Oversight and Enforcement of IDEA and NCLB 279incentiv.docx

Oversight and Enforcement of IDEA and NCLB 279
incentives for “gaming the system.” He notes that similar
problems can be projected for the
implementation of the new outcomes-based oversight and
enforcement model in IDEA 2004.
Recommendation: The author recommends that Congress turn
the accountability model in
NCLB “inside out,” establishing national standards, a single
national performance assess-
ment, fixed and achievable targets for proficiency, and
predefined subgroup sizes while
devolving responsibility for the details of the district- and
school-level accountability system
to the states. In IDEA’s case, he recommends setting national
targets for a small number of
outcome indicators while maintaining the current system of
focused monitoring. He argues
that this model, in combination with federal incentives for
meeting performance targets,
would provide for a more realistic and effective federal role in
improving public education.
INTRODUCTION
In 2004, press reports on the implementation of the No Child
Left
Behind Act (NCLB) began to highlight a widening rift between
the fed-
eral government and the states.1 In Utah, the Republican-

dominated leg-
islature passed a law allowing state education laws and
regulations to
trump NCLB. Connecticut filed a lawsuit challenging the law as
an
unfunded mandate. Six states, including Arizona and Hawaii,
considered
bills or resolutions to “opt-out” of the law by refusing federal
Title I fund-
ing.2 And in a majority of states, legislators criticized the law
and consid-
ered resolutions or memorials requesting flexibility or waivers
from its
requirements.
Much of this opposition was motivated by concerns about
NCLB’s
“high-stakes” accountability mechanisms. NCLB compels states
to test stu-
dents and sanction school districts and schools that are poor
performers.
The law also requires the U.S. Department of Education (DOE)
to pro-
vide oversight of state implementation of the law and punish
states that
fail to fulfill the law’s requirements by withholding Title I
funding.
According to NCLB’s architects in the Bush administration and
Congress, this focus on accountability for educational results
was long
overdue. Upon signing NCLB, President Bush praised the law as
a “new
path of reform and a new path of results.”3 His optimism about
the law’s
prospects was shared by the many Congressional Democrats

who had col-
laborated with him to pass the bill. None of these early
supporters of
NCLB expressed any reservations about the accountability
provisions and
their potential effect on the relationship between the federal
govern-
ment and states. None of them projected the level of
controversy that
would be provoked by the federal role in the implementation of
the law.
Had the framers of NCLB taken a look back and reflected on the
circumstances that accompanied the passage and implementation
of
280 Teachers College Record
another education law with an idealistic title, they might not
have been
so optimistic. Like NCLB, this law passed both houses of
Congress with
near-unanimous majorities. In a nation in which public
education had
traditionally been the responsibility of states and local school
districts, it
gave unprecedented oversight and enforcement powers to the
federal
Department of Education.4 Its implementation provoked
immediate con-
troversy and, in some cases, active resistance from states and
school dis-
tricts, who decried it as an unfunded mandate and an unwelcome
federal

intrusion into public education. One prominent critic asserted
that the
law “promises more than the federal government can deliver . . .
[and]
contains a vast array of detailed, complex, and costly
administrative
requirements which unnecessarily assert federal government
control
over traditional state and local government functions.”5
The critic was President Gerald Ford, and the bill was PL 94-
142—the
law that would later be titled the Individuals With Disabilities
Education
Act (IDEA).6 Ford’s dour appraisal stood in sharp contrast to
the enthu-
siasm of the bipartisan coalition of lawmakers who had
collaborated on
the bill’s passage. Like the framers of NCLB, they were
convinced of the
virtue of their work. Congressman George Miller of California,
later an
architect of NCLB, expressed the sentiments of many of his
colleagues
when he praised IDEA as a civil rights and education reform
that would
result in fundamental improvements in the lives of students with
disabil-
ities (Hehir & Gamm, 1999).
These two perspectives, the reservations expressed by President
Ford
about federal interference in public education and Miller’s
support for
federal activism, have been a constant in the 30-year history of
IDEA.

They have also characterized the response to NCLB. Yet,
despite these
similarities, recent analysis of the initial federal role in the
implementa-
tion of NCLB displays a curious myopia regarding IDEA,
making little or
no mention of special education policy—even when describing
effects of
federal oversight similar to those identified by both critics and
support-
ers of IDEA (Center on Education Policy, 2004, 2005; Kim &
Sunderman,
2004).
This lack of intersection between the debates over NCLB and
IDEA is
not surprising. Reform movements in special and general
education have
often mimicked the “parallel play” of young children, using
identical
means to achieve similar goals while rarely communicating
(Ysseldyke,
Algozzine, & Thurlow, 2000). Still, the apparent failure of both
the
framers of NCLB and its current supporters and detractors to
reference
and draw lessons from the long history of federal oversight and
enforce-
ment of IDEA is a troubling omission. More than any other
education
legislation, the history of IDEA offers a number of important
lessons for

the viability of federal oversight and enforcement of NCLB.
I will address this omission through a four-stage policy
analysis. I will
begin with a comparative review of the oversight and
enforcement mod-
els in IDEA and NCLB, based on a review of the statutes from
their incep-
tion to their current versions and the academic literature on
federal over-
sight and enforcement in education policy.
Second, I will examine their historical and legislative roots
through a
review of the academic literature on the development of NCLB
and
IDEA, Congressional Research Ser vice (CRS) reports and the
Congressional Record and conference committee reports from
the pas-
sage of NCLB, previous reauthorizations of the Elementar y and
Secondary Education Act (ESEA), and each reauthorization of
the IDEA.
Third, I will review their implementation, using the history of
the over-
sight and enforcement of IDEA prior to the recent 2004
reauthorization,
to provide context for the much shorter history of the
implementation of
NCLB. This analysis is based on the scholarly literature on the
DOE’s role
in the implementation of IDEA and NCLB and a number of
interest
group and governmental reports on the DOE’s performance of
its over-

sight and enforcement responsibilities.
Fourth, I will consider the responses to the laws, again using
the history
of IDEA to provide context for the interest group and academic
responses to the federal oversight and enforcement of the
accountability
model in NCLB. This analysis is based on a review of the
academic liter-
ature on the federal role in public education policy, press
reports and
position papers, and policy analyses posted on the Web sites of
Washington education interest groups in both special and
general educa-
tion.
My analysis is grounded in the multiple streams theory of
policy devel-
opment (Kingdon, 1995). This theory identifies three “streams”
in policy
development: (1) problem recognition, (2) the formation and
refine-
ment of policy proposals, and (3) politics. These streams align
during the
opening of a policy window to produce the impetus for the
selection of a
solution. In the first two stages of this analysis, I focus on the
policy win-
dow that produced the enforcement and oversight models in
IDEA and
NCLB. In the last two stages, I identify problems produced by
the imple-
mentation of the existing oversight and enforcement models and
policy
proposals intended to address these problems, and I review the
political

and academica response to their implementation.
I will conclude by reviewing the implications of this
comparative analy-
sis for the future of federal role in the oversight and
enforcement of
IDEA and NCLB, and offer recommendations to re-configure
the federal
role.
ENFORCEMENT AND OVERSIGHT MODELS
The typical fragmented analyses of special and general
education policy
that view IDEA and NLCB as separate entities ignore the many
common-
alities in their development processes. These include their
shared
Congressional committees of jurisdiction and the often
interchangeable
cast of characters in the education policy community, including
commit-
tee chairmen, congressional and committee staff, and education
interest
groups. These commonalities can produce “spillover” effects
from one
piece of education legislation to another as legislators,
committee
staffers, and policy entrepreneurs in interest groups cognizant
of the lat-
est innovations in general education policy apply them to
special educa-

tion and vice versa (Kingdon, 1995; Zahariadis, 1999). Below, I
will review
the incremental statutory evolution of the oversight and
enforcement
models in NCLB and IDEA, addressing their similarities and
differences
from their legislative precursors and from each other.
NCLB reauthorized Title I of the ESEA. For much of the law’s
history,
the federal government passed Title I grants to the states and
then school
districts, with limited programmatic strings attached (Debray,
McDermott, & Wohlstetter, 2005). Federal oversight of Title I
and other
ESEA grants focused on the details of funding applications and
grant
expenditures. Federal enforcement was predicated on a state’s
failure to
spend Title I grants in accordance with the law’s requirements.
The passage of IDEA in 1975 altered this dynamic in education
legisla-
tion. Congress developed IDEA as a voluntary grant program to
provide
supplementary funding for special education costs (Alping &
Jones,
2002; Chambers, Parrish, & Harr, 2002; Martin, 1996).7 IDEA
grants are
not passed through from states to local districts with limited
external
oversight.8 Before a state can receive IDEA funding, it must
submit a plan
indicating that its special education laws and regulations are
aligned with
federal law and that it has established a system to monitor and

enforce
the law’s requirements (Mayes & Zirkel, 2000). The law
requires the DOE
to monitor the implementation of state plans, determine whether
states
are in compliance, and apply sanctions, including the
withholding of
funds from states determined to be out of compliance.
The 1994 reauthorization of the ESEA, the Improving
America’s
Schools Act (IASA), shifted the oversight and enforcement
model in
Title I toward the IDEA model. For the first time, Congress
placed an
extensive series of programmatic preconditions on Title I
funding.9
Though the bill provided flexibility at the school-district level
by allowing
districts to spend federal dollars on a schoolwide rather than
student-
level basis, it required states to alter their education systems in
ways that
impacted all public schools through the development of
educational
standards and statewide testing systems.
The impact of the IASA was mitigated by the law’s weak
enforcement
mechanisms. When states failed to comply with the law’s

