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

As just published by Fordham Institute! Please share with others!

Miriam Kurtzig Freedman

4.14.2020

Getty Images/Toshe_O

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.

Miriam Kurtzig Freedman, JD, MA, is a school attorney, author, public education law expert, and speaker. Her latest book is Special Education 2.0 — Breaking Taboos the Build a NEW Education Law. For more information, please visit SchoolLawPro.com.

MIRIAM KURTZIG FREEDMAN4.14.2020

This was originally posted on Medium

The provocative title of Greg Toppo’s piece in Education Next. How about untimed SATs for everyone, he posits. https://www.educationnext.org/support-builds-making-sat-untimed-for-everyone-possible-solution-gaming-the-system/

So interesting and so sad to me, as I ‘ve watched this unfortunate saga unfold since even before 2002. The SAT’s extra time story is the story that just won’t go away ever since the College Board made a total mess of if back in 2002/2003. That was when the CB (and shortly thereafter the ACT) stopped notifying readers by flagging (with an asterisk) test scores that were achieved under nonstandard conditions, such as extra time. Before then, these tests were indeed standardized timed tests. If a student received extended time, as was possible for a few — less than 2% of test takers — notice was provided to the readers of the test result reports — such as college admissions officers — that the score was obtained with a nonstandard accommodation; that is, the test was no longer standardized!

2002–3 opened the floodgates. As you’ll read below, Bruce Poch nailed that reality in Toppo’s article. I had predicted it back in 2003, in my own Education Next piece, “Disabling the SAT.” https://www.educationnext.org/disablingthesat/

Indeed, it was obvious for anyone who chose to look — to see!

In essence the CB and ACT invited students with disability labels to seek extra time on these tests — 50% 75% or 100% more time-and the gift was that nobody would know because the CB and ACT would no longer tell them! Standardized and nonstandardized testing would, henceforth, be lumped together in SAT and ACT reports!

We predicted then that this gift would lead to use/misuse of extra time, especially in mostly in wealthy communities. Besides my 2003 story, see Sam Abrams’ 2005 report, cited in Toppo’s piece. And now, it’s gone over the top as we’ve witnessed the criminalized extreme to which some parents have taken this in the “Varsity Blues” scandal.

While the CB’s Zachary Goldberg says that removing the flag was the right thing to do at the time, I disagree. It was the easy way out for this huge and powerful organization that was faced with the threat of a lawsuit at the time. They settled. Buckled. And in so doing, they wiped out validity from their prize product. They no longer kept the tests valid. This settlement confused parents, teachers and students — and still does. Over these almost 20 years, it became the story that they just can’t “disappear,” And tragically, as we all know, it has lead to unfair gaming of the system.

So how to fix it? Now, it appears that the wish among many seems to be to make these tests untimed. Sure, that may solve the gaming problem for now. But I say, careful what you wish for.

Sure, go ahead. Change the test — make it untimed —and while you’re at it, why not let students use their iPhones when taking the test or let them stand on their heads spitting wooden nickels to relax them…when taking it. Whatever. Sure, go ahead. And maybe create a new organization or company to create these tests.

But understand that you are creating and promoting different tests— no longer the SAT or ACT which are timed and standardized. At the very least, be honest about what you are doing. Sure, it may be a “Possible Solution to the Gaming Problem,” as the article’s tagline announces — but at what cost? And will it get us where we need and want to be?

Toppo quotes Ari Trachtenberg, a professor of electrical and computer engineering at BU, as questioning the accommodations practices. Accommodations are not rigorously analyzed or understood. Further, it’s not clear that giving more time to college students actually helps them in life or when they are faced with “high-pressure tech interviews, “ etc., etc., etc. Of course he’s right. As the article points out, the whole field of time-related accommodations is squishy at best.

Bruce Poch, a dean of admissions and executive director of college counseling at Chadwick School, is also quoted. He is spot on when he said the CB handed the keys to this problem to the world back in 2003.

Let’s analyze that a bit more. What I wrote about then and what is still true, is that the key to this mess is the CB’s refusal to tell us why the test is timed. Indeed Ruth Colker, a law professor at Ohio State University who is an advocate for untimed or extended-time SATs, writes that these tests should be untimed “unless they can show that the strict time limits are truly required for validity.” She is totally right, of course, in her focus on the key to this mess which has been here and ignored for almost 20 years!

Since 2002/3, many of us have made these arguments over the years . And yet, the beat goes on. More kids take the SATs and ACTs and these organization rake in more money.

The question to day is: WHY do we let the CB and ACT get away with just trying to maintain “test security” to keep their industry going? It’s maddening! Can’t they be put on the spot finally and answer the question: Why is the SAT timed? WHY? WHY? WHY?

We still don’t know. It’s more than time that the College Board level with the public and tell us.

This was originally posted on Medium