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 21^st 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.

References:

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).

Private Public Cadillac Honda Education

Many parents view private schools as a viable alternative to public schools until they consider footing the bill. Perhaps certain politicians spin the issue as private schools being "the answer," because publicly bashing public schools is politically convenient, but most parents tend to be rational in deciding what choice is best for their child. Politics, by its very nature, skews perceptions into black and white, winner take all decisions. Practically speaking, however, all most parents want is what is best for their child. In other words, the delivery vehicle is not the primary concern of parents; what matters is the destination.

If many parents perceive private equals better, despite a lack of legal constraints, or more broadly, a lack of accountability, a few different things might explain that perception of private equals better outside of political fear mongering. For people of great wealth and status, who have the financial means to provide their children a classical liberal education, in the tradition of Cardinal John Henry Newman, abandoning their tax dollar investment in education is just another write-off -- the very wealthy are accustomed to driving Cadillacs, and many rather enjoy the privilege of having their children get the Cadillac equivalent for education. For the average American parent, living paycheck to paycheck, the abandoning of their tax dollar investment is not a realistic option -- most send their children to public schools because a Cadillac is not a viable option; most are satisfied with a Honda. For the very poor, public schools have failed to change the status of the majority, whereas opportunities provided by private schools, through charity, have led a few especially bright stars out of the ghetto to Hollywood, the NBA, and even the highest offices of the land.

A lack of legal restraints in special education only matters if parents have no other viable options. In the case of special education, wealthy parents with children who have a disability can easily afford the Cadillac equivalent for special education. Private special education schools tend to be extremely expensive, and problems with a lack of legal constraints surface in only the most extreme cases. The market place has a naturally corrective accountability feature for bad private schools. Wealthy parents can simply send their child to a better school, much like ending a lease or cancelling a contract. Extremely wealthy parents, since they have complete control over their own educational dollars, are ultimately the drivers of their children's education.

For the average parent with a child who has a disability, the Cadillac is not an option, so they go to public schools. Most are happy with their Hondas. If the average  or poor American parent who gets an educational "lemon," however, there are few viable options outside public schools. Since parents have no direct control over their educational dollars, since they cannot simply cancel the contract and take their educational dollars elsewhere, the average or poor American family is stuck with the education they are provided. Fortunately, the quality of which is protected by federal law and accountability features. However, the social costs of public education are spiraling out of control, which suggests that the federal framework for education needs an overhaul.

What happens when education takes on a production line mentality?

Charlie Chaplin's Modern Times, from the early 20th century, humorously captures a production line mentality. The chocolate factory scene fromI Love Lucy captures the same uncomfortable feeling when too any inputs come in without adequate processing time. If you need some good belly laughter, click on the links. What do satirical renditions of 20th century industrial factory settings have to do with education? My major concern about the teaching industry is that despite standards-based IEP goals for personalized instruction, which might benefit students with learning disabilities, particularly primary students who need to master basic skills, such as decoding and number sense, a significant percentage of students are not getting their needs met, at a critical developmentally sensitive time, because the fear of sanctions colors every instructional decision in every classroom.

In one of his PowerPoints, Dr. Ball cited Keith Stanovich's research on the Mathews Effect which suggested a failure to intervene early with learning problems can lead to long-term learning difficulties. Not only is the failure to intervene with students with learning disabilities morally reprehensible, the failure to appropriately intervene raises the long-term costs of education considerably. (Ramey, 2004; Campbell, 1995). Despite the laws, and because of the laws, efforts to intervene are in many ways working at cross purposes. Many children are simply not ready to work on a production line to learn every content standard at the same time, because none start from the same place, and learning styles vary widely.

Somehow, a Wall Street "hostile takeover" model has taken over education. In my view, the Wall Street "hostile takeover" model of education attempts to to turn education into a "business" and stresses that all good children must "do their jobs," and that "unproductive" teachers must be "laid off."  While everybody wants positive outcomes, the legal requirement that guarantees positive outcomes is destroying individualized education. If anything needs to be guaranteed, all students need access to the research-based best practices. In reading, for example, there is a wide body of evidence that indicates that a balanced approach that addresses phonemic awareness, phonics, fluency, vocabulary, and comprehension. If differentiated instruction were truly occurring, students who struggle to decode would receive standards-based instruction with personalized instruction in research-based programs such as Read!, which are not widely adopted because they require 45 minutes of solid instruction, which would take too much time away from test preparation.

During a real discussion I heard, teachers discussed "prioritizing" instruction over the next few months and helping the students who had the best chance of responding to intervention the most.

Campbell, F. (1995). Cognitive and school outcomes for high risk african-american students at middle adolescence: Positive effects of early intervention. American Educational Research Journal, 32(4), 743.

Ramey, C. T., & Ramey, S. L. (2004). Early Learning and School Readiness: Can Early Intervention Make a Difference?. Merrill-Palmer Quarterly, 50(4), 471-491.

