Originally enacted as the Education for AllHandicapped Children Act, the Individuals withDisabilities in Education Act of 1975 was intend-ed to guarantee each disabled child access to a freeappropriate public education. The act is arguablythe high-water mark of federal control ofAmerican education, regulating nearly all aspectsof special education law and policy. IDEA is duefor reauthorization this year.

With annual expenditures of about $50 bil-lion, including $6 billion to $7 billion in federalcontributions, special education is as troubled asit is costly. The occasion of IDEA’s reauthoriza-tion has been marked by proposals intended toalleviate IDEA’s myriad, universally acknowl-edged problems while improving educationaloutcomes for disabled children. For better or forworse, IDEA reform will dictate special educa-tion’s prospects for the future.

IDEA’s central failure is the complex andadversarial process required to determine the sizeand nature of each disabled child’s entitlement tospecial services. Recognizing that the educationalneeds of disabled children differ widely, the actmandates that each child’s “individual educationplan,” or IEP, be created out of whole cloth by hisor her local school district in a series of meetings.

The process mandated by the statute has notonly failed to achieve its purpose of ensuring anappropriate education to each disabled child. Ithas marginalized the parents it was intended toempower and has created a barrage of compliance-driven paperwork so overwhelming that specialeducators are driven to quit the profession.

Worse, IDEA’s adversarial nature has under-mined relationships between parents and educa-tors, pitting parent against school in a bitter strug-gle over limited resources. Because the act’s proce-dures require savvy, aggressive navigation, its ben-efits flow disproportionately to wealthy families,often leaving lower-income children underserved.

IDEA has also precipitated a financial crisis inschools. Regulatory compliance and litigation costsrelated to IDEA’s failed dispute resolution frame-work are soaking up precious resources needed foreducation, while IDEA funding rules have encour-aged incorrect labeling of many students as disabled.

The battle between parents and schools overeach child’s educational plan must end with adecisive victory for parents in the form ofportable benefits. Special education should bereformed to allow parents to control how theirchild’s educational dollars are spent in the pub-lic or private school of their choice.

Escaping IDEAFreeing Parents, Teachers, and Students through

Deregulation and Choiceby Marie Gryphon and David Salisbury

_____________________________________________________________________________________________________

Marie Gryphon is an education policy analyst and David Salisbury is director of the Center for EducationalFreedom at the Cato Institute.

Executive Summary

No. 444 July 10, 2002

Introduction

Since 1975, the law now known as theIndividuals with Disabilities in EducationAct has promised a “free appropriate publiceducation” to all children with disabilities.Since that time, local public schools havebeen required to accept all disabled studentsand provide them with an educational planin compliance with various federal procedur-al requirements. In return, the act providesfor some discretionary federal funding toassist school districts to establish programsand procedures to meet the special needs ofstudents with disabilities. Students with dis-abilities must be educated in the “leastrestrictive environment,” meaning that theyshould be accommodated in regular class-rooms where possible.

IDEA was part of an important effort inthe 1970s to end discrimination against dis-abled children by states and local school dis-tricts. Disabled students’ civil rights are pro-tected by the Equal Protection Clause andDue Process Clause of the Constitution andby an anti-discrimination law commonlyknown as section 504.1 When it became clearthat disabled children were not being treatedfairly under the law by public school sys-tems,2 Congress passed IDEA in an effort toprovide a regulatory framework, or process,as well as some funding to help states ensurethat disabled children would not suffer fur-ther discrimination.

IDEA is often conflated with the constitu-tional rights of disabled children by defend-ers of the status quo. They wrongly arguethat changes to IDEA would amount to adenial of equal protection to students withspecial needs. In fact, IDEA is no more than aregulatory process, a mechanism for helpingto achieve the goal of equity for disabled stu-dents. Policymakers should not hesitate toreexamine whether IDEA is effectively meet-ing this challenge today.

Though well intended, IDEA has created alegal and regulatory quagmire for specialeducation that wastes resources, increases

costs, and creates contention between par-ents and school officials. In spite of the factthat the act was intended to empower par-ents, even the most persistent parents find itdifficult to navigate the procedures involvedin special education under IDEA. Too oftenIDEA has marginalized the parents it wasintended to empower.

Also, IDEA’s emphasis on procedure hasburdened special education personnel withexcessive paperwork and meetings. Thatbureaucratic excess lowers morale amongspecial education personnel and hasimpaired the recruitment and retention ofspecial education teachers.

Worse, the inherently adversarial natureof IDEA’s processes causes children to betreated like pawns in a litigious tug of warbetween parents, attorneys, and governmentofficials. IDEA’s reliance on due processmechanisms results in better outcomes forsavvy, affluent parents than for parents whoare less able to hire attorneys or otherwisenavigate IDEA’s complex procedures.

In addition to overregulating special edu-cation, IDEA is burdened with a flawed fund-ing structure that has created incentives tooveridentify students as learning disabled.The fastest growing segment of the specialeducation student population is childrendiagnosed with a “specific learning disabili-ty.” Financial incentives to identify more andmore students as disabled inhibit efforts toprevent minor learning problems frombecoming more severe. Assistant U.S.Secretary for Special Education andRehabilitative Services Robert Pasternackhighlighted this problem in his testimonybefore a congressional committee: “Whilemany children are appropriately classified ashaving learning disabilities, we know, forexample, that many are classified as suchbecause of the lack of effective readinginstruction . . . in the regular classroom.”3

Many children are placed in special educa-tion primarily because they are poor readers.In this case, effective intervention and reme-diation should make it possible for childrento catch up to their better reading peers.

2

IDEA has createda legal and regula-tory quagmire forspecial education

that wastesresources, increas-

es costs, and cre-ates contention

between parentsand school

officials.

Unfortunately, IDEA’s effect on the academ-ic achievement of such children has not beenencouraging. The majority of students iden-tified under IDEA continue in the programuntil they leave school. Instead of serving as away for children to catch up to their peers,special education too often becomes whatsome commentators have called a “life sen-tence” for children who have fallen behind.

Finally, IDEA is a further expansion offederal spending and regulatory power intoan area the Constitution does not authorize.As Roger Pilon explains, “From beginning toend, the [Constitution] never mentions theword ‘education.’ The people, in 1787 orsince, have never given the federal govern-ment any power over the subject—despite aconcern for education that surely predatesthe Constitution.”4

Yet today almost every aspect of a child’sinteraction with local schools is dictated byfederal policy once the child is identified asdisabled. Although it has long been recog-nized that those working closest to a childcan make the best educational decisions,IDEA has replaced local control with federalgovernance. Not only is this less effective, itruns counter to constitutional authority.Other than ensuring that students’ constitu-tional rights are upheld, the federal govern-ment lacks authority to become involved inwhat should be, under the Constitution, alocal matter.5 IDEA has wandered far fromthe federal mission to secure equal protec-tion for special needs children by mandatinga smothering, procedurally driven systemthat hampers the efforts of special educationteachers and students.

States should consider turning down thefederal funds supplied in return for complyingwith IDEA, as the costs of compliance exceedthe benefits and delay needed reforms. Alter-natively, as authorization for IDEA expires atthe end of 2002, Congress has the opportunityto correct many of the current defects of specialeducation law. Reauthorization of IDEA with-out fundamental reform is the wrong idea. It istime to consider a new approach for familieswith children with disabilities.

This paper proposes fundamentalreforms to improve educational results forstudents with disabilities. Policymakersshould carefully evaluate the experience ofthe past 25 years. We can’t afford to be hesi-tant about making changes, even radicalchanges, to the act, if those changes will ben-efit children and families.

The Process: IDEA’sDispute Resolution Model

The regulatory structure mandated byIDEA has not changed significantly since theoriginal act became law in 1975. The funda-mental purpose of the act was to end dis-crimination by public schools against dis-abled children, but the act was intended tofurther other goals as well. Recognizing, forinstance, that children with disabilities varywidely in terms of needs and limitations, theact sought to achieve an individualized pro-gram for each disabled child. IDEA’s authorsalso sought to involve and empower parentsin the choices made about the education oftheir children.

Like many laws passed at the time, IDEAsought to further its goals by creating a com-prehensive and detailed series of regulationsproviding for meetings, record making, nego-tiation, due process hearings, administrativereview, alternative dispute resolution, andlegal remedies.6 At each of those steps, IDEAsought to create a balance of power betweenpublic educators and parents, requiring theinvolvement of both at every step of the com-plex IDEA-mandated bureaucratic processdesigned as a series of forums for resolvingdisputes presumed to crop up between thetwo interest groups. For this reason, IDEA isa “dispute resolution model” for deciding onand delivering special education services.7

Initial IdentificationBefore receiving special education services, a

child must be referred by his or her parent orteacher to special education experts employedby the school district for evaluation.8 Because of

3

IDEA has wan-dered far fromthe federal mis-sion to secureequal protectionfor special needschildren by man-dating a smother-ing, procedurallydriven systemthat hampers theefforts of specialeducation teach-ers and students.

a heavy backlog, the evaluation process fre-quently takes many months,9 although statesare required to make good faith efforts to iden-tify and serve disabled children under IDEA’s“child find” requirement.10 School districts arerequired to seek out disabled children in pri-vate, as well as public, educational settings.11

The Individual Education PlanIDEA requires development of an individ-

ual education plan (IEP) for each child iden-tified by a school district as disabled. Formalmeetings must be held to develop the IEPand must include the child’s special educa-tion teachers, general education teachers,and parents; the child him- or herself, ifappropriate; and any experts, consultants, orattorneys called upon by either the parents orthe school.12 Written notice of those meet-ings, as well as all proposed actions under theIEP, is required by IDEA and must include astatement of procedural safeguards, includ-ing information about independent evalua-tions, parental consent, due process hearings,civil actions, and attorney’s fees.13 Thenotices must be provided at several junctures,including when a child is referred to specialeducation, when a child is reevaluated, beforeany IEP meeting, and whenever a complaintabout a child’s education is filed.14

