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Education Commentary

‘Backlash’ Threatens Special Education

By Perry A. Zirkel — November 04, 2016 6 min read

Humpty Dumpty sat on a wall. Humpty Dumpty . . . .

Special education is currently in its ascendancy, but storm clouds are forming. Educators and other concerned parties need to take notice before they get caught in the rain and hail.

Law, which generally reflects societal values, is the primary lever for special education, and relevant legal trends serve as an effective tracking mechanism for the ups and downs of this field. The number of court decisions concerning special education in the 1980’s represented more than a 600 percent increase over the number in the 1970’s. The Education for All Handicapped Children Act of 1975 and related regulations account for much of the upswing. Providing more fuel for this fire, a 1986 amendment to the eha enables parents to obtain attorneys’ fees when they “prevail” and gives their lawyers access to alternate legal avenues for prevailing.

But pressures building across a wide front threaten to drown out the needs of handicapped children. Cost is becoming a prominent problem. A recent national study revealed that, on average, the public expenditure for educating a handicapped child is almost two and a half times that for educating a nonhandicapped youngster. The Congress passed the eha on the premise that the federal government would bear 40 percent of the cost; in practice, the federal share has never exceeded 14 percent.

The pressure on school-district budgets is intensified by litigation. In special-education cases, the courts traditionally have been blind to considerations of cost. For example, in 1984, a federal court of appeals rejected the Oak Ridge, Tenn., district’s proposed residential placement for a handicapped child that cost $55,000 per year, upholding instead the parents’ choice of an $88,000-per-year school; the annual cost of educating other students in the same district then averaged less than $3,000. More recently, a federal court in California approved a psychiatric-treatment placement that will cost the district approximately $150,000 to $200,000 per year, even though the educational component of the program accounts for only about $4,200 of this figure.

Similarly, courts have not blanched from approving startling allocations to attorneys. For example, in the California psychiatric-placement case, now on appeal, the school district’s lawyer estimates the other side’s attorneys’ fees to be $200,000 to $300,000 thus far; if the parents prevail, the district will have to foot the bill for both sides. In a case that was settled by a consent decree before a trial, a federal district court in New York approved an attorneys'-fee award of $204,728, plus the subsequent time monitoring the decree at $105 per hour. In another case, a federal court in Delaware refused to reduce a fee of approximately $78,000, even though the tuition and transportation relief at issue amounted to only about $5,000. With such large expenditures on residential placements and attorneys’ fees, taxpayers and policymakers are bound to ask where the special-education money is going.

Contributing to the problem is the expanding eligibility for services. First, the eha’s

definitions of handicap and special education, including the related services of physical and occupational therapy, are broad. In a recent case, a federal court of appeals interpreted the special-education obligation to apply to a child who was so severely and multiply handicapped that he was incapable of cognitive functioning.

Second, the legislation was recently amended to expand eligibility from a starting point of age 3 to a starting point of birth, effective in 1992. Third, Section 504 of the Rehabilitation Act of 1973--the primary alternate route to the eha--is providing the basis for a second generation of special-education cases with an even broader definition of handicap. The administering agency, the U.S. Education Department’s office for civil rights, has interpreted Section 504 to apply to students who do not need special education but who have aids or hepatitis B, drug or alcohol problems, attention-deficit disorder, a broken leg, and in some cases even allergies or obesity. In line with another ocr interpretation, a federal court recently ordered a district to pay for a sign-language interpreter to assist hearing-impaired parents with teacher conferences and other such school activities.

A related problem is demographic. Recent testimony before a Congressional subcommittee concerning reauthorization of funding for the eha pointed out that the 1990’s will be characterized by an aging general population with a significant majority of voters who are not parents of school-age children, and by an increasing population of students with school problems related to poverty and prejudice. Will taxpayers continue to support the soaring bills for educating these young people?

Finally, controversies within the field and the realities of special-education practice are helping push the pendulum to the point of reversal. Criticizing current classification and placement methods as “woefully inadequate,” leaders of the so-called “regular-education initiative” advocate integration of special and regular education. Looking at the research and the arguments, one wonders at the cost-benefit effectiveness of both the traditional “pull-out” model of special education and the rei’s integrative approach; the state of the art is beset by uncertainty and vulnerability.

Ironically and perhaps tragically, the lack of solid supportive data has caused advocates for full federal funding to rely, as their sole justification, on increased state costs for special education. And the $1-billion boost they seek will still leave state and local authorities with 85 percent of the special-education bill.

In addition, districts are finding it increasingly difficult to recruit qualified special-education teachers. For example, the disparity between the supply and demand for occupational therapists and Spanish-speaking school psychologists is gaping--and growing. A recent national survey revealed more severe shortages in special education than in any other teaching category. Another study reported the need for thousands of teachers of learning disabled, mentally retarded, emotionally disturbed, and speech-and-language-impaired students. And the lack of policy coordination among federal agencies is, as Martha McCarthy, professor of education at Indiana University, points out, helping to set “the stage ... for a backlash against federal mandates regarding education of the handicapped.”

Perhaps personifying the floodgate stage of special education is Thomas Gilhool. One of the fathers of the eha, Mr. Gilhool was the parents’ attorney in the landmark Pennsylvania Association for Retarded Citizens v. Commonwealth of Pennsylvania case of the early 1970’s. In the mid-1980’s, he became chief of Pennsylvania’s education department. Mr. Gilhool was toppled from this post in June 1989 as a result of controversy surrounding special-education funding. This crisis continues; though a new set of special-education rules went into effect in July, these regulations were rejected twice by a state regulatory-review commission and by both education committees of the legislature because of their costs.

Special education in the 1990’s will tend toward one of two alternatives. The optimum option would be to dramatically increase the overall budget for and efficacy of education such that special education’s share would be healthy and productive. The other--and much more

likely--scenario is that the special-education tide will turn: The odds are that the handicapped, the favored minority of the 1980’s and even, assuming that the “Americans with disabilities act” passes this year, of the early 1990’s, face the same fate as their predecessors, such as black Americans. The needs will starkly remain, but awareness and action toward addressing them may fade. The increasing costs, insufficient data about the effectiveness of different approaches, and competition from other interest groups add up to the probability of a public backlash.

Unless educators are more resourceful, the legislation and litigation for handicapped students in the latter part of the 1990’s are likely to have a great fall. Now is time for the king’s horses and the king’s men to come to the rescue; tomorrow will be too late.

A version of this article appeared in the August 01, 1990 edition of Education Week


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