Charlie Chaplin's Modern Times

I wonder how many people in schools, children included, feel like they are working on an assembly line  ...

Rowley, Reasonable Accommodations, and FAPE: Why Montgomery County was justified in refusing unreasonable parental demands

Introduction:

In 1997, Brian Schaffer’s parents’ sued Montgomery County Public Schools because the school system had refused to pay for out-of-system services after reasonable accommodations within a county school had been offered. The family’s lawyers challenged the substance of his IEP, i.e., teaching methodologies, not the IEP process, itself. The “burden of proof” for legal fees should have been on the parents, not the school system for two main reasons. First, the school system remained in compliance throughout the IEP process. Second, professional opinions, particularly regarding the substance of an IEP, given the professional licensure process, should generally enjoy protected status in the case of legal disputes involving non-professional opinions. These two considerations were the basis for the majority ruling of the Court of Appeals in Weast vs. Schaffer (2004), which overturned an earlier finding by a lower court in favor of the Schaffers. (Wright, P., and Wright, P., 2011).

Rowley:

The Supreme Court, in its 1992 Rowley decision, held that schools must offer reasonable accommodations to meet the educational needs of “handicapped children.” (Turnbull, H., Stowe, M., & Heurta, N., p. 154, 2007).  Implicit in that ruling was that, if schools offered reasonable accommodations, parents had no right to unilaterally withdraw their student, enroll their child in the most expensive available program and force taxpayers to pay the added expense. Brian Schaffer’s parents refused two placement options and accommodations considered to be appropriate and reasonable by the county.

Sufficient legal precedent had already been established by the Supreme Court in Board of Education v. Rowley (1982) to justify Montgomery County’s position. Montgomery County had proposed offering Brian 15.3 hours of special education plus 45 minutes of speech therapy every week. The county had even offered to resolve parental concerns about group size, offering to send Brian to an alternative school with smaller class sizes. Since Montgomery County had complied with all legal requirements, the court found no reason to side with the family against the county.

FAPE:

The Education for all Handicapped Children Act, P.L. 94-142 (1975) articulated six principles that regulate the special education process (Turnbull, H., Stowe, M., & Heurta, N., p. 20, 2007), including FAPE:

·      Free and Appropriate Public Education (FAPE)

·      Students should be educated in the Least Restrictive Environment (LRE)

·      Individualized Education Plans (IEPs)

·      Procedural Due Process

·      Nondiscriminatory Assessment

·      Parental Participation

FAPE was never intended to imply unlimited educational spending for guaranteed educational outcomes. The original intent was to guarantee equal access to education, not guarantee educational results. (Turnbull, H., Stowe, M., & Heurta, N., p. 154, 2007). The 2004 reauthorization of IDEA, in fact, filled many of the holes in the IEP Process that had divided schools and parents, which were at the heart of the legal showdown between Brian Schaeffer’s parents and the school system.

Conclusion:

As the author noted in Special Ed Battles, in 2005, the cost of providing special instruction outside of Montgomery County Public Schools far exceeded the costs of early intervention programs. IDEA 2004 was a brilliantly constructed attempt to change that equation. The Schaffers expressed concerns that a public education might not be on par with private schooling. The problem with their argument was in seeking a guaranteed outcome with a specific methodology, which caused their argument to swim against a tide of special education legal precedents. The Schaffer’s concerns about the quality of a public school education vis-à-vis a private education were addressed in the reauthorization of IDEA (2004). IDEA (2004) offered many elements for improving special education, including monitoring, compliance, and procedural safeguards, but these improvements were not in place when the Schaffers filed their complaint. On the other hand, had the Shaffers been given more direct control over their educational dollars, they might have been willing to pay a little more for a higher quality education.

References:

Turnbull, H., Stowe, M., & Heurta, N. (2007). Free appropriate education: The law and children with disabilities, 7^th edition. Denver: Love Publishing Company.

Wright, P., and Wright, P. (2011). http://www.wrightslaw.com/law/caselaw/04/4th.schaffer.weast.md.htm

P.L. 94-142, 20 U.S.C. Sec. 1400 (d). P.L. 94-142 (1975)

Special ED Battles. (2005). http://www.washingtonpost.com

Flight of the Bumble Bees

                In March I will be 49, so I have sailed through numerous transitions and have a lifetime of memories to guide me, and yet, here I go again, off to another rocky start, midway through my practicum. What is it about transitions that make transitions so difficult to navigate? Maybe our brains, which help us navigate through time and space, are wired to anticipate pain, which is why people tend to avoid transitions and remain in safe harbors of worn habits. Successful people develop mental maps that lead them in the most efficient way, subconsciously, to positive outcomes. With enough time passed, the sting of transitions fade, and the sweet nectar of success becomes so compelling, we are off again to "The Flight of the Bumblebees.