4 Common-Sense Proposals for Special Education Reform

Today's mandates for special-needs students set schools up for lawsuits, conflict with No Child Left Behind requirements, and waste taxpayers' money. Here are some alternatives.

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The Individuals with Disabilities Improvement Act (IDEA) is an example of a statute that has achieved its noble mission but now urgently needs to be fixed in order to address its unintended consequences.

Enacted in 1975, IDEA requires schools to provide students with certain disabilities with an entitlement to a "free appropriate public education" in the "least restrictive environment." Today it covers more than 6 million students. And while America can be proud that so many children have done well under IDEA, special education services now consume well over 20 percent of school budgets -- a staggering amount that constrains available resources and opportunities for the rest of the student population.

What's more, the law has become a regulatory and bureaucratic nightmare for schools. A 2002 presidential commission found that there are 814 federal monitoring requirements for states' and schools' adherence to IDEA and its accompanying regulations. All 13,000-plus public school districts in America -- some 100,000 urban, rural, suburban, large, small, rich, poor, charter, and regular schools, each with own needs and resources -- must navigate this morass. The system can be much improved in every aspect, including cost control and a focus on outcomes, not procedural compliance.

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Implementation of the law using an "Individualized Education Program" (IEP) for each child is complex and formalistic. Schools are mandated to follow and implement these IEPs very closely, resulting in educators' spending precious time on multi-layered documentation and paperwork and in frequent long meetings. Their in-service training often focuses more on compliance than on best practices to improve instruction.

Instead of a collaborative model of dispute resolution, the law is based on private enforcement, charging parents with the responsibility to advocate for their children and pitting them against their children's schools. This adversarial system is often counterproductive as well as inequitable, as affluent (and often highly educated) parents know best how to use the system.

Over the years, the population of students served by IDEA, which is determined by a diagnosis and evaluation (i.e., the "medical model"), has changed. The law was written for students with severe and profound disabilities, but now some 70 to 80 percent of the students served are identified as having mild to moderate disabilities, such as speech, attention, and learning challenges -- diagnoses that have a greater degree of subjectivity. In fact, IDEA has created a vast diagnosis industry that serves as a gatekeeper to the entitlement.

The law raises questions of equity and public policy because, as the only educational program entitlement in schools, the resources and legal protections it mandates for special education students -- who account for 14 percent of the national school population -- do not similarly exist for "at-risk" students, English-language learners, average students, or gifted students.

The IDEA establishment undermines the authority of educators who are supposedly in charge of their schools and classrooms. The fear of litigation is pervasive, with schools forced to use the education equivalent of "defensive medicine," in which they focus more on rigid compliance than on outcomes. This is despite the fact that there are actually few appeal hearings and most parents seem satisfied with their children's services. During the 2010-2011 school year, for example, Massachusetts provided special education to 166,000 students. Parents rejected only 8,348 of the IEPs proposed for their children -- 544 hearings were requested, and just 35 appeals decisions were written. Often, schools decide that settling cases (even when they believe they are right) is a safer way to proceed.

Special education also works at cross purposes with other education laws, such as the No Child Left Behind Act (NCLB). For example, while IDEA requires individualized programs, NCLB requires that all students meet state standards. Indeed, schools are often deemed "failures" under NCLB due to the performance of their special education population. Educators have increasingly thrown up their hands and asked, "Which law do you want us to disobey?"

The question is, what to do? At the very least, schools and parents should have more flexibility to work together collaboratively in the spirit of the 1975 law. Here are four common-sense proposals:

Focus on improving regular education for all students. The better that regular education is, the fewer students need to be identified for special education services. When developing inclusive programs, schools should base them on effective teaching practices that improve educational outcomes for both students with disabilities and regular education students. As part of this mission, align IDEA and NCLB to end confusion.

For the 70 to 80 percent of students discussed above, work to end the "medical model" in which IDEA eligibility for services requires a specialist's diagnosis. This model is costly, problematic, and inexact. It often kicks in too late, after previously undiagnosed students have struggled and failed. The far better solution is to provide timely and appropriate education services for all students in our schools, based on their current performance, without the need for a diagnosis or label.

End the compliance-based approach to special education. Parents and teachers alike should be liberated from endless form-filling and meetings. Compliance does not improve student results. Only time on task -- in classrooms -- does.

End the adversarial approach of "private enforcement" by parents and use other dispute resolution models, such as via mediators and ombudsmen or federal and state enforcement mechanisms that encourage trust-building and collaboration between schools and parents.

It's past time to end special education as we know it and develop an outcomes-based model.

Many of the ideas in this post will appear in an article to be published by the University of Chicago Law Review in the spring of 2012.

About the Author

Miriam Freedman has been an attorney at the Boston law firm of Stoneman, Chandler and Miller LLP since 1988, representing public schools in special education, Section 504, and school law.

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