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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

Violent Students Keep Coming Back

Joanne, thanks for highlighting this the real-world example of a misplaced common good. Here’s her story and my comment.

https://www.joannejacobs.com/2019/12/violent-students-keep-coming-back/

Violent students keep coming back

DECEMBER 16, 2019 BY JOANNE 1 COMMENT

Violent students can assault teachers and classmates, then return to class a few days later, report Brittany Wallman and Megan O’Matz in the South Florida Sun Sentinel. They blame mainstreaming of children with emotional and behavioral disabilities and inadequate support staff trained to deal with their problems.

In school after school, students are erupting with violence. They stab or beat teachers. They throw furniture. They stalk and attack classmates, turning schoolrooms into danger zones where the rights of violent students with disabilities trump all others.

. . . State and federal laws guarantee those students a spot in regular classrooms until they seriously harm or maim others. Even threatening to shoot classmates is not a lawful reason to expel the child.

Federal law guarantees students with disabilities the right to be educated in the “least restrictive environment,” Wallman and O’Matz note. Florida law requires agreement “from the parents, or a judge, before transferring a disabled child to a special-needs school with more therapeutic services and smaller class sizes.”

Reporters found more than 100 students who threatened to kill their teachers, classmates or themselves in an 18-month period, they write. “Nearly half of the youths had histories of mental disorders, and more than half had access to guns.”

“Students with violent tendencies have more rights than the students that they endanger. Just ask Nikolas Cruz,” one schoolteacher told the Sun Sentinel.

The same laws that protect disabled students make it difficult for schools to remove a student like the profoundly disturbed Cruz, who was obsessed with hurting others before he killed 17 people at Marjory Stoneman Douglas High School in Parkland on Feb. 14, 2018.

“You cannot get the child out of the classroom,” former teacher Patrick Jovanov said. “You can get him out of the classroom for a day or two or three, but the child comes back.”

Increasingly, teachers are told to leave an out-of-control student in the classroom, while evacuating the rest of the class, writes Max Eden on Quillette. “Room clears” are “designed to protect the rights of troubled students, often with little regard for the rights of their classmates,” charges Eden.

Disruptive or violent students, often labeled as having an “Emotional and Behavioral Disability” (EBD), need “specialized attention in separate settings,” he argues. Assigned to a mainstream class, they can “become virtually untouchable.”

The rise in room clears is directly related to policy initiatives aimed at stamping out so-called “restraint and seclusion.” In the past, as a student’s misbehavior escalated, a teacher might ask the student to leave the room, put a hand on a student’s shoulder to try to get him to calm down, or — if need be — direct him by the arm away from a tense situation and possibly call security to remove him from the classroom area. But as policymakers take these options off the table, teachers have little recourse but to remove every single other student from the classroom before someone gets hurt.

“Teachers report feeling powerless to enforce order and ensure the safety of their students,” Eden concludes.

Laura Waters, who blogs at New Jersey Left Behind, is the mother of a son with special needs. Eden is wrong, she responds. School districts aren’t “powerless,” she argues. They’re too cheap to hire and train support staff. A one-on-one aide can escort a disruptive student from the classroom to a “calming space” and call in a therapist or social worker, if necessary, writes Waters.

Students who misbehave aren’t “untouchable,” she writes. “Many districts train aides and special education teachers in strategies like Handle With Care, which (according to this New Jersey policy manual) uses ‘physical restraint to control a student’s behavior to protect the student and/or a member of the school community from imminent serious physical harm’.”

And here’s my comment:

As a school attorney, citizen, parent, and grandparent, I tend to view the issue more as Max Eden does. I also carefully read Laura Waters ‘ comments — based on her experiences with her son. They both raise valid points.

The debate goes on and on, even as, as I see it, we lose sight of the big picture for our nation — our nation’s public schools that are supposed to serve ALL students. A minimal requirement is that all students can feel safe there. That is the most basic fundamental need.

Alas, we’re far from meeting that need right now. While good people like Ms. Waters and Mr. Eden can debate on and on with good arguments on all sides, as I see it, utltimately, it matters not because of that OPEN BACK DOOR — which almost invites parents to vote with their feet OUT of our public schools altogether.

We can argue forever about the current (I believe flawed) inclusion and room clear policies… while parents (especially those with means who we want engaged in public education) vote with their feet out of the public schools altogether. Not for my kid. It’s not safe. My kid gets no attention. Etc. Etc. Etc. These parents, too, have good arguments.

It’s happening. We know that the percentage of wealthy students who have left public education for private schools or home schooling continues to grow. As I see it, that does not protect rights. Instead, it’s very bad for our nation.

Continuing on our current path further dessimates our public schools. It’s us vs. them. It’s in or out. it is the individual vs. the other students. It’s disruption, fear, uncertainty. It’s not good.

The bottom line is that current policies belie the fact that ALL KIDS MATTER ALL THE TIME. Schools have to be safe and serve ALL OF THEM. Flawed inclusion policies and room clear policies send the wrong message —in a word, that all students DON’T matter. Many parents see that and take action for their own children. They opt- out. They leave.

So tragic — while our government dithers and can’t figure out how to protect and educate ALL of our students, the back door swings wider.

Predictably and tragically, we’ll reach a tipping point when more schools than we already have seen in some troubled inner cities will be ever more for only the have-nots. Sad .Sad. Bad. Bad. Not good for America.

