The Boston Globe headline we’ve all been dreading…

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“Rising Costs for Special Education are Impeding Pay Raises for Teachers, Districts Say.”[1]

While this headline is very concerning, sadly, it was predictable and is not surprising. What is surprising is this: The long-building crisis it describes is finally out in the open. Rising special education costs impede school programs and opportunities for every public-school student. There, I said it.

Now, don’t get me wrong. I’m a passionate supporter of public education for all students, including students with disabilities, and worked in that arena since 1964 — as a teacher, hearing officer (administrative law judge) adjudicating special education disputes, school attorney, and author; and I’m a parent and grandparent of children who were or are in public schools and a citizen of our great nation who wants it to thrive. I’ve seen it all and have written several books about public education. We do have huge challenges.

If we actually believe (I do not) that more than 20% of our students are disabled — that is one out of every five students![2] — then the current situation — funding shortages for general education because the funds are spent for special education — will only get worse, much worse.

Why so? For the same reason that this headline was predictable. Let’s think this through. US public education has many programs that target various student groups with different needs and requirements, but only one program has the privileged status of being an individual “entitlement” — the right to benefits and services granted by law. Under the federal law, the Individuals with Disabilities Education Act (IDEA), first enacted in 1975, students with disabilities and their parents have this status.

Today, the law is implemented at the federal, state, and local levels throughout our nation. Under various names, the IDEA has existed for 49 years. Its purpose is to ensure that all students with disabilities (SWD) have access to a free appropriate public education. The law is enforced both through the expansive bureaucracy that’s been built and through the mandatory due process dispute resolution system. Under this law, parents of SWD have the right to dispute any education program that the district offers to their child. They can seek an administrative hearing and ultimately, judicial review. Alas, lawyers have taken over. Special education has grown a costly mansion industry of specialists, educators, consultants, advocates, lawyers, hearing officers, judges, bureaucrats, and paper pushers at all levels of government. This individual entitlement is unique in US public schools.

No other group of students has such a right — not minority students, not immigrants, not low-income students, not English learners, not advanced students, not average students. No one.[3]

Special education is the ultimate example of mission creep — the gradual broadening of the law’s purpose and mission. It is also an example of how good intentions can go awry. In 1975, the IDEA was enacted because, at the time, many SWD were routinely barred from school or ended up in the back of classrooms without services. During that 1970’s civil rights era, Congress enacted this adversarial due process, entitlement approach to assure enforcement its new law. But times have changed.

Now we face the opposite challenge. The law succeeded! All SWD have access to school programs. To educate them, we have created a huge infrastructure of rights, procedures, endless box-checking and red tape, meetings, paperwork for teachers, and, too often, long Individualized Education Programs (IEPs), some more than 30 pages long. Unfortunately, much of today’s special education effort goes to implementing procedures and mindless compliance, which, too often, are unrelated to helping students learn well.

Yet, even with the new reality built over these 49 years, the law has not fundamentally changed — except to grow ever bigger and more adversarial. Together — the services, bureaucracy, and due process — continue to raise school costs. Thus, this worrisome headline.

Let’s be honest. What did we expect if we ever thought of the long-range consequences of this law? If we create one program within our nation’s public school system of 16,800 districts and 49.6 million students which offers an entitlement for one group of students and their parents — that program will expand incrementally and increasingly. So here we are.[4]

It gets worse. Fairness issues arise as more general education programs get cut or reduced (no more music; no more advanced math, larger classes, etc.) for lack of funding. This leads more parents to view their children as possibly needing special education supports, especially as the stigma for requesting services has worn off over the years. In short, this crotchety old system is unsustainable. The numbers bear this out.

Nationally, in the 2022–23 school year, 7.5 million students ages 3–21 received special education and related services under the IDEA. This is a doubling of special education student enrollment from 1976–77 (8 % vs. 15%).[5]

It gets even worse. While special education enrollment continues to rise, the general education population enrollment has declined or remained flat. Between 2012 and 2022 (during COVID), while special education enrollment increased from 6.4 million students to 7.5 million (its highest number to date), public school enrollment, which was at its highest in 2019 at 50.8 million, declined by almost 4%. In 2024, it was at 49.6 million. [6]

Clearly, this situation is not sustainable. We need a fix. Now. What to do? We have students to educate. We have students with disabilities (SWD) to educate. We need to educate all students in order for them and for our nation to thrive. It’s a big challenge.

Here are three suggestions.

1. Consider other paths to support students. The two largest groups of students now served by this law are those who have specific learning disabilities (SLD) at 32% and students with speech and language impairments at 19% of all SWD. Taken together, these two groups make up more than half of all SWD.

Tragically, a large percentage of students with SLD are so-labeled because they didn’t learn to read or do basic math in the K-3 grades. There are many reasons for this, including the fact that the US is still bound up in methodology disputes: the “reading wars” –endless battles between the phonics and “whole language” approaches and the “math wars”. For the sake of our little children, these “wars” need to end.

