November 16, 2015; Dear colleague” Letter by the US Department of Education about a FAPE: A school attorney’s response
By Miriam Kurtzig Freedman
The seven-page Letter tells educators—presumably, general and special educators—that holding students with disabilities to “rigorous academic standards and high expectations” is a “shared responsibility for all of us,” and that these students should be taught the “same challenging academic content and achievement standards [as] all children in the State”… at the “grade level in which the child is enrolled” TheLetter raises many concerns.
First, it is unclear whether the general education teachers and administrators’ perspective was taken into account. Their voice and leadership in this “shared responsibility,” especially as most services are provided in general education classrooms, is vital. Two special education Department offices authored this Letter—OSEP (Office of Special Education) and OSERS (Office of Special Education and Rehabilitative Services). Where is general education’s OESE—Office of Elementary and Secondary Education? While this Letterpresumes to be about special education, it is also very much about general education. OESE needs to be at the planning table especially since the Letter urges the same standards for all students “regardless of nature or severity of the disability.” Without input from general education, this Letter is simply a one-sided approach—like the tail wagging the dog.
Second, while no one disagrees about the importance of holding all students to high standards and expectations, I fear that the Letter downplays the cornerstone of special education law—individualization. The Individuals with Disabilities Education Act (IDEA) provides services to meet eligible students’ unique needs. Yet, this Letter appears to gloss over the reality that, even with similar curricular standards, students’ rate of learning and ability to master skills and concepts will differ, as they are impacted by the nature and severity of their disability. The concept of “closing the gap” (Letter, at page 5), while prominent in thisLetter, is inconsistent with the IDEA!
Special education focuses on whether students make gains in their areas of need—not on how they measure up against others. For some students with disabilities, the gap between them and their non-disabled peers will widen over time. That does not mean per se that they are failing to learn, or that their teachers are failing to teach them. Sadly, this Letter leads us to see failure even when students succeed—in direct contrast to the law’s mission and good education practice.
Third, in order to include students with disabilities in general education settings, this Letter favors the use of modifications of assignments, audio and other aids—inadvertently creating a trap for schools. Such methods often bypass the student’s unique needs and entitlement to a FAPE (free appropriate public education). The sad reality is that schools that follow this Letter’s approach may lose at due process hearings and in the courts because the approach can be viewed as a way to get students to “pass” and get “through” school—without providing the individualized benefit the law requires.
In sum, general education teachers and administrators who currently work in our schools need to lead the effort and be at the table to build schools that truly educate all students—from the most needy to the most advanced. Their input is especially vital now, given the Department’s push for inclusion to occur in general education classrooms. The Department should aid schools in their efforts to comply with current legal mandates, not divert them to paths that contradict the law.
Miriam Kurtzig Freedman has written six books (including the influential Fixing Special Education) on law and education and has spent her career representing public schools