for this alternative 
educational placement. This placement must include services or 
modifications to address the original misbehavior so that it does not 
recur and the school must anticipate and provide modifications for any 
other behavior that would result in the child being removed from the 
regular education placement for more than 10 school days. One small 
school district with only 250 K-12 students had a student with a 
disability grab another student, put a saw to his neck and threaten to 
cut it off. Was the school district responsible for anticipating and 
preventing the outburst? The new regulations seem to imply that it 
would be.
  Additionally, nondisabled children can circumvent school disciplinary 
action by claiming a disability. A child or parent can come along after 
the fact and claim that the misbehavior was caused by a previously 
undiagnosed disability. Both the law and proposed regulations are so 
loosely structured that almost any noneligible child with a behavior 
problem can assert IDEA protections.
  What do all of these regulations mean for the classroom teacher and 
the children in our schools? One principal tells me that special 
education students brag to other students that the consequences of 
misbehavior do not apply to them. This will certainly continue to be 
the case under the new law and the regulations. In another small town 
in my state, one high school student with a learning disability brought 
a handgun into class. The gun discharged and a bullet passed through 
the leg of another student. After a review team determined the 
misconduct was not the result of the student's disabling condition, a 
one-year expulsion from school was initiated. The parents appealed, 
alleging the student's IDEA rights had been violated. The hearing 
officer ordered the continuation of educational services for the 
special education portion of the day. A tutorial program, off campus, 
was established to continue the child's special education services at 
substantial cost to the District. The new requirement to provide the 
full educational program would increase this cost four fold. Should the 
educational opportunities for other students be negatively impacted by 
redirecting $60,000 from other classrooms to pay for a tutorial program 
for a student who's behavior is not caused by their disability and who 
shoots another in class? If any of us here on the Senate floor were in 
the classroom and we were faced with a violent or disruptive child, how 
would we handle the situation? Would we rely on our years of classroom 
experience, or would we rely on a set of rules and regulations from 
Washington DC to guide us? Unfortunately, for every child and teacher 
in our country, the Department's proposed regulations result in an even 
more inflexible dual standard of discipline for students with 
disabilities, a standard that further sets them apart from other 
students and relieves them from responsibility for their own acts
  Because of its complexity and the provisions that make attorneys' 
fees a one way street for parents, IDEA is one of the most litigated of 
all federal statutes. Forbes magazine recently described it this way, 
``Special ed has become the ambulance and lawyers are chasing it.'' 
Instead of ensuring that dollars stay focused on the classroom, the 
Department appears to encourage parents, through the policies it has 
developed in these regulations, to sue their school districts. Congress 
encouraged mediation, yet the department provides no regulatory 
``guidance'' on mediation and in fact makes it easier for parents to 
get their lawyers fees paid for by encouraging states to enact laws 
allowing hearing officers to award attorneys' fees. The Department 
gives states new authority to order compensatory services and 
eliminates the administrative appellate option of Secretary-level 
federal review from current regulations. All of these changes are 
without legislative foundation. Again, little to no consideration has 
been given to the impact these regulations and the enormous costs that 
will most certainly accompany them will have on the education of all 
children in the school district.
  Overwhelmingly each school district I have heard from is concerned 
about the implementation date. Under the proposed regulations 
Individual Educational Plans for every child must comply with the new 
law and new requirements by July 1, 1998. Since most IEPs are reviewed 
on an annual basis, IEPs developed for a full year of services would be 
invalidated. School districts will have virtually no time between 
issuance of the final regulations and the July 1 implementation date to 
involve regular education teachers and to consider the many new IEP 
factors. For school districts with thousands of IEPs the tasks of 
revising each IEP according to the final regulations will be impossible 
by July 1, 1998. The imposition of a July 1 implementation date for all 
IEPs places all school districts in a position of massive potential 
financial liability. Administrative and judicial complaints concerning 
any service contained in a non-complying IEP that was developed to meet 
the requirements of the new regulations will likely result in major 
financial judgments against the nation's schools.
  This is by no means an exhaustive list of Washington state concerns. 
There are many other areas where the Department defies Congressional 
intent such as, the promotion of extended year services, or the 
Department's unilateral expansion of the definition of related services 
to include travel training, nutrition services and independent living. 
There are just simply too many to mention all of them here. The few I 
have mentioned are merely examples of the attitude that is pervasive at 
the Department of Education--we know better than local parents, 
teachers, principals and elected school board members. In most 
organizations the philosophies of its leader sets the standard for its 
employees. The Department of Education is no exception. In last year's 
state of education address, Secretary Riley speaking about national 
testing said that we should not ``cloud our childrens' future with 
silly arguments about federal government intrusion''. I can guarantee 
you, that to the thousands of schools that must comply with the rules, 
regulations, paperwork and direction from Washington DC laid down by 
these regulations the argument about federal government intrusion is 
far from silly.
  To add insult to injury, the administration apparently believes that 
school districts coffers are brimming with cash to implement the new 
regulations and absorb the associated costs. Clearly, no thought has 
been given to the impact on the education of the children in the school 
district or to minimizing the growing adversarial relationship between 
special education and regular education. The Department's regulations 
certainly demonstrate that indifference, but the President's budget 
request may be the most telling. This year, if the President has his 
way, the per child federal contribution for special education will 
actually go down. Further, the administration acknowledges that its 
proposed funded level represents a federal contribution of merely 9 
percent of the excess costs of educating kids under IDEA. If the 
Administration wants to tell local schools how to run their special ed 
programs, the President and his Administration should have the common 
decency to adequately fund those demands.
  Contrary to what the Department of Education seems to believe, the 
1997 Amendments to the Individuals with Disabilities Education Act were 
not a vehicle for empowering the federal bureaucracy to enact its own 
laws. I'd like to take this opportunity to remind the Department of a 
law Congress passed in 1996, the Small Business Growth and Fairness 
Act, which includes a provision giving Congress the authority to review 
and disprove each and every new regulation promulgated by the federal 
agencies.
  I am told that the Secretary is working with the committees of 
jurisdiction regarding the proposed regulations and I hope that process 
results in substantial improvement. Otherwise, I'm afraid the final 
regulations will be so onerous that Congress will have no choice but to 
ask the Department to start over again.
  Mr. President, I simply state that the law itself was detailed enough 
and bad enough in its centralization. The regulations are considerably 
worse. Once again, Mr. President, I could roll this out here on the 
floor. This is the set of forms required of a school district for a

[[Page S2150]]

single disabled student. It is close to 40 feet in length. This is what 
we have done to our schoolchildren, to our teachers, and to our school 
districts. It's wrong. We aren't paying for it and we have to reform 
here, not in the school districts.

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