testing and stan-
dards requirements, the DOE did little in response (Rudalevige,
2003;
West & Peterson, 2003). The passage of NCLB in 2001 altered
this
dynamic through the inclusion of mandatory enforcement
mechanisms
predicated on state compliance with federal requirements. The
law’s out-
comes-based approach requires states to define student
proficiency in
math and English language arts; establish a series of targets
termed
Adequate Yearly Progress (AYP) toward full proficiency for all
students;
monitor and disseminate local district and school performance;
and
enforce a strict accountability system.
If a state fails to meet the requirements of the law, the DOE
must with-
hold a portion of its Title I funding. This does not mean that the
DOE
will withhold funds from low-performing states. Rather, this
indirect out-
comes-based approach focuses on whether states and school
districts are
enforcing the requirements of the federal accountability model
to
address poor performance.
The 2004 reauthorization of IDEA shifted the focus of DOE
monitor-
ing and enforcement toward a similar outcomes-based approach.
Although IDEA has always required states to provide evidence
of compli-

ance, the new Individuals With Disabilities Improvement Act
requires
states to establish quantifiable indicators for their performance
toward
“measurable and rigorous targets” and develop strategies to
monitor
local educational agency (LEA) performance on these
indicators.10
On one level, this model is similar to NCLB because states are
respon-
sible for establishing their targets and assessing their
performance. On
another, IDEA 2004 represents a step forward from NCLB
because it
requires the DOE to monitor and possibly sanction states based
on their
performance on outcomes. Under this direct outcomes-based
account-
ability model, the DOE determines whether a state has met its
targets,
requires assistance to meet targets, or should be subject to a
series of pos-
sible sanctions when it persistently fails to meet targets.
At each level of determination, the DOE is required to take
some
action based on specific triggers. If, after 2 consecutive years,
the secre-
tary of education determines that a state “needs assistance” to
meet its
targets, she must choose one or more the following options:
advise the
state of available technical assistance; direct it to pay for
technical assis-
tance; and/or impose special conditions on its grant. If the

secretary
determines, after 3 consecutive years, that a state “needs
intervention,”
she must choose one or more of these options: require the state
to
prepare a corrective action plan to fix the problem within one
year; with-
hold federal funds; recover previously disbursed funding; and/or
refer
the matter to the Department of Justice (DOJ) for action. If at
any point,
the secretary of education determines that a state needs
“substantial
intervention,” IDEA 2004 requires the DOE to recover or
withhold fed-
eral funding, or refer the matter to its inspector general or the
DOJ for
action.11
For both laws, the DOE’s authority to exercise its oversight and
enforcement powers is dependent on a state’s acceptance of
federal
funding. Because IDEA and NCLB are voluntary grant programs
rather
than federal mandates, states that refuse the federal grant are
not
expected to meet the law’s requirements.12 Although this may
seem an
appealing option to states complaining about federal
micromanagement,
declining federal funding would not release a state from

responsibility
for meeting the requirements of other similar federal statutes. In
IDEA’s
case, two other federal laws, Section 504 of the Rehabilitation
Act of 1973
and the Americans With Disabilities Act of 1990, have statutory
and/or
regulatory requirements that overlap parts of IDEA and are
subject to
oversight by other federal agencies (Hehir & Gamm, 1999;
Palmaffy,
2001). In NCLB’s case, a number of federal formula grants
would be
affected by a state’s refusal to accept NCLB funding,13 but the
only federal
law that may have a similar overlapping impact are the parts of
IDEA
2004 that refer to the ESEA (Alping, 2001).
Despite persistent state and local complaints about the effects of
IDEA,
the history of the law provides scant evidence that states will
decline fed-
eral education funds. For several years after the passage of PL
94-142,
New Mexico did decline IDEA grants and, in subsequent years,
other
states have threatened to opt out of parts of the grant program
(Hehir,
2002; Palmaffy, 2001). Each of these efforts was short lived
because of the
work of advocacy groups, the state education agency’s (SEA)
interest in
acquiring the funding, and the mitigating impact of overlapping
statutes
on any perceived benefits derived from opting out.

Although the option of declining Title I funding to avoid the
NCLB’s
requirements has been under consideration in several state
legislatures,14
the decision would be affected by many of the same issues that
have
averted efforts to decline IDEA funds. These include state and
local inter-
est in acquiring the funding, the possible overlapping effects of
other
federal statutes,15 and the presence in most states of
accountability mod-
els that predate NCLB and contain many of the same
requirements.
In one important respect, IDEA’s oversight and enforcement
model
differs from NCLB and other federal education laws. It provides
individ-
ual due process rights to parents. Through the exercise of these
rights,
parents and advocacy organizations can force the
implementation of
IDEA at the individual student and school levels (Hehir, 1992).
This form of accountability did not emerge by accident. The
framers of
IDEA did not expect the federal government to take the lead in
enforc-

ing the law. They created the quasi-contractual Individual
Education
Program (IEP)16 and provided parents with due process rights,
knowing
that doing so would spur enforcement of the law from below
(Kelman,
2001; Meyer, 1986). In this effort, parents and advocacy groups
have been
remarkably successful. Because school staff must consider the
potential
for a due process filing, they are likely to be cognizant of the
law’s proce-
dural requirements. As they develop and implement IEPs, they
may
engage in “preventative compliance” to avoid the potential
negative con-
sequences of a due process filing, including the unwelcome
attention it
attracts from above (Benveniste, 1986; Berman, 1986).
In spite of their long history, IDEA’s due process provisions
have con-
tinued to provoke controversy. Critics have attacked them for
fostering
an antagonistic relationship between parents and school staff
and for
imposing unreasonable financial burdens on districts (Hess &
Brigham,
2001; Lanigan, Audette, Dreier, & Kobersy, 2001; Neal & Kirp,
1986).
Although there is anecdotal evidence that some parents have
exploited
these mechanisms to force districts to pay for high-cost services
with lim-
ited educational validity, research indicates that they have
minimal finan-

cial impact on school districts17 (Chambers, Harr, & Dhanani,
2003) and
are only used by a small minority of parents.18
NCLB contains no similar bottom-up oversight and enforcement
mech-
anism. The law requires school districts to provide parents in
failing
schools with processes such as access to supplementary
educational ser-
vice and the option to transfer to another school but depends on
over-
sight and enforcement from above to ensure that they are
implemented
(Citizens Commission on Civil Rights, 2004). In the absence of
an indi-
vidual due process right, it is unclear whether a parent of a
child eligible
for transfer or supplementary services would have any legal
recourse if
they are denied these options beyond the right to complain to
state or
federal authorities about local noncompliance.19 The entire
responsibil-
ity for compliance falls on the states and federal government
with the
final authority being the U.S. Department of Education.
HISTORICAL ROOTS
The circumstances of the emergence of the policy windows for
the over-
sight and enforcement mechanisms in NCLB and IDEA have
important
implications for their implementation. In both cases, the
recognition of

a problem did not result from a single clarifying event, as was
the case for
math and science education after the launch of Sputnik, but the
incre-
mental collection of evidence that a problem existed and a
perception
that comprehensive federal legislation was the solution.
PROBLEMS
The intersection of three “problems” provided the impetus for
the pas-
sage of IDEA. Foremost among these was the civil rights
problem of the
exclusion of millions of children with disabilities from public
schools
(Hehir & Gamm, 1999; Kelman, 2001; Martin, 1996; Neal &
Kirp, 1986;
Weintraub & Ballard, 1982; Zettel & Ballard, 1982).
In the early 1970s, Congress sought to address this problem
with three
legislative precursors to IDEA: PL-91-230, PL 93-380, and
Section 504 of
the Rehabilitation Act. These laws functioned as “early warning
legisla-
tion” to the states (Ballard, Ramirez, & Weintraub, 1982). In
language
that presaged IDEA, PL 93-380 added the notion that students
with dis-
abilities should receive an “appropriate” education in the least

restrictive
environment, and Section 504 of the Rehabilitation Act
prohibited dis-
crimination against any handicapped individual in any program
receiv-
ing federal funding, such as public education20 (Hehir, 2002;
Yell, 1992).
In combination, these laws should have resulted in universal
changes in
state behavior, but because PL 91-230 and PL 93-380 lacked
precondi-
tions for federal funding and enforcement mechanisms, they had
little
effect. Similarly, the powerful mechanisms in Section 504 were
rendered
impotent by a long delay in the publication of its implementing
regula-
tions.21 By 1975, the lack of effectiveness of these legislative
precursors
contributed to the perception that some states would not address
the
problem of exclusion without more vigorous federal legislation.
During the same period, advocates for children with disabilities
were
aggressively challenging their exclusion from public education.
Their
efforts bore fruit in a series of “right to education” class actions
and the
passage of special education laws by the majority of state
legislatures
(Hehir & Gamm, 1999; Neal & Kirp, 1986). Despite this
progress, in the
mid-1970s, over 1.75 million children with disabilities
continued to be
excluded from schools or confined to institutions. Many more

were not
receiving an appropriate education or did not have access to
services
because their disability had not been identified.22
This situation was compounded by two additional problems: the
regu-
latory incoherence produced by the patchwork of laws and
requirements
resulting from state special education laws and right to
education settle-
ments,23 and concerns about the costs of special education24
(Jones,
1995). Together, these problems produced a widespread
recognition on
the part of Congress, the states, and public of the need for a
comprehen-
sive special education law that would provide students with
disabilities
and their parents with an educational bill of rights, and states
with regu-
latory coherence and financial relief (Zettel & Ballard, 1982).
The “problems” that spurred the development of NCLB were not
as
neatly defined. Title I had the implicit civil rights agenda of
addressing
the negative effects of racial discrimination and poverty on the
educa-
tional opportunities of poor children. Title I funding sought to
amelio-

rate these effects by providing extra resources to schools with
high con-
centrations of children in poverty (McDonnell, 2005). In the
1980s and
1990s, educational reformers questioned whether additional
funding was
by itself sufficient to improve educational quality. They argued
that the
poor performance of American public schools on international
tests and
the increasing minority achievement gap were caused by a lack
of high
academic standards, rigorous assessments, and accountability
for student
performance (Hess, 2003; Resnick & Zurawsky, 2005). Like
IDEA, this
perception of a “problem” first produced action in states such as
Texas
and Massachusetts in the form of education reform laws that
established
high standards and accountability systems. At the federal level,
it pro-
duced the IASA of 1994, which promoted efforts by states to
address the
problem of poor student performance; however, like the
precursors to
IDEA, it did not require the federal government to dole out
sanctions
when states failed to comply with its requirements (O’Day,
2002). Some
states took the law seriously and developed accountability
systems. Most
did not, and the DOE did little in response. As was the case
with IDEA’s
precursors, this result fed a perception on the part of lawmakers
that

