[Congressional Record Volume 150, Number 136 (Wednesday, November 24, 2004)]
[Senate]
[Pages S11850-S11851]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                                  IDEA

 Mr. HARKIN. Mr. President, I wish to thank my colleagues, 
Chairman Gregg and Senator Kennedy, as well as Chairman Boehner and 
Representative Miller, for conducting a truly bipartisan conference. 
When the legislative process is working properly, we have a fair 
negotiation, and more often than not, that produces a better bill. Not 
a bill that gives each of us everything we wanted, but a fair result 
given the two bills that we are charged with reconciling. And that is 
what we have here.
  Last week, Washington Post's internet site ran a cartoon by Ted Rall 
that was one of the most egregious things I have ever seen. I don't 
know if many of you saw it, but it showed a student in a wheelchair 
with crossed eyes and drool coming from his mouth. He had joined a 
class of students without disabilities and here is what one of the 
panels of the cartoon read: ``The special needs kids make people 
uncomfortable and slow the pace of learning.'' The cartoon showed the 
class changing from higher level math to simple addition because of the 
special education student.
  The cartoon was supposed to be some kind of analogy to the United 
States, but it was very hard to understand the point. What was crystal 
clear, however, was the author's bigotry and stereotyping of children 
with disabilities. I understand that the Post will no longer run 
cartoons by Mr. Rall because cartoons like this are not funny. They are 
hurtful and serve as a stark reminder of why we are here and why IDEA 
is such important civil rights legislation.
  I was here in Congress in 1975, as were some of my Senate colleagues, 
when IDEA was enacted. It is important to remember why we passed this 
legislation in the first place. We passed it because bigotry and 
discrimination were keeping a million children with disabilities 
completely out of school. Those children were locked out of an 
education and denied the bright future that comes with an education. 
IDEA opened the doors of opportunity for those children.
  I have participated in many subsequent revisions to the law over the 
past 29 years, and I am supporting this reauthorization because we 
continue our proud tradition of ensuring that children with 
disabilities have the right to a free, appropriate public education 
(FAPE). In addition, we improve the enforcement of that right.
  Over the years, I have been involved in the debate about disciplining 
students with disabilities--and this was a major issue for the 
conferees. I know parents were very concerned about changes to this 
section of the law. I appreciate and understand those concerns because 
I have shared them.
  While this reauthorization streamlines the discipline provisions, it 
continues several key principles. We will continue to consider the 
impact of the disability on what the child is doing, and we will not 
punish children for behavior that is related to their disability. It is 
also important that we continue to require that children receive 
educational services when they are being disciplined so they do not 
fall further behind. We also continue to emphasize that an assessment 
and services must be provided to children who have more serious 
behaviors so we can prevent future discipline problems.
  I believe that discipline will become less and less of an issue over 
time as schools implement positive behavior supports more widely. 
Section 614(d)(3)(B), entitled Consideration of Special Factors, was 
added in 1997 to provide special emphasis on certain related services, 
modifications, and auxiliary aides which were not being considered by 
IEP teams and therefore not provided. The Senate bill modified 
subsection 614(d)(3)(B)(i) to state that behavioral supports must be 
provided when the child's behavior impeded his/her education or that of 
others. In conference, current law was reinstated in order to make the 
subsection consistent with the other special consideration subsections.
  By instructing the IEP team to consider the specified services, it 
goes without saying that the services must be provided if the IEP team 
finds that the services will assist the child in benefiting from his/
her educational program. In the case of behavioral interventions, the 
section sets forth the circumstances when the services would be 
required.
  The regulations to IDEA specify that ``if, in considering the special 
factors . . . the IEP team determines that a child needs a particular 
device or service (including an intervention, accommodation, or other 
program modification) in order for the child to receive FAPE, the IEP 
team must include a statement to that effect in the child's IEP.'' 34 
C.F.R. Sec. 346(c). And IEP services must be provided to the student. 
See Office of Special Education Programs Letter to Osterhout, 35 IDELR 
9 (2000).
  There has been widespread noncompliance with this requirement. 
However with reauthorization's increased emphasis on monitoring and 
enforcement, we expect this implementation will improve. Children whose 
behavior is impeding them or others from learning should get the 
positive behavioral supports they need when the IEP team considers this 
issue and finds that the services are part of FAPE for that child.
  In addition, we allow schools to use up to 15 percent of their funds 
to address behavior issues for children who have not been identified as 
special education students. Also, Senator Clinton has worked to include 
authorization for a program that would provide funding for systemic 
positive behavioral supports in schools.
  Research by Dr. George Sugai and others indicates that the 
implementation of positive behavioral supports can have a dramatic 
impact on disciplinary problems. Dr. Sugai testified in 2002 before the 
Health, Education, and Labor Committee that by shifting to schoolwide 
positive behavioral supports, an urban elementary school decreased its 
office referrals from 600 to 100. It also decreased in 1 year its days 
of suspension from 80 to 35. Schools can save administrators' time and 
resources and cut down on discipline problems by implementing these 
programs.
  Another area that generated discussion in this reauthorization is 
litigation and attorneys fees. However, the facts show that there is 
very little litigation under IDEA. GAO examined the data and concluded 
that the use of ``formal dispute resolution mechanisms has been 
generally low relative to the number of children with disabilities,'' 
according to a 2003 report titled, ``Special Education: Numbers of 
Formal Disputes are Low and States are Using Mediation and Other 
Strategies to Resolve Conflicts.''

