Weber on the New IDEA

New on Westlaw: Mark Weber, Reflections on the New Individuals with Disabilities Education Improvement Act, 58 Fla. L. Rev. 7 (2006). From the introduction:

The Individuals with Disabilities Education Improvement Act, Orwellian title and all, received its presidential signature on December 3, 2004. The Act is already fully in effect, and the United States Department of Education proposed regulations to implement it on June 21, 2005. Although the new statute leaves the basics of federal special education law intact, it makes significant changes along the periphery. Special education is now much more closely aligned with the No Child Left Behind initiative of the Bush Administration. The new law allocates funds for the education of children not yet found eligible for special education and pushes school districts to provide services to special education-eligible children in religious and other private schools. It changes the special education eligibility determination rules for children with learning disabilities. It alters dispute resolution procedures, partly to promote settlement and partly to circumscribe parents' rights. Finally, it makes disciplinary processes somewhat harsher for children with disabilities, while still retaining the requirement that no child with a disability ever be excluded entirely from school.

What the new IDEIA does not do is provide clarity on important issues of interpretation of the current law. Two of those issues are the treatment of parent demands for less restrictive educational placements for their children and the disposition of parent requests for intensive out-of-school services for children with autism. Clarity on those issues is highly desirable, and Congress is the best mechanism to provide it. The issues have been argued in the courts and addressed at length by scholars. IDEIA could have addressed them but did not, and they remain on the legislative agenda.

Nevertheless, the changes Congress made in 2004 are not entirely off track. Some of the motivating ideas behind the new statute, such as the insistence that educators be held accountable for success of special education students as they are for general education students, and that children who need assistance to make educational progress need not always be labeled and set apart from their classmates, are bracing. There is a vision of special education in which children who need additional assistance to learn will receive that help without any fanfare, will in the vast number of instances make educational progress at the same rate and at the same level as their nondisabled peers, and will do so in the same classrooms and other educational settings that their classmates occupy. The new law has features that will promote that visionary result, even though much more needs to be done to achieve the goal.