states would not address the problem of low student
performance and
the achievement gap without a more vigorous federal solution
(Rotherham, 1999; Rudalevige, 2003). Unlike IDEA, this
situation did
not produce a concomitant recognition on the parts of states and
school
districts of the need for comprehensive federal legislation
(Hochschild,
2003).
SOLUTIONS
The appearance of widespread Congressional support for a
federal solu-
tion to the problems of children with disabilities in the 1970s
and the
problems identified by education reformers in the 1980s and
1990s
did not indicate similar agreement on the specifics of their
solutions.
These evolved during the legislative bargaining process and
reflected the
interests and goals of “policy entrepreneurs” in Congress and
influential
interest groups (Kingdon, 1995; Zahariadis, 1999).
In IDEA’s case, an early Senate version of the law contained an
aggres-
sive federal enforcement role that projected federal influence to
the

school district level through an oversight mechanism requiring
local
school districts to send millions of IEPs to the DOE for review
(Neal &
Kirp, 1986). Although this proposal was eventually dropped, the
version
that passed the Senate included “a state level planning and
advisory
panel”25 that would conduct evaluations of state
implementation of IDEA,
receive complaints about violations of the law, and be
empowered to take
steps to “assure that such violations are corrected.”26
The original House bill had a more deregulatory bent,
envisioning
IDEA as a block grant, similar to Title I, that would disburse
special edu-
cation funding with limited strings attached (Gartner & Lipsky,
1987).
Rather than providing oversight and enforcement
responsibilities to the
federal government, it created a local school district grievance
procedure
(Neal & Kirp, 1986).
In the final bill, the oversight and enforcement mechanisms
con-
formed to the House version of the bill. This compromise
derived from
strong congressional concerns about the level of federal
involvement
projected in the Senate bill and was facilitated by a novel
solution: the
development of the quasi-contractual IEP and the provision of
due

process rights to students with disabilities and their parents
(Neal & Kirp,
1986). These mechanisms allowed Congress to transfer much of
the cen-
tralized oversight responsibility envisioned in the Senate bill to
individual
parents and the courts. Even so, PL 94-142 provided the
Department of
Education with distinct oversight and enforcement
responsibilities and
powers, including the ability to withhold federal funds from
states.
The debate over the federal-level accountability mechanisms in
NCLB
was comparatively muted.27 In contrast to IDEA, in which the
explicit civil
rights goal of equal access provided much of the momentum for
the law,
a primary motivation for the development of NCLB was the
issue of
accountability, whether for federal dollars, student performance,
or both
(Rudalevige, 2003). This consensus on the goal of
accountability for
results among the chairmen and staff of the committees of
jurisdiction in
the House and Senate, and the president, trumped concerns
about the
expansion of federal oversight and enforcement powers from
less influ-
ential members (Debray, 2006). Although the House and Senate
versions
of the local district and school-level accountability provisions
such as the
AYP requirements differed in important ways (Riddle &

Stedman, 2001),
the federal enforcement mechanisms in the original House and
Senate
bills were similar, with the House version, in contrast to IDEA,
being the
more aggressive of the two.
Both bills revised the weak enforcement clause in the IASA by
specify-
ing the conditions and type of withholding. Both limited the
discretion
of the DOE by changing the language of the enforcement clause
from
“may” 28 withhold to “shall.”29 The House went a step further
by linking
the enforcement mechanism directly to the existing
requirements of the
IASA,30 specifying the level of withholding, and expanding the
basis for
an enforcement action to the failure to meet any of the state-
level
requirements in the law.31 This simultaneously augmented the
DOE’s
oversight authority while limiting its enforcement discretion,
indicating a
concern on the part of Congress about both the willingness of
states to
comply with the law and the ability of the DOE to enforce it.
This model of expanding the DOE’s enforcement options while
attempting to limit its discretion in their application is
consistent with the

pattern followed by Congress during the reauthorizations of
IDEA in
1997 and 2004. The 1997 reauthorization increased the DOE’s
enforce-
ment options by providing the department with the flexibility to
directly
withhold funds from a noncompliant school district or state
agency
rather than the entire state.32 It also gave the secretary of
education the
power to refer a state with a record of noncompliance to the
Department
of Justice for enforcement action33 (Aleman, 1997). The House
Report
for the 1997 reauthorization stated that Congress expected the
DOE to
“utilize the broad enforcement authority available for ensuring
compli-
ance with [IDEA and determine] based on the level of
noncompliance
the level of funding to be withheld and the type of funding to
withhold.”34
The 2004 reauthorization added few enforcement options but
limited
the DOE’s discretion in their application by adding triggers for
enforce-
ment actions based on state performance on outcomes within
fixed time-
lines. As was the case with the original IDEA, the original
Senate version
of the 2004 reauthorization contained more aggressive
enforcement
mechanisms than the House version (Jones & Alping, 2003). In
contrast
to the original IDEA, the final version of the 2004

reauthorization
retained the many of the aggressive Senate mechanisms and
their
enforcement triggers.35 This shift to a more vigorous federal
enforcement
model was prompted by the partial redefinition of the civil
rights prob-
lem that had spurred the original bill to the same problem that
had
spurred NCLB: the apparent ineffectiveness of federal
expenditures in
improving student outcomes (President’s Commission on
Excellence in
Special Education, 2002; Wagner, Blackorby, Cameto, &
Newman, 1993).
As was the case with NCLB, Congress associated poor student
outcomes
with the failure of states and local districts to fully comply with
IDEA and
the DOE to provide vigorous oversight and enforcement.36 Also
like
NCLB, Congress directed its solution at both the states and the
DOE
through the development of oversight mechanisms that placed
detailed
conditions on federal funding, and enforcement mechanisms that
both
specified penalties for noncompliance and limited DOE
discretion over
their application. In sum, the legislative history of these laws
indicates

that Congress has responded to a perceived problem of
educational
equity by not only trying to manage the “solution” at the state
level but
also managing the manager of this solution at the federal level.
RECORD OF ENFORCEMENT
Congress may craft and pass legislation, but the executive
branch is
charged with their implementation. The gradual effort by
Congress to
limit the DOE’s discretion over the application of the
enforcement mech-
anisms in IDEA and NCLB derives in part from the lackluster
record of
the DOE in exercising its oversight and enforcement authority
(Government Accounting Office, 2004; McDonnell, 2005;
National
Council on Disability, 1995; 2000). Despite evidence of
persistent state-
level noncompliance with IDEA during both Republican and
Democratic
administrations,37 the DOE has largely abdicated its
enforcement role to
the federal courts (Hehir & Gamm, 1999; Mayes & Zirkel,
2000). Since
the passage of IDEA, the DOE has exercised its authority to
withhold fed-
eral funding from a state only once (Hehir, 2002).
This incident occurred in 1994. After Virginia refused to
provide spe-
cial education services to students with disabilities who had
been
expelled from school, the DOE moved to withhold $60 million

in IDEA
funding. This action provoked a strong backlash from the
governor of
Virginia and members of the state’s congressional delegation.
Their reac-
tion was not unprecedented; earlier decisions by the DOE to
place
Pennsylvania on high-risk status38 and seek a corrective action
from
California39 had provoked the ire of those states’ congressional
delega-
tions. In each case, the political resistance was bipartisan and
included
supporters of IDEA (National Council on Disability, 2000).
Although the DOE did ultimately pursue these enforcement
actions, its
efforts were contingent on the support of the president and his
political
appointees in the department. These appointees have
considerable influ-
ence on agenda setting in the federal bureaucracy (Kingdon,
1995) and
can produce major policy shifts even when the policy itself and
the career
civil ser vants responsible for its implementation do not change.
Although the Clinton administration did not oppose a more
vigorous
federal role in the enforcement of IDEA, other administrations
have
viewed the role of the DOE through a far different lens. Five
years after

the passage of IDEA, the New Federalism movement of the
Reagan
administration sought to reduce the size and scope of the federal
govern-
ment by first scaling back, and then shifting much of the
funding and
responsibilities for, federal grant programs to the states (Clune,
1986;
Kimball, Heron, & Weiss, 1984). Initially, the Reagan
administration
sought to consolidate IDEA funding into a single education
block grant.40
When this effort was blocked by Congress, the DOE attempted
to push
through a wholesale deregulation of the law by publishing a new
set of
implementing regulations that would have gutted much of the
law’s over-
sight and enforcement mechanisms during a congressional
recess. Even
though this effort was quickly halted by a bipartisan coalition of
members
of Congress who had collaborated to pass the bill (Kimball et
al.; Noel,
1984), it provides evidence of the close correlation between the
perspec-
tive of the executive branch on the federal relationship with the
states
and the behavior of the DOE.
In NCLB’s case, the Bush administration’s central role in the
passage
of the law and interest in its successful implementation has
provided

impetus to the DOE’s efforts to perform its oversight and
enforcement
responsibilities. The DOE has scrutinized state plans and
applications for
funding and at times rejected proposals and requests for waivers
from
specific requirements of the law (Center on Education Policy,
2005). In
the area of the enforcement, however, the DOE’s record has
been highly
inconsistent. In several instances, the DOE has threatened
enforcement
actions against states or large urban school districts, only to
pull back.41
In a few cases, most notably in Texas, the department withheld
small
amounts of funding because of a state’s failure to comply with
the law’s
mandates.42 Critics of the department have questioned whether
it has
allowed several states to establish artificially low standards of
proficiency
that violate the spirit of the law.43 The DOE has done little, and
indeed,
under the law’s provisions, may be able to do little to ensure
that state
plans include vigorous targets of performance.
Still, given its record of enforcement of IDEA,44 the DOE’s
efforts to
manage the implementation of NCLB are surprising. In an
interesting
twist, 20 years after the Republican Reagan administration
sought to dis-
mantle the oversight and enforcement mechanisms of IDEA

