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"Fully Funding" The IDEA?

How About Fully Complying With the IDEA
Reed Martin
TASH Connections, October 2001


For 26 years we have heard arguments about "fully funding" the IDEA. What does that mean? And where do the arguments come from? The arguments began when it dawned on school districts in the early '70s that Section 504 had been passed and school districts were going to have to provide an appropriate education to all students with disabilities. This meant that 1.25 million children with disabilities that schools had refused even to enroll, were going to be enrolled. It also meant that 1.75 million students with disabilities who were enrolled in school but, in the words of Chief Justice Rehnquist, "were left to fend for themselves in classrooms designed for their non-handicapped peers," were going to have to be provided an appropriate education.

This was a civil rights issue. The federal courts had decided 36 cases in 27 states that outlined what was required to meet the civil rights of students with disabilities. It was becoming clear that the civil rights of disabled students were right up there with black students, as recognized in Brown v. Board of Education, and with female students, as recognized in Title IX. These federal court cases, and Section 504, were based on the Fourteenth Amendment to the U.S. Constitution. When Congress recognized in 1990 -- 17 years after Section 504 had been passed -- that our nation's schools were still not meeting the Constitutional rights of students with disabilities, the Americans with Disabilities Act was passed.

Section 504 did not provide any funds. Brown v. Board of Education did not provide any funds. Title IX did not provide any funds. The Fourteenth Amendment did not provide any funds. The Americans with Disabilities Act did not provide any funds. But schools have to comply with the Constitution and with those Acts.

Senator Trent Lott, introducing the current version of the IDEA for a final vote, May 14, 1997, reminded us: "The obligation to provide children with disabilities a free and appropriate education is grounded in the Fourteenth Amendment to the Constitution, Title V of the Rehabilitation Act (Section 504), the Americans with Disabilities Act, and by the laws of every State. IDEA is one additional civil rights tool that guarantees children with disabilities the right to receive a quality education."

So is the argument about "fully funding" the IDEA an argument that schools are only obligated to obey our civil rights laws if (1) funds are created to induce public schools to obey the law; and (2) the funds are adequate enough to interest the schools in coming into compliance with the laws? Schools must fully comply with Title IX, and Section 504 and the ADA, and the Constitution -- with no federal funding.

When the IDEA was first put into debate in the Senate in 1975 (then called the Education for All Handicapped Children Act), there was an attempt to estimate the total cost of providing an education to the students with disabilities that schools had refused to enroll, and the costs of serving the students with disabilities that were enrolled but not appropriately served. The bill proposed that the federal government would fund a percent of that estimated total.

President Ford indicated that he would veto any new bill that came out of Congress with a call for increasing spending. So Senator Dole brokered a compromise that in the first years the federal share would be about ten percent and then, if the country could get past the ruinous inflation it was in, the Congress would consider raising the percentage of federal funding.

So what is "full" funding? Is it reaching the percentage of federal funding which was originally considered? That was far below 100%. So what is "full" funding? Is it reaching the original funding level in terms of dollars? That has been far, far exceeded already in terms of the billions that go into our public schools under the IDEA. Or is "full funding" a slogan that was created by school districts as an excuse not to comply with the rights of students with disabilities? This writer heard the argument over "full funding of the IDEA" again and again and again -- from school boards, and teacher unions, and special education directors and administrators. We did not hear it from parents or from parent advocates. They were arguing for compliance with the law, no matter what the funding level.

But state education agencies and school district boards were using less than "full funding" to argue against compliance. The argument was put most succinctly to this writer by the state director of a major state -- "the "feds" are only funding 10% so we will put only 10% into our effort to comply." That state director of special education testified to his state legislature that no additional funds were needed because their state was in total compliance with the requirements of the IDEA already. Then he would fly to Washington, D.C, on many trips, where he testified to Congress that the IDEA would bankrupt his state and that the federal government must put billions into his state before it could comply. When this writer published that testimony side by side in a newsletter it caused a bit of a stir. That kind of politically motivated lying characterized the initial arguments over "fully funding the IDEA." And the arguments came exclusively from the administrative side.

