Years ago, when my Boston law firm hired me, Bob, the hiring partner, gave me a piece of advice: Return phone calls the same day, even if just to say that you got the call and will be in touch later.
This was originally posted on Medium
A term I heard, new to me, during COVID upended my view about special education: “General education students with IEPs.” Really? Who are these students? Do you know any?
Labeling students as disabled because they struggle is wrong, especially if our goal is to educate them better. Such mislabeling has even been called abusive! Mislabeled as Disabled: The Educational Abuse of Struggling Learners and How WE Can Fight It: Hettleman, Kalman R.: 9781635766394: Amazon.com: Books
Instead of plugging these students into an ill-fitting 45+ year old legal system — the IDEA (Individuals with Disabilities Education Act, enacted in 1975 — and further bloating it with mind-numbing procedures, huge costs, amid decidedly mixed results — and now burdened by COVID compensatory services claims — we need a new way to think about and work with struggling students — especially post COVID. For true student success, we need a new “normal” by focus, focus, focus, with passion and commitment, on educating them in general education through high quality teaching and learning opportunities.
Far better to engage an army of excellent teachers than to continue to engage an army of bureaucrats and lawyers, as we have since 1975. Especially as, sitting right next to these students in our classrooms are “general ed students without IEPs,” many of whom are equally behind, equally hurt by COVID, equally at risk. The group without IEPs often includes at-risk students, immigrants, tuned out students, students in poverty, students lacking effective technology at home, non-English speakers, and others.
Can you tell the difference between these two groups? Probably not, especially as disability labels for students with “mild or moderate needs” are imprecise and may reflect parental advocacy and certain ZIP codes more than actual student needs.
Who are “general education students with IEPs?” Undoubtedly, they are among students with mild and moderate needs who make up 80–90% of today’s students with disabilities with IEPs. Other countries, like Singapore, Finland, and others, don’t label struggling students this way; instead, they focus on educating all students through early and targeted interventions. As do many successful US school districts.
Meanwhile back to our law. Notably, this skewing of percentages was not planned by the IDEA, which was enacted for students with severe and profound needs — who now make up just 10–20% of today’s students with IEPs. Let’s be clear. “General education students with IEPs” do NOT include these 10–20% of students. For them, the special education system should proceed as is. Indeed, many schools expended enormous funding and effort to bring those students back early during the pandemic to meet their needs.
Let’s focus instead on the many other students for whom, tragically, legal constrictions often impede great education, highlighted by the current crisis.
Within that legal framework, we hear that special needs students suffered during the pandemic. They did. No doubt. Many parents are suing their schools for “compensatory services” to make up for lost services. See NPR’s report, Families Fight Schools For The Special Education COVID Shut Down : NPR. Notably, the NPR report highlighted the 10–20% of students with severe and profound needs. Whether claims settle or go to due process hearings, they challenge schools. To meet that challenge, California set aside $100 million to help resolve these disputes. How California plans to deter costly special education disputes | EdSource.
In fairness, stop and think for a moment. Isn’t it also true and very real that, besides students with IEPs, many others fell behind during COVID. What about them? Sadly, as I see it, instead of a rational response to a public education crisis, we revert to the comfort (?) of the old law that ill-fits today’s reality. Couldn’t we better spend that $100 million?
For compensatory services claims for students with IEPs who missed therapies, placements, meetings, etc., we have an army of lawyers. These cases are easy to win. After all, our federal Department of Education refused to waive any requirements for schools due to COVID back in 2020. The students’ IEPs were NOT fully implemented. The Feds told us they had to be. Case closed. Next!
Billy is entitled to 50 hours of speech therapy, a private school, or whatever he missed. Schools, ordered to pay, will deplete their budgets. Note California’s $100 million pot to alleviate this burden.
But are we being smart or wise? Are these wins good for students or for public schools? Phyllis Wolfram, Executive Director of CASE (Council of Administrators of Special Education), warned that if schools pay out all that is owed through compensatory services, we may break the system of public education.
Ironically, providing compensatory services may further exacerbate the struggles of many general education students without IEPs. It may lead more parents to seek IDEA eligibility for their children — further bloating the special education entitlement with more “general education students with IEPs”. That’s the nature of an entitlement — those who have it, get. Those who don’t are on their own and may try to get in on the deal.
