As the cold gray light of Friday morning creeps across the horizon, all is quiet on the Potomac. The Senate will not be in session today and the House has already acted. It is time to do a little Friday-morning quarterbacking. It is time to look back over the last several weeks to determine what happened, why and how it happened, who did it, and, most importantly, where do we go from here.
First a review of what did and did not happen. On Monday, June 10, 1996, the House of Representatives passed, by voice vote, HR 3268, the reauthorization of the IDEA. The House now awaits floor action in the Senate and, assuming passage of S. 1578, a Senate/ House conference to iron out the differences in the legislation produced by each Body.
Thus far, however, Senate proponents of S. 1578 have been unable to move it to the Senate floor, despite some very intense efforts. Senator Dole tried to bring the bill to the floor under a "unanimous consent" agreement which would have prevented both debate on the bill and the introduction of amendments to the bill from the floor. He even crafted a section of his farewell address in such a way as to allow for the introduction of the bill, but he was unable to introduce it under a "unanimous consent" decree when Senator Slade Gorton (R-WA) placed a "hold" on S. 1578. Two other Senators also objected to movement of the bill under "unanimous consent" agreement and placed their "holds" on the bill.
For you quarterbacks out there, the House scored the Senate did not.
HR 3268 contains provisions that would allow school districts, consistent with state law and their own discipline policies for non-disabled students, to cease educational services to students with disabilities in the event that the student is found in possession of a "weapon" or in possession of or selling "illegal drugs". Even though it has not yet passed, S. 1578 also includes provisions similar to those found in HR 3268, which permit cessation of services. This is a major setback for the disability community. Despite the resolute opposition of NPND and thirty-eight national organizations as well as hundreds of state and local organizations spanning the disability, general, and special education communities, both the House and Senate presently contain provisions which allow for the cessation of educational services with no possibilities of an alternative placement.
The why behind the passage of the HR 3268 and the failure of S. 1578 last week is worth revisiting. Approximately one month ago, the House Subcommittee on Early Childhood, Youth and Families passed a version of HR 3268. This version of the bill met with universal disdain. In fact, it seemed clear that even though it was passed by the Subcommittee, it did not have support amongst parents, special educators, regular educators, disability advocates or anyone else for that matter. As a result of this universal disdain, a group of regular education advocates, special education advocates, parents and other disability advocates met to compare notes. The conclusion they reached was that HR 3268 was unsalvageable. After securing support from Rep. Goodling (R-PA), Chairman of the Committee on Education and Economic Opportunities, the new "Consensus Group" was given one week to produce a substitute bill. Representatives from forty national organizations were involved in drafting a consensus document. Nine days and over a hundred amendments later, a substitute consensus document was presented to the House staff and reviewed issue by issue. The staff accepted some of the amendments (roughly 50%) and rejected others. After another week of intense negotiations involving Democrats on the Committee, even more "Consensus Group" amendments were accepted by the majority staff. Negotiations continued with amendments offered and accepted to both the bill and its report until six P.M. on the Friday night before the Monday floor action. The final bill passed by the full committee, while flawed, represents a significant improvement over the version of the bill reported out of the Subcommittee on Early Childhood, Youth and Families a few weeks earlier. In fact, some of the provisions of the final bill represent improvements over current law. Since the passage of the bill by the House, Mr. Goodling has stated that, in his twenty-two years in Congress, he is not aware of a similar process ever being undertaken to produce a bill.
The Senate, on the other hand, reported S.1578 out of committee weeks ago. Even though it passed the committee unanimously, several Senators expressed dissatisfaction with the bill. Senator Gorton, in particular, made it clear that the he would offer amendments to the bill on the Senate floor to eliminate the recovery of punitive damages through lawsuits concerning the abridging of educational rights and to disallow or severely limit the recoupment of attorney fees by families even when they prevailed in court. To prevent these and other hostile amendments from being attached to S. 1578, Senator Frist (R-TN), sponsor of the bill and the Chairman of the Subcommittee on Disability Policy, attempted to bring the bill to the floor under "unanimous consent (UC)" decree and sought Senator Dole's assistance (previously described). When a bill is brought to the floor under a "UC" agreement, amendments from the floor are not permitted. The end result of this sequence of events is total stalemate. Senator Gorton will not "release" the bill unless he is allowed to amend it.