The IEP itself must include a written diag-nosis of the child’s problems, a detailedaccount of the special services he or she willreceive, and statements of short- and long-term objectives and goals, as well as a recordof all procedures followed in its production.15

The IEP process must be repeated annuallyfor each child identified as disabled underIDEA. During the annual meetings the IEP isreviewed and revised.16

Due ProcessIDEA mandates a complex administrative

review of all disputes related to the IEP of adisabled child. If a parent disagrees with anypart of the school district’s IEP, he or she mayrequest a formal appeal hearing before anostensibly “impartial officer,” who will adju-dicate the dispute.17 In practice, the hearing

officer may be a retired school districtemployee, either a special educator or a spe-cial education administrator.18 If the parentis dissatisfied with the result of this initialhearing, he or she may (if the state has a two-tiered review system) appeal directly to thestate board of education or its designatedhearing office, which may uphold or reversethe district hearing officer’s educational deci-sion or remand the matter to an earlier stageof due process.19

The due process hearings, both local and (ifavailable) state, resemble trials in manyrespects, with formal procedures, witnesses’testimony, opening and closing arguments,and a verbatim transcript.20 It is not at alluncommon for the due process stage of anIDEA dispute to take a year or longer.21

Attorney Jonathan A. Beyer comments,“Hearings may extend for weeks, months andyears only to return to a different stage of dueprocess before ever achieving closure.”22

LitigationParents who have successfully exhausted

the preceding requirements and remain dis-satisfied may sue their school district in stateor federal court for failure to provide a “free,appropriate public education,” or FAPE.23

FAPE is a term of art that includes compliancewith IDEA’s processes, as well as an ill-definedminimum level of educational service.24

The court will review all of the evidence col-lected during the previous administrativeprocesses as well as any additional evidenceintroduced by the parties and make a decisionbased on “the preponderance of the evidence.”25

If the plaintiff substantially prevails in court,the court may award attorneys’ fees in additionto monetary and injunctive relief.26

Problems with IDEA

Virtually everyone is unhappy with theway IDEA currently performs, though fewhave clear ideas about how to reform the sys-tem.27 Below are a few of IDEA’s most signif-icant failures.

4

It is not at alluncommon forthe due process

stage of an IDEAdispute to take a

year or longer.

Unnatural Enemies: The IEP as Opening SalvoIDEA’s single worst feature is its propensi-

ty to turn would-be allies—parents and spe-cial educators—into the equivalent of fight-ing dogs, specially trained to see one anotheras the enemy throughout the cumbersomeprocesses mandated by the act. At fault is thedispute resolution model (including the IEP,due process hearing, and litigation) for deter-mining a child’s educational program.

The dispute resolution model, underwhich parents can walk away with either verylittle or a great deal depending on theiraggressiveness and the quality of representa-tion they have, nurtures an artificially adver-sarial relationship between the two groups bysplitting their interests. Parents want asmany services as possible for their child,while school districts are driven by budgetaryconstraints to try to shortchange every par-ent who doesn’t make trouble.28 The result isa system that rewards posturing and threat-ening rather than collaboration. IDEA par-ent Ellen Tuttle complains, “I have to be asteamroller in my daughter’s life to get herthe help she needs.”29

Procedural requirements intended toempower parents, such as a seemingly endlessseries of meetings to which they must be invit-ed, have failed to live up to their promise. ManyIDEA parents feel intensely marginalized byIDEA’s processes, which are driven by schooldistrict employees bent on preserving the spe-cial education nest egg for future litigation-gen-erated emergencies.30

School personnel usually arrive at therequired meetings with a plan to present to par-ents as a fait accompli.31 They have superiorknowledge of the ins and outs of IDEA andoften intimidate parents who want a real role inthe process with professional jargon and proce-dural hardball. One scholar analyzing multipleIEP meetings observed:

Of the 14 conferences observed, inonly one instance was the meetingactually devoted to specifying goalsand objectives jointly between theparent and educators. It is notewor-

thy that in this instance the fatherwas a psychologist.32

Accordingly, the IEP process has become,not a meaningful interaction between parentand teacher about the needs of a child, but anopportunity for the school district to prepare adefense against a future lawsuit.33 One legalexpert has remarked, “You can fight over place-ment all you want, but if you want to win, youneed to control the content of the IEP.”34

Education scholar Guy Benveniste concurs thatIEP reports are “less designed to address theproblems of the child than to defend the dis-trict against potential attack.”35

Parents often feel blindsided by a cabal ofspecial educators, professional administra-tors, and other experts acting on the advice ofschool district attorneys. The WashingtonPost’s Jay Mathews recounted one particular-ly shocking case:

Marvin and Amy Adams ofWeatherford, Texas, said that whenthey objected to the unannounced,and thus apparently illegal, presenceof a school district lawyer at one meet-ing about their daughter Callie, whois autistic, the lawyer refused to leave.

After about 20 minutes of backand forth arguing, during which myhusband was called a “liar,” the lawyerand each and every one of the [schooldistrict] employees just got up—enmasse—and walked out of the room.The lawyer asked if the Adamses wereleaving too, Amy said, and before theycould answer the lawyer said to them,“We’ll just get someone down here toremove you.”36

While that example is extreme, it is clearthat the IEP process intended by IDEA’sauthors to be cooperative is nothing of thesort. School districts have the upper hand inthis game most of the time: they have specialeducation experts on staff to fill the IEPrecord with opinions in support of the dis-trict’s plan, while those parents who can

5

The IEP processhas become, not ameaningful inter-action betweenparent and teacherabout the needs ofa child, but anopportunity forthe school districtto prepare adefense against afuture lawsuit.

afford to do so must hire their own experts tocontradict the school district’s experts if theparents wish to be taken seriously.

Even parents possessed of the money andknow-how to successfully navigate the sys-tem see the IEP process as an extended earlysettlement conference for a legal dispute,rather than a cooperative effort to educate achild. Not surprisingly, many of the parentswho have navigated the process most suc-cessfully are themselves attorneys.37 ClintBolick, a successful public interest lawyerwith the Institute for Justice and the parentof a child with a borderline diagnosis oflearning disabled, wrote of IDEA, “If it’s thisperverse for me, I wonder how the systemworks for parents who, unlike me, do not suebureaucrats for a living.”38

The dispute resolution model mandatedby IDEA inevitably pits teacher and schoolagainst parent and child in a battle over botheducational philosophy and scarce resources.The ever-present threat of occasional out-sized payoffs required by court decisionmeans that special educators must jealouslyguard resources during the IEP process,rather than determine in good faith what isbest for any individual child.39

Thus, the tragedy of IDEA’s dispute reso-lution model is the loss to parents of thegood counsel of a trusted special educationexpert about what is right for their child.40

Too often, parents lack needed informationabout available options, both inside and out-side the public school system. They need afiduciary motivated to look out for theirchild’s best interests. IDEA forces specialeducators to deceptively present cheap andeasy strategies to parents as “appropriate,”and that often destroys the relationshipbetween the two groups. IDEA attorneyKevin Lanigan observes:

Such [due process] proceedings tendto foster mutual perceptions of dis-honesty between the parties and oftenresult in deep suspicion and hostilitybetween parents and school officials.While litigation is inherently adversari-

al, the level of antipathy in post–dueprocess relationships appears to usgenerally to be much higher [in IDEAdisputes] than in other areas of oureducation practice.41

IDEA parent Kathy Davis has lamented:“In regard to the IEP process itself, I wish itstood for ‘Individual Encouragement toParents.’ If we could change it, I wouldchange it. In many ways this public law hasbecome our enemy.”42

The Procedural Compliance BurdenIn addition to destroying trust between

parents and educators, IDEA’s regulatorystructure and decisional law nurture anobsessive focus on procedural compliance.Compliance, not educational outcome, isregarded as the premier measure of successfor a special education program.43 Educationanalyst Kalman R. Hettleman notes that“special education nationally is mired in acompliance model of accountability” underwhich procedural conformity is valued overacademic progress.44

Already endemic in IDEA’s statutory struc-ture, which offers more in the way of proce-dural protections than in substantive guaran-tees, the focus on process has been worsenedby court interpretations of the act. TheSupreme Court has established a two-part testfor deciding an IDEA lawsuit: (1) have all ofthe procedural requirements of the act beenmet by the school district, and (2) if so, is thestudent’s IEP reasonably calculated to provideeducational benefit to the student?45

Lower federal courts have exacerbated theprocedural focus by relying largely on the so-called Rowley test’s procedural prong toadjudicate IDEA disputes. Understandablyreluctant to decide pedagogical questions onwhich they lack expertise, judges emphasizeprocedural compliance in their opinions.IDEA scholars Joyce O. Eckrem and Eliza J.McArthur write of the relative importance ofthe procedural prong of the Rowley test:

As a practical matter, another line ofcases interpreting the first prong of

6

The dispute reso-lution modelmandated by

IDEA inevitablypits teacher and

school againstparent and child

in a battle overboth educational

philosophy andscarce resources.

the Rowley test—compliance withprocedures—began to supercede the“benefit” standard, because deter-mining compliance is much easierthan determining “benefit” underany standard.46

Because the substantive “educational bene-fit” prong has been so forgiving, while IDEA’smyriad procedural requirements are sodemanding, good IDEA attorneys know thatthe way to prevail in an IDEA dispute is to liti-gate the procedural compliance issue. Once acourt has found a school district to be out ofcompliance, virtually any substantive remedymay be obtained. One IDEA litigant recoveredthe costs of a private special education dayschool in a remote community, the cost of rent-ing an apartment near the school, travel costsso that the family could periodically be reunit-ed at the primary residence, and attorney’sfees.47 The remedy was awarded, not becausethe litigant proved the school district’s educa-tional plan was substantively inappropriate,but because the district had failed to complywith IDEA’s written notice requirements at onestep of the compliance maze.48

