Happy Birthday Special Education — It’s time for a real redo!
December 2, 2018
On December 2, 1975–43 years ago, President Gerald Ford signed the special education law to end the exclusion of students with disabilities from schools. The law succeeded, even beyond its mission. We now educate all students with disabilities — some 6+ million — almost 14% of all students, while the law planned for 10% of students. Schools have created programs and done amazing work to provide for all sorts of learners. Parents participate actively. Many students benefit.
Yet Ford was reluctant to sign — he saw the flaws as well as the promise, and his worrisome predictions have also come to pass. The current system is still process (not outcomes)-focused and creates a bureaucratic stranglehold on schools and parents. Teachers drown in paperwork. Student outcomes remain largely unproven, and pervasive fear of litigation looms large. Often, trust between school and home is killed.
Let’s take this anniversary to reflect on the law’s past successes to propose a redo going forward. Consider —
— Special education students have changed over the 43 years so that today, 80–90% of them have mild or moderate needs. Ten-20% have severe or profound needs.
— Special education students and their parents have individual entitlements to due process and programming that no other public school groups have. An industry of lawyers (including me), advocates, bureaucrats, evaluators, and enforcers now service this costly, adversarial law. Ask a teacher or parent.
— Special education teachers spend most of their time on paperwork and bureaucratic requirements, leaving 27% for teaching. Yet, we blame schools for not “closing gaps.” Not surprisingly, many teachers leave the field, creating a special education teacher shortage.
— Curiously, the number of due process hearing decisions has declined. But why? In 2005–6, there were 5385 decisions; in 2011–2–2262; in 2015–6–1990. Do school districts settle disputes to avoid costly litigation, are student needs being met, do schools and parents work better together, or is it something else? We need research to show us what’s working or not.
— The total cost for educating special education students is estimated at 40% of school budgets, leaving 60% for 86% of students. Is this good public policy? We spend 143 times more for the 6+ million students with disabilities than for the 3.2 million gifted and talented students. Ask a superintendent.
— Special education’s impact on schools is far-reaching, but largely lacks research support. Most of the 80–90% of students described above are in mainstreamed — also known as inclusive — classrooms. Often, the focus is on the location — in which classroom a student sits — not on learning outcomes. Standards and behavior issues (for all students, disabled or not) challenge schools. Lacking objective research about the effectiveness and effects of current practices on all students — disabled and not — how can we provide equitable for every student?
I believe that we need a redo. Yet, it’s been my sad experience that to raise questions about the current system is often deemed “anti-child” or “anti-rights” –none of which is true, as my purpose is always pro-public education for all students. Conversation ends before it begins.
Instead, we need open conversation to forge ahead and respond to current — not 43-year-old — reality. We need stakeholders of good will to come together to celebrate the law’s successes, confront current reality, and create a brand new law. That will take time.
So, for now, to mark this birthday, here are three promising nuggets that may hold keys for forward thinking and movement.
First — Student outcomes. I am drawn to programs that focus on all students — from the most needy to the most advanced. Check out competency based programs (CBE), like Westminster, Colorado’s, “where education is personal!” CBE creates early, individualized, and robust interventions in general education settings to naturally address student needs, and hopefully, prevent students from failing. Results are promising. Outcome-focused programs are a vital step forward.
Second — Resolve disputes without litigation. The use of mediation and other alternate-dispute resolution models are rising. See, for example, Massachusetts’ SpedEx model — a voluntary, child-centered, free, non-adversarial, trust-building approach. The parties work together with a consultant to develop the child’s program and resolve their dispute. Promoting dispute-resolution among pivotal adults — without resort to litigation — is a good step forward.
Third — Meet individual student needs. The unanimous 2017 Supreme Court decision, Endrew F. v. Douglas County, recognizes two groups of students with disabilities — and the learning needs each student has. For most students, robust programming, as described above, may be appropriate. For a smaller group, including the 10–20% of students with severe needs, more specialized instruction may be appropriate. 1975’s one size fits all law no longer does.
Change is hard. Very — especially and understandably here, as many stakeholders fear it — and as parts of the law work well. Yet, I’m optimistic. This is America — the land of innovators and problem-solvers. When we finally acknowledge that the 43-year-old system is broken in many pivotal ways, our can-do spirit will kick in. We’ll focus on learning outcomes for each and every student, disabled and not. We’ll rebuild and maintain the vitality of our public schools.
Starting with these three nuggets, let’s speak honestly to one another, think BIG, and build an effective and equitable second generation approach for all students.
Adapted from Miriam Kurtzig Freedman’s book, Special Education 2.0 — Breaking Taboos to Build a NEW Education Law(2017). As a lawyer, Miriam represented public schools for many years, following her career as a teacher and hearing officer. As a reformer, she speaks to local and national audiences. Please visit her website: www.schoollawpro.com.