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7th Circuit Rules Against School Districts in NCLB Challenge


A federal appeals court today rejected a lawsuit by two Illinois school districts and four families that said the No Child Left Behind Act was in conflict with the main federal special education law.

A three-judge panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, ruled unanimously in Board of Education of Ottawa Township High School District 140 v. Spellings that the "plaintiffs' claim is too weak to justify continued litigation."

The Ottawa high school district, along with Ottawa Elementary School District 141 and the parents of four students in special education, had sued in 2005, claiming that NCLB's testing requirements conflict with the federal Individuals with Disabilities Education Act.

As Education Week reported at the time, the suit said that the IDEA’s requirement that each special education student have an individualized education plan is contrary to the requirement under NCLB that special education students count as one subgroup whose test results help determine whether a school makes adequate yearly progress, the key measure for holding schools accountable under the law.

A U.S. District Court judge in Chicago dismissed the suit, ruling that the school districts and students did not have standing because they had suffered no concrete injuries under NCLB.

The 7th Circuit panel reversed the judge on that issue, ruling that the school districts, at least, had standing to sue Secretary of Education Margaret Spellings because NCLB requires the districts to "pay for more tests than they would administer if left to their own devices."

That part of the ruling may be significant for other districts that seek to challenge NCLB, and the court took note of the major ruling by its neighboring court, the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, that in January revived a major lawsuit challenging NCLB as an unfunded mandate. (See my latest blog post on that case here.)

But the 7th Circuit panel quickly moved on to its conclusion that, on the merits, the Illinois suit could not go forward.

The court said that even if NCLB, signed into law in 2002, was in conflict with the IDEA, which was first enacted under a different name in 1970, the newer law would take precedence.

"Plaintiffs' view that an earlier law can repeal a later one by implication has time traveling in the wrong direction," the court said.


This has just begun.

This should mean that schools will have to *teach* instead of dumbing down the tests. Sounds too good to be true. They'll change the law.

Not only is "time traveling in the wrong direction", it seems to me that student's with disabilities are losing their civil right to an individualized education program.

IDEA was created as a response to lawsuits that students with special needs were not receiving the free and APPROPRIATE education guaranteed under FAPE or the the Free and Appropraite Education Act. NCLB as it stands does not allow for approppriate education of many students with disabilities; therefore, I do not understand why someone cannot win a lawsuit against NCLB - it really should be a class action.

As the parent of a child with a disability, I am not getting the sense of a groundswell of parents of students with disabilities, or adults with disabilities who don't wish to be included in the expectation of making adequate yearly progress. Personally I rejoiced when I at last could see that not only was my child not progressing much in relation to objective measures, but neither were the majority of other students with diabilities in the "special schools" and "special classrooms" that were always supposed to be helping. I could also see that there WERE schools that were succeeding.

Most students with disabilities do not have cognitive disabilities--yet they have frequently been moved (to receive "services") to classrooms where teachers are overburdened by the range of grade levels, content areas and ability. But the expectations were lowered. This has been considered APPROPRIATE. If the student "got better" in this wasteland, they could go back and be "included" in regular ed (without "services").

NCLB does allow for alternate testing (on individualized content) of students with cognitive disabilities. It also provides for accommodations in testing to meet the individualized needs of various other students with disabilities. What it also does is make clear for the first time that the Free and Appropriate Public Education (I don't think it was ever an "act"), should be aimed at teaching the same content that is available to other, non-disabled students.

Now we have RTI to contend with. Someone's pockets get fatter and fatter while our children get LEFT BEHIND like they always have.

I would much rather hire someone who can actually teach my child than wait through the long and agonizing process of IEP meetings, due process, and mediation.

Watch out schools, more and more parents are advocating for their kids!

There are benefits and drawbacks to NCLB. I see their point about writing an IEP so a child can show progress compared to him or herself. That's what makes it individualized. NCLB says individual needs be darned, everybody needs to achieve the same standards in the same amount of time. What's the point of identifying children for special education services? Someone mentioned cognitively disabled kids- it's interesting that only 1% of children can get alternative testing, where as normal distribution says 2% is more likely. Larger districts tend to have more than 2%.

It may seem like no big deal now, but 2014 is only 6 years away. What will happen when no school makes AYP year after year? Will the state take over them all? The federal government? And will any of these 'interventions' make a bit of difference? My guess is no.

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