Special education attorneys Eckrem andMcArthur write:

The certainty with which a procedur-al flaw could destroy FAPE [a free,appropriate public education] rever-berated throughout the special edu-cation community. No school dis-trict attorney would recommendpursuing a dispute with a parentthrough the Act’s administrativehearing process and the courts, with-out first carefully analyzing theDistrict’s compliance status. And noparent would formulate a case on thebasis of a “benefit” analysis withoutvigorously pursuing the District’sprocedural compliance.49

Because it is a matter of financial survivalfor school districts to comply with IDEA’smyriad requirements, every procedural step

must be painstakingly documented for poten-tial use in due process hearings and subse-quent litigation.50 The paperwork generatedas a result of the IDEA compliance maze is soout of control that it is one of the few issues onwhich parents, reformers, and the special edu-cation establishment agree.51 The Counsel forExceptional Children, an advocacy organiza-tion for disabled students, found after con-ducting a national survey of special educatorsthat “the tyranny of paperwork overshadowsthe thoughtful planning needed for individu-alized student instruction.”52

A recent federally funded survey revealedthat excessive paperwork and meetings werethe top two reasons special educators lefttheir jobs, exacerbating an existing shortageof qualified teachers.53 Some special educa-tion teachers are said to spend about 50 to 60percent of their time filling out the formsrequired by law or by their district’s defensivelegal strategy.54

Indeed, so convoluted are IDEA’s regulato-ry requirements that a National Council onDisability member recently testified beforeCongress that all 50 states and the District ofColumbia remain out of compliance with theact, despite school districts’ best efforts tocomply.55 At least two states, Hawaii andMaryland, are now operating their programsunder the direct supervision of a federaljudge.56 Without a fundamental rethinking ofthe IEP and administrative review processes,IDEA compliance is unlikely to become lessexpensive or less burdensome.

The Litigation ExplosionFinally, IDEA has generated a wave of

expensive and chancy litigation, enriching liti-gation attorneys while draining school dis-tricts of needed resources. Parents who havenavigated their way through the precedingprocedural mess are invited to sue their schooldistrict for failing to provide a FAPE.57

Aggressive parents, often rightly angered bythe school district’s unresponsive bureaucracyand out of patience with IDEA’s picayune dueprocess requirements, have done so. The resulthas been that a “whole cottage industry of

7

IDEA has gener-ated a wave ofexpensive andchancy litigation,enriching litiga-tion attorneyswhile drainingschool districts ofneeded resources.

lawyers and advocates has grown up to helpparents get what they want out of the schoolsystem.”58

Partly to blame is IDEA’s vague statutorylanguage concerning the extent of a disabledchild’s entitlement to special education ser-vices.59 Justice Rehnquist opined in the land-mark IDEA case, Board of Education v. Rowley,that the statute’s definition of appropriateness“tends toward the cryptic rather than the com-prehensive.”60 The Rowley Court, while estab-lishing the two-part procedural and substanceinquiry that has played a role in the increasingprocedural focus of litigants, declined to createa clear test for determining whether a given stu-dent’s IEP is “appropriate.” Federal courts havelargely clung instead to a case-by-case approachto the substantive issue.61

The heart of the problem with substantivereview of a child’s IEP is that judges are ill suit-ed to determine what educational program is“appropriate” for a disabled child by any stan-dard.62 Even professional educators often can-not agree on what constitutes an “appropriateeducation.”63 For that reason, IDEA decisionsare often inconsistent, unpredictable, andtherefore unfair.64 Education scholar Paul Hillhas called IDEA the “high water mark ofresource allocation by court decision.”65

IDEA litigation has been on the rise inrecent years, as more and more children havebeen identified as disabled.66 As federalappellate courts fashion vague and conflict-ing standards for unwieldy IDEA cases, edu-cation attorneys collect large fees from allparties, draining schools and parents offunds needed for education.

IDEA’s InequitiesTo listen to IDEA’s critics is to be confront-

ed by seemingly inconsistent condemnations.Some critics insist that IDEA still too oftenprovides insufficient services to disabled chil-dren, “warehousing” them in separate class-rooms where little is taught. Other critics willindignantly recount stories of disabled chil-dren receiving obscenely generous benefits atpublic expense, draining resources from pub-lic school districts that could be better spent

on the general education curriculum. In fact,both groups are correct. Provision of specialeducation under IDEA is schizophrenicallytoo generous and too stingy.

Arcane procedural rules, vague legal stan-dards, and frequent recourse to litigation haveproduced a two-tiered system of special educa-tion. Savvy, affluent parents who are comfort-able with attorneys and confident expressingtheir views to educators are receiving an inor-dinate share of the total resources available forspecial education.67 Other children with spe-cial needs receive much less, often less thanthey need.68 Indeed, IDEA has been likened to“a huge regressive tax—helpful to thosewealthy enough to take advantage of it andoften harmful to those who are not.”69

As the social stigma associated with disabili-ty has decreased, affluent parents have come torealize that a classification as “learning dis-abled” can have substantial benefits for theirchildren, from free tutoring or note-taking ser-vices to extra time on tests.70 Bolick points out,“In affluent Greenwich, Connecticut, nearlyone in three students has the learning disabled,or LD, label and accompanying benefits.”71

While children from families with morethan $100,000 in annual income make uponly 13 percent of SAT test takers in a givenyear, they constitute 27 percent of those whoreceive special accommodations on theSAT.72 Affluent parents are also the mostlikely to obtain private school placements fortheir disabled children.73

One special education study concluded:

Because the degree of choice extendedto special-needs students depends inlarge part on the parents’ pushiness, itshould come as no surprise . . . that inmany school districts there is not onespecial education program but two,separate and unequal. This dual sys-tem, keyed to parents’ differing levelsof savvy and persistence, unlawfullydeprives some special education stu-dents of essential services while provid-ing others with a premium private edu-cation at public expense.74

8

Savvy, affluentparents who are

comfortable withattorneys and con-

fident expressingtheir views to edu-

cators are receiv-ing an inordinateshare of the total

resources avail-able for special

education.

As long as the type and cost of each dis-abled child’s benefit are determined underIDEA’s failed dispute resolution model,IDEA’s chronic inequities will be impossibleto alleviate.

Skyrocketing CostsThe amount spent on special education ser-

vices as a percentage of the total education bud-get has risen sharply since IDEA was passed. In1977 services for disabled students accountedfor 16.6 percent of total education spending.Today the $78.3 billion spent on special educa-tion students at the local, state, and federal lev-els accounts for 21.4 percent of the $360.2 bil-lion spent on elementary and secondary publiceducation in the United States.75 The numberof school-aged children receiving special educa-tion services also increased during that period,from about 8.5 percent in 1977–78 to nearly 13percent in 1999–2000.76 The implication is thatthe growth in special education spending is pri-marily due to the increased number of studentsreceiving special education services.

The growth of special education can beattributed largely to a sharp rise in the number

of children categorized as learning disabled.The number of children so identified grew byan extraordinary 242 percent between 1979 and1997 (Figure 1). The number of children in allthe other disability categories combinedincreased by only 13 percent during the sameperiod. Today, learning disabled childrenaccount for nearly 50 percent of children in spe-cial education (Table 1).

Several factors have contributed to thegrowth in the number of children diagnosed aslearning disabled. Often, a school district has afinancial incentive to identify disabled childrenunder IDEA, since those children bring addi-tional federal and state funds into the school.Many of those children may be low achieving,but not disabled in any traditional meaning ofthe word. This incentive may be extremely pow-erful in poorer districts that serve large popula-tions of low-achieving students, as each studentplaced in special education maximizes the pro-curement of state and federal funds needed toaugment low local tax revenues.77 In addition,parents often seek admission of their childrento special education programs because of theincreased resources that are available.78

9

0

500

1,000

1,500

2,000

2,500

3,000

1976–77 1980-81 1985–86 1990–91 1995–96 1999–2000

Specific Learning Disability

Speech or Language Impairments

Mental Retardation

Serious Emotional Disturbance

Hearing Impairments

Orthopedic Impairments

Other Health Impairments

Visual Impairments

Multiple Disabilities

Deafness-Blindness

Autism and Other

Preschool Disabled

Figure 1Number of Children in Federally Supported Programs for the Disabled, by Categoryof Disability (thousands)

Source: U.S. Department of Education, National Center for Education Statistics, Digest of Education Statistics,2001 (Washington: U.S. Department of Education, 2002), p. 66, Table 52.

Often, a schooldistrict has afinancial incen-tive to identifydisabled childrenunder IDEA,since those chil-dren bring addi-tional federal andstate funds intothe school.

