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Anne DelfosseMiriam Kurtzig Freedman

6.17.2020

This spring’s school closures have challenged us to look at many things differently and to be open-minded, creative, and brave about moving toward necessary change. As we consider reopening schools in the fall, let’s hold on to that mindset and ask what should special education become? Does the forty-five-year-old federal law (IDEA) need a thorough redo? We believe it does.

There is much to celebrate about all that public schools now provide for students with disabilities. We’ve certainly come a long way since 1975, when the law was enacted. Yet, especially as this crisis has revealed, special ed’s plethora of services, costs, and procedures have produced unintended consequences and missed opportunities.

At the start of the closures, Philip Howard’s USA Today discussion of cumbersome regulations included this: “Schools are a hornet’s nest of legal rules. Soon after New Jersey closed its schools…a parent of a special education student complained that it violated his rights.”

The parent was surely right. The closure also violated the “rights” of innumerable other students, with and without disabilities. Yet this parent was onto a key feature of our current quandary: While other students may have a theoretical “right” to an education, his child has a statutorily enforceable and uncapped entitlement! The crisis lays bare this difference.

Nationally, about 14 percent of today’s students — identified as disabled — are entitled by federal law to a “free appropriate public education” (FAPE). Nobody else is. Having an entitlement is a big deal because it ensures that a government program will provide eligible recipients (here, students with disabilities and their parents) with a specific set of services, rights, and other benefits — no matter the circumstances, school budget constraints, or what their peers get.

Now more than ever, this entitlement challenges schools. The national coronavirus crisis turned upside down the education of more than 50 million public school students, including 7 million with disabilities. Educators, students, and parents have struggled on a steep learning curve relative to distance learning, virtual classrooms, etc.

How can schools provide a FAPE for some while trying to innovate for all students? How are they supposed to implement burdensome special-ed regulations, including timelines and meetings, always working under the fear of litigation, during this trying period? Even before the crisis, special ed teachers spent much time on meeting bureaucratic requirements, leaving a reported 27 percent of their time for actual instruction. Many chose to leave the profession. One can only wonder what the crisis has been doing to teachers.

When schools reopen, we can expect that most students will have regressed in academics and other skills. (If they don’t, why have schools?) Schools will face this challenging reality as they work to support all students to catch them up and help them learn anew. Despite this reality, however, only special education students will be able to assert legal rights and file due process claims against their schools for compensatory services to make up for any regression, to say nothing of complaints for missed timelines, services, and other requirements. Schools expect a barrage of such claims.

Really? Yes, under current law.

Notably, special education is the only entitlement program in our public schools — rights that are enforceable through due process hearings and in court. Since 1975, Congress has wisely chosen not to create new entitlement programs in the K–12 realm.

Who are these students? The law was written to provide access to public education for students with severe and profound needs. Today, however, estimates are that those children make up only 10 to 20 percent of the students enrolled in special ed. The vast majority (estimated at 80 to 90 percent) of today’s students with disabilities have mild or moderate needs. They are educated mostly in general education classrooms. Yet the law, rights, and regulatory requirements for these two very different groups are the same.

In 2001, writing in Rethinking Special Education for a New Century, Tyce Palmaffy posed a key question: “The question of why learning disabled children are more deserving of extra help than everyday low achievers is one that LD advocates have never quite answered.” Nor has it been answered nineteen years later.

It’s also time to ask: Do students with full access to public education still need “protections”? And what about the law’s opportunity costs? For example, how can America’s prosperity and leadership position continue when so many other students, including advanced students, are underserved? How can we get teachers to focus on instruction instead of compliance? How can schools better spend scarce resources?

Yet the special education beat goes on. Even during this crisis, school administrators and attorneys spend inordinate amounts of time and effort on how to provide for special education students and how to comply with legal mandates when other students get far less than they should. Parents of special education students spend effort, often with great anxiety, to “fight” for their child against their public school, which the current statutory arrangement reinforces. These dysfunctional responses cannot be what the good folks who wrote this law had in mind.

This civil rights law was designed to provide individually-planned access to public education for students with disabilities — not to create a semi-separate system serving one subset of students. Regarding compensatory services for students with mild or moderate needs, if their parents, advocates, and attorneys prevail in demands for special services while their classmates do not receive any, how is that fair, equitable, or wise? It is not — and it’s not what this law intended. If and when that happens, public support for special education will surely decline. Most people understand crisis, fairness, and its opposite. Be careful what you wish for.

When this crisis abates, our world will look very different. The crisis has shed a bright light on many failings of American education, including inequalities, one of which is the inequitable distribution of rights and entitlements to education.