What shall we do instead? Focus on learning, more than labeling. See, e. g., excellent education in communities that implement a competency-based system (CBS) and work to meet all students’ needs with timely intervention — whether the students are struggling, advanced, or in between (About CBS / About CBS (westminsterpublicschools.org) ). Notably, Westminster’s motto is: “Services before labels.” Right on!
See also programs that focus on hiring excellent teachers to build learning from the very beginning, so that students may not need any labeling. See, e.g., Harvard Education Publishing Group (hepg.org). And see the many communities where, surprisingly, harmony grew during COVID — and no compensatory services are claimed! These districts improved communication between home and school — building trust — through person to person, human connection, as they worked with students. Schools Up Communications Game During Pandemic (govtech.com)
In sum, the push for compensatory services happens seemingly automatically, by law, and since it’s an entitlement, dare we ask if there’s any science or rationality behind it?
Speaking of science — do we have evidence that an additional 50 hours of speech therapy, a year late, will help Billy? Is it the best use of scarce public resources? Does it make sense — or are we just filling a “right” — like automatons. Next!
Speaking of equity, fairness, wisdom, inclusion, and our public schools — Do we have any explanation to give to that student who has no IEP — of the reason we don’t focus on him?
We don’t. And we don’t.
If COVID didn’t shake us to our core, what will? Sure, 50 hours of therapy will be compensated. Public schools will pay. As “the only game in town”, more parents may seek IDEA “protection” for their children, further depleting general education programs and budgets. Advocates may rejoice. But is it good for America?
It is not. It’s time to change our path. Or, are we doomed to keep grasping that 45+year old system that ill-fits today’s challenges — because change is hard and powerful interests stand in the way? I hope not!
Let’s, at least, change the conversation and stop labeling general education students; let’s do something different for all students — with or without IEPs, as CBS and other effective programs already do.
It’s time to pivot toward all students who need good teaching, more than they need labeling, procedures, or rights. Far better than “compensatory services” for the few is real education for the many, especially those who fell behind during COVID. If we don’t pivot, that needy child without an IEP may learn less and less, more parents may lose trust in our public schools, and learning losses may lead to further watered-down standards. None of this is equity, reasonable, inclusive, equitable, or wise.
We’re overdue for a new “normal.” The question is: will we answer the COVID alarm and opportunity? The time for choosing is now.
This was originally posted on Medium
TRUST — Build trust for schools, students, and parents because trust is the coin of the realm!
I believe that TRUST is necessary for excellent education — trust among players — students, teachers, parents, administrators, tax payers, and others.
Excellent education means that students learn all they can to become all they can be! That is the WHY of schools; it’s where our discussion should start — with the WHY. Schools should focus on student competence every day, all the time. Yet, they often can’t and don’t. As I see it, lack of trust contributes to that.
Positive relationships between schools and families are vital. Yet, the special education law and dispute resolution don’t promote that. In fact, as I see it, they head in the opposite direction! They are costly, anxiety-producing, and often trust busters for all parties, with NO research proving that the mandated procedures and requirements improve student outcomes. Tragic.
What is trust? It’s a firm belief that you can rely on the strength, ability, truthfulness, honesty, of someone or something. It gives you confidence in that reliance.
The “coin of the realm” is a country’s legal currency, valued like money. Before he died at age 100, George Shultz reflected on advice he got when he first became Secretary of State — “Trust is the coin of the realm.” He carried that lesson with him for his entire life — and wrote a short and breezy book about trust and relationships to celebrate his 100th. shultz_finalfile_web-ready.pdf (hoover.org) It includes this gem:
“When trust was in the room, whatever room that was — the family room, the schoolroom, the coach’s room, the office room, the government room, or the military room — good things happened.
When trust was not in the room, good things did not happen.
Everything else is details.”
And, there’s this about trust. The US is the only established democracy where the level of ‘social trust’ is falling. ‘Social trust’ means that people believe that most people can be trusted and that they’ll abide by established norms. For example, they believe that if your lost wallet is found, someone will return it to you! Our social trust used to be 50%; now it’s less than a third. Without trust, what’s left? “Why are Americans So Distrustful of Each Other?” The Wall Street Journal, December 19–20, 2020.
