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NCLB Testing Requirements May Trump IDEA

In a recent decision, the 7th Circuit Court of Appeals (Illinois) has upheld the dismissal of a school district’s lawsuit challenging certain provisions of the No Child Left Behind Act (NCLB) on the grounds that since NCLB was enacted after the Individuals with Disabilities Education Act (IDEA), the later-enacted NCLB provisions would trump any conflicting requirements in the IDEA.  Some parents and school districts have challenged the NCLB provisions requiring certain forms of standardized testing to be administered to all students, including those with disabilities, and limiting the forms of accommodations and modifications that may be made and the number of students who can be exempt from the testing, on the grounds that those provisions violate the “individualization” requirements of the IDEA.  The IDEA generally requires those accommodations and modifications necessary to permit a student to receive a free appropriate public education to be incorporated into a disabled student’s IEP and implemented in all applicable situations, including testing.  However, in Board of Education of Ottawa Township v. Spellings, the court decided that even if these provisions are conflicting, Congress enacted NCLB more recently than IDEA and therefore must be assumed to have overridden the individualization requirements of IDEA with the accountability provisions of NCLB.

The court noted that the IDEA dates back to 1970, while NCLB was enacted in 2001.  Even though the IDEA has been re-authorized many times since then, changing names in 1990 and being significantly amended in 2004, these re-authorizations did not make the IDEA a “new” law.  In fact, the court noted, the 2004 amendments to IDEA were intended in large part to bring IDEA in line with NCLB, rather than to supplant that law.

The court assumed, but did not decide, whether the challenged provisions of NCLB and IDEA were actually in conflict, leaving that question for another day.  However, it may come as a surprise to many educators, parents, and advocates of children with disabilities that the “individualized” accommodations required by IDEA can be pushed aside in favor of the mass-testing requirements of NCLB.

Because this decision comes out of the 7th Circuit, it is not binding here in the 2nd Circuit, but provides an interesting glimpse into how such challenges have fared at the federal court level, and could prove persuasive in a challenge here as well.