What to do? For starters, we believe it’s time to divide the special education student body into two very different groups: the far larger group of students who have mild and moderate needs and are mostly educated in general education classrooms and the smaller group who have profound and severe needs. In so doing, we take guidance from the Supreme Court’s 2017 decision, Endrew F. v. Douglas County School District. The Court highlighted the reality of two different groups of students with disabilities — those who are pursuing general education goals and those, generally with severe or profound needs, whose education is individualized according to their circumstances.

For the larger group, the entitlement has completed its mission of providing access to education and should end (or be capped or otherwise limited), especially as it has also become increasingly dysfunctional and has brought great opportunity costs. Instead, it is time to build appropriate systems for these students within one interconnecting mechanism referred to as “general education.” Students with mild or moderate needs should be served through quality, individualized regular education — as should all other students. Dispute-resolution avenues should be provided for all students.

Some may argue that, rather than extracting some students from an entitlement, all students should have one. We disagree. The last thing we need is more lawyers, lawsuits, regulations, and bureaucrats running our schools.

For the smaller group of students with more severe and complex needs, it’s time for a thoughtful taskforce to propose how to proceed. Should these students retain an entitlement, or is another approach to ensure services more appropriate? Should the law mandate that other social service agencies step up to serve students who often have complex and costly needs? Should their education remain a school district responsibility, or should the state, through other agencies, become a mandated partner?

In short, special education claims and rights that go beyond reasonableness and fairness, all exacerbated by this crisis, face us squarely. We can no longer ignore them. They present the opportunity to question the continuing need for the forty-five-year-old entitlement for millions of students with mild or moderate needs and to work to establish a better way forward for students with severe and profound needs.

When schools reopen, maybe, just maybe, we will finally confront the fact that it’s time to end or limit the entitlement for many students with disabilities and devise a system that is leaner, rational, equitable, and more effective for all students. It’s time to build anew.

Anne Delfosse is a speech pathologist and former special education administrator. She has served students with disabilities, their families, and professional teams for forty-two years. Currently, she works as a consultant, mentor, and coach to professional educators.

Miriam Kurtzig Freedman is an experienced school attorney, author, and reformer. Her most recent reform book is Special Education 2.0 — Breaking Taboos the Build a NEW Education Law. For more information, please visit SchoolLawPro.com.

© 2018 The Thomas B. Fordham Institute

This was originally posted on Medium

Good for U.S. Secretary of Education Betsy DeVos for working on proposals to Congress urging flexibility to implement the primary federal special education law, the Individuals with Disabilities Education Act (IDEA), during school closures caused by this pandemic. The CARES Act requires her to propose, within thirty days, IDEA provisions that should be waived, if any. Notably, and perhaps overlooked, is the fact that this effort is of great importance to many stakeholders, including the wider school community beyond special education. All general and special education students, teachers, administrators, and parents want schools to function as well as possible during this crisis. Secretary DeVos represents them all. But schools cannot “flex” without congressional action.

The U.S. Department of Education (ED) has issued guidance, acknowledging that there may be a need for flexibility in how special education is provided, consistent with the need for health and safety, adding “[W]here we can offer flexibility, we will.” This guidance does not have the force of law, nor does it inoculate schools from the threat of litigation.

In normal times, many IDEA regulations and requirements are burdensome, with compliance issues often leading to litigation and the fear of litigation. That’s far from ideal, but now is obviously not normal. As schools struggle to provide even minimal education for all students, including students with disabilities, they need freedom to function as best as they can.

In this unprecedented crisis, schools need targeted, specific, and temporary flexibility around IDEA requirements related to timelines, meeting attendance, assessments, eligibility findings, specific services delivery, report writing, and due process for claims generated during and by the current crisis. Without such flexibility, the fear of lawsuits remains and diverts the focus from education for all students. Of course, schools and parents are encouraged to work collaboratively and constructively-and many do. Yet even “good faith” efforts are subject to interpretation, which can lead to litigation.

Everyone knows that we’re in a national crisis that has turned the education of more than 50 million students-86 percent of whom are general education students-upside down. Many schools are closed with no learning or far less learning through online or other means going on, approaches that themselves raise equity challenges for children without internet access. Parents are encouraged to “home school” their children. We know that many students will lose skills and regress, and may develop other challenges, as well. Schools are in a most complicated, challenging, and endlessly exacerbating reality.

Congress should act to ease the quandary schools face without delay. Ironically, if Congress does not act now, when given the opportunity to do so, attorneys arguing cases after schools reopen can easily assert that Congress intended all regulations and requirements to be enforced-even during the pandemic! It’s time to get serious.