  My own State of Iowa follows the general trend of very low hearings 
and court cases. A graduate student in Iowa did a thorough analysis of 
due process hearings in Iowa from 1989-2001. Since the amendments in 
1997, there were three hearings in 1998; three also in 1999 and four 
hearings in 2000. The Department of Education informs me that this 
trend continues, with only three hearings in each of the past 2 years. 
And there are thousands of children in special education in the State 
of Iowa.
  Given the fact that litigation is generally not a problem in IDEA, in 
this reauthorization we merely include a standard that is used in other 
civil rights contexts--it is generally referred to by the case, 
Christiansburg Garment Company vs. Equal Employment Opportunity 
Commission, 98 S.Ct. 694 (1978). Both prongs of the Christiansburg

[[Page S11851]]

standard (filing or pursuing litigation that is groundless or for bad 
faith/improper purpose) adopted today are very high standards, and 
prevailing defendants are rarely able to meet them. They are designed 
for only the most egregious cases.
  Also, in deciding cases under this standard, courts have considered 
the party's ability to pay. This is important because Congress does not 
intend to impose a harsh financial penalty on parents who are merely 
trying to help their child get needed services and supports. So in 
applying this standard and deciding whether to grant defendants fees, 
the court must also consider the ability of the parents to pay.
  A school district would be foolhardy to try to use these provisions 
in any but the most egregious cases. Not only would the school be 
wasting its own resources if it did not prevail, but it would be liable 
for the parents' fees defending the action.
  Unlike parents who are entitled to attorney fees if they win the 
case, the fact that a LEA ultimately prevailed is not grounds for 
assessing fees against a parent or parent's attorney. As the Supreme 
Court concluded in Christiansburg, courts should not engage in ``post 
hoc reasoning by concluding that, because a plaintiff did not 
ultimately prevail, his action must have been unreasonable or without 
foundation. This kind of hindsight logic could discourage all but the 
most airtight claims, for seldom can a prospective plaintiff be sure of 
ultimate success.''
  As GAO found, there has been a low incidence of litigation under 
IDEA. The cases that are filed are generally pursued because parents 
have no other choice. Congress does not intend to discourage these 
parents from enforcing their child's right to a free, appropriate, 
public education. This is merely to address the most egregious type of 
behavior in very rare circumstances where it might arise.
  In this reauthorization, we also include a 2-year statute of 
limitations on claims. However, it should be noted that this limitation 
is not designed to have any impact on the ability of a child to receive 
compensatory damages for the entire period in which he or she has been 
deprived of services. The statute of limitations goes only to the 
filing of the complaint, not the crafting of remedy. This is important 
because it is only fair that if a school district repeatedly failed to 
provide services to a child, they should be required to provide 
compensatory services to rectify this problem and help the child 
achieve despite the school's failings.
  Therefore, compensatory education must cover the entire period and 
must belatedly provide all education and related services previously 
denied and needed to make the child whole. Children whose parents can't 
afford to pay for special education and related services when school 
districts fail to provide FAPE should be treated the same as children 
whose parents can. Children whose parents have the funds can be fully 
reimbursed under the Supreme Courts decisions in Burlington and 
Florence County, subject to certain equitable considerations, and 
children whose parents lack the funds should not be treated 
differently.
  I also want to discuss the monitoring and enforcement sections of 
this bill. I want to thank Senator Kennedy for his leadership on this 
issue. Again, GAO has issued a report that has informed our 
deliberations around this issue. They noted that the Department of 