However, S. 1578 would not have progressed even to this point in the process had not twelfth hour negotiations between disability advocates (including NPND) and regular educators resulted in an agreement on the discipline provisions of the bill—with one notable exception. Negotiators were told that the issue of cessation of services was "off the table" during the negotiating session. Nevertheless, negotiations led to language placing constraints on schools in their application of disciplinary policies and increased procedural protections for students before schools could cease services to those found possessing "weapons" or possessing and selling "illegal drugs".
For you quarterbacks keeping a more complete boxscore, provisions that allow the cessation of services to students with disabilities in certain circumstances are included in both the House and Senate bills. Score that two for the National School Boards Association and the American Federation of Teachers. Zero for everyone else.
Now that we briefly reviewed the what and why and how, it is useful to examine the who. Because of NPND's grassroots strength and support, it was able to play an important role in the passage of HR 3268 and the movement of S. 1578 through the various stages of the legislative review process. Thirty-nine other national organizations such as the National Education Association, the ARC, the Council for Exceptional Children, the National Association of State Directors of Special Education, the Down Syndrome Congress, the Learning Disabilities Association, the American Association of School Administrators, the Disability Rights Education and Defense Fund, and many others have been integrally involved in this effort.
But why would any of these groups work for the passage of these bills, when all of them are on record as opposing the cessation of educational services to students with disabilities or any student for that matter? In fact, all of the members of the "Consensus Group", except two, steadfastly oppose "cessation". Yet, "cessation" was forced on the disability community. The explanation for this is that members of Congress (Republicans and some Democrats) either wanted it or accepted the inevitability of it. Parents valiantly fought against it. Regular, educators, led by the National Education Association and the American Association of School Administrators and special educators alike, opposed it. But in the final analysis, two years of constant, well- orchestrated, well-financed lobbying by the National School Boards Association and the American Federation of Teachers in support of "cessation" had persuaded many of our elected representatives in Washington as well as neighbors and friends in our communities. Disability advocates, parents and others have struggled so hard to defeat, and then, to minimize the impact of these onerous provisions. NPND was reluctant to withdraw from the process, fearing much more harmful discipline (cessation) provisions would gain respectability and, ultimately, acceptance.
Now, fellow quarterbacks, we need to shift our attention to the team (Senator Gorton and his colleagues) we will have to face again any day now. If no agreement can be reached with the Senator from Washington, S. 1578 will likely never reach the floor of the Senate. In this case, both the House and the Senate bills die and the law of the land remains current law (score half a point for us and zero for our opponents). The difficulty remaining, however, is that Senator Gorton and some of his colleagues in the Senate will not tolerate this status quo for long. Senator Gorton has vowed that, as in the past, he will take to the floor of the Senate where he will offer a series of extremely damaging amendments that make S. 1578 look tame by comparison. He can attach these amendments to IDEA on any bill under deliberation on the Senate floor. For example, it could be an appropriations bill, it could be a clean water bill, or a campaign finance bill. He can do this any time when he is recognized to speak on the floor. Historically, there have been Senators, as tenacious and determined as Senator Gorton is, who have attempted to introduce an amendment or variations of the same amendment dozens of times.
Right now the S. 1578 is in limbo. We have done everything we can to secure its passage But fully aware that there is more trouble ahead, we are concerned about fashioning an effective defense against Senator Gorton's offense. The first line of defense against such guerrilla tactics is to pass S. 1578 as is. In short, neither HR 3268 nor S. 1578 are bills that NPND can enthusiastically and wholeheartedly support. But NPND, while opposing a number of the provisions contained in both of these bills, seeks their passage because they represent the least damage and the most improvement possible at this time.
If the bill does not pass, a second line of defense is to develop of a rapid response system that will trigger thousands of calls, letters and faxes into the Senate every time Senator Gorton or his colleagues take to the floor. It is important to remember that the "Jefford's Amendment" was not attached to the IDEA but to other education legislation.
It is clear that for the foreseeable future the educational rights of students with disabilities will be at risk. The strains on public education, which reflect the social unease and disorder which exists in our society at large, have produced a political environment wherein the fundamental educational rights of children with disabilities are being openly questioned and challenged. NPND asks for your continued support and collaboration. NPND respectfully asks all parents, persons with disabilities, educators, advocates and the many others who have a stake in the lives of these children to set aside their personal, political, and organizational differences and to stand with us calmly and quietly, shoulder-to-shoulder against this backlash.
During the "consensus process", NPND has strengthened its relationships within the special education community and forged new ones with the leaders of regular education organizations. We have high hopes that these alliances, old and new, will outlive the IDEA reauthorization regardless of its outcome. The members of these groups have pledged to continue working closely with us. If we are not careful, some good may come from this.