because of
concerns about federal interference in public education, the
Bush
administration, through NCLB, has raised federal involvement
in educa-
tion to unprecedented levels. The logic that inspired the Reagan
admin-
istration’s efforts to dismantle the regulatory structure of IDEA
has been
relegated to the state and local levels, where it now informs
much of the
conservative anti-NCLB opposition.
INTEREST GROUP RESPONSE TO THE FEDERAL ROLE
The presence of political opposition to the DOE’s enforcement
of IDEA
in the 1990s has been cited as having a “chilling effect” on the
depart-
ment’s ability to enforce the law (Hehir, 2002). Though there is
evidence
to support this contention (National Council on Disability,
2000), there
is no indication that the DOE was motivated by fear of a
political back-
lash when it failed to apply the law’s enforcement mechanisms
during the
previous 20 years. Remarkably, this record has produced two
alternative
perspectives with strong theoretical underpinnings and
associated inter-
est groups; each perceives the DOE’s exercise of its oversight

and
enforcement authority as a different problem and proposes
widely diver-
gent proposals as solutions.
On one side is a deregulatory camp that perceives the federal
role as
overly intrusive and supports reducing the law’s procedural
mandates
(Benveniste, 1986; Clune, 1986; Duff, 2001; Finn, 1996; Hess
& Brigham,
2001; Hill, 2000; Kagan, 1986; Lanigan et al., 2001; Neal &
Kirp, 1986;
Noel, 1984; Wolf & Hassel, 2001). On the other is an advocacy
camp that
criticizes the federal government for its inaction and favors a
more active
federal role in punishing state noncompliance (Council of
Parent
Attorneys and Advocates [COPAA], 2000; Gartner & Lipsky,
1987;
National Council on Disability, 1995, 2000; Rosenfeld, 2000).
Each camp acknowledges the many gains made by students with
disabil-
ities and improvements in special education services since 1975,
but nei-
ther offers any credit for these successes to the federal
government. Both
criticize the federal government for its failure to fulfill its
“promise” to
fully fund the law and agree that federal oversight has had
negative con-
sequences; where they differ is the nature of these
consequences.

To the advocacy camp, the inadequacy of federal enforcement
has pro-
duced an enforcement vacuum that forces parents to exercise
their due
process rights in order to address noncompliance (National
Council on
Disability, 1995). Some in this camp argue that the DOE
purposely fails
to enforce IDEA because it perceives the provision of technical
assistance
as its primary role, and oversight as secondary (Rosenfeld,
2000). These
critics have proposed forcing the DOE to punish noncompliance
through the development of automatic triggers for enforcement
or
bypassing the DOE entirely by establishing a federal-level
complaint
process (National Council on Disability, 2000). Some have even
proposed
punishing the DOE by providing parents with the right to sue it
for a fail-
ure to enforce the law (COPAA, 2000).
The deregulatory camp has a similarly negative perspective on
the
DOE’s role in the implementation of IDEA, characterizing it as
overly
aggressive and compliance driven. These critics argue that
federal moni-
toring has produced negative consequences for children by
removing dis-

cretion over educational decisions from education professionals
and
placing them in the hands of government bureaucrats (Finn,
1996; Hess
& Brigham, 2001; Hill, 2000). This emphasis on regulatory
compliance
(Benveniste, 1986; Wolf & Hassel, 2001), in combination with
the exces-
sive legalism promoted by the law’s due process mechanisms
(Lanigan et
al., 2001; Neal & Kirp, 1986), forces states to “press school
districts toward
a defensive posture in which educators may spend more time
attending
to procedural needs” than the needs of their students (Hess &
Brigham,
p. 46). These critics recommend devolving both programmatic
oversight
and funding from the federal government to the states (Hassel &
Wolf,
2001; Haynes, Bernard, & Johannesdottir, 1999).
The conflict between the advocacy and deregulatory camps has
played
out throughout the history of IDEA; periods of ascendance
roughly cor-
respond to party lines, with advocates gaining more influence
under
Democratic administrations and deregulators gaining under
Republicans
(Hehir, 2002). At a deeper level, the nature of disagreement
between
these two groups mirrors the parties in a typical special
education dis-
pute. Advocacy interest groups are disability-, parent-, and
plaintiff-attor-

ney oriented. The deregulatory perspective is pressed by state
and school
district organizations and teachers unions. Although the
deregulatory
camp would appear to be aligned with a conservative
Republican per-
spective on the federal-state relationship, there are prominent
Republicans with disability advocacy orientations45 (Shapiro,
1994). The
political cross-pollination of these perspectives derives from the
fact that
disability does not differentiate by political party. Republicans
are just as
likely to be disabled and have children and family members
with disabil-
ities as Democrats. For individuals compelled by their personal
experi-
ence with disability, the DOE’s lack of enforcement of IDEA
constitutes a
moral and legal abdication of responsibility. For those
compelled by the
professional narrative of educators, the DOE’s bureaucratic
oversight of
the law’s implementation undermines the educational purpose of
special
education.
In the 1990s, as the standards-based and the accountability
movements
gained influence in general education, deregulatory commentary
on
IDEA made a subtle shift from focusing on the negative effects
of DOE
monitoring on educators to focusing on its effect on student
outcomes.
The critique of the federal role that resulted from this

convergence of
the accountability and deregulatory movements argued that the
federal
government should diminish the compliance or procedural
aspects of
the law while adding a layer of accountability mechanisms
based on
performance on student outcomes (Wolf & Hassel, 2001;
President’s
Commission on Excellence in Special Education, 2002). These
critics
assert that the DOE should pursue an alternative monitoring
strategy,
commonly referred to as focused monitoring, based on a smaller
number
of indicators, quality data, the provision of technical assistance,
and a
strong federal accountability model focused on performance
(Coulter,
2004). This outcomes-based perspective has partisans in both
the advo-
cacy and deregulatory camps. When combined with the
advocacy camp’s
recommendations for more aggressive triggers for enforcement,
it pro-
duced the policy window for the accountability model in the
2004 reau-
thorization of IDEA.
In NCLB’s case, the DOE’s oversight and enforcement of the
law have

also produced deregulatory and advocacy critiques. Regular
education
advocacy groups such as the Education Trust have aggressively
supported
the law for providing public accountability for the performance
of racial
and ethnic minorities. Traditional special education advocacy
groups
have also become strong supporters of the law because of its
role in forc-
ing states and districts to focus on the educational performance
of stu-
dents with disabilities.46 In the four years after the passage of
NCLB, these
groups grew increasingly critical of the DOE as it has granted a
series of
waivers from certain requirements of the law to states and
districts.47 They
also criticized states for “gaming the system” by establishing
low standards
of proficiency that allow large percentages of students to reach
federal
proficiency targets despite poor performance on other measures
such as
the National Assessment of Educational Progress (NAEP).48
On the deregulatory side, many of same state, school district,
and
school personnel interest groups that have criticized IDEA have
indi-
cated their opposition to NCLB49 (Center on Education Policy,
2005;
Sunderman & Kim, 2004). These groups have been joined by
some con-
servative proponents of deregulation in attacking the law as a
federal

imposition that undermines local control of education. During
the first
years of the implementation of NCLB, these groups criticized
the DOE
for being overly rigid in its oversight and enforcement. Though
many of
these critics have applauded the recent efforts of the DOE to
add “flexi-
bility” to its oversight of the law, they continue to be highly
critical of the
law itself and the specifics of its accountability system.50
Although the response to the federal role in the implementation
of
NCLB appears to correspond to IDEA, there are several
important differ-
ences between the interest group dynamics associated with the
laws.
Traditional civil rights advocacy groups have not been as united
in their
support for NCLB as special education advocates have been for
IDEA.51
This diversity in reaction may emerge from the different
backgrounds
and attributes of the laws. IDEA has an explicit civil rights
orientation
and enforceable individual due process rights. NCLB has the
implicit
civil rights goal of reducing the achievement gap in the
aggregate and

minimal enforceable rights. When there are explicit rights that
must be
enforced, advocates are less concerned about the subversion of
local
autonomy than the promotion of compliance through aggressive
enforcement of the law. Without rights to enforce, advocates
may focus
on the justness of the overall system, both in terms of the
quality of inputs
such as funding and the attributes of the oversight and
enforcement
mechanisms.
From a special education advocacy perspective, IDEA benefits
the dis-
advantaged by forcing states to address their needs. For some
advocates,
NCLB harms the disadvantaged by unjustly forcing them to take
stan-
dardized tests for which they are unprepared; failing to provide
their
school systems with enough funding to improve the quality of
education;
and sanctioning them for failing to make enough progress. From
this
“input-oriented” advocacy perspective, federal
micromanagement forces
states and districts to replicate an unjust system that subverts
the indepen-
dence of schools and teachers (Goodman, Shannon, Goodman, &
Rapoport, 2004; Meier, Kohn, Darling-Hammond, Sizer, &
Wood, 2004).
Overall, the opposition to NCLB has been more broad-based
than the
opposition to IDEA. NCLB also lacks the personal element that