Compounding this problem is the fact thatthe condition known as SLD (specific learningdisability) lacks a clear, specific definition,making it possible to categorize almost anylow- or under-achieving child as SLD.Commenting on the various behaviors or con-ditions that can be used to categorize a childas SLD, experts have opined that nearly 80percent of American school children qualify asdisabled under one definition or another.79

Because SLD is the only disability now definedby statute instead of administrative regula-tion, the Department of Education is limitedin its ability to curb abuse of the designation.80

One unfortunate byproduct of the incen-tive to overidentify students under IDEA islack of early intervention for minor learningproblems. Because of this, minor problemsthat could have been prevented if identifiedand dealt with at the right time grow intointractable problems that require moreaggressive and expensive treatment. This isparticularly true of learning disabilities.Today, learning disability is the most fre-quently identified type of disability among

American children in public schools. There isample evidence to suggest that millions ofchildren who are currently receiving long-term and expensive special education serviceswould not need such services if their instruc-tional needs had been addressed at an earlystage. According to G. Reid Lyon of theNational Institute of Child Health andHuman Development, the category “learningdisabled” has become a “sociological spongeto wipe up the spills of general education.”81

Most identified learning disabilities have todo with reading failure—approximately 80percent of children with a learning disabilityhave difficulty primarily with reading.82

Difficulty with reading affects a student’s per-formance in almost every other subject area, soa reading difficulty leads to failure in otheracademic areas, feeding a cycle of academicfrustration and personal failure. A studentwho is a poor reader goes on to become a poorstudent overall. The unfortunate thing is thatmany of these problems are preventable andthese children would not be experiencing dif-ficulties today if they had received effective

10

Table 1Percentage of Children Aged 6 through 21 Served under IDEA by Category ofDisability, 1976–77 and 1999–2000

Disability 1976–77 1999–2000

Specific learning disabilities 21.5 45.7Speech and language impairments 35.2 17.4Mental retardation 26.0 9.7Emotional disturbance 7.7 7.6Hearing impairments 2.4 1.1Orthopedic impairments 2.4 1.1Other health impairments 3.8 4.1Visual impairment 1.0 .04Multiple disabilities na 1.8Deafness, blindness na <.05Autism and traumatic brain injury na 1.3Developmental delay 5.3 .03Preschool disabled na 9.4

Source: U.S. Department of Education, National Center for Education Statistics, Digest of Education Statistics,2001 (Washington: U.S. Department of Education, 2002), p. 66, Table 52.

Note: na = not available.

Parents oftenseek admission of

their children tospecial education

programs becauseof the increased

resources that areavailable.

reading instruction in the early grades.83 Inaddition, experts point out that learning dis-abled has become a catchall category for theinstructional failures of earlier grades.84

Congress amended IDEA in 1997 to rem-edy the problem of overidentification, chang-ing from a funding formula based on stu-dent count to one based partially on totalstudent enrollment. This should help to alle-viate the problem of financial incentives forlabeling children as disabled. The 2000–01school year was the first year to fall under therevised funding formula so the effects ofthese changes have not yet been seen.85

The IDEA-mandated bureaucratic processalso imposes enormous transaction costs onschool districts. Due process hearings, IEPmeetings, record keeping, and administra-tive reviews all require that districts commitresources to defending the school’s prac-tices and placements. Funds that could bebetter spent if devoted to the education of achild must be used to defray procedural andlegal costs.

Economists at the American Institutes forResearch estimate that about $5 billion isspent annually on special education adminis-tration, an estimate that does not include anygeneral education administrative expensesfor disabled students.86 Of that amount, $4billion is spent on central office special edu-cation administration, rather than school-level administration. This $4 billion spentnationally on activities occurring nowherenear children covers “administration, coordi-nation, staff supervision, monitoring andevaluation, due process, mediation, litigationsupport, assessment of student progress, andeligibility determination.”87

At least half of the foregoing central officeactivities are made necessary by IDEA’s dis-pute resolution framework, which demandsdue process, mediation, and litigation expen-ditures as well as the monitoring and assess-ment regimens that make it possible forschool districts to win cases. School districtscan ill afford to use limited special educationresources to pay these substantial proceduraland legal costs.88

Moreover, at individual schools specialeducation teachers are spending nearly halftheir time on compliance-related meetingsand paperwork.89 Accordingly, the act’s com-pliance demands cost each school districtmany millions of dollars annually at theschool level as well. In the city of Baltimorealone, annual IDEA regulatory compliancecosts were recently estimated at $28 mil-lion.90 The American Institutes for Researchhas conservatively estimated combinedschool-level and central office expendituresrelated to assessment, evaluation, and IEPs at$6.7 billion nationally, a figure that does noteven appear to include most legal expenses.91

The financial crisis precipitated by IDEAin public school districts around the countryhas lent urgency to the reform debate.Summarizing the financial problems facingIDEA, Los Angeles–area superintendentJames Fleming stated: “If you criticize [IDEA]you will be publicly vilified as anti-handicap.But what is happening now will absolutelydestroy public education before the nextdecade is out.”92

Low Academic GainsBecause IDEA funding to states is contin-

gent on regulatory compliance, states haveunsurprisingly focused on compliance andprocess rather than education. There are norewards for states that actually demonstrateprogress in educating their disabled stu-dents, nor are there sanctions against stateswhere students fail to show reasonable acad-emic achievement. States are judged solely onthe degree to which procedural regulationsare satisfied and the right paperworkprocessed correctly and on time.

Even the national assessments that havebeen designed to look at special educationprograms collect data only on program char-acteristics, not the academic gains of specialeducation students.93 What is known aboutthe academic gains of children in special edu-cation programs is not encouraging.Economist Eric Hanushek and his colleaguesrevealed that the average educationalimprovement for children diagnosed with

11

Reading prob-lems are pre-ventable and chil-dren would notbe experiencingdifficulties todayif they hadreceived effectivereading instruc-tion in the earlygrades.

learning disabilities and placed in specialeducation was 0.04 standard deviations inreading and 0.14 in math.94

Although those numbers suggest that stu-dents receive some benefit from special educa-tion, the gains are very small—not enough tonoticeably affect a learning deficit let aloneeliminate it. For that reason, the bulk of thesechildren remain perpetually in special educa-tion programs, never catching up to their high-er achieving classmates. According to Lyon,“Gains are so small that [special education]children are not closing the gap” between them-selves and other students.95

Achievement of students in Baltimore,Maryland, is reflective of the low achieve-ment gains made by special education stu-dents. Last year, for example, only 9.6 percentof special education third grade studentsscored satisfactory or better on the Marylandstate performance tests in reading. By gradeeight, the percentage of students scoring sat-isfactory or better had dropped to 1 percent.Even more telling is that the gap in testscores between special education studentsand regular students widened over time. Forexample, in grade two, the percentage of gen-eral education students with passing scoresin reading was 44 percent; only 24 percent ofspecial education students had passingscores. In grade six, 31 percent of general edu-cation students had passing scores but only 8percent of special education students did.96

Other studies have documented that spe-cial education instructional-remediation pro-grams are not effective for children who arepoor readers. For example, one study reportedthat 80 percent of poor readers in special edu-cation remediation made no measurable gainduring the school year.97 The lack of progressby poor readers in special education is unfor-tunate, since proven methods exist for effec-tive remediation in reading. For example,Joseph Torgesen and his colleagues conductedtests of well-designed reading remediationprograms including the Lindamood AuditoryDiscrimination in Depth Program and“Embedded Phonics.” Those programsshowed far superior results with children who

had made little or no progress in the preceding16 months in special education. After aneight-week intervention, 40 percent of thosechildren were able to return to regular classes(compared with the normal rate for leavingspecial education of 5 percent).98

School leaders themselves admit that specialeducation students are not coming close toreaching their academic potential.99 Otherexperts have pointed out that special educationservices are often ineffective because they areprovided too late to children who are already farbehind, particularly in the case of reading.100

Solution: Deregulation andParental Choice

Virtually all concerned parties are very dis-satisfied with the way IDEA has functioned.101

The spectacular failure of current IDEAprocesses to serve students, parents, andteachers was summed up by one IDEA parent:

Over the last eleven years we have seenwhat a legacy has been created. I can’timagine how it must feel to be part ofthe creation of this sad, sad mess—where children are pariahs, their fam-ilies are the enemy, “special” means“can’t be done,” and education haslong been forgotten . . . for the record,the culture of the Special EducationAdministration is a closed-mouth,non-collaborative, non-responsive,anti-family fortress. . . .102

The roadblock to meaningful reform so farhas been a reluctance to rethink the Byzantineprocedural structure that forms the very heartof the act. The only way to resolve the prob-lems of skyrocketing transactional costs,adversarial relationships between parents andteachers, and inequity is to replace IDEA’s dis-pute resolution model with genuine privatechoice for parents of disabled children. Thebattle between parents and educators mustend with a decisive victory for parents, in theform of portable benefits.

12

The only way toresolve the prob-lems is to replace

IDEA’s disputeresolution modelwith genuine pri-

vate choice forparents of dis-

abled children.

One state, Florida, has already has alreadymoved in that direction. Under legislationpassed in 1999 and expanded in 2000 and2001, children with physical or mental disabil-ities are eligible for tuition scholarships thatcan be used to attend any public or privateschool of the family’s choice. Last year, justover 4,000 disabled children chose to usescholarships to attend a private school ratherthan their neighborhood public school.103 (SeeAppendix for a listing of some private schoolsthat serve children with disabilities.)

To obtain a McKay scholarship, parents donot have to demonstrate that their disabledchild is lagging behind academically or is notmaking progress on his or her IEP. Parentaldissatisfaction is enough for a disabled childenrolled in a public school to be eligible. TheFlorida program simply makes special educa-tion benefits portable, allowing parents, ratherthan school district administrators, to decidewhich school should receive the educationalfunds already being spent on a child. There isno additional cost to the state.

Though the Florida program is a big stepin the right direction, the state is still ham-pered by IDEA’s procedural requirements,which it is not empowered to eliminate.Although Florida’s private schools do notthemselves fall under IDEA’s jurisdiction,104

parents of disabled students in Florida muststill wend their way through the IEP and dueprocess procedures mandated by the act andspend at least a year following the IEP in thepublic school system before electing to takeadvantage of a scholarship.105

Even then, a parent’s aggressive and savvyperformance in the IEP fight will pay off—theamount of a McKay scholarship is determinedby “the base student allocation in the FloridaEducation Finance Program multiplied by theappropriate cost factor for the educational programthat would have been provided for the student in thedistrict school to which he or she was assigned,multiplied by the district cost differential.”106

Accordingly, the parent who most effectivelypressures the state for the most expensive ser-vices during the IEP process will be rewardedwith a large scholarship amount under the

Florida program, while similarly disabled chil-dren may receive less.

