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.
This Article begins in Part II with two general observations about the new IDEIA: that continuity prevails over radical change, and that considerations of partisan and bureaucratic politics run as a theme through the smaller changes. Part III of the Article comments on five specifics of the new law: (1) coordination with No Child Left Behind; (2) allocation of funding for children with learning deficiencies who have not yet been found to meet special education eligibility criteria, and for children with disabilities in private schools; (3) eligibility determinations for children with learning disabilities; (4) due process hearing procedures; and (5) discipline rules for children with disabilities. Part IV describes the current controversies over least restrictive environment and autism services, and proposes legislative clarifications. The Article’s Conclusion describes a vision of special education that the new law, to some degree, helps to advance-a vision of special education that is not so much special as part and parcel of the educational enterprise as a whole.