And, as you can imagine, distrust is trust’s opposite. Here’s Francis Fukuyama’s excellent summary:
“By contrast, people who do not trust one another will end up cooperating only under a system of formal rules and regulations, which have to be negotiated, agreed to, litigated, and enforced, sometimes by coercive means. This legal apparatus, serving as a substitute for trust, entails what economists call “transaction costs.”
“Widespread distrust in a society, in other words, imposes a kind of tax on all forms of economic activity, a tax that high-trust societies do not have to pay.” Citation at end of this post.
“Transaction costs.” One special education statistic that remains in my head is this. Teachers have just 27% of time left to teach. The rest is taken up with writing reports, attending meetings and other bureaucratic requirements — “transaction costs.” Yet, for the WHY — we have NO evidence that these improve outcomes!
“We have a problem, Houston!” Trust is NOT in the air!
What can we do about it? This post is designed to be practical and helpful with steps you can take on Monday!
First, words matter. Use them wisely. Be honest. Avoid ‘doublespeak.’ Try not to create an ‘honesty gap!’ The Merriam-Webster Dictionary defines ‘doublespeak’ as language that can be used in more than one way and is used to deceive people. The term, ‘honesty gap’, popped up in the testing/achievement arena and refers to the gap between information parents receive and how students are actually doing. An ‘honesty gap’ and ‘doublespeak’ are trust busters. Don’t use them!
Here are some oft-used terms that I see as trust busters.
“Closing the gap.” A great goal, but what does it mean? Is it real? Concerns are raised when we lower or ‘dumb down’ standards, provide invalidating modifications, hurt advanced students who are already proficient, obsess about getting all students to college, ignoring the real world benefits of vocational and technical education and the reality that many students are unprepared for college, etc. etc. Joke: We can “close achievement gaps” by simply ending achievement! How about aiming to “narrow gaps” — which may be more realistic and honest. And, far more satisfying because it gets to the WHY of education — how about focusing on student competence as CBE (competency based education) schools are doing, making it about individual student growth, not gaps with others.
“All students can learn and meet the same challenging academic standards.” Really? What does this mean? Is it honest? Does it build trust?
“We want what’s best for your child.” While that may be what you want personally, it’s not what the law requires of you, as a school employee. Your job is to provide an ‘appropriate, not a best, education. Saying that we want what’s best for your child overpromises and underdelivers — a sure trust buster.
“Parents and schools are equal partners” at Team meeting, in planning the IEP, etc. This is not so. Saying it leads to a loss of trust. See Endrew F. v. Douglas County School District (US 2017). The two parties have very different roles under the law. Schools provide expertise and parents provide input that schools need to consider. Parents may have expertise about their child at home and in the community, but not about education and how the child performs at school. While the parties hopefully act as partners, calling them “equal” is confusing doublespeak. What, exactly, does it mean?
There are many other troubling terms. Which ones have you questioned and tried to avoid because they kill trust? With a moment’s thought, you’ll think of several!
In sum, the “honesty gap” and doublespeak hurt efforts to build trust and positive relationships in our schools.
On the other hand, here are two positive words that I urge school personnel to use. Describe yourself as the ‘expert’ that you are in your chosen field and as the ‘advocate’ you are for the students you serve. Own those words: expert and advocate!
Second. the language challenge is a practical dilemma. Nancy, a successful special education director, told me this story. After she retired, she filled in as the acting principal of a school in the district, where she learned the heavy toll on trust and honesty in the special ed world. As acting principal, she was able to speak honestly with parents and students — for the first time! Something that she could not do in the world of special education (lest what she said would come back to haunt her in a dispute). Think about that!
What about trust in other countries? During my pre-COVID 19 visit with a school principal in Holland, she laughed out loud when I asked if they hire lawyers to resolve disputes about services for children with disabilities. Lawyers? NO — they resolve disputes with parents, educators, and administrators.
What about here at home at meetings? Try this! Walk into an IEP Team meeting. How long does it take you to know if there’s trust among the players? What are the benchmarks? How can you tell if staff members or parents feel heard?