Because financial incentives still requireschools and parents to fight through the IEPand due process procedures in Florida,inequities and waste persist in the state’s specialeducation program. Rep. Rick Keller (R-Fla.)commented on the continuing burden IDEAplaces on the innovative Florida program,

No matter which school I visit inOrlando, the message from theteachers is always the same—ourbloated government regulations areburying them in paperwork, wastingprecious hours that could be spenthelping disabled children learn.107

For state-level choice-based reforms suchas Florida’s program to live up to their poten-tial, they must be freed from IDEA’s burden-some processes.

States Should Escape IDEA’s FailedSystem by Refusing Federal Funds

States can implement choice-based, dereg-ulatory reforms of special education at onceby turning down the federal funds associatedwith IDEA. The act is a funding statute,meaning that only states that accept its fed-eral funds have to comply with its man-dates.108 Congress originally envisioned cov-ering 40 percent of special education costswith federal dollars, but despite larger-than-expected dollar increases from the federalgovernment, the federal portion of specialeducation funding has sometimes fallenbelow 15 percent.

States should compare the amount of federalfunding they receive with the sums they mustspend, not on education, but on proceduralcompliance with IDEA. Many states will findthat turning down federal funds in favor of uni-lateral reform will produce savings rather thanadditional state costs. For the year 1999–2000,Congress appropriated about $4.5 billion inbasic and preschool IDEA funds.109 The sameyear, the American Institutes for Research esti-mates that $6.7 billion was spent at the state and

13

States can imple-ment choice-based, deregula-tory reforms ofspecial educationat once by turn-ing down the fed-eral funds associ-ated with IDEA.

local level for “assessment, evaluation and IEPrelated activities.”110 Though choice-basedreform would not eliminate assessment expensesentirely, they could be very significantly reduced.Moreover, the $6.7 billion estimate does notappear to include many due process and litiga-tion expenses, nor does it include fee awards tosuccessful plaintiffs’ attorneys.

Careful fiscal analysis should convincemany states that it is time to opt out of thisfailed program by refusing its federal funds infavor of state law reforms that eliminateIDEA’s dysfunctional procedural require-ments. In addition to probable financial gains,states would enjoy increased autonomy andmassive regulatory and legal relief. Asdescribed hereafter, parents and students instates that implement choice-based reformwould experience greater educational freedomand opportunities and face fewer bureaucraticbarriers.

Alternatively, Congress Could Create aChoice-Based Reform Option for States

Although ideally all responsibility for spe-cial education should lie with the states, statelawmakers may find it politically impossibleto turn down federal funds to pursue inde-pendent reform strategies, even if they deter-mine it would be good public policy to do so.Alternatively, Congress could amend IDEAto allow states to opt into a reformed specialeducation system, which would eliminate thefailed dispute resolution model entirely infavor of a state-administered, largely state-funded system based on parental choice.

A state would opt into the program by cre-ating a matrix of disability categories andmonetary contributions designed to representthe total average cost of both general and spe-cial services required to educate a child in eachcategory of disability. The state would thencreate a menu of special education services noless comprehensive than those currently avail-able in each school district and their estimatedcost per child per hour or per semester, asappropriate. The matrix and menu would besubmitted to the U.S. Department ofEducation and approved for a five-year period

if reasonably calculated to provide the state’sdisabled children with adequate resources toobtain an appropriate education.

Parents in “reform states” would beallowed to select from the menu of availablespecial services offered by public schools, upto the amount of the child’s defined mone-tary contribution under the matrix, with theadvice of special educators or anyone else theparents felt was appropriate. Or the parentcould take his or her child’s total education-al allowance to a private school of choice.

Because parental choice would replacenegotiation as the method of determining achild’s educational plan, reform states wouldbe exempt from all of the IEP and dueprocess requirements of IDEA and would nolonger be subject to civil suit for failure toprovide an “appropriate” education. The soleremaining potential dispute would be theaccuracy of the child’s diagnosis and, accord-ingly, the size of his or her monetary contri-bution. Reform states would be required tocreate rules for genuinely independent bind-ing arbitration of disputes related to thediagnosis of a child covered by IDEA.

The end result for a state opting intoreform would be a state-administered, largelystate-funded portable benefits plan.

Reform States Will Avoid IDEA’s WorstProblems

Reform states, whether they have unilater-ally reformed or opted-in to a federallyauthorized deregulatory plan, will save tensof millions of dollars that are now devoted toprocedural compliance, legal posturing, andlitigation. If even half of the annual $6.7 bil-lion devoted to “assessment, evaluation andIEP related expenditures” were eliminated,$3.35 billion could be saved nationally onthose items alone. States and parents wouldalso save millions more on IDEA attorneys’fees and other legal expenses. Those current-ly wasted sums could be devoted instead toeducational expenses, improving both specialeducation and general education.

Although disputes will continue to cropup over a given child’s disability category,

14

Many states willfind that turning

down federalfunds in favor ofunilateral reform

will produce savings rather

than additionalstate costs.

“the majority of cases [under current IDEAlaw] have focused on the individual child andthe adequacy of the program proposed by theschool district to meet that child’s needs.”111

Accordingly, IDEA-related disputes in reformstates should become far more rare. In addi-tion, the issue of whether a disability hasbeen correctly diagnosed is far simpler thanthat of whether a specific educational pro-gram conceived by a school district is “appro-priate” for a given child. The disputes thatremain to be resolved through binding arbi-tration will thus be far shorter, simpler, andcheaper than present litigation.

The educational choices available inreform states should also be effective inincreasing the quality of education availableto most disabled children. Choices are partic-ularly beneficial to special education stu-dents because of the variety of disabilitiesthey struggle with and because of significantrecent and ongoing advances in special edu-cation. Public institutions by their natureoften change too slowly to keep pace withrapidly evolving techniques and technologiesin special education,112 and in many areas ofspecial education, even experts lack consen-sus about which pedagogical techniques aremost effective.113

Parents have better information and bet-ter incentives to make optimal decisions fortheir children than do school districts. 114 AsKotler observes, “Parents better understandtheir child’s abilities and potential than aprofessional who typically makes judgmentsbased on a very brief acquaintance with thechild.”115 Although parents often lack theprofessional expertise of special educators,they have an incentive to seek out the verybest sources of information and advice. Apublic school district will never be similarlymotivated to spend weeks and monthsresearching educational alternatives for a sin-gle child. Accordingly, choice-based reformshould result in better educational outcomesfor disabled children.

Parental choice in reform states will alsorelieve parents of their current Hobson’schoice: accept an objectionable plan created by

the school district or face the financial andpersonal costs of a potentially years-long hear-ing and appeals process.116 Similarly, the elim-ination of the IEP and due process regimenswill free special educators from the meetingsand paperwork that have come to dominatetheir days, allowing them to focus once againon teaching children.

Reform states will alleviate the problem ofoveridentification of children as having dis-abilities, a phenomenon that has contributedto IDEA’s increasing costs. Although the1997 amendments to IDEA may prove effec-tive in reducing financial incentives for statesto over-identify minor disabilities, manystates still distribute funds to school districtson the basis of numbers of disabled children.By tying an agreed level of funding directly toeach disabled child, and giving each familycontrol over how those funds are spent,reform states will eliminate the remainingtendencies of school districts to compete forextra funds through overdiagnosis.117

Also important will be the increased equi-ty with which special education resourceswill be distributed in reform states. IDEAparents will not be sorted, as they now are,into separate camps of winners and losers onthe basis of their personal educational attain-ment, financial resources, or litigious nature.Each parent will receive the same definedmonetary contribution, depending on typeof disability, to be spent on the educationalresources the parent believes will be mosthelpful to his or her disabled child. Reformstates will see a shift in resources away fromprocedural compliance costs, litigation costs,and a small number of savvy or lucky parentsand toward lower-income children with dis-abilities who are currently underserved.

Perhaps most critical, replacement of thedispute resolution model of IDEA withparental choice in reform states will restoretrust between parents and educators, whoseinterests are no longer misaligned. With thesize of a child’s benefit no longer in question,teachers can collaborate with parents todetermine how the child’s allotment mightbest be spent. If the two cannot agree, the

15

Although parentsoften lack theprofessionalexpertise of spe-cial educators,they have anincentive to seekout the very bestsources of infor-mation andadvice.

parent is welcome to find another teacher orschool with which to work. As with otherconsensual fiduciary relationships—bankerand investor, attorney and client—the newteacher-parent relationship will be built ontrust, honesty, and results. Successful specialeducators and schools will be those that serveparents and children well.

The District of Columbia Should Becomean Example of Reform

Congress should spearhead state-levelreform by implementing a system of choicefor District of Columbia parents of specialneeds children. The District can serve as aninspiration for states to take advantage of thereform opportunity, reducing bureaucracyand empowering parents.