has his-
torically shielded IDEA from radical change. Although
disability may not
strike at the same rate as poverty, it is far more evenly
distributed among
the population and, thus, among the politicians and bureaucrats
charged
with IDEA’s development and implementation.
ACADEMIC RESPONSE TO THE FEDERAL ROLE
Academics and researchers can have a strong impact on the
policy
process if their analyses are disseminated and proposals adopted
by influ-
ential policy entrepreneurs (Kingdon, 1995). A number of
researchers
have addressed the premise of the advocacy camp that increased
external
oversight and enforcement will lead to better compliance with a
law or
improved outcomes for students (Benveniste, 1986; Cohen &
Spillane,
1993; Elmore, 1993; Elmore & Associates, 1990; Fuhrman,
1993;
Fuhrman & Elmore, 1990, 1995; Kagan, 1986; Meyer & Rowan,
1978;
Moe, 2003; Rowan, 1990, Weatherly & Lipsky, 1977). This
literature pro-
vides several important insights. First, a bureaucratic emphasis
on proce-
dural compliance can have the effect of undermining the
fundamental
goal of a reform, such as improved student outcomes in the
“regular
program,” by constraining the options of educators and reducing

their
commitment to the reform (Elmore, 1986). For years, special
educators
have complained that IDEA’s many rules inhibit their ability to
focus on
instruction and student outcomes. In some cases, the sheer
quantity of
activities required under the law can force teachers into pro
forma com-
pliance (checking boxes) or avoidance of regulatory
requirements
(Study of Personnel Needs in Special Education, 2002).
Second, in the “loosely coupled,” compartmentalized culture of
public
schools (Weick, 1976), individual elements such as teachers
tend to work
in isolation (Elmore, 1990). This system protects its members
from the
change efforts of the more tightly coupled bureaucratic systems
at the
district and state levels. A federal policy that is translated
through state
and district bureaucracies with a high degree of fidelity will
likely become
partially diffused at the district level. It may then become more
diffused
at the school and classroom level as each individual actor makes
a value
judgment about its applicability to his or her practice and
performs a

cost-benefit analysis on the amount of effort required to
implement the
policy compared with the benefit for their school or students
(Meyer &
Rowan, 1978). As these “street-level bureaucrats” translate the
regulatory
mechanisms based on their local circumstances and individual
and insti-
tutional capacity, they may produce variation in a law’s
implementation
(Berman, 1986; Weatherly & Lipsky, 1977).
For example, in special education, procedures for identifying
disabili-
ties appear to be standardized, but in practice, their application
is often
dependent on the mean performance of the student population
and the
perceptions of school personnel (President’s Commission on
Excellence
in Special Education, 2002). Thus, a student in a high-
performing school
who falls two standard deviations below the mean may be
referred for
testing and identified as eligible for special education. In
another school
with a large at-risk population, this same student might be
considered
typical. Similarly, research on the disproportional identification
of
minorities in special education has indicated widespread
variation in dis-
ability identification rates by ethnicity in disability categories—
such as
mental retardation, learning disabilities, and emotional
disturbance—

that are heavily dependent on the clinical judgment of
interdisciplinary
IEP teams (Losen & Orfield, 2002; President’s Commission on
Excellence in Special Education). Research indicates that
African
American students are more likely to be identified as learning
disabled as
their percentage of the school population decreases, possibility
indicat-
ing that familiarity with a specific racial group may decrease
the likeli-
hood of their being identified as disabled (Oswald, Coutinho, &
Best,
2002). No oversight agency can eliminate the effects of local
and school
context on a law’s implementation.
Given the size and diversity of the U.S. public school system
and the
long tradition of local control of education, some level of local
variation
in the implementation of a comprehensive law such as IDEA
would be
expected. What is surprising is the strong level of vertical
integration
between federal-, state-, and local-level translation of the law’s
require-
ments (Elmore, 1986; Skirtic, 1991) and the high degree of
fidelity
between the expectations of federal policy and school-level
implementa-
tion (Singer & Butler, 1987). Indeed, although “loose coupling”

and
“street-level bureaucratic” interpretation may result in a
measure of pol-
icy diffusion, most of the special education policies and
procedures pro-
mulgated at the federal level find their way down to the teacher
level in
a few months or years, where they are often implemented to the
letter of
the law.
This programmatic consistency has several different sources.
First,
IDEA has been in effect for 30 years. Although changes have
been made
in the statute, the law’s basic tenets of free and appropriate
education,
least restrictive environment, and individual due process have
remained
unchanged. This stability has promoted widespread
understanding of the
law’s requirements among special education staff. Second, and
more
important, the implementation of IDEA is not dependent on
compliance
reviews from above. Although the potential for top-down
oversight has
some effect on state, district, and school behavior, IDEA’s
implementa-
tion has been more dependent on the bottom-up oversight
provided by
parents and advocacy organizations exercising the law’s due
process
mechanisms to address noncompliance with the law at the
school and dis-
trict levels (Hehir, 1992).

Neither bottom-up nor top-down oversight and enforcement in
special
education can address organizational barriers to the law’s
implementa-
tion in general education (Skirtic, 1991). Special and general
education
have long existed as separate entities (McLaughlin & Verstegen,
1998;
Milofsky, 1974). IDEA attempts to break down these barriers by
promot-
ing the placement of students with disabilities in the least
restrictive envi-
ronment, beginning with the general education classroom, and
provid-
ing them with access to the general education curriculum.
During the
IEP, special and general education school staff are expected to
collabo-
rate on the development of an educational plan for an individual
stu-
dent. After the meeting, they are expected to extend this
collaboration to
the classroom. As more students with disabilities enter general
education,
efforts to implement their special education IEPs have broken
down
because of resistance from general education personnel
(Meredith &
Underwood, 1995; Nagle & Crawford, 2004). Similarly, efforts
to pro-
mote special education reforms, such as improved identification
and

placement processes to address negative effects such as racial
dispropor-
tionality, have broken down because these run counter to
general educa-
tion incentives to move those students who exhibit low
performance or
atypical behavior into separate special education settings. In
these cases,
there is little that a department of special education can do to
remedy the
situation because the mechanisms of control and accountability
in IDEA
focus almost entirely on special education. Many of the
problems that
have arisen during the implementation of IDEA have resulted
from this
decoupling of special education’s integrationist goals from the
segrega-
tionist needs of general education (Skirtic, 1991).
The accountability model in NCLB addresses this decoupling by
requiring states and school districts to assess the performance
of sub-
groups, such as students with disabilities, on statewide
assessments. There
is evidence that these subgroup requirements have forced
education sys-
tems to attempt to improve the performance of students with
disabilities
through increased integration in general education and exposure
to
grade-level curriculum (Nagle, 2005; Nagle & Crawford, 2004).
On the
other end of the spectrum, some researchers have argued that

the these
requirements may provide schools with an incentive to rid
themselves of
subgroups such as special education students, whom they fear
will cause
them to fail to meet performance targets (Kane & Stager, 2003).
As with IDEA, academic analyses of the types of outcomes-
based
accountability mechanisms found in NLCB have questioned
whether
they have positive effects on the behavior of their intended
targets or sim-
ply produce pro forma compliance (Cohen & Spillane, 1993;
Elmore,
1993, 1996; Elmore, Abelmann, & Fuhrman, 1996; O’Day,
2002; O’Day &
Smith, 1993). These analyses see little benefit in compliance
with regula-
tion and focus instead on whether the law’s accountability
mechanisms
promote instructional improvement. In a similar vein, critics of
the
accountability models in both laws charge that they fail to
address the
“capacity” of states and districts to achieve their goals52
(Center on
Education Policy, 2005; Mathis, 2005; McCombs & Carroll,
2005;
Sunderman & Kim, 2005).
States, districts, and schools exist within a resource-constrained
envi-
ronment and an ongoing cycle of budget crisis (Hess, 1999).
They may
make a good faith effort to fully comply with a law, yet, even

after cutting
funding in other areas, budgetary limitations may limit their
ability to
fully comply with its mandates (Cohn, 2005). There are also
resource lim-
itations that no state or school district can overcome, such as
the nation-
wide shortage of certified special education teachers and speech
thera-
pists, or the lack of qualified special educators willing to teach
in
high poverty rural and urban areas. A district’s ability to
comply with
regulatory requirements may also be limited by the knowledge
of school
personnel, particularly in schools where a lack of knowledge is
one aspect
of a larger organizational failure (O’Day, 2002).
Neither IDEA nor NCLB focuses much attention on enhancing
peda-
gogy or instruction through its accountability mechanisms. All
the data
collected for the purposes of oversight or enforcement consist
of system-
level output indicators such as graduation rates or statewide
assessment
results. Beyond limited mechanisms associated with the
provision of tech-
nical assistance to low-performing schools in NCLB and states
deter-

mined to “need assistance” in IDEA, the emphasis of the laws’
enforce-
ment and oversight provisions is on punishment rather than
capacity
building. As academic analyses of the accountability models in
IDEA and
NCLB have indicated, there is little evidence that sanctioning
an organi-
zation for failure to comply with a law because of a lack of
expertise, fund-
ing, or circumstances beyond its control will achieve the goal of
improv-
ing student outcomes.
IMPLICATIONS
The characteristics of the oversight and enforcement models in
NCLB
and IDEA, their legislative histories, their implementation, and
the inter-
est group and academic responses to the efforts of the
Department of
Education have a number of implications for the future of the
laws. I will
address the implications of findings in each area after
summarizing their
similarities and differences.
OVERSIGHT AND ENFORCEMENT MODELS
IDEA and NCLB are voluntary grant programs that states can
choose to
decline. Both laws require states to follow a series of procedural
and
expenditure-oriented requirements and implement an elaborate
over-

sight and enforcement model. Both allow states to set their
targets for
their performance outcomes and collect data on their progress.
The
DOE is responsible for approving state plans, providing
oversight of their
implementation, and enforcing the law when states fail to
follow process
or expenditure requirements. NCLB uses an indirect outcomes-
based
oversight and enforcement model that focuses on the application
of the
accountability model developed by the federal government. The
DOE
does not punish states for poor performance but for their failure
to
ensure that districts and schools are implementing the steps of
the fed-
eral accountability model. IDEA 2004 takes the federal
outcomes-based
model one step further by providing for direct federal oversight
of state
performance on outcomes. IDEA 2004 also establishes federal
triggers
for enforcement based on state performance that should, in
theory, limit
the discretion of the DOE over their application. In addition,
IDEA’s
oversight and enforcement model uses both the top-down
mechanism of
bureaucratic oversight and the bottom-up mechanism of

individual due
process rights. By placing a source of oversight and
enforcement outside
the education bureaucracy, it removes the onus for full
accountability
from the DOE. NCLB contains no such mechanism for bottom-
up over-
sight, placing much of the onus for enforcement on the federal
govern-
ment. Finally, the incentive to take IDEA funding is supported
by the
overlapping requirements of other federal laws such as the
Americans
With Disabilities Act (ADA) and Section 504 of the
Rehabilitation Act.
With the possible exception of parts of IDEA, there are no
similar over-
lapping statutes that would diminish a state’s or district’s
incentive to
decline NCLB funding if the costs of the law to a state were
perceived to
exceed its benefits. The combination of these overlapping
statutory
requirements, the direct outcomes-based federal accountability
model
with its enforcement triggers, and the law’s bottom-up oversight
and
enforcement mechanisms provide IDEA with a stronger basis
for state
and local implementation in alignment with its requirements and
goals
than the additional funding and top-down oversight associated
with
NCLB.
HISTORICAL ROOTS