Third, a bit of history about due process and some special education numbers. In 1975, Congress enacted the special education law, the IDEA. It provides an individual entitlement to a free appropriate public education (FAPE) in the least restrictive environment (LRE) for students with disabilities and rights for their parents. As we all know, this entitlement involves due process. I highly recommend the book, Rights Talk, to understand individual rights in the US. Citation in the back.
Numbers. In 1975, about a million students with disabilities were excluded from US schools or not appropriately served. The law targeted students with severe and profound needs — who now make up 10–20% of all students with disabilities. 80–90% of today’s students with disabilities have mild/ moderate needs. About 14% of students are covered by this law. Due to COVID-19, we expect the numbers to go up — as, by report, more parents already seek eligibility evaluations.
The pandemic also highlights an on-going challenge about students with mild and moderate needs. Can you really tell who is a student with a disability and who is ‘at risk’ or just losing ground? Often, the difference has more to do with student ZIP codes and parental advocacy than the students themselves. Gaps have widened for so many at-risk students and students with disabilities — both groups, creating a real challenge.
Amazingly (to me, at least), the law and its due process system do not mention TRUST. It’s all about rights for students and parents and responsibilities for schools. A damaging effect of this law has been the loss of trust between school and home, in spite of its best intentions. For example, teachers often practice ‘defensive’ education, lest a dispute blow up into a litigation. Parents who wish to nourish and help their children need to study the law to fight against the very teachers and schools whose mission is to educate their children! Too often, they describe their child as more disabled than she is. See, e.g., Chino Valley USD, OAH Case # 2020060369; 2020100601.
When I was a hearing officer, I heard a parent describe her teenage son in excruciating, negative detail. I finally asked her, “Do you like this child?” She looked up, stunned, and then smiled. She got it! The hearing became more honest and real.
Due process damages relationships. Let’s not forget that the very next day after testifying at a hearing, teachers have to work with the child and parents. It takes an emotional toll on parents and staff. Its incentives are wrong. Many educators quit and walk away.
The law is built on the premise that parents advocate for their child against their school and teachers; that parents and students need “protections” from schools and that parents have to fight, fight, fight. The law places a huge burden on parents: many can’t advocate effectively; savvy parents often can; poor, uneducated — often can’t. Surely, the system lacks equity.
Lost in all this is the fact that most parents are pleased with their children’s special education services and progress!
Notably, most (94–96%) hearing requests settle without a hearing or decision. The number of decisions in the US is down. (We have no numbers yet for the COVID-19 time and beyond). 2262 decisions were rendered in 2011–12, compared with 4537 in 2006–7. Though the number of decisions is small, that’s a mixed blessing. Among continuing challenges are the constant fear of litigation, settlement costs, the fact that incentives are wrong (e.g., lawyers’ fees; trusting outside, not inside ‘experts,’ etc.), and the fact that ‘professional development’ often is about dotting all I’s and crossing all t’s.
I’m sure you can think of other examples of damage to trust that today’s system creates.
Fourth, it’s time to ask whether today’s approach, even with various ADR (alternate dispute resolution) options, is still appropriate or necessary for students or parents?
Would anyone seeking to create a positive, collaborative system for teachers, parents, and students set up the adversarial, bureaucratic, and trust-killing system that we have?
In sum, the IDEA’s effect on trust, built on adversarial due process that emphasizes rights and litigation, not learning — is very concerning. We need to change it! For the long haul, I urge us to reimagine educating all students, including students with disabilities (in two distinct groups with different needs and rights) by building positive, trust-based, innovative approaches for our post — COVID-19 future. We may even question whether to continue with the current entitlement system. Here’s a starter article for this overdue conversation. Special education post-pandemic — what and how? | by Miriam Kurtzig Freedman, JD, MA | Dec, 2020 | Medium
Fifth, but for now, what to do on Monday!
Take steps to build trust with families — especially during and after COVID-19. A surprising silver lining of the pandemic has been that many schools report improved parent outreach and collaboration. What have you done for outreach? Have you shown that the school is doing all it can for their child? Have you engaged families in honest dialogue?
1. Catch students being good. Focus on strengths! And share with the parents!
2. Speak Plain Language without doublespeak and the ‘honesty gap’. What is plain language? | plainlanguage.gov Drop the acronyms or provide a glossary. Acronyms are often disempowering — an immediate barrier to trust.