Education found violations of IDEA in 30 of the 31 States monitored. In 
addition, GAO found that the majority of these violations were for 
failure to provide actual services to children. That report, issued 
this year, is titled, ``Special Education: Improved Timeliness and 
Better Use of Enforcement Actions Could Strengthen Education's 
Monitoring System.''
  When we passed the Americans with Disabilities Act, we said that our 
four national goals for people with disabilities were equality of 
opportunity, full participation, independent living, and economic self-
sufficiency. But children with disabilities are never going to meet any 
of those goals if they don't get the tools they need when they are 
young. So if we truly want equal opportunity for individuals with 
disabilities, it has to start with IDEA, and with our youth, who are 
our future. The law must be enforced so they receive the services and 
supports they need to get a quality education and a brighter future.
  As part of the enforcement of this law, States must ensure that local 
education agencies are meeting their targets to provide a free, 
appropriate public education. If they fail to do so, the State must 
take action, including prohibiting the flexible use of any of the local 
education agency's resources.
  In addition to monitoring and enforcement, there are other 
improvements in this bill. I will mention one area that is near and 
dear to my heart because of my brother Frank, who, as many of you know, 
was deaf. In this bill, we add interpreter services to the list of 
related services, a change that is long overdue and we continue to 
require the Department of Education to fund captioning so deaf and 
hard-of-hearing individuals will have equal access to the media.
  While I support the bill, I must point out, however, that I am deeply 
disappointed that this bill does not include mandatory full funding of 
IDEA. We fought for this on the floor of the Senate. Even though a 
majority of the Senate agreed, we did not have the needed 60 votes, and 
it did not become part of the Senate bill. I continue to believe that 
mandatory funding is required to give schools the resources they need 
to ensure that all children get a quality education.
  This bill does, however, have specific authorized levels that will 
get us to full funding in 7 years. If we fail to meet these levels, I 
will continue to argue that Congress should provide mandatory funding 
to ensure we meet the commitment we made almost 30 years ago.
  This is a bill about children. We all tell our children to keep their 
promises, to fulfill any commitments they make. Yet Congress has not 
kept its word to these children and their families. We have not 
provided the resources we said we would. We must fully fund IDEA. This 
is important to children, to schools, and to our communities. And it is 
the right thing to do.
  I want to thank the staff who worked so hard on this bill. On my 
staff, I would like to thank Mary Giliberti, Julie Carter, Erik Fatemi, 
and Justin Chappell. I especially thank Senator Kennedy's staff for 
their dedication to children with disabilities, including Connie 
Garner, Kent Mitchell, Michael Dannenberg, Roberto Rodriguez, and 
Jeremy Buzzell.
  I would also like to thank Denzel McGuire, Annie White, Bill Lucia, 
and Courtney Brown on Senator Gregg's staff for their efforts to ensure 
a bipartisan process.
  Also, thanks go to Sally Lovejoy and David Cleary with Congressman 
Boehner; Alex Nock with Congressman Miller; Michael Yudin with Senator 
Bingaman; Carmel Martin, formerly with Senator Bingaman's staff; Jamie 
Fasteau, with Senator Murray's; Bethany Little, formerly with Senator 
Murray's staff; Catherine Brown, with Senator Clinton; Justin King with 
Senator Jeffords; Rebecca Litt, with Senator Mikulski; Elyse Wasch, 
with Senator Reed; Maryellen McGuire and Jim Fenton with Senator Dodd; 
Joan Huffer, with Senator Daschle; Bethany Dickerson with the 
Democratic Policy Committee; and Erica Buehrens, with Senator Edwards.
  Mr. President, IDEA is fundamentally a civil rights statute for 
children with disabilities. I have worked with my colleagues on this 
conference to ensure that core rights are protected and 
enforced.

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