Both NCLB and IDEA were constructed in part as a response to
a civil
rights problem. In IDEA’s case this problem was explicit: the
exclusion of
children with disabilities from public education. This problem
inter-
sected with two additional problems: the regulatory incoherence
result-
ing from the existing patchwork of special education laws, and
resource
constraints resulting from a lack of funding for local special
education
responsibilities. For NCLB, the civil rights problem was
implicit: the neg-
ative effects on educational and other opportunities associated
with the
minority achievement gap. This problem intersected with
concerns
about American competitiveness due to low standards for
performance,
a lack of educational accountability, and a poor “return” on the
federal
investment. In both cases, these problems produced legislative
precur-
sors at the federal level that resulted in little change in state
behavior and
were characterized by limited DOE enforcement. In IDEA’s
case,
Congress attempted to address these problems by providing the
DOE
with specific oversight and enforcement powers, including the
ability to
withhold federal funding from noncompliant states. In NCLB’s
case,

Congress took this model one step further by limiting the DOE’s
discre-
tion when confronted by state noncompliance and forcing states
to adopt
an outcomes-based model of accountability based on district and
school
performance. A few years later, when Congress debated the
2004 IDEA
reauthorization, the problem of access to education for children
with dis-
abilities had been superseded by the concerns over the poor
results of
special education and the failure of the DOE to enforce the law.
In this
reauthorization of IDEA, Congress sought to address these
problems by
shifting the law’s oversight and enforcement mechanisms to an
out-
comes-based accountability model based on state performance
and by
limiting the DOE’s discretion over enforcement and the impact
of poli-
tics through the inclusion of enforcement “triggers.” Just as
NCLB repre-
sented an evolution in the federal oversight and enforcement
model
from IDEA, the IDEA 2004 represents the next step in this
evolution
from NCLB. It remains to be seen whether this process of
leapfrogging
accountability models will have any implications for the
reauthorization

of NCLB. Still, the record indicates that having developed a
solution to a
problem facing children, Congress will have a strong incentive
to see it
implemented and may attempt to both manage the solution to
the prob-
lem and manage the manager of the solution. For NCLB, a
mitigating
factor in this evolution could be the law’s comparatively narrow
base of
support outside Congress and the executive branch.
RECORD OF OVERSIGHT AND ENFORCEMENT
Over the past 30 years, the enforcement of IDEA has been
dependent on
the attitude of the executive branch toward the role of the
federal gov-
ernment in public education. Although this attitude has varied
through
various Republican and Democratic administrations, the
willingness of
the DOE to enforce the law has not. Despite evidence of
persistent state
and local noncompliance with IDEA, the DOE has engaged in
few
enforcement actions. On the whole, this performance was
predictable.
Political context has a strong effect on the ability of the DOE to
engage
in oversight and enforcement (Elmore, 1990; Fuhrman, 1993;
Hehir,
2002; Hochschild, 2003; Moe, 2003). Because sanctions are
“costly to
apply, time-consuming, procedurally complex and often have
political

repercussions that are difficult to predict,” (Elmore, 1990, p.
90), they
are rarely used. In the absence of such sanctions, the process of
compli-
ance is characterized more by “bargaining and negotiating
across govern-
ments” based on “calculations of benefits and costs of
enforcement and
compliance than it is on the authority of one level of
government over
another” (Elmore, p. 90). The history of DOE enforcement of
IDEA has
been characterized by far more bargaining and negotiating than
enforce-
ment. Based on the record of the past 2 years, this has also been
the case
for NCLB. Although the DOE pursued a more forceful
enforcement role
than with IDEA, its response has been inconsistent. Some states
and dis-
tricts have been provided with waivers from requirements, and
others
have had their funding withheld. Some states have been allowed
to pur-
sue alternative models of tracking student performance, others
have not.
It also appears that some states have “gamed the system” by
setting artifi-
cially low standards of proficiency that allow them to avoid the
negative
political consequences of sanctioning districts for poor

performance,
reap the political benefits of “improvements” in student
performance,
and avoid federal government scrutiny. Because their standards
were
approved by the DOE, there is little it can do or has done to
respond.
Instead, the DOE appears to be forced by the law’s requirements
to focus
attention on states with more vigorous standards and
assessments that
produce more evidence of failure. The variable response by the
DOE in
response to state and district pressure combined with the
variability of
results produced by state-level accountability models has
produced regu-
latory incoherence and strong political and practical
disincentives for
any state to pursue the type of vigorous “results-based” model
of improve-
ment intended by the law’s framers. In this context, the
widespread neg-
ative reaction to the federal government’s role in the law’s
implementa-
tion by state and local interests is unsurprising. In IDEA’s case,
if states
respond to the 2004 reauthorization with a similar level of
variation in
the quality of their outcome targets, the DOE will be placed in
the simi-
larly awkward position of sanctioning states that fail to achieve
high stan-
dards while applauding states that achieve weak ones. This
effect could
be more pronounced than with NCLB because of the law’s

triggers for
enforcement. These triggers may force the DOE to shift away
from a bar-
gaining process with state officials that limits the negative
effects of the
inequality produced by state-driven performance targets. Rather
than
being able to grant a waiver to a high-standard, high-outcome
state with
quality data that fails to achieve its target after several years, it
may be
forced to punish it. As with NCLB, this behavior may produce a
negative
political response that lends momentum to efforts to once again
revise
IDEA’s oversight and enforcement mechanisms.
INTEREST GROUP RESPONSE
The response to the federal oversight and enforcement of IDEA
has been
characterized by two camps: a deregulatory camp and an
advocacy camp.
Because of the nature of disability, the debate over IDEA has
transcended
political lines and generally mirrored the divide in a typical
special edu-
cation dispute with district-, state-, and teacher-level groups on
one side
and parent groups on the other. In NCLB’s case, the law’s
implementa-

tion has also produced deregulatory and advocacy critiques.
Advocates
have criticized the DOE for providing waivers to states and
districts from
the law’s requirements and for allowing some states to set low
standards
for performance. Deregulatory critiques have attacked the law
for under-
mining local control of education. Despite these similarities in
the inter-
est group responses to the laws, there has been more variation
in the
response to NCLB than IDEA. Traditional civil rights groups
have not
been united in their support for NCLB for reasons including
opposition
to standardized testing, concerns about lack of funding, and
questions
about the “justness” of the federal accountability model. In
addition,
because NCLB lacks the additional layer of bipartisan
protection
afforded to IDEA by the universal nature of disability, the
opposition to
the federal role in the implementation of NCLB has been more
broad-
based and its support more skin-deep. This lack of a personal
connection
between those charged with writing and implementing a law and
those
affected by it may have important implications for NCLB’s
future. Unlike
IDEA, NLCB has been heavily dependent on the bipartisan
support of its
authors in Congress and the White House (Debray, 2006). They
have

shielded the law from changes and pushed for its
implementation over
state and local objections. During the upcoming reauthorization
of the
law, they are likely to face considerable pressure from both
deregulatory
and advocacy-oriented interest groups to reconfigure the federal
over-
sight and enforcement role. The absence of the type of personal
connec-
tion to NCLB’s intended beneficiaries that has characterized
IDEA’s
bipartisan support may undermine the support of these and other
defenders of NCLB for a vigorous federal role in the law’s
oversight and
enforcement, and intensify political squabbling over hot button
political
issues.
ACADEMICA RESPONSE
An emphasis on procedural compliance with a law can have a
number of
negative effects, including undermining the commitment of
educators to
the reform or promoting pro forma compliance. Because of the
loosely
coupled nature of public education, any federal policy is likely
to become
diffused at the district, school, and teacher level as each actor
makes a
value judgment about its applicability to his or her practice and
adapts it
to meet local circumstances. Despite evidence of these effects
on the
implementation of IDEA, there has been a remarkable level of

fidelity
between the law’s requirements and its state and local
implementation.
Some measure of this fidelity can be attributed to the law’s long
history
and the effects of compliance reviews from above. A larger
measure is
associated with the bottom-up oversight produced by the
exercise of the
law’s due process mechanisms by parents. Unfortunately, most
of these
effects have been limited to special education. The general
education
establishment has resisted IDEA’s push for integration because
of strong
incentives to maintain a decoupled special education system to
which it
can remove its “problems.” NCLB addresses this decoupling by
holding
districts and schools accountable for the performance of
students with
disabilities. Although there is evidence that school districts are
reacting
to the law by providing students with disabilities with greater
access to
general education classrooms and curriculum, there is also
evidence that
some states have sought to minimize the effects of the
performance of
students with disabilities on school performance by setting their
sub-