3. Be the child’s advocate! Own that word. Be the person that parents know has their child’s interest at heart. Earn their trust!
4. Be the expert that you are in your area of expertise and stay in your lane! Own that word!
5. Earn trust by doing what you said you will do. Over deliver and under promise. Not the opposite!
6. Be the district’s eyes and ears — about parental concerns. E.g., when they first bring a “friend” to a meeting or ask for the child’s student records or…Hire a hand holder — like Raye!
7. Smile — Go that extra smile.
Consistent, positive, small steps can go a long way to build trust.
___________________________
Sixth, explore ADR options within today’s entitlement system.
Besides mediations, resolution meetings, and other ADR options, I’d like to introduce SpedEx — Massachusetts’
· child-centered
· voluntary
· trust-based
· free for parents and school districts
· successful dispute resolution system that develops an appropriate program for the child.
SpedEx is designed to be child-centered, result in an appropriate placement that provides a FAPE in the LRE, and trust-based! It’s success rate in developing accepted IEPs — parents and schools working together with an outside consultant (paid for by the state education department) — stands at 80–90%. That is amazing! It also likely means that the parties will continue to work together in a trusting relationship in future years. Please check it out at SpedEx (squarespace.com).
Imagine other dispute resolution options for all students — with or without disabilities; with or without an entitlement.
· Ombudsman for all students.
· A monthly open school night to meet with the principal — no appointment needed. Like Jimmy, my son’s principal, did!
· Informal resolution options developed by students, teachers, and parents.
· Student-centered, not process-centered, approaches.
· Outcome-based, not input-driven, systems. It’s the WHY of schools and WHY we care about making them better.
Summary
We’ve acknowledged the fact that trust and distrust are problematic in the wider world.
Let’s build around the reality that trust in the special education world is a huge challenge.
On Monday, take practical steps to build and grow trust in your world.
Keep the conversation going! These are a few of my favorite books and sources….
Democracy in America, Alexis De Tocqueville (1835, 1840).
IEP and Section 504 Team Meetings… and the Law, Miriam Kurtzig Freedman (2017).
Rights Talk: The Impoverishment of Political Discourse, Mary Ann Glendon (1991).
Rights Gone Wrong: How Law Corrupts the Struggle for Equality, Richard Thompson Ford (2011).
Special Education 2.0 — Breaking Taboos to Build a NEW Education Law, Miriam Kurtzig Freedman (2017).
Start with Why — How Great Leaders Inspire Everyone to Take Action, Simon Sinek (2009)
Try Common Sense — Replacing the Failed Ideologies of the Right and Left, Philip K. Howard (2019).
Trust — The Social Virtues and the Creation of Prosperity, Francis Fukuyama (1995).
shultz_finalfile_web-ready.pdf (hoover.org), George Schultz (2021).
This was originally posted on Medium
In this PANDEMIC, let’s be honest — sometimes ART can bring a smile to our faces. How about, medicine bottle art! I hope it brings you a smile!
During this pandemic, we need to be creative! Alas, during this pandemic, we also accumulate many medicine bottles — both at home and among my friends and colleagues. Since I like to “make lemonade out of lemons”, I set out to create Medicine Bottle COVID Art! Walks on the beach in Half Moon Bay give me the shells — whole and broken, driftwood, and the silver dollars you see in these pieces. And walks on the streets give me nuts and bolts and assorted treasures. Check them out in these Medicine Bottle COVID Art pieces.
I’d love to hear what you think of them.
— Pandemic Seascape — inspired by Half Moon Bay
— “To your health” vase with sea shells
— Hawaiian Sun Rays Frame
— Menorah for the age of COVID
Check out those eashells and bolts…collected on my walks on the beach and in town.
— Lovely orange vase # 1 with seashells on driftwood
More to come….
— Mirror with palms that hangs in our bathroom
— Time to climb Health Mountain — time to climb!
Don’t you love that beautiful blue bottle!
— Orange vase # 2 on beach driftwood
— Welcome to the City of Health
— Relaxing in The City of Health (close-up)
Our friend Dave Wilson took many of these photos. Thanks, Dave! Much appreciated.
Enjoy! I hope they bring a smile to your face.
Miriam
This was originally posted on Medium
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