What to do? Instead of our current rights-driven approach for some students, focus on ALL students from the get to. Invite ALL general education parents and teachers to all of the planning tables from the get go . All means ALL. Focus on the rights to education in safe schools that all kids have. Move fast to reign in policies that disrupt the education for all students.

As long as these policies focused on some (but not all) students and their debates continue, it ain’t happening. Sad for all of us and for our nation.

This was originally posted on Medium

The IMPOSSIBLE Special Ed Fix!

The IMPOSSIBLE Special Ed Fix!

We’ve heard about the “IMPOSSIBLE burger” — making burgers from vegetables, not beef. Some people think it’s actually yummy!

So how about the IMPOSSIBLE Fix for special education!

It’s time and it’s not complicated: focus on teaching and learning for all students, general and special education, not procedures, rights, due process, litigation, and the ever-present anxiety-laden fear of litigation that so wrenches today’s schools, teachers, students, and parents.

For the 80–90% of students with disabilities who have mild and moderate needs and are educated mostly in general education classrooms, and their general education peers, focus on learning in schoolrooms — not their parents’ fights in courtrooms.

Notably, in 2017, the Supreme Court, in Endrew F. v. Douglas County, acknowledged the existence of two student groups who receive special education. We know that 10–20% of them have severe or profound needs, and often require complex and costly services. For these students, I believe it’s time to convene a summit to plan a new way forward.

The IMPOSSIBLE Fix focuses on the 80–90% of students with disabilities who have mild or moderate needs and are mostly in general education classrooms. It’s time to substitute the entitlement and due process rights they have had since 1975 when the law was enacted to ensure that all students with disabilities receive education services. That goal was achieved long ago. We now educate more than 6 million students under this law — 13–14% of all students! The entitlement, the only one in our schools, is no longer needed, in my view. Uncapped, it is costly and has become dysfunctional, damaging, and often impedes good education practice.

Really? End the entitlement and due process? That sure is radical! Yes, and probably IMPOSSIBLE. But, let’s at least consider this path. I see it as the only way to fix the mess we’re in. And, if we can’t end it — let’s limit and cap it.

Imagine a 2nd grade teacher with 24 students — five of whom receive special education services. She knows she has to take care of those students first — lest a dispute or hearing arise! How does that help all students learn? How is that fair to those children and the other 19 in the classroom? How is that best practice?

I’ve been writing and speaking about reform at least since 1995. It seems like forever! My writings and presentations are usually well-received, and I often hear: “You’re doing important work. Keep at it.” “Good luck with that!” And the most poignant, “You’re saying exactly what I’ve been thinking and have been afraid to say….”

Yet, nothing really changes until, hopefully, now. Over the last 5–10 years I’ve sensed as new feeling… that more and more people are willing to consider real change. Here’s how we can get to where we need to be to focus on schooling and learning for all students, including the 80–90% of students with disabilities and their general education peers.

1. That table. Invite the right people — all stakeholders people to the table. Since special education students make up around 13–14% of all students, have them be that percent at the table. Fill the table with general education teachers, administrators, parents who work with and love -average students, advanced and gifted students, English language learners, students in poverty, students in wealth. You get the idea. All students. No more trying to fix special education by inviting only those in the “biz” with a sprinkling of others. Instead, invite 13–14% of stakeholders who work with and represent special education — teachers, administrators, parents.

Then, seek honest input from those at the table. Ask open ended questions. Build a summary that everyone takes back to their lives, shares, and revises, until you repeat that meeting at that table. And repeat until we fix the mess we are in.

2. The options. Create attractive options that will substitute for the cumbersome and burdensome system that, after all the paperwork, meetings, and other procedures leaves special education teachers with just 27% of their time for — you guessed it — teaching! Many leave the field as a result, creating a special education teacher shortage.

Creative attractive options already exist. Here are but a few examples.

Check out Vermont’s sweeping education reform. https://info.dmgroupk12.com/

And see excellent work in competency-based education in Westminster, Colorado. https://www.westminsterpublicschools.org/cbswps

I’m also eager to learn more about Karen L Mapp’s program for parent and family engagement at Harvard.

Oh, there are so many other examples of schools and others doing effective work for all students. It’s time to open the floodgates!

Instead of the time and money spent on nonsense –paperwork, compliance, litigation — nonsense because these do not improve student outcomes and, often, get in the way —

Instead of due process and litigation, seek the “the IMPOSSIBLE Fix” of dispute resolution options that are relationship and trust-building and do not involve litigation.

Instead of labeling students as gatekeepers to services, through the failed “wait to fail” model, provide early and steady interventions for all students — from the most needy to the most advanced.

Instead of endless focus on student weaknesses — what they can’t do — focus on their strengths and passions — what they can and love to do!

Instead of training parents to become mini lawyers to fight against the very schools that educate their children, train parents to help their children learn and benefit from all the gifts that schools offer.

3. The benefits. Treasure benefits that will result from implementing the IMPOSSIBLE Fix. These include more time for teaching and learning, better partnerships and more trust between schools and parents, fewer teachers abandoning the field, moneys spent on best practices in classrooms, not winning strategies in court rooms, and the best news of all: better outcomes for all students, as teachers will have more than a mere 27% of time for teaching.

It’s time to roll up our sleeves and get to work to make the IMPOSSIBLE — actually POSSIBLE! Let’s create the Impossible Special Ed Fix!

This was originally posted on Medium