Special Education Opinion

Special Education at 30

By Miriam Kurtzig Freedman, Marilyn E. Bisbicos, Carla B. Jentz & Edward Orenstein — November 29, 2005 9 min read
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—Jonathan Bouw


The federal special education law, known today as the Individuals with Disabilities Education Act, will be 30 years old this week. We have much to celebrate.

On Dec. 2, 1975, President Gerald R. Ford signed the Education for All Handicapped Children Act, or EHA, known commonly then as Public Law 94-142. This landmark legislation evolved from the need to overhaul how we educated children with disabilities in America. It did just that.

Why, one may ask, did we need such a law? Didn’t public schools start in Colonial America? Didn’t we educate our young people? Yes, but Congress found that many students with disabilities were being excluded from schools, or were not being educated well. The courts got involved. Emotions ran high. Debate ensued. The movement evolved into the law.

The driving force for the EHA in 1975 was the need to create access to educational opportunity for students with disabilities. Today, after 30 years of experience, several amendments to the law, and a name change in 1990, the climate surrounding special education has changed:

• Instead of excluding many students with disabilities, we now educate more than 6 million under the Individuals with Disabilities Education Act—some 12 percent of all students nationally. We won the access and civil rights battles.

• In 2000, we spent more than $80 billion on IDEA services (state, local, and federal dollars).

The law of unintended consequences has been at work. The IDEA has evolved into the most prescriptive law, telling teachers, parents, and administrators what to do and triggering adversarial relationships and a lack of trust among stakeholders.

• IDEA services have moved far beyond the three R’s. In addition to educational services, schools routinely fund full-time nurses, daily one-to-one in-home therapies, hospital placements, residential schools, and other therapies, ranging from physical, speech, and music therapy to horseback riding.

• All of us working together—educators, parents, legislators, taxpayers, and students—have achieved access to services for all children with disabilities, from age 3 to age 22. Along the way, we also changed minds and hearts. Our language and belief system about public education were reimagined. Today, our mantra is that “all children can learn.”

In fact, the story of the last 30 years shows that students with disabilities do learn with inclusive instruction. Let us celebrate our success in bringing all children to school and providing them with “a free, appropriate public education.”

But we cannot rest on our laurels. Again, we need evolutionary change.

The law of unintended consequences has been at work. The IDEA has evolved into the most prescriptive law, telling teachers, parents, and administrators what to do and triggering adversarial relationships and a lack of trust among stakeholders. These conditions have a negative impact on education for all children. The situation hamstrings schools, confuses and angers parents, and entraps educators. The IDEA has produced a system of rights that is cumbersome, inefficient, and overly procedural. Reportedly, it is now the fourth most litigated federal statute. Is this the educational condition we want for our children and teachers?

Here are some of the critical ways in which these unintended consequences affect our schools. Time for direct instruction is cut because teachers are inundated with procedural requirements, including completing paperwork and attending meetings. Various surveys have shown that special education teachers have limited time left for teaching. Schools commit vast sums of time and money to compliance, trying to “do it right.” Yet the language of “research-based instruction” for all students, embedded throughout the federal No Child Left Behind Act as well as the IDEA, is all for naught when teachers must continually leave direct classroom teaching to implement legal requirements. Is this the dream we intended?

Schools routinely pay for therapeutic and clinical services as part of special education. Should these not be funded by insurance companies and by social-services agencies, which have both the authority and the responsibility for licensing and oversight, as well as the financial resources for providing them?

The fear of being sued and brought into a due-process hearing—often more than the litigation itself—thwarts real teaching and learning. Is this the best model we can come up with for parents, students, and schools to resolve differences of opinion?

Many teachers are leaving the field, discouraged by the adversarial climate and paperwork requirements. Recruitment and retention of special educators are of great concern.

President Ford issued a prophetic warning when he signed the EHA into law in 1975:

I have approved S 6, the Education for All Handicapped Children Act of 1975.

Unfortunately, this bill promises more than the federal government can deliver, and its good intentions could be thwarted by the many unwise provisions it contains. Everyone can agree with the objective stated in the title of this bill—educating all handicapped children in our nation. The key question is whether the bill will really accomplish that objective.

Even the strongest supporters of this measure know as well as I that they are falsely raising the expectations of the groups affected by claiming authorization levels which are excessive and unrealistic.

Despite my strong support for full educational opportunities for our handicapped children, the funding levels proposed in this bill will simply not be possible if federal expenditures are to be brought under control and a balanced budget achieved over the next few years.