IDEA-now forty-five years old-provides students with disabilities with an individual entitlement to a “free appropriate public education” (FAPE) to access and learn what the law calls “the general curriculum.” Among other rights, they are entitled to specialized instruction and individualized services that their parents can enforce through due process. The general curriculum is supposed to help all students gain academic, social, behavioral, and emotional knowledge and skills. Eighty to 90 percent of students with disabilities have mild or moderate needs and are mostly educated in general education classrooms. The other 10–20 percent of disabled students have severe or profound needs.

Special education, the only entitlement in our public schools, ensures that a government program provides eligible recipients (here, disabled students and their parents) with rights and other benefits-no matter the circumstances. Right now, my attorney colleagues who represent public schools are spending inordinate amounts of time and effort on the complexities that follow from that reality.

It should be understood that, in addition to the educational services that can be provided to special education students while schools are closed, many will require compensatory services after schools reopen. Well and good. Yet let’s keep in mind that almost no students will make as much progress while schools are closed as they would when attending school. (Else why have schools?) However, as stated above, special education students have due process rights to assert those claims. Others don’t.

Claims such as these highlight the need for Congress to mandate temporary flexibility so long as the general curriculum remains upended for all students. IDEA, the special education statute that provides students with disabilities with individualized services for learning and accessing the general curriculum-as the general curriculum is provided to all students-was built to ensure fairness and equity, not their absence.

Secretary Devos should urge Congress to protect schools and students, including students with disabilities, with sensible and temporary flexibility. Congress should enact them as a necessary bridge as quickly as possible. When schools reopen, we’ll have plenty of time to rethink next steps, including possible reform of this system. We may even learn something about how a suspension of procedures and other rights actually impacts students. But for now, extraordinary circumstances require an out-of-the-box approach. Congressional flexibility is a good first step.

Many stakeholders await the ED’s proposals-may they come swiftly!-and Congress’s prompt and sensible response.

This was originally posted on Medium

Here’s an important piece in today’s Wall Street Journal (September 7–8, 2019), The Secret of a Charter School’s Success? Parents.”

Robert Pondiscio’s article is brave because it talks real about what many of us know but dare not say out loud. By focusing on the vital role that parents play, it tracks my own thinking that reform efforts for student success really really need parental (or other mentor — caregiver, grandparent, etc.) support and engagement.

In short, for me, it highlights the nagging concern about the “close the gap” obsession that is driving schools and policy makers these days — that focus on schools without focusing on parents. As I see it, we will not get to success by doing that. We continue to try to solve the wrong problem with the wrong players. Thus, the public and policy makers too often continue the drumbeat of beating up on schools and teachers — and throwing more money and effort on the challenge — yet the gaps remain.

Too often, our public schools are not playing with a full deck. One leg of the three-legged stool is missing! We don’t have all the necessary players on board — students, teachers, parents — all fulfilling their end of the mission. It’s time we focus on that other leg of the puzzle — parents. We need them on board as active participants. With that, we can begin to hope for real success.

This article provides a rather stark example of what public schools can do to get parents on board to educate all students…and even begin to “close those gaps.”

Your thoughts? Here’s that article!

The Secret of a Charter School’s Success? Parents

Low-income families ‘self-select’ for Success Academy’s demanding program, with remarkable results

Ninth grader Elliot Detou at Success Academy High School of the Liberal Arts in March 2017. PHOTO: STEPHEN REMICH FOR THE WALL STREET JOURNAL

By

Robert Pondiscio

Sept. 6, 2019 9:50 am ET

Charter schools are a boutique phenomenon in American education, educating a mere 6% of U.S. school children. But they attract a disproportionate amount of attention — and controversy — because of their unique place in our education ecosystem. Public, tuition-free schools open to all students, but operated independently of school districts, they offer a Rorschach test revealing how one feels about U.S. public education at large. They can be perceived either as engines of innovation and an indispensable means to rescue children from failing neighborhood schools, or as an existential threat draining away resources — both money and engaged families — from traditional public schools.

Collectively, charter schools educate 3.2 million children in 7,000 schools in 43 states and the District of Columbia. None are more polarizing than New York City’s network of about 50 Success Academy schools, which serve 17,000 students — 94% of whom are from minority backgrounds — under their visionary and lightning-rod leader, Eva Moskowitz. Most are less than a decade old, and all of them are exceptionally high performing. In a city where less than 40% of black and Hispanic children test at proficiency for reading or math, 90% of Success Academy’s students of color passed the most recent state reading test. Virtually all of them — over 98% — did so in math.

Test results should not be the sole measure of school quality, but they’re how we often keep score. By that standard, there’s no such thing as a bad Success Academy school. Its very “worst” campus saw 85% of its students pass last year’s reading test, and in math the worst was 92% — a level of quality and consistency unmatched by any other large charter school network in the U.S.