Special education accounts for a third oftotal education spending in the District,although only about 10 percent of studentsare classified as disabled.118 The District’s pub-lic schools are projected to have $79 million incost overruns by September 30, 2002, and thehigh cost of special education is a “majorproblem” contributing to the overspending,according to Council Chair Linda Cropp.119

Despite huge sums expended on specialeducation in the District, few state programsare as notorious for waste and abuse. TheWashington Times recently noted that “theDistrict’s program is not very helpful to chil-dren with special needs, and its managementis lousy and costly.”120 Corruption is a prob-lem; recent news reports indicate that a net-work of IDEA attorneys and former Districtschool employees has been simultaneouslyoperating law firms, testing centers and evenprivate schools, filing IDEA suits against theDistrict for inadequate services, demandingthat their clients be assigned to their ownprograms, and then overbilling the Districtfor services.121

Moreover, disabled children in theDistrict of Columbia suffer disproportion-ately from the inequities that plague the sys-tem nationally. Parents who navigate the sys-tem successfully may obtain extremely gener-ous benefits. Private placements for their

children account for more than a third of theDistrict’s $167 million special educationbudget, although they are less than one-sixthof all disabled children in the District.122 TheDistrict pays for some students to be trans-ported to and from private schools as faraway as Delaware.123

By contrast, the District’s remaining spe-cial needs children are served in the districtpublic school system, despite the fact that“programs in public schools have not beenvery helpful” to many disabled children,according to special education psychologistWilliam Boston.124 Robert Worth recountsthe story of one child caught in the District’spublic special education system:

When [Saundra] started having trou-ble in the first grade, she wasplaced—like many kids in D.C.—intoa dead-end classroom where shelearned nothing. In her case, it was aclass for the mentally retarded. Ittook six years for a teacher to noticethat Saundra wasn’t retarded at all.Now she’s catching up, but probablynot fast enough to attend collegenext year. “You can never make upfor that lost time,” says one socialworker who has helped Saundra.125

Editorial columnist Deborah Simmons,looking at the waste and inequities of theDistrict’s current special education system,has opined, “Wouldn’t it be nice if parents ofspecial education children, regardless of theirchild’s ‘special’ circumstances, were offeredvouchers?”126 Indeed, equalizing the amountavailable to each child with the same diagno-sis, and making those benefits portable,would go a long way toward resolving theunfairness of the District’s current system.

Congress should develop, or require theDistrict leadership to develop, a deregulato-ry, choice-based reform plan for special edu-cation. Such reform will both improve one ofthe nation’s most nonfunctional special edu-cation systems and demonstrate the benefitsof choice-based reform nationally.

16

Congress shouldspearhead state-level reform by

implementing asystem of choice

for District ofColumbia parents

of special needschildren.

Conclusion

Some federal lawmakers are currentlypushing for large funding increases for IDEAwithout fundamental reform, but increasingfunding for a failed regulatory approachwould be counterproductive to the specialeducation reform effort. Keeping the federalcontribution small (recently around 10 to 15percent of special education costs) wouldencourage states to reform their special edu-cation programs individually, discarding thefederal money as not worth the complianceand litigation costs associated with IDEA. Bycontrast, additional federal funding withoutreform will indefinitely stymie this healthyimpulse by bribing states to continue to useIDEA’s failed dispute resolution model.

States should choose to adopt reformed sys-tems based on deregulation and parentalchoice. Alternatively, Congress could reformIDEA to offer states a meaningful way out ofthe old system, based on respect for individualparents and families. Parental choice throughportable benefits offers disabled children theirbest chance to obtain meaningful educationalopportunities. Raising a disabled child is diffi-cult enough without fighting protracted annu-al battles with her teachers, her school, and itslawyers about the programs and services sheneeds most. Lawmakers should act now toallow every parent of a disabled child the mean-ingful choices now reserved to a lucky few.

Appendix: Private SchoolsServing Children with

DisabilitiesA growing number of private schools serve

children with disabilities or other special needs.According to the Directory for ExceptionalChildren, there are more than 2,500 privateschools and clinics serving children with physi-cal and learning disabilities.127 More than160,000 special education students are current-ly being educated in private facilities, paid for byeither public or private funds.128

This appendix includes only a sampling ofschools that accept children with special needsor that specialize exclusively in serving suchchildren. The idea that private schools pass bychildren with behavioral, emotional, physical,or educational problems is untrue. In fact,many public school districts rely on privateproviders to teach the severely disabled as wellas many at risk and learning disabled stu-dents. According to Department of Educationstatistics, more than 2 percent of the nation’slearning disabled student population—120,000 students—are placed by local schoolboards in private schools.129

It is also useful to note that many foreigncountries have a successful track record inmaking use of private providers of special edu-cation. In fact, the European Agency forDevelopment in Special Needs Education hasconcluded that the countries that are mostsuccessful at helping the learning disabled arethose that use multiple service providers.130

Private Service Providers for SpecialEducation Students

Paladin AcademyNobel Learning Communities1615 West Chester PikeWest Chester, PA 19382-79561-800-288-1236(Locations in FL, CA, NC, WA, VA, and NV)Devereux Santa BarbaraP.O. Box 1079Santa Barbara, CA 93102(805) 968-2525ASAHLexington Square2125 Route 33Hamilton Square, NJ 08690(609) 890-1400asahinc@aol.comHillside Children’s Center1183 Monroe Ave.Rochester, NY 14620(716) 256-7500Institute for the Redesign of Learning1137 Huntington Dr.South Pasadena, CA 91030

17

Parental choicethrough portablebenefits offersdisabled childrentheir best chanceto obtain mean-ingful education-al opportunities.

(213) 341-5580Mercy Special Learning Center830 South Woodward St.Allentown, PA 18103(215) 797-8242National Association of Private Schoolsfor Exceptional Children1522 K St. NW, Suite 1032Washington, DC 20005(202) 408-3338EduCare Learning Center1965 51 Street NECedar Rapids, IA 524021-877-255-8133Kids 1, Inc.11 Lexington Ave.East Brunswick, NJ 08816(908) 422-3838Huntington Learning Centers496 Kinderkamack Rd.Oradell, NJ 076491-800-CAN-LEARN(Located throughout the U.S.)Success Lab Learning Center1033 West Van Buren, Suite 700Chicago, IL 60607312-492-8730Scientific Learning Corporation300 Frank H. Ogawa Plaza, Suite 500Oakland, CA 94612-20401-888-665-9707

Outsourcing and Staffing Services

Total Education Solutions1137 Huntington DriveSouth Pasadena, CA 910301-877-TES-IDEA(323) 257-0284 (fax)

In-School Tutoring

Sylvan Learning Systems, Inc.1 Penn PlazaNew York, NY 101191-888-7SYLVANwww.sylvanlearning.comHOSTS Learning 8000 NE Parkway Drive, Suite 201

Vancouver, WA 986621-800-833-4678Kaplan Inc.Corporate Office888 7th Ave.New York, NY 101061-800-KAP-TESTwww.kaplan.com

At Risk Students

Corrections Corporation of America10 Burton Hills Blvd.Nashville, TN 37215(800) 624-2931(615) 263-3140 (fax)www.correctionscorp.comCornell CorrectionsCornell Abraxas Leadership Academy2915 North 3rd St.Harrisburg, PA 17110- 2101(210) 499-5509www.cornellcorrections.comRescare10140 Lin Station Rd.Louisville, KY 40223www.rescare.comWackenhut Corrections Corporation4200 Wackenhut DrivePalm Beach Gardens, FL 33410-42431- 800-666-5640 (561) 691-6659 (fax)wccinfo@wcc-corrections.comhttp://www.wackenhut.com/fr-wcc.htmAlternative Education Resource Organization417 Roslyn RoadRoslyn Heights, NY 11577(516) 621-2195jmintz@igc.apc.orgFather Flanagan’s Boys HomeBoys Town, NE 68010(402) 498-1305Ombudsman Educational Services 1585 North Milwaukee Ave.Libertyville, IL 60048(708) 367-6383Options for Youth2529 Foothill Blvd., Suite 1

18

La Crescenta CA, 91214(818) 542-3555Ramsay Youth Services, Inc.Columbus CenterOne Alhambra PlazaSuite 750Coral Gables, FL 33134(305) 569-6993www.ramsay.comChildren’s Comprehensive ServicesKeystone Education and Youth Services3401 West End Ave Suite 400Nashville, TN 37203(615) 250-0000(615) 250-1000 (fax)Richard M. Milburn High School14416 Jefferson Davis Hwy. Suite 12Woodbridge, VA 22191(703) 494-0147Sobriety High School5250 West 73rd Street, Suite AEdina, MN 55439(612) 831-7138Woodbury Reports Inc.P.O. Box 1107 Bonners Ferry, ID 83805(202) 267-7758loi@woodbury.comhttp://www.strugglingteens.com/Youth Services International2 Park Center Court Suite 200Owings Mills, MD 21117(410) 365-8600 ysiweb@youthservices.comMaplebrook SchoolP.O. Box 118 North RoadAmenia, NY 12501(914) 373-8191Rebound1700 Broadway, Suite 2200Denver, CO 80290-2201(800) 444-9717The National Catholic EducationAssociation1077 30th St. NW, Suite 100Washington, DC 20007(202) 337-6232nceaadmin@ncea.org

Notes1. U.S. Constitution, Fourteenth Amendment;and Rehabilitation Act of 1973, Pub. L. 93-112,sec. 504, 87 Stat. 394 (codified, as amended, at 29U.S.C., sec. 794).

2. A federal court found that Pennsylvaniastatutes excluding disabled children from publicschools lacked a rational basis. P.A.R.C. v.Commonwealth of Pennsylvania, 343 F. Supp. 279,283 (1972). Also applying rational basis review,another federal court held that a District ofColumbia provision excluding disabled childrenfrom school was unconstitutional. Mills v. Board ofEducation, 348 F. Supp. 866, 875 (1972).

3. Robert H. Pasternack, Testimony on IDEAreauthorization before the Senate Committee onHealth, Education, Labor, and Pensions, 107thCong., 1st sess., March 21, 2001, www.ed.gov/Speeches/03-2002/20020321.html.

4. Roger Pilon, “Ignoring Constitutional Limits,”in The Rule of Law in the Wake of Clinton, ed. RogerPilon (Washington: Cato Institute, 2000), p. 39.

