Fixing Special Education–ONE MONTH AT A TIME

 It’s time for STEP Two!  As you know, every month in 2011, we’ll post a STEP  to FIX special education.  There are 12 steps. By December, our systemic transformation should be well underway! Please share your comments and let us know the steps you are taking to fix special education. 

 February 2011—Step Two to bring about climate change in our schools

 Eliminate the fear of litigation that grips our schools.  

Philip K. Howard’s book, Life without Lawyers, opens with these haunting words:

 Sometimes I wonder  how it came to this, a teacher in Wyoming told me, “where teachers no longer have authority to run the classroom and parents are afraid to go on field trips for fear of being sued.” Thomas Jefferson  might have the same question.  How did the land of freedom become a legal  minefield?  Americans tiptoe through law all day long, avoiding any acts that might offend  someone or erupt into a legal claim.  Legal fears constantly divert us from doing what we think is right.”

 Special education heightens this fear of litigation through its adversarial system. According to Thomas Hehir and Sue Gamm,  fear of litigation and the resulting settlement agreements define the relationship between schools and parents. “The threat of a hearing is an essential element in the relationship between districts and parents because it raises the stakes in disputes over placement.”

 This fear has many real-world negative consequences, including these. Schools and parents work from the premise of lack of trust—that they are NOT on the same page to educate students. Teachers leave the profession and often cite these reasons:  burdensome paperwork and the negative, adversarial climate in our schools. 

 How to fix it?  As I see it, people of good will created this system in an era when litigation may have been a necessary change agent. Now, people of good will can change the system. In this era, we need to focus on student achievement and learning, teaching methods, appropriate responses in classrooms, etc.—all issues that educators, not lawyers and judges should create, manage and control.

 But how?  It may be a long learning curve. It took us 35 years to get to this dysfunction. I hope we can crawl out of it faster, as our country cannot afford another 35 years of adversary and litigation in our classrooms. Let us

  • Help parents be parents, not law enforcers (More on this in Step Five).
  • Free teachers to teach—not collect data and fear disputes endlessly–in the six-hour day they have.
  • Encourage teachers to advocate FOR students.
  • Focus on student achievement for all.
  • Create trust-based education, based on the premise that parents and schools ARE on the same page, working together in good faith to promote better education for all students.  For an example of a trust-based approach, please visit Special Education Day’s website to request information about Procedures Lite. This voluntary approach allows parents and schools to work together for the child, waiving procedural requirements.

 Creative open-minded problem solvers—we need you now!


These steps are taken from Fixing Special Education—12 Steps to Transform a Broken SystemThe book is available at School Law Pro: and at 

Park Place Publications at

 Stay tuned for March’s STEP!

About Miriam

Miriam Kurtzig Freedman, JD, MA—an expert in public education, focused on special education law— is a lawyer, author, speaker, consultant, and reformer. For more than 35 years, Miriam worked with educators, parents, policy makers, and citizens to translate complex legalese into plain English and focus on good practices for children. Now, she focuses her passion on reforming special education, with her new book, Special Education 2.0—Breaking Taboos to Build a NEW Education Law. Presentations include those at the AASA Conference, Orange County (CA), Boston College (MA), CADRE (OR), and the Fordham Institute (DC). Her writings have appeared in The Wall Street Journal, Education Week, Education Next, Hoover Digest, The University of Chicago Law Review on line,, and The Atlantic Monthly on line.

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