group reporting targets at a high level.53 In these states,
schools may have
an incentive to remain under the subgroup threshold by either
failing to
identify students with disabilities or moving them to other
schools.
Though this response appears to undermine the intent of the
law, it can
also be characterized as an effort to cope with a lack of local
capacity to
meet the law’s AYP requirements for students with disabilities.
Neither
NCLB nor IDEA devotes much attention to improving state,
district, or
school capacity to achieve their requirements. Their oversight
and
enforcement models focus on punishment. In NCLB’s case, this
empha-
sis on punishment and optimistic targets for performance have
produced
strong incentives for states to shift their focus from improving
educa-
tional outcomes to the type of pro forma procedural compliance
that has
long characterized state and district efforts to comply with
IDEA. In fact,
because those states with the type of vigorous accountability
systems envi-
sioned by the law have produced the most evidence of failure
and
attracted the most public and federal scrutiny, their efforts to
lower their
targets or request waivers from the law’s requirements have
been pre-
dictable. By recalibrating their accountability systems to make
it easier to

meet the law’s targets, states can provide evidence of
compliance to the
federal government and avoid public scrutiny while protecting
schools
and classrooms from the law’s impact (Elmore, 1990; Weick,
1976).
Because the NCLB accountability model does not provide for
the type of
bottom-up enforcement offered by IDEA, such efforts are
unlikely to
attract the attention of parents and advocates. If, as noted
earlier, states
react to the outcomes-based model in IDEA 2004 with a similar
level of
variation in their state plans, a comparable situation will arise.
The DOE
will be forced to scrutinize states with vigorous targets while
ignoring the
possibly lower performance of states with weaker ones. In these
cases,
some states may react by following the NCLB path of
requesting waivers,
lowering their targets, or altering their methods of data
collection.
Although such efforts might be complicated by the impact of
IDEA’s bot-
tom-up enforcement mechanisms and the interest of local-level
advocates
in maintaining the highest possible outcome targets, there is
little evi-
dence that the DOE is capable of holding the line against state

modifica-
tions. In the long term, IDEA 2004, like NCLB, may provide
states with
far more organizational and political incentives to game the
system to
show artificial progress than to comply with the results-based
intent of the
law.
CONCLUSION
The more active federal role in public education that emerged
after the
civil rights movement of the 1950s and 1960s was prompted by
the resis-
tance of states and local districts to altering their segregated
systems of
public education. The Civil Rights Act provided the lever to the
open the
schoolhouse door for African American students, and Title I of
the
Elementary and Secondary Education Act provided additional
funding
to address the inequality produced by decades of segregation
(McDermott & Jensen, 2005). The first IDEA, the Education for
All
Handicapped Children Act (EAHCA) was constructed on a
foundation
built by these laws. It ended the segregation and exclusion of
children
with disabilities from state-run systems of public education and
provided
additional funding to ease the effect of their integration on local
bud-
gets. Despite this explicit civil rights goal and the extra funding
it has pro-

vided, IDEA has continued to provoke state and local opposition
as an
unfunded mandate and an unwelcome federal intrusion into
local con-
trol of education.
These arguments rest on the premises that IDEA is a mandate
and that
Congress reneged on its “promise” to cover 40% of the
additional cost of
special education. Because acceptance of IDEA funding is
voluntary, the
law cannot be a mandate.54 Because authorization levels for
any law are
proposed targets rather than requirements, they are better
characterized
as “white lies” than promises (Alping, 2001). Indeed, because
the record
of court rulings prior to IDEA’s passage indicated that states
would soon
have been forced to provide a free public education to children
with dis-
abilities, federal funding for special education can be
characterized as a
support rather than a burden. In this context, protests about
unfunded
mandates and broken promises appear to be driven more by the
details
of the federal solution to the state-level problem rather than
federal
involvement itself. Had the framers of IDEA chosen to follow

the old
Title I model of simply passing through special education grants
to states
and districts, ensuring that it was spent on the “right” children
and pro-
viding occasional technical assistance, it is doubtful that the
law would
have provoked the same level of criticism. The effect of this
model in
both constraining the choices of state and local officials and
holding
them accountable for their actions is what produces the
persistent com-
plaints about federal interference, not the law itself.
By tacking toward the IDEA oversight and enforcement model
and rad-
ically diverging from the history of Title I as a targeted grant,
NCLB has
provoked the same type of criticism. Predictably, the attacks on
the law as
an unfunded mandate or federal intrusion into local control of
educa-
tion rest on the same premises. There is considerable evidence
that the
federal government can attach strings to its grants to ensure that
states
meet certain standards (McDermott & Jensen, 2005). Given the
wide-
spread acceptance of federal funding, the question that needs to
be
asked is whether the federal role in education as configured in
IDEA and
NCLB is beneficial.
In IDEA’s case, the answer is a qualified Yes. Although there is

no doubt
that both governmental and parental oversight have had some
unin-
tended negative effects, they have addressed many of the
problems that
provided the impetus for the law’s existence. Federal
intervention ended
the wholesale segregation of children with disabilities, provided
millions
of children with access to services to which they had previously
been
denied, and established a national system of special
education.55 This
progress toward achieving IDEA’s civil rights goals is
underscored by the
fact that the debate over special education has shifted from the
issue of
access to the question of the outcomes.
In NCLB’s case, the answer is a qualified No. On some levels,
the law
appears to be wildly successful in its implementation. The
language of
adequate yearly progress, proficiency levels, and subgroups has
entered
the lexicons of educators at all levels. Nearly every state has
established a
standardized testing system, disaggregated their results to
identify low-
performing schools, and focused increased attention on the
perfor-
mance of subgroups such as students with disabilities
(Matthews, 2005).
Yet, despite these advances, there is little real indication that
the law has
made progress in correcting the performance gap and addressed

con-
cerns about the return on the federal investment in education.
Although
the outcomes-based model of oversight and enforcement holds
great
promise, its incarnation in NCLB has proved ineffective
because its
mechanisms for assessment of progress contradict its
fundamental
premise of providing accountability for performance. By leaving
decisions on standards of proficiency, subgroup levels, testing,
and the
use of accountability mechanisms to states, it has emphasized
the impact
of local politics on the education system in ways that have
promoted the
dumbing down of standards, weakening of assessments, and
packaging of
data to suit political needs for evidence of progress (Ravitch,
2005). This,
in combination with its lack of capacity-building mechanisms,
externally
imposed outcome targets, and emphasis on punishment from
above, has
produced considerable negativity toward the law from those
states and
districts that took the law seriously and established high
standards and
vigorous assessments
Second, by making the federal government the sole source of

oversight
and enforcement, NCLB leaves the Department of Education in
the
untenable political position of responding to both legitimate
complaints
from states about the differential effects of this accountability
model and
the typical IDEA-style complaints about its effect on state
control of edu-
cation systems. Given the DOE’s historically undistinguished
record of
oversight and enforcement and the political pressures it faces
from states,
Congress, and the White House, its efforts to address these
complaints
under the guise of promoting “flexibility” have been predictably
incoher-
ent, producing widespread confusion and cynicism about the
law’s
requirements (Davis & Hoff, 2005). Many of the same problems
can be
projected for the future implementation of the outcomes-based
model in
IDEA 2004 because its mechanisms allow for state-defined
targets for per-
formance.
Although there are a number of interests that would prefer to
see the
outcomes-based accountability model in NCLB collapse and
that are
actively promoting policy proposals to eviscerate it, it would be
a mistake
for Congress and the executive branch to allow this to happen.
In the
coming years, a number of factors will render both the federal

contribu-
tion to public education and a stable federal role in ensuring a
quality
education system ever more important. These include financial
con-
straints placed on states and local districts from pensions and
health care
costs,56 aging populations with increasing political clout in
combination
with expanding immigrant student populations (Frey, 2000) and
unpre-
dictable state education funding models based on gimmicks such
as lot-
teries and gambling revenues. Considering these stakes and the
changes
wrought by rapid technological change and foreign competition,
it will
be incumbent on Congress, the president, and the states to
continue to
strive to achieve the goals of NCLB to establish high
educational stan-
dards, track student outcomes, provide accountability for
performance,
and reduce the persistent racial achievement gap.
To achieve these goals, Congress should maximize the influence
of
federal policy by “finding the margin where [it] is likely to be
most effec-
tive, rationing the use of federal resources to those purposes
where they

are most likely to have an effect, and avoid engaging in
activities that
erode the base of services upon which marginal federal
resources oper-
ate” (Elmore, 1986, p. 185). Congress and the White House can
begin by
turning the existing outcomes-based accountability model in
NCLB
inside out and focusing, as is the case with IDEA 2004, on the
state-level
performance rather than the district- or school-level
performance. This
would mean working in collaboration with the governors and
education
leaders of states and local districts and representatives of
prominent
research and advocacy organizations to establish national
standards, a
single national performance assessment, fixed and achievable
targets for
proficiency, and predefined subgroup sizes while devolving
responsibility
for the details of the accountability system to the states. Instead
of forc-
ing a detailed, punishment-based federal accountability model
that
extends to the school level, the federal government should allow
states to
determine the consequences for districts and schools that fail to
meet tar-
gets. Under this system, it will be clear who the failures are at
the state
and local level and it will be the responsibility of states to fix
them
through accountability models that account for local
circumstances and

capacity. Such a model would hark back to one of the initial
motivations
for the passage of IDEA: a desire to provide regulatory
coherence and
predictability for state education systems.
For IDEA, the 2004 reauthorization’s emphasis on educational
out-
comes and the DOE’s focused monitoring process are steps in
the right
direction, but the provision of responsibility for setting
performance tar-
gets and validating the accuracy of data to the states is not. To
avoid the
types of problems provoked by NCLB, the law should establish
fixed
national targets in a limited number of areas and set high
standards for
data quality.
To motivate states to establish vigorous accountability systems,
Congress should maximize its leverage and positive effects of
its influ-
ence by increasing its financial contribution to both Title I and
IDEA and
providing incentives for improved performance. Given the
political
implications of low performance, current federal contribution
levels may
not provide a sufficient incentive for low-performing states to
remain
within a national system. By using both existing and additional
funding
to reward states that achieve national targets, the federal
government can
motivate states to improve performance. To address state