Success Academy does something else that’s unique and mostly unnoticed, but it creates the conditions that make these results possible. By law, oversubscribed charter schools must admit students by lottery. Success Academy has roughly six applicants for every seat, which gives the appearance of a randomly selected student body. But it exercises unusual influence over which students end up actually enrolling. In the end, the chances of an applicant being offered a seat appear to be closer to 50/50 than one-in-six.

Eva Moskowitz, founder of Success Academy, in August 2017. PHOTO: CELESTE SLOMAN FOR THE WALL STREET JOURNAL

Parents who win the lottery, and even those whose children are only on the wait list, must attend a series of mandatory meetings and complete various administrative steps for their applications to remain “active” between the April lottery and the start of school in August. Those who falter fall away.

At every step, school leaders aggressively preach to prospective parents about their no-nonsense culture and the expectation that parents come with eyes wide open, fully committed to Success Academy’s program and policies, including strict behavior codes, school uniform compliance, supervising homework, reading with children every night and recording what’s read in a log. Parents are warned repeatedly in unsparing language, “Success Academy may not be for you.” Significantly, the schools offer no transportation or after-school programs, a potential deal breaker for working single parents or those without the support network to pick up and drop off their children every day.

This process, whether by happenstance or design, yields a parent body comprised largely of the most motivated parents and those with the organizational skills and resources to meet Success Academy’s high bar for parental engagement. This sets the stage to strive for — and mostly achieve — consistent and high levels of academic achievement “at scale” among low-income children of color, who would otherwise be lost to the dull hum of mediocrity in zoned neighborhood schools.

To deny low-income families of color the ability to self-select into safe and well-run schools with high expectations is to impose mediocrity on them.

This seems unfair — except for the fact that the ability to self-select into a well-run, high-performing school is unremarkable and unquestioned among affluent Americans. When well-off parents pay for their children to attend a private or religious school, or when they move into high-income ZIP codes where inflated home prices and eye-popping property taxes are de facto tuition for excellent “public” schools, they are making the same decision as the low-income parents drawn to Success Academy. Both groups are voting with their feet and committing their own resources — money or time — to ensure that their children go to school with the children of similarly engaged and motivated parents.

To deny low-income families of color the ability to self-select into safe and well-run schools with high expectations is to impose mediocrity on them, ostensibly for the public good. It is a burden that no affluent family is asked or expected to bear. Ms. Moskowitz insists that even if she were allowed to, she would not screen and handpick applicants instead of admitting families by lottery. “I wouldn’t do it,” she told me, “because I don’t think I could tell who they are.” Perhaps not, but she has created a mechanism for those families to identify themselves.

Ms. Moskowitz’s many critics will look at the small but non-trivial hurdles parents must clear as proof that she is not running great schools, merely a sorting mechanism. But this ignores what’s most remarkable about Success Academy: Its schools don’t just match those of affluent suburban districts but easily outperform them. Working with self-selected families under careful conditions, Ms. Moskowitz hasn’t merely closed the achievement gap. She has reversed it.

The politics of education reform require that we be less than candid about all of this self-sorting, but the upshot for rich and poor alike is clear: School culture and parent buy-in matter. The brand of education pioneered by Success Academy may indeed be “not for everyone,” but its schools are well run, not the joyless and militaristic hothouses critics imagine. They serve much the same role as Catholic schools did for previous generations of striving New Yorkers. Success Academy suggests the upper limits of what is possible when a critical mass of active and engaged families of color, who happen to be poor, are given permission to exercise the same degree of choice as affluent families.

But this all must be done sotto voce. One former Success Academy school leader whom I interviewed struck a philosophical tone. “Is it really such a bad thing that this is basically an elite private school that admits by lottery?” he asked. “It’s the first time folks in the inner city have had that chance.”

It’s not a bad thing. The disparity of opportunity afforded to rich and poor Americans is what must change. The privileged are unfettered in their pursuit of an excellent education for their children; the rest get “equity.” Worse, we are forced to be dishonest in arguments both for and against charter schools, resorting to aspirational, politically pleasing narratives about what it takes to improve outcomes for disadvantaged children. It’s time to stop airbrushing parents out of the picture and to acknowledge the sometimes uncomfortable truth that their role is indispensable.

— Mr. Pondiscio is senior fellow at the Thomas B. Fordham Institute and teaches at Democracy Prep Public Schools, a charter school network in New York City. This essay is adapted from his book “How the Other Half Learns: Equity, Excellence and the Battle Over School Choice,” which will be published on Sept. 10 by Avery.

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This was originally posted on Medium