There are other features in the bill which I believe to be objectionable and which should be changed. It contains a vast array of detailed, complex, and costly administrative requirements which would unnecessarily assert federal control over traditional state and local government functions. It establishes complex requirements under which tax dollars would be used to support administrative paperwork and not educational programs. Unfortunately, these requirements will remain in effect even though the Congress appropriates far less than the amounts contemplated in S 6.

How eerily prescient. Yet the law became ever more complex, and stakeholders grew ever more entrenched. In 2004, Congress reauthorized the IDEA and promised paperwork reduction. In doing so, however, it promulgated seven new required documents—on top of the 814 state and local federal monitoring requirements already in place (according to the 2002 President’s Commission on Excellence in Special Education). It is time to refocus our effort on improved results forall children with streamlined processes for special education.

Expanding the progress and maintaining the hope and spirit of the IDEA will be a formidable task. To evolve and move forward, to build the capacity for schools and human-services agencies to perform equitably, all stakeholders will need to address collectively some critical questions. The discussion must be full and open, and without fear of retribution, name-calling, positioning, or being viewed as uncaring. Among the key questions are the following:

Why do some parents have veto rights over their children’s programs, while others do not? What public purpose does that veto, or resources allocation, serve? How does this separate the nation’s children and affect the country’s future?

Should hearing officers, who decide issues of rights and exclusion, also determine which teaching methods to use with students? They are ill suited to that task. Why do we perpetuate the battle of experts in special education litigation? Deference is owed to educators—not to lawyers or outside “experts.”

Congress found that many students with disabilities were being excluded from schools, or were not being educated well.

Is due process still needed? Promulgated to end the exclusion of students with disabilities from schools, the law worked. All kids are in, and all are to be provided with research-based instruction under the No Child Left Behind law. Yet we continue due-process hearings under the IDEA. Why? And does that not interfere with the streamlining of processes to promote equitable and appropriate services for all children under the “No Child” law and the IDEA?

How can we move forward without further polarization? The voices of many—and that includes teachers, administrators, parents, advocates, lawyers, citizens, state and human-services personnel, as well as others—need to be heard if we are to to develop new mechanisms to provide for all of our children.

Necessary reform is not against any students—it is for all of them, and for America. It is for getting teachers back into classrooms and administrators focused on instruction. It is for results for all students through appropriate (research-based) instruction and services.

Remember President Ford’s warning. He thought that Congress would fix the law by 1978, as he noted when signing the legislation:

Fortunately, since the provisions of this bill will not become fully effective until fiscal year 1978, there is time to revise the legislation and come up with a program that is effective and realistic. I will work with the Congress to use this time to design a program which will recognize the proper federal role in helping states and localities fulfill their responsibilities in educating handicapped children. The administration will send amendments to the Congress that will accomplish this purpose.

This did not happen.

Now is the time to consider the possibilities for improving the system. We suggest a collective and trusting discussion about how best to do the following:

Now is the time to consider the possibilities for improving the system.

Refocus schools on their primary mission. It is education—teaching and learning—not therapy or treatment. While some children may need extensive behavioral therapy, for example, let us end the presumption that it is the school’s responsibility to provide that. Therapy and treatment are medicine, born of a medical-intervention model. We must ensure that insurance companies provide their share of services. Schools don’t license or control medicine or therapists, and should not fund their services. If therapy, at its core, does not teach to the core curriculum, responsibility for it should rest elsewhere.

Rethink the notion that doctors, therapists, and lawyers know how to run our schools. They do not. We must defer to educators, who must in turn provide appropriate, research-based instruction. This presumption is consistent with the “response to intervention” method (especially for reading instruction) and differentiated-instruction model that are cornerstones of the the No Child Left Behind Act and the IDEA. Let educators do their work.

Acknowledge that the adversarial model does not work in our schools. It takes essential time away from students and teachers and the learning process. Our ability to work toward excellence and accountability is impeded when parents and schools enter into the hearing process. No other professionals, whether doctors, lawyers, and architects, or plumbers and chefs, would submit to due-process hearings before they did their work. The conditions we place on special educators are simply not part of other work venues. Why should they be part of the educational experience?

End the damaging battle of the experts. If due process is to continue—an issue that needs public debate—it’s time to consider having one neutral expert, selected with input from parents and the school, make recommendations to the hearing officer. This would be a model similar to the successful guardian ad litem used by the courts in other venues.

End the fact that entitlement for services rests only with the schools. Have the participation of other agencies and insurance companies serve as an IDEA requirement. Ensure that our children receive services they need from agencies responsible for the eligibilities in their realm. Empower true collaboration by ensuring this capacity.

Dec. 2, 2005, Special Education Day, marks the 30th anniversary of the federal effort to secure special education services for students with disabilities. Let us work together to continue that educational evolution, so that we may reach our full potential for serving all the nation’s children.

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