Since speech and language impairment is the second largest category of SWD, let’s encourage all adults to focus on early language acquisition in families and the community, including preschools, by speaking endlessly to and with very young children. Recall the 1995 landmark study about the “30 million-word gap” that highlighted the reality that many poor children hear or use fewer words than other children and enter kindergarten already behind. Schools then have to play catch up.

In short, prevention — getting little children to read, do basic math, and speak more before third grade is a far better national approach than trying to play catchup later. We need to reduce the number of SWD by teaching these important life skills to very young children.

2. Consider whether the entitlement is needed any longer. Do we still need it now that all SWD have school access and programming? If so, what purpose does it now have? Even asking such questions is super challenging since our government is very bad at retracting rights or entitlements. In fact, I can’t think of an example when that was done successfully. If only Congress had included a sunset provision in this law back in 1975 — assuring the law’s end once it achieved its purpose — to be replaced, perhaps, by a new law. Instead, 49 years of this system has created a huge industry of special interest groups and inertia with damaging mission creep, waste, and misguided policies. Yes, it’s a huge step to even ask these questions — but perhaps we’re in luck.

3. Timing is everything. Consider whether now is the time to press for change. Today, we have two encouraging reasons to do just that.

First, the recent election opens the opportunity for us to rethink and redo many government programs — including this one.

Second, we’re on the cusp of the 50th anniversary of this law, signed on December 2, 1975 by President Gerald Ford. Besides celebrating its success in providing access to education for all SWD, let’s dare to dream big and open a debate about the way forward — how to teach students, including students with disabilities, in a system that is sustainable and fair for all.

Let’s give ourselves permission to ask big questions: How might we rethink the system? Do we still need this entitlement law? If so, what is its purpose now? Is there a better way forward? Can we tweak/amend it? How do we return schools to the leadership and authority of educators, instead of bureaucrats and lawyers? Can we focus on best practices for children — not for procedures, box-filler uppers, or prevailing in due process hearings?

As we embark on today’s promising political opportunity and celebrate the law’s 50th anniversary, I hope we can transform the worrisome headline into a wake-up call going forward. Let’s create a system for our 21st century reality and work together for a bright, successful, learning-based US public school system for all students.

[1] November 17, 2024. This headline ran while teachers in three Massachusetts school districts were on strike.

[2] As they do in Massachusetts and several other states.

[3] There may be a reader or more who thinks the solution is to set up entitlements for more groups. In my view, that would be disaster for public schools — though it would be good for lawyers.

[4] https://nces.ed.gov/fastfacts/display.asp?id=372

[5] https://www.edweek.org/teaching-learning/the-number-of-students-in-special-education-has-doubled-in-the-past-45-years/2023/07

The percentage of public school students served under IDEA varies by state. Here are some examples:

Pennsylvania, New York, and Maine: 21%

Idaho and Hawaii: 12%

Puerto Rico: 37%

Northern Mariana Islands: 11%

U.S. Virgin Islands: 9%

[6] I found numbers hard to compare over time. For one source, please visit https://nces.ed.gov › fast facts › display.

This was originally posted on Medium

Today’s Tip # 1 — WHY, why, why

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This was originally posted on Medium

“The Elevator Theory of Special Education” — as it appeared in Education Week 27 years ago.

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Almost to the day! 27 years ago, my Education Week Commentary appeared. It was very widely read. Clearly, it hit a mark! I felt optimistic. It was quite a thrill.

Even thereafter, for years, when I traveled around the country as a speaker, consultant, and special education law expert, I saw that article on many, many bulletin boards in schools! Clearly the Commentary resonated with educators and administrators.

This was originally posted on Medium

Here’s Tuesday Tip # 3 — Get rid of those acronyms! Use PLAIN ENGLISH!

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Here’s Tuesday Tip # 3 — Get rid of those acronyms! Use PLAIN ENGLISH!

Here’s the First Set’s third Tuesday Tip — taken from my book, IEP and Section 504 Team Meetings… and the Law (available on Amazon and at Corwin).

Enjoy!

As a teacher, administrator, or other service provider, you have a choice! Either abandon those acronyms and initialisms outside the meeting door or provide a list like this FREE one, with explanations.

This was originally posted on Medium

Tuesday Tips!

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Hello friends and colleagues,

I created Tuesday Tips in 2021 and emailed them to subscribers each Tuesday for 13 weeks through MailerLite.com. If you’d like to subscribe (it’s FREE!), please let me know at miriam@schoollawpro.com.

The Tips are designed for special and general educators, administrators, parents, and others who may be interested. They are practical and provide guidance for our schools.

Because they’ve been very popular — especially during these challenging COVID times, I’ll repost them here, once a week, starting with the First Set of 13…

This was originally posted on Medium

“General education students with IEPs” — an unwise oxymoron

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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