5. See The Cato Handbook for Congress: 107th Congress(Washington: Cato Institute, 2001), pp. 133–40.

6. “IDEA originated during a jurisprudential erain which the United States Supreme Courtdemonstrated a preference for protecting welfareclaims through formal procedural rights.”Jonathan A. Beyer, “A Modest Proposal:Mediating IDEA Disputes without Splitting theBaby,” Journal of Law & Education 28 (1999): 37.

7. “The trouble [with IDEA] is that it pits the inter-est of every single disabled child against the broad-er interest of the school.” Robert Worth, “TheScandal of Special Ed,” Washington Monthly, June1999.

8. Individuals with Disabilities in Education Act,U.S.C. 20, sec. 1414(a). Cited hereafter as IDEA. Seealso Terry Jean Seligman, “An IDEA Schools CanUse: Lessons from Special Education Legislation,”Fordham Urban Law Journal 29 (2001): 762–63.

9. Worth notes that initial identification andreevaluation processes are frequently delayed:“Despite all those bureaucrats hired to evaluateand place students, more than 250 students in DChaven’t received an initial evaluation, and almost2,200 are overdue for their second evaluation.”

10. IDEA, sec. 1412(a)(3).

11. Ibid., sec. 1412(a)(10)(A)(ii).

19

12. Tyce Palmaffy, “The Evolution of the FederalRole,” in Rethinking Special Education for a NewCentury, ed. C. E. Finn et al. (Washington: Thomas B.Fordham Foundation and Progressive PolicyInstitute, 2001), p. 7. See also W.G. v. Board of Trusteesof Target Range School District, 960 F.2d 1479, 1485(9th Cir. 1992).

13. Union School District v. Smith, 15 F.3d 1519, 1526(9th Cir. 1993), cert. denied, 115 S. Ct. 428 (1994).

14. IDEA, sec. 1415(d); and Kevin J. Lanigan et al.,“Nasty, Brutish . . . and Often Not Very Short: TheAttorney Perspective on Due Process,” in RethinkingSpecial Education for a New Century, p. 217.

15. Ibid.

16. IDEA, secs. 1413(a)(11), 1414(a)(5).

17. Palmaffy, p. 8. See also Board of Education v.Rowley, 458 U.S. 176, 182 (1982).

18. Martin A. Kotler, “The Individuals withDisabilities in Education Act: A Parent’s Perspec-tive and Proposal for Change,” University ofMichigan Journal of Law Reform 27 (1994): 386.

19. Palmaffy, p. 8.

20. Lanigan et al., p. 219.

21. Lanigan et al. describe the typical due processhearing schedule. Ibid., p. 225.

22. Beyer, p. 42.

23. IDEA, sec. 1415(i)(2)(A).

24. Rowley at 206–7.

25. IDEA, sec. 1415(i)(2)(B)(3). Despite statutorylanguage implying a de novo review of the merits,courts have accorded some deference to the deter-minations of special education administrators onthe question of appropriateness. The SupremeCourt has held that “due weight shall be given tothese [administrative] proceedings.” Rowley at 206.

26. IDEA, sec. §1415(i)(3)(B).

27. Palmaffy, p. 19.

28. One commentator sums up the effect ofIDEA’s dispute resolution model on parent-schoolrelations: “IDEA assurances of a free and appropri-ate education for each child with disabilities thenengender a zero-sum game for special educationresources, in which parents are poised to competefor public resources to obtain more educationalresources for their child.” Beyer, pp. 40–41.

29. Quoted in Jay Mathews, “Class Struggle,”Washington Post Online, February 5, 2002.Education writer Tyce Palmaffy also observes:“The threat of a hearing . . . is an essential elementin the relationship between districts and parentsbecause it raises the stakes in disputes over place-ment.” Palmaffy, p. 16.

30. Stephen A. Rosenbaum, “When It’s NotApparent: Some Modest Advice to Parent Advocatesfor Students with Disabilities,” U.C. Davis Journal ofJuvenile Law & Policy 5 (2001): 181.

31. Kotler, p. 364.

32. Ibid., p. 397 n. 124, citing Sue Goldstein et al.,“An Observational Analysis of the IEP Conference,”Exceptional Children 46 (1980): 282.

33. The Council for Exceptional Children hasstated that IEP-related paperwork “is designed tokeep the school system out of a lawsuit” ratherthan to improve the quality of a student’s educa-tional plan. Kalman R. Hettleman, “Still GettingIt Wrong: The Continuing Failure of SpecialEducation in the Baltimore City Public Schools,”Abell Foundation, Baltimore, 2002, p. 11.

34. Jean B. Crockett, “Special Education: The LeastRestrictive Environment and the 1997 IDEAAmendments and Federal Regulations,” Journal ofLaw & Education 28 (1999): 558, citing JeffreyChampagne, “LRE: Decisions in Sequence,” Paperpresented at Symposium of Annual Conference ofthe National Association of Private Schools forExceptional Children, 1992, p. 14.

35. Quoted in Rosenbaum, p. 198 n. 62.

36. Mathews.

37. See, for example, Kotler, passim. See generallyLisa Osborne, “The Reality of Parents Acting asAttorneys for Their Disabled Child,” Journal ofLaw & Education 29 (2000): 249.

38. Clint Bolick, “A Bad IDEA Is Disabling PublicSchools,” Education Week, September 5, 2001.

39. One education researcher observed this conflictof interest all too clearly during the IEP process: “Aprivate school placement for a particular child,while indicated, would not be recommendedbecause of the expense. The core evaluation team’sposition would be that the child’s needs could bemet within the public school system, although theprincipal very vocally opposed the return of thechild to his school.” Kotler, p. 368.

40. Even experts generally favorable to IDEA agree:“When people look to the legal system as a first

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resort, relationships between schools and parentscan quickly become adversarial, sometimes to thedetriment of the child’s education.” AmericanYouth Policy Forum and Center on EducationPolicy, Twenty-Five Years of Educating Children withDisabilities: The Good News and the Work Ahead(Washington: American Youth Policy Forum andCenter on Education Policy, 2001), p. 56.

41. Lanigan et al., p. 227.

42. Quoted in Rosenbaum, p. 159.

43. Wade F. Horn and Douglas Tynan, “Time to MakeSpecial Education ‘Special’ Again,” in Rethinking SpecialEducation for a New Century, p. 34.

44. Hettleman, “Still Getting It Wrong,” p. 12.

45. Rowley at 206–7.

46. Joyce O. Eckrem and Eliza J. McArthur, “Is theRowley Standard Dead? From Access to Results,” U.C.Davis Journal of Juvenile Law & Policy 5 (2001): 206.

47. Ibid., p. 206, citing Union School at 1526.

48. Ibid.

49. Ibid.

50. One school district loses the equivalent of 78school years of instruction annually due to timespent “preparing for, attending, and documentingtheir annual meeting with each disabled child’s par-ents to review and revise the child’s education plan.”Andrew Mollison, “Congress Rethinks SpecialEducation; Hearings Begin on Improving Law,”Atlanta Journal and Constitution, March 22, 2002.

51. The “compliance maze” is a term coined byresearcher Kalman R. Hettleman to describeIDEA compliance in Baltimore’s special educa-tion program. Hettleman, “Still Getting ItWrong,” p. 12.

52. Ibid., p. 11.

53. Mollison.

54. Worth.

55. Mollison.

56. Hettleman, “Still Getting It Wrong”; and“Education Official Says State Has Met 90 Percentof Special Education Benchmarks,” Associated PressState & Local Wire, March 26, 2002.

57. IDEA, sec. 1415(i)(2)(A).

58. Worth.

59. Ibid. See also Palmaffy, p. 9.

60. Rowley at 188.

61. The Rowley Court held, “We do not attempttoday to establish any one test for determiningthe adequacy of educational benefits conferred byall children covered by the Act.” Ibid. at 202.

62. As one commentator observed, “A proceduralfocus may aid judicial officers lacking extensiveexpertise in special education.” Beyer, p. 39.

63. Kotler, p. 376.

64. “The result [of IDEA’s vague language] is oftena quagmire of inconsistent and inequitable opin-ions.” Ladonna L. Boeckman, “Bestowing the Keyto Public Education: The Effects of JudicialDeterminations of the Individuals with Disabilitiesin Education Act on Disabled and NondisabledStudents,” Drake Law Review 46 (1998): 880.

65. Quoted in Palmaffy, p. 6.

66. Education legal scholars have pointed outthat special education disputes are reachingcourts with greater frequency. Thomas A. Maysand Perry Zirkel, “State Educational Agencies andSpecial Education: Obligations and Liabilities,”Boston Public Interest Law Journal 10 (2000): 62.

67. Parent and attorney Martin A. Kotler observes,“Procedural protections all too often have beenreduced to an empty ritual for all but the mosteducated and wealthy.” Kotler, p. 341.

68. “There is a powerful minority of parents whoknow their legal rights and aren’t afraid to exer-cise them. But most parents are at a decided dis-advantage vis-à-vis school administrators. Theydon’t know their rights, have little experiencewith the legal system, and tend to respect the deci-sions of professional educators.” Palmaffy, p. 15.

69. Worth.

70. “Nationally, the LD explosion has been set offby affluent parents.” Hettleman, ”Still Getting ItWrong,” p. 28.

71. Bolick.

72. Horn and Tynan, p. 31.

73. Palmaffy, p. 15.

74. Rethinking Special Education for a New Century,“Chapter Highlights,” p. xix.

75. American Institutes for Research, What Are WeSpending on Special Education Services in the United

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States, 1999–2000? Advance Report 1, SpecialEducation Expenditure Project (Washington:American Institutes for Research, March 2002), pp.2–3. The $360.2 billion total education expenditurefigure is AIR’s estimate based on figures publishedin the National Digest of Education Statistics.

76. American Institutes for Research, p. 7. See alsoDon Soifer, “Almost 1 in 8 Students Labeled‘Disabled,’” School Reform News, April 2002.

