Part one of this essay, published in our June issue, discussed the background of the 2002 No Child Left Behind legislation, its funding difficulties and the controversy over one of its key provisions, the authorization of federal money to go to private and religious schools in the form of vouchers. Part two considers the Individuals with Disabilities Education Act (IDEA), funding issues surrounding both IDEA and No Child Left Behind (NCLB), and the possible future of the latter program under the Obama Administration.
No Money for a Good IDEA
When the Congress approved the Individuals with Disabilities Education Act (IDEA) in 1975, it agreed to shoulder up to 40 percent of the cost of providing educational services to children with special needs. But over the years the federal dollars provided to states and school districts hovered around the 15–18 percent mark, becoming a very large unfunded mandate. In some small school districts the arrival of just one special education student could bust the entire year’s budget. For years there had been pressure on the Congress to make IDEA money an entitlement. In other words, dollars for this program would be guaranteed each year and not have to go through the normal appropriations process competing with other federal budget items for funding.
With the introduction in 2001 of NCLB, IDEA advocates saw their chance to meld the mandatory funding provisions into the bill. There was much bipartisan support for an IDEA entitlement in the Senate because most states suffered under the burden of funding programs and support for special needs students. In fact, two Republican senators, Jeffords of Vermont and Lincoln Chafee of Rhode Island, sponsored legislation to increase IDEA funding by $250 billion over a 10-year period. In the House, Rep. Charles Bass (R-NH) led the charge on mandatory special education funding. Their argument was that IDEA costs took money away from other education programs that school districts could offer, eroding “local control”—a Republican mantra. This was one initiative that the NEA and National School Boards Association could agree on to support. More money available at the local level could mean more school buses or increases in pay and benefits for teachers: a choice to be resolved at the bargaining table.
In May 2001 the Senate Education Committee surprised everyone by adopting by voice vote a mandatory full funding amendment to NCLB offered by Sens. Chuck Hagel (R-NE) and Tom Harkin (D-IA). It would provide $2.5 billion each year for six years for IDEA when the promised 40 percent federal contribution would be met. Another goody in the amendment allowed local school districts to spend 55 percent of that money at their discretion if they could show IDEA requirements already were being met with their own state and local funds.
But trouble loomed on the horizon. The House passed its version of NCLB in May by an overwhelming bipartisan vote of 384-45 without the IDEA amendment included, and although the full Senate approved its version of NCLB in June by a 91-8 margin with the Hagel-Harkin amendment attached, budget hawks warned that the Bush tax cuts were rapidly emptying surpluses built up during the Clinton years and there may be no way to fund the special education program if it remained in the final version of the bill.
The Conference Committee
When the two houses of the U.S. Congress pass different versions of the same bill, usually a conference committee is formed composed of members of both houses to work out the differences. For those familiar with the history of the Nebraska Unicameral Legislature, you would know that this is one of the primary reasons U.S. Sen. George Norris of Nebraska advocated so strongly for only one house as our law-making body. His experience as both a U.S. House and Senate member soured him on conference committees, where, he said, just a few members got together behind closed doors and rewrote bills that had been passed by both bodies, including or eliminating provisions that neither had approved.
In the case of H.R. 1 and S. 1 (the numbers of both NCLB bills reflecting the priority the Republican Congress had placed on their president’s number one domestic priority), the conference committee was composed of the entire Education Committees of both houses. In reality, only a few members and their staffs, committee staff and White House aides poured over the lengthy document to find areas of agreement. It was slow going with issues like civil rights, measuring yearly progress of students, treatment of low-performing schools and funding of IDEA and other programs being primary sticking points.
Then the terrorist attacks of Sept. 11 happened. That day, President Bush was actually in a Florida classroom promoting his stalled bill. While the nation’s attention and much of the Congress’s was diverted because of the national tragedy, work started again on NCLB but by a much smaller contingent. Kress and Spellings from the White House and Sen. Kennedy, Rep. Boehner and Rep. Michael Castle (R-DE), a former governor and a key member of the House Education Committee, and their staffs continued work on the bill to produce a final product. Hardly anyone else in Congress showed much interest.
After Sept. 11, formal conferences including House and Senate members were held Sept. 25, Oct. 30, Nov. 30 and Dec. 11. Sen. Harkin made one last attempt at the last conference to include mandatory full funding for IDEA in the bill that would be sent back to the House and Senate for final approval, but the $15 billion price tag was just too much for the House conferees with their Republican majority and it failed. Those in the room heard speech after speech by conferees about how much they supported increased funding for IDEA, that they were aware of how it was such a financial burden on school districts and how the lack of funds for special education students eroded local control of schools. They promised that mandatory funding would be approved in 2002 when the IDEA law would be up for reauthorization. That never happened. By the time IDEA was considered again in 2004, the Bush tax cuts had so eroded the availability of federal dollars that even the strongest supporters said the money just wasn’t there for the Congress to keep its promise to fund 40 percent of the law. Ten years later it has not even reached 20 percent.
Although there were many defects in the bill, including no mandatory funding for IDEA, no funds for reducing class size, no money to repair crumbling school infrastructure (the need estimated at the time to be in the neighborhood of $300 billion) and insufficient resources for professional development programs for teachers, the NEA submitted a letter to the Congress, commenting on the final NCLB conference report that “we will not oppose the final agreement.” The letter also stated that “we urge Congress to provide strong, continuing oversight of [its] implementation in order to evaluate reforms and identify any necessary mid-course corrections.” On Dec. 12, the House passed the conference report 381-41, and on Dec. 18 the Senate passed the same report 87-10. On Jan. 8, 2002, President Bush signed the No Child Left Behind Act into law.
In 2007 after Democrats gained the majority in both the House and Senate after the 2006 election, an attempt was made to redo NCLB led by Rep. Miller, who had now attained the chairmanship of the House Education Committee. Several years of experience with the law had exposed several areas of major concern including chronic lack of funding. But change faltered largely on Miller’s attempt to impose a program of performance or merit pay for teachers. The NEA strongly opposed any provision basing teacher pay on results of test scores and was able to put together a coalition of newly elected Democrats and some Republicans on his committee to halt the whole reauthorization process. The thought was, “better to have no changes in a bad law than even a worse law.”
President Obama and Secretary Duncan have indicated that 2011 may be the year to once again attempt to alter key provisions of NCLB, and possibly renaming the federal law “Race to the Top” after the current program funded by the 2009 economic stimulus law. If the controversies surrounding this Department of Education initiative are any indication, the new reauthorization process, 10 years after debate began on NCLB, also will be long and torturous.