concerns about
the effect of local demographic differences on performance,
such a pol-
icy would strive to place states on an even playing field by
controlling for
the effects of relevant demographic variables on performance.
Unless
the effects of these variables were accounted for, it would make
little
sense to compare the annual performance of states with large
diverse
populations, such as California, toward national targets against
the
smaller, more homogenous populations of states such as Kansas.
Under this model, the federal role as a provider of
supplementary edu-
cation funding would be explicit, thus diminishing complaints
about
unfunded mandates. States that are poor performers would
continue to
receive a base level of federal education funding premised on
existing
formulas but no more. To acquire additional funding, these
states would
need to improve performance and meet national targets. This
would pro-
vide them with a strong incentive to target failure at the district
and
school levels through whatever capacity-enhancing or sanction-
oriented

strategies they expected to succeed. It would also devolve the
locus of
political pressure from the DOE to the state level. Under such a
system,
the DOE could be relegated to determining whether states were
follow-
ing the remaining process and expenditure requirements in the
laws. To
minimize the effect of politics, determinations on whether states
achieved national targets and qualified for additional funding
could be
transferred to an independent nonpartisan panel similar to the
National
Assessment Governing Board. In the absence of a federal
scapegoat,
states that were persistent low performers and failed to secure
additional
funding would face the increased scrutiny of their citizenry. It
would be
their responsibility to make the difficult decisions necessary to
improve
poor performance.
In addition to turning the NCLB outcomes-based model inside
out,
Congress should heed the lesson offered by the history of IDEA
about
the importance of bottom-up accountability. NCLB provides
parents with
the right to transfer their child out of failing schools and to seek
supple-
mentary educational services. The design and implementation of
these
mechanisms has been fraught with problems that have impeded
the abil-
ity of school districts to provide them and parents to access

them (Center
on Education Policy, 2005). At the design level, the premise
that these
services will benefit students suffering from educational
deprivation in
low-performing schools has limited empirical support (Casserly,
2004).
Because the provision of supplementary services is predicated
on school
rather than student failure, it is unclear whether the services are
directed
at students in need of academic support. On an implementation
level, if
districts fail to provide these services, parents have not had any
individ-
ual avenue of redress.
In a state-driven accountability system, the right to transfer or
to seek
supplementar y ser vices may no longer be available.
Nevertheless,
low-income parents of nondisabled children should have the
same
opportunity that parents of children with disabilities currently
possesses
to acquire those supplementary services that their children need
to make
educational progress. As is the case with students with
disabilities, parents
should be able to prove that their children need such services
because of

their child’s failure to make academic progress. In an
accountability sys-
tem in which poor student performance is clearly defined by
national
standards, making such a case should not prove to be
burdensome. A
model for such a system is already in place in most school
districts
through the prereferral intervention process for special
education.
Rather than providing supplementary services on a blanket
basis,
Congress should provide parents of children in Title I-eligible
schools
with the opportunity to apply for supplementary educational
services
prior to a referral for special education, or when there is clear
evidence
of persistent academic failure, and establish a simple avenue of
redress
for parents when their application is denied.
Such a mechanism would exert a powerful bottom-up pressure
on dis-
tricts to reform low-performing schools down to the classroom
level. It
would also have the positive effect of formalizing the
prereferral inter-
vention process by providing at-risk students with quality
academic inter-
ventions, assessing the impact of these interventions on their
perfor-
mance prior to any referral for special education, and reducing
those
unnecessary referrals that disproportionately affect poor
children of

color. IDEA 2004 foresees such a model through its
recommendation
that states and districts shift from a disability identification
system based
on an assessment of a discrepancy between current performance
and
projected ability, to a model based on whether a student
responds to a
research-based educational intervention (RTI).57 Congress can
promote
the development and implementation of this model by making
the DOE
responsible for establishing the requirements for a
supplementary ser-
vice to qualify as a research-based intervention. It should then
provide
states and local districts with increased flexibility to use both
Title I and
IDEA grants to fund a system that provides such services to
eligible at-risk
students in Title I schools, either upon parent application or on
the rec-
ommendation of school staff.
A basic prerequisite for the success of this accountability model
is the
inclusion of all students. If the law excludes certain groups of
students
from its accountability model, it will provide states and districts
with an
incentive to place increasing numbers of low-performing
students into
those categories. To prevent this circumstance, Congress and
executive
branch should to continue to require states and districts to focus
on the

performance of subgroups such as students with disabilities.
Through
this requirement, NCLB has had the beneficial effect of
promoting a
more tightly coupled education system. It is important that
Congress not
remove this requirement nor retreat from its efforts to end the
decades-
long parallel play of special and general education policy.
Rather, it
should continue its efforts to create a single high-performing
education
system and provide states with the incentives they need to make
this inte-
gration successful.
Notes
1 In 2001, NCLB reauthorized the Elementary and Secondary
Education Act (ESEA).
This article focuses on the oversight and enforcement
provisions of Title I of NCLB.
However, throughout the article, Title I of NCLB will be
referred to as NCLB.
2 See National Conference of State Legislatures, No Child Left
Behind: Quick Facts,
2004–05 to view a summary of state legislative activity on
NLCB at http://www.ncsl.org/pro-
grams/educ/NCLB2005LegActivity.htm#legactivity04.

3 See “President George W. Bush: Record of Achievement,
Chapter 12: Improving
American Education” at
http://www.whitehouse.gov/infocus/achievement/chap12.html.
4 At the time, the Department of Education was the Office of
Education. In this arti-
cle, I refer to the Office of Education by its current name.
5 See President Gerald R. Ford’s Statement on Signing the
Education for All
Handicapped Children Act of 1975, December 2, 1975, at
http://www.fordlibrarymu-
seum.gov/library/speeches/750707.htm.
6 The law was initially titled the Education for All Handicapped
Children Act
(EAHCA) of 1975. The 1990 Amendments to EAHCA (PL 101-
476) changed the name to
the Individuals With Disabilities Education Act (IDEA). The
recent 2004 reauthorization
(PL 108-446) altered the name to the Individuals With
Disabilities Improvement Act. For
the remainder of the article, I refer to EAHCA and all following
reauthorizations as IDEA.
7 IDEA grants must be used by states and local districts to
supplement rather than
supplant existing per-pupil expenditures. This means that IDEA
funds must be used to fund
the excess or additional cost of educating students with
disabilities over the state’s per-pupil
funding amount.
8 See Sen. Rep. No. 168, 94th Cong., reprinted in [1975] U.S.
Code Cong. & Ad.

News, 1439, “The Senate believes that a simple pass through of
all funds based on the pop-
ulation of an LEA fails to provide an adequate incentive for
serving all children within the
total time period specified in the bill.”
9 A variety of federal grants in areas ranging from
transportation to welfare legislation
have attached conditions of aid. See McDermott and Jensen
(2005) for a discussion of the
conditions of aid and federal education legislation. In addition,
see Reichbach (2004) for
a discussion of the legal underpinnings of conditional federal
education grants.
10 PL 108-446 Sec. 616(b)(2).
11 Like earlier versions of the monitoring and enforcement
provisions, states have an
opportunity for a hearing with the secretary of education and
may file a petition for a review
of the secretary of education’s action with the U.S. Court of
Appeals in the state’s circuit.
In addition, the secretary must report to the Committee on
Education, the Workforce of
the House of Representatives, and the Committee on Health,
Education, Labor, and
Pensions of the Senate within 30 days of taking an enforcement
action on the specific action
taken and the reasons why. See PL 108-446 Section 616(d).
12 Similarly, nothing prevents a state from taking NCLB or

IDEA funding and estab-
lishing stricter standards than are present in the law.
13 One of the goals of the IDEA reauthorization in 2004 was to
align the law with
NCLB. See PL 108-446 Sec. 601(c)(5)(c) and Topic Brief,
IDEA Reauthorized Statute, Alignment
with the No Child Left Behind Act, available at
http://www.ed.gov/policy/speced/
guid/idea/tb-nclb-align.doc.
14 For examples of state-level debates on opting out of NCLB,
see S. Rothschild,
“Official Suggests Opting Out of ‘No Child’ Law,” Lawrence
Journal-World, 12 October 2005;
and A. Paulson, “An Education Rebellion Stirring,” Christian
Science Monitor, 11 February
2004.
15 For a review of potential consequences to states for opting
out of NCLB, see Council
of Chief State School Officers, “Preliminary Analysis of
State/District Nonparticipation in
NLCB” at
http://www.ccsso.org/content/pdfs/AnalysisEDletter.pdf; and
Pennsylvania
School Boards Association, “NCLB Opt-out Consequences for
States and School Districts
Outlined” at http://www.psba.org/issues-research/nclb-
optoutconsequences.asp.
16 Each student found eligible for special education must be
provided with an
Individual Education Program (IEP) that is developed in
collaboration with school staff and
parents and that sets forth the student’s annual education goals

and the special education
services that the student will receive to achieve those goals. The
full requirements for the
IEP are set forth in PL 108-446, Section 614(d).
17 See Chambers, Parrish, and Harr (2004) for a thorough
discussion of the actual
cost of procedural safeguards in special education. Based on
data from 1999–2000, they
found that special education mediation, due process, and
litigation expenditures account
for only 0.3% of total special education expenditures. In terms
of per-pupil spending, when
applied to the entire special education population of nearly 6.2
million students, the expen-
diture per special education pupil on mediation, due process,
and litigation activities was
approximately $24.
18 Data from the National Longitudinal Transition Study II
(2005) indicate that most
parents surveyed (86%) were satisfied with the special
education services their child
received. Only 5.3% had been through a hearing and 10.6%
through a mediation.
19 According to Reichbach (2004), the most likely mechanism
for parents to use to
force a government entity to enforce provisions of NCLB would
be “third party beneficiary
theory,” which is based on the premise that the state or local
entity that accepts federal
funding is bound by a contract that can then be enforced by the
intended third party ben-
eficiary, such as a parent or child.

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