77. Horn and Tynan, pp. 23–51, provide an excel-lent discussion of this issue.

78. See William T. Hartman, “Policy Effects ofSpecial Education Funding Formulas,” Journal ofEducation Finance 6 (Fall 1980): 135–59; and JoettaSack, “Special Ed Designation Varies Widely acrossCountry.” Education Week, June 24, 1998, p. 1.

79. Frederick M. Hess, “Courting Backlash: TheRisks of Emphasizing Input Equity over SchoolPerformance,” Virginia Journal of Social Policy & TheLaw 6 (Fall 1998): 41.

80. IDEA, sec. 1401(26). Simply eliminating thisstatutory definition may partially alleviate theproblem of overidentification by allowing theDepartment of Education to develop reasonablestandards for diagnosis of SLD.

81. Quoted in Richard Lee Colvin and Duke Helfand,“Special Education in State Is Failing on ManyFronts,” Los Angeles Times, December 12, 1999.

82. J. Lerner, “Educational Intervention in LearningDisabilities,” Journal of the American Academy of Childrenand Adolescent Psychiatry 28 (1989): 326–31.

83. C. Snow et al., Preventing Reading Difficulties inYoung Children (Washington: National AcademyPress, 1998); and National Institute of ChildHealth and Human Development, The Report of theNational Reading Panel: An Evidence-Based Assessmentof the Scientific Research Literature on Reading and ItsImplications for Reading Instruction (Bethesda, Md.:National Institute of Child Health and HumanDevelopment, 2000).

84 G. Reid Lyon et al., “Rethinking LearningDisabilities,” in Rethinking Special Education for aNew Century, pp. 259–87.

85. U.S. Department of Education, Twenty-SecondAnnual Report to Congress on the Implementation of theIndividuals with Disabilities Education Act (Washington:U.S. Department of Education, 2000), p. viii.

86. American Institutes for Research, p. 10.

87. Ibid., p. 11.

88. One recent study by the Abell Foundationrevealed that the city of Baltimore, Maryland,alone was spending an estimated $28 millionannually on IDEA procedural compliance and lit-igation costs. Hettleman, “Still Getting ItWrong,” p. 20.

89. Worth; and Hettleman, “Still Getting ItWrong,” p. 18.

90. Ibid., p. 20.

91. American Institutes for Research, p. 14.

92. Quoted in Worth.

93. Four national assessments of special educa-tion are currently in progress: the National EarlyIntervention Longitudinal Study, the Pre-Elementary Education Longitudinal Study, theSpecial Education Elementary LongitudinalStudy, and the National Longitudinal TransitionStudy. All of these studies collect data on pro-gram activities (nature, amount, location of ser-vices, etc.); none of them reports academic results.The Government Performance and Results Actrequires federal agencies to evaluate their pro-grams, but again, the data collected focus on pro-gram activities, not educational progress. Formore information about the lack of data on theacademic achievement of children with disabili-ties, see American Youth Policy Forum andCenter on Education Policy, p. 28.

94. E. A. Hanushek et al., “Does Special EducationRaise Academic Achievement for Students withDisabilities?” National Bureau of EconomicResearch, working paper no. 6690, Washington,1998, Table A2. A later study by E. A. Hanushek,John Kain, and Steve Rivkin showed gains of 0.1standard deviations in math for one year of spe-cial education. See E. A. Hanushek, John Kain,and Steve Rivkin, “Inferring Program Effects forSpecialized Populations: Does Special EducationRaise Achievement for Students withDisabilities?” University of Rochester, Rochester,New York, photocopy.

95. Lyon et al., p. 272. See also S. W. Moody et al.,“Reading Instruction in the Resource Room: SetUp for Failure,” Exceptional Children 16 (2000):305–16; S. R. Vaughn et al., “Broken Promises:Reading Instruction in the Resource Room,”Exceptional Children 64 (1998): 211–25; and R. L.Allington and A. McGill-Franzen, “SchoolResponse to Reading Failure: Instruction forChapter One and Special Education StudentsGrades Two, Four, and Eight,” Elementary SchoolJournal 89 (1998): 529–42.

96. Kalman R. Hettleman, “Still Fighting the Last

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War,” Education Week, April 17, 2002, www.edweek.org/ew/newstory.cfm?slug=31hettleman.h21.MSPAP data are available at www.mdk12.org/data/index.html. CTBS data are available at http://msp.msde.state.md.us.

97. See J. K. Klingner et al., “Outcomes for Studentswith and without Learning Disabilities in InclusiveClassrooms,” Learning Disabilities Research & Practice 13(1997): 153–61. See also N. Zigmond and J. M. Baker,“Concluding Comments: Current and FuturePractices in Inclusive Schooling,” Journal of SpecialEducation 29 (1995): 245–50.

98. See Lyon et al., pp. 274–75.

99. For example, see Hettleman, “Still Getting ItWrong”; and Andrew P. Dunn, “What’s Wrongwith Special Education?” Education Week, May 17,2000, pp. 36, 39, www.edweek.org/ew/ewstory.cfm?slug=36dunn. h19. See also Mark Kelmanand Gillian Lester, Jumping the Queue: An Inquiryinto the Legal Treatment of Students with LearningDisabilities (Cambridge, Mass.: Harvard Univer-sityPress, 1997).

100. Descriptions of individual cases showinginstances of ineffective special education programscan be found in many of the published reports andevaluations. For example, see Worth; and Dunn.

101. “Notwithstanding the procedural protec-tions of the Act, scholars and parents are virtuallyunanimous in criticizing the manner in which theAct functions.” Kotler, p. 341.

102. Rosenbaum, p. 160.

103. Institute for the Transformation ofLearning, Florida A+ Opportunity ScholarshipProgram and McKay Scholarships for Students withDisabilities Program (Milwaukee: MarquetteUniversity, Institute for the Transformation ofLearning, Office of Research, December 2001),www.schoolchoiceinfo.org/img/pdf/Florida.pdf.

104. Susan Bowers, U.S. Department of Education,Letter on Florida’s McKay Scholarship Program,n.d., www.edlaw.net/service/fla_voucher.html.

105. The John M. McKay Scholarships forStudents with Disabilities Program, Fla. Stat.,secs. 229.05371(1), (2)(a).

106. Ibid., sec. 229.05371(6)(a). Emphasis added.

107. Rick Keller, Testimony before the EducationReform Subcommittee of the House Committeeon Education and the Workforce, Hearing onSpecial Education Paperwork Burden andAccountability System, 107th Cong., 2d sess.,

May 2, 2002.

108. “Under the IDEA and its implementing reg-ulations, the federal government provides finan-cial assistance for the education of children withdisabilities to states that subject themselves to theIDEA’s requirements.” Thomas A. Mays et al.,“State Educational Agencies and SpecialEducation: Obligations and Liabilities,” BostonUniversity Public Interest Law Journal 10 (2000): 63.

109. American Institutes for Research, p. 15.

110. Ibid., p. 13.

111. Seligman, pp. 780–81.

112. Professor David L. Kirp remarks on the insti-tutional rigidity of the public education estab-lishment: “To one unfamiliar with the ways inwhich schools operate, [such an] array of legal,political and pedagogical criticism might signalimminent and perhaps revolutionary change inschooling practice, precipitated by political crisis,voluntary school action, or judicial intervention.Yet change, though devoutly to be wished, willnot occur so readily.” Quoted in Kotler, p. 365.

113. Kotler, p. 376.

114. Boeckman notes, “Scholars within the fieldof pedagogy do not agree what is the ‘best’ struc-ture for special education.” Boeckman, pp.872–73. Kotler also remarks, “The dispute overprogramming for autistic children serves to illus-trate the institutional shortcomings of educa-tional agencies as decision makers.” Kotler, p. 367.

115. See ibid., p. 372.

116. Attorney Steven Marchese refers to the“financial and emotional cost of formal adjudica-tion” of IDEA disputes. Steven Marchese,“Putting Square Pegs into Round Holes:Mediation and the Rights of Children withDisabilities under the IDEA,” Rutgers Law Review53 (2001): 338.

117. Of course, the incentives of individual par-ents to have their children identified may bestrengthened by a reform that offers a portablebenefit. Nonetheless, choice-based reform shouldreduce overidentification overall because schooldistricts will no longer have any financial induce-ment to use their bureaucracies to support incor-rect diagnoses.

118. Worth.

119. Brian DeBose, “Council Seeks to Rein in Agencies’Spending,” Washington Times, March 5, 2002.

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120. “Special Ed Run Amok,” editorial, WashingtonTimes, March 22, 2002.

121. Justin Blum, “D.C. Seeks Investigation ofSpecial-Ed Referrals,” Washington Post, March 7,2002.

122. Worth.

123. Deborah Simmons, “School Choice; WhyVouchers and Charter Schools Are Needed,”Washington Times, March 22, 2002.

124. Quoted in Vaishali Honawar, “Special-ed CharterSchools Eyed,” Washington Times, March 10, 2002.

125. Worth.

126. Simmons.

127. The Directory for Exceptional Children, 14th ed. (Boston:Porter Sargent, 2001–02), www.portersargent.com.

128. U.S. Department of Education, p. A-93.Public school districts have placed more than121,000 students in private facilities or provideservices to disabled children who are home orhospital bound. At least 40,000 special educationstudents attend private schools at public expense.See Janet R. Beales and Thomas F. Bertonneau,“Do Private Schools Serve Difficult-to-EducateChildren?” Mackinac Center for Public Policy,Midland, Mich., 1997.

129. Ibid., p. A-93.

130. Lewis M. Andrews, “More Choice forDisabled Kids: Lessons from Abroad,” PolicyReview, April and May 2001, pp. 39–50.

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