Now, the coalition includes parents and we still wonder what "full funding" means and what obligations schools are recognized to have until "full funding" is achieved. The reason parents are talked into joining such a coalition is that school personnel keep lying to them -- "we could do what your child needs if only we had more money." Then the school personnel divert the parent advocacy efforts away from compliance and into fund raising for the school. We saw a newspaper article last year in which a student was failing badly in school for lack of a piece of assistive technology that any honest IEP would have included. The school convinced the parent to do extensive private fund raising in the community to purchase the equipment. When that was successfully done, the parent gratefully thanked everyone because her child could now have a chance at an appropriate education. The school never accepted the responsibility for getting this equipment.

There has been a massive amount of funding up to now, since 1977. Your state education agency and your local education agency have pledged, in sworn affidavits sent to the federal government, that they are in full compliance with the law, and that they are therefore eligible to receive the federal funding. If they are in full compliance now, why the need for any increase in funding? Are they lying about being in full compliance? The federal government backed off of monitoring the states closely in the past decade because their monitoring showed such waste of funds being received and such misuse. In one state, this writer asked for information about the amount of IDEA funds that were "misused" the previous year and thus ordered to be returned to the treasury. The answer was in the millions. This writer then asked for the amount that had not been obligated during the fiscal year, and thus would have to be returned. (These funds are not actually returned; they are deducted from the next year's amount). That non-obligated amount was also in the millions for that year. So with funding at that level, we had millions in misuse and millions not used. We wonder what "full funding" would bring.

The funding under the IDEA was also recognized from the beginning as being required to "supplement" state and local funds, not "supplant" them. In other words, the federal dollars were to add to the state and local effort to meet the needs of students with disabilities. Yet, monitoring reports have consistently shown that schools use local dollars for purposes that they prefer (for example astro-turfing the high school football field), often limiting the funding of special education needs to the available federal special education dollars. That is a clear violation of the law and a clear violation of the rights of students with special needs, but it can be traced to the attitudes of some school personnel that "federal funds have to fund the federal special education requirements and we will only go as far as the federal funds go."

In other words, the argument for fully funding the federal effort is used by many school boards and districts to limit, not to expand, the opportunities for students with special needs. They are telling parents "your child's rights go only as far as the federal funding can be stretched to meet their needs."

The federal laws require the opposite. These children with special needs are our children. They have rights equal to any other student in the entire school district. They are not federal students, to be put into federal programs, and to be funded to the limit of the federal contribution. Our children have an equal claim on every dollar -- whether federal, state or local -- that is available to every other student.

The notion that "full funding" is what is required before a school district "fully complies" is what leads school personnel to say "we are out of federal evaluation dollars for this year;" "we don't have enough federal funds for a program in your neighborhood school, so you will have to go across town to the one we pay for with federal dollars;" "we only have enough federal funds for one bus, so all the students in that building will have to leave earlier than the other students;" "we do not have enough federal funds to afford an aide for that one student;" "we don't have enough federal dollars left in the budget to afford a piece of assistive technology that would allow that student to be in regular classes;" and "we cannot allow an aide to help your child toilet herself until we get clearance to use federal funds for it." The last example was one this writer took all the way to the U.S. Supreme Court and won 9-0, with the school district paying their attorney $562,000 to fight this. Is that a problem caused by "lack of funding" or a problem of a lack of commitment to our children?

The Americans with Disabilities Act, Title III, applies to private schools. No federal dollars are involved. But full compliance is required. Is there a call to "fully fund" Title III? No, but there is a call to fully comply with Title III and this writer has certainly litigated under Title III, expecting full compliance. We have had increases in federal funding for the IDEA year after year after year. Does anyone feel that has helped us reach greater compliance? No. In fact, the National Council on Disability report issued last year suggested that at the time of the highest funding of the IDEA, noncompliance with the IDEA was rampant.

The key is not "full funding" -- whatever that means and whatever the amount is. The key is the recognition that these students are not "special education students." These students are our students and they have special needs. They have a right to local funds and a right to state funds to meet those special needs.

They should not have to wait until their school district and their state are satisfied with the amount of federal dollars they are receiving before their state and local school district begin to comply with 30 years of laws. We should expect that their state and local districts will start complying with the sworn statement that they have been sending annually to Washington D.C. for the past 25 years -- the sworn statement that they fully comply with the federal laws.

We are for "fully complying" with the federal laws and not for giving school districts some "lack of funding" excuse for treating our children as less than full citizens until the school can draw down enough federal dollars to make our children worth their while.