A calling ...

"We are called to be architects of the future, not its victims."

"Make the world work for 100% of humanity in the shortest possible time through spontaneous cooperation without ecological offense or the disadvantage of anyone."

- Buckminster Fuller

Saturday, February 25, 2012

IDEA is not the root cause of increases in special education litigation

In School Districts in California Suffer Because of Special Education Funding, or Lack Therof, Ericha Parks describes the financial devastation left by a tsunami of misguided 21st century federal education legislation. However, Parks fails to address the root cause. The financial bubble in special education described by Parks has been caused by inappropriate federal mandates which have made a mockery of the appropriate concept of a Free and Appropriate Public Education (FAPE). As Parks reports, states are not being compensated for out of control special education costs related to FAPE compliance. However, FAPE compliance is not the root cause of layoffs of teachers and administrative staff, and cuts to general education described by Parks. The root cause is inappropriate performance assessments, which have exposed every public school system to a tsunami of litigation and other sanctions.
The Individuals with Disabilities in education act [20 USC 1400 et seq.], aka. (IDEA), which defined FAPE, follows directly from the founding principles of the United States. According to the Declaration of Independence and a tradition of natural law, all men are created equal, endowed by the Creator with certain inalienable rights, including Life, Liberty, and the Pursuit of Happiness. Under the Fourteenth Amendment, the Constitution of the United States “guarantees equal protection and due process to all citizens.” (Turnbull, H., Stowe, M., & Huerta, N., p. 5, 2007). In that Constitutional guarantee, however, nowhere did America’s founders mention that equal outcomes are guaranteed. Educational progress was never intended to be a constitutional guarantee!
The problematic legislation is not IDEA, as Parks suggests provocatively, but No Child Left Behind. (No Child Left Behind [NCLB], 2002). NCLB hinges on a principle of guaranteed “proficiency in certain core academic subjects … [through] standardized state or local assessments of academic proficiency.” (Turnbull, H., Stowe, M., & Huerta, N., p. 45, 2007). The idea that everybody should be held to the same standard sounds reasonable and appropriate on the surface, but what are the appropriate standards to which everybody should be held accountable? As a result of NCLB, “student progress” is measured in a way that fails to take into account natural developmental differences among learners. Since performance data is currently based on inappropriate measures, the flood of school performance data has led to false conclusions about inadequate yearly progress and false positives in evaluations of “failing schools.” The flood of performance data suggesting that public schools are failing, which is inherently flawed, has led to a climate in which FAPE related liability has become hyper-inflated nationwide.
Given a natural yardstick, a more appropriate view of the Least Restrictive Environment (LRE) might emerge that can lead more appropriate levels of public school system liability. A natural yardstick might be based on where a student falls on the developmental spectrum, not how a student from a particular racial group performs on some artificial criterion-based assessment, sold to the educational establishment by major testing companies. “Performance gap” numbers, for example, are derived from racial categories, not on differences in how students learn. Natural subgroups, on the other hand, might include the 13 IDEA categories, students with language acquisition challenges, students in the general education population, and those who qualify for advanced academic programs. For a student with comorbid conditions, such as an eight year old student of low socioeconomic status with a specific learning disability who is ESOL and is a child with ADD, the least restrictive environment may or may not be full inclusion in a general education classroom during language arts and math. Furthermore, to include that child in school performance numbers, which is how things currently stand, can create a false impression of a school as failing. By a more appropriate measure, that same child might be making spectacular progress. Current guidelines create a disincentive for the teacher to serve that child appropriately; the teacher has an incentive to shift resources to others more likely to help the class meet its performance numbers. The sad irony is that those most vulnerable to school system abuse are the least likely to file a lawsuit when needs are not being served.
The root cause of academic failure may have something to do with inappropriate teaching, but inappropriate assessment methods are a major factor that gets scant public acknowledgement. The research-based use of developmentally appropriate assessments is common in the fields of both language arts and mathematics. The major testing companies all have excellent, research-based, developmentally appropriate tests. Professionally trained teachers rely on more natural assessments to meet the needs of learners every day. Developmentally based assessments, however, are diametrically opposed to the kinds of assessments that have taken over public schools since the passage of NCLB. As a result, the majority of Americans, including legislators, have no idea how to evaluate the progress of learners in a developmentally appropriate manner. By creating the false impression that students are not making appropriate progress, assessment methods that fail to take into account human development factors, leave school systems nationwide vulnerable to litigation.

Parks, E. (2009). School districts in California suffer because of special education funding, or lack therof. http://www.thefreelibrary.com/School+Districts+in+California+Suffer+Because+of+Special+Education...-a01073955997
Turnbull, H., Stowe, M., & Huerta, N. (2007).Free Appropriate Public education: The Law and Children With Disabilities, 7th edition. Denver: Love Publishing Company.
Individuals With Disabilities Education Act, 20 U.S.C. § 1400 (2004).
No Child Left Behind (NCLB) Act of 2001, Pub. L. No. 107-110, § 115,
Stat. 1425 (2002).