- The Washington Times - Monday, November 22, 2004

Few people noticed it, but last Friday Congress passed a special education reauthorization bill that was literally years in the making. Unlike the last update in 1997 and the debates of 2001, nary a partisan jab was thrown over last week’s legislation. The bill’s supporters say it will improve classroom discipline, cut red tape, enhance local control and ease parent-school relations. So either the bill was a resounding success that only a handful of outliers in Congress thought to oppose, or it was sufficiently status-quo that its backers were able to avoid a repeat of previous debates’ political battles.

We think it’s probably the latter, with a little exhaustion thrown in. “The bill is the status quo with a few improvements,” says education policy analyst Krista Kafer of the Heritage Foundation. The evidence would seem to back her up. The key changes discourage frivolous lawsuits and, in disciplinary cases, shift the burden of proof away from schools to parents to show that disabilities caused misconduct. Gone are the strong expulsion provisions from last spring’s House version, however, which would have authorized schools to expel students who violate behavior codes — by carrying guns or drugs in school, for instance — irrespective of their status under the law. Friday’s bill also lacks Rep. Jim DeMint’s proposal to create special-education school choice.

If change on special education must be incremental, as some are suggesting, then clearly this bill is evidence. But Alabama Sen. Jeff Sessions, defending the legislation in strong terms, says Friday’s bill “would allow schools to discipline disabled students covered by the federal law in the same manner as regular students.” This is a rather subjective interpretation of the bill’s language. The bill is discipline-friendly insofar as it shifts the burden of proof to parents to link a given offense to a disability. Now, when a school seeks to expel a gun-toting student who happens to take part in a special-education program, the parent must make the unlikely case that the disability caused the infraction. That’s a good thing. Disabilities don’t make children bring guns to school. But no one seriously expects such students to be disciplined by the same rules as other students. The main reason is that the bill still requires schools to provide special-education services for a student even after expulsion. That is sure to deter schools from taking decisive action if they think expulsion will be costlier than the other options.

In short, we’re heartened to see some progress on special education, but with the above shortcomings, we hardly see the bill as a panacea. Nor does it reassure us that Sen. Edward Kennedy calls the bill “one of the most important undertakings and success stories of this Congress.” Surely special education reform promises to be a long slog. With the authorization now complete, it will fall to the new Congress to handle the appropriations. Maybe some fruitful discussions on special education could emerge from that process. Maybe it will rain beer.

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