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.