The seven broken premises of special education in California

(This commentary first appeared in TOP-Ed.)

It’s not a typo. It’s meant to be an “e.” Today’s special education system is built on many broken premises that detract from the law’s purpose: to provide students with disabilities (SWD) a free, appropriate public education in the least restrictive (appropriate) environment so that they can  learn and make progress. The system should promote services and opportunity, focused on teaching and learning. It’s really not that complicated when you think about it. But it has become so.

Special education matters to all of us. It affects all schools and educates 13-14 percent of all students, some 6½ million students nationwide. We spend some $110 billion annually on special education. In California, during the 2008-2009 school year, there were 678,105  students with disabilities, 10.8 percent of all students. California spent 23 percent of its public school funds on special education. Statewide and nationwide special education is big business.

As we move to reauthorize the Individuals with Disabilities Education Improvement Act, the 35+ year old federal law, let us first examine how many of its flawed premises undermine its purpose.

For starters, consider these seven broken premises.

  • That the system needs uniform rules and federal and state bureaucracies with stifling regulations and procedures for all SWD. Ignoring the necessary cornerstone of trust for effective schooling, IDEA manifests the premise of distrust between parents and schools. Congress created this education system to be adversarial. It’s as simple as that.

To feed that broken premise, we’ve created layers of “protections” and “rights” for parents and schools. IDEA is 120 pages; its regulations add 113 pages, all small type, single-spaced. California adds more laws and regulations. What is a parent or school to do?

I suspect that one reason for the complexity and regimentation of this system is that it serves a very diverse group of SWD – from the most severely disabled, including mentally retarded, multiply handicapped and deaf and blind students (for whom the law was initially written) to students with milder disabilities, including those with  specific learning disabilities, speech/language impairments, or other health impairments, including ADD and ADHD. Notably, this second group now makes up the vast majority of all SWD. In California, of the 609,665 students served in 2007, according to the last-available 29th Annual Report to Congress by the Office of Special Education Services, students with learning disabilities, speech/language impairments, or other health impairments added up to 483,613 students – 79 percent of all SWD in the state! Surely we can agree that their needs are very different from the first group of SWD. Yet this system is premised on treating all SWD the same in terms of process, bureaucracy, regulations, legal requirements, etc. In any event, this piece focuses on the latter group – 79 percent of California’s SWD – with milder disabilities.

Finally, the belief among many that a wordy IEP (individualized education program, written by school personnel and parents for an individual student) somehow helps the child learn and the teacher teach. Improbable. Indeed,  longer IEPs, some reaching 10, 20, 30, 40 or more pages, may actually reflect a lack of trust between home and school. Micromanaging classrooms with excessive verbiage demoralizes teachers, doesn’t help students, and may give parents a false sense of security. There are not enough hours in the day for all that paperwork!

  • That the parents’ role is to enforce the law. Due to the premise that parents cannot trust schools and need due process protections against them, Congress handed them the job of  IDEA’s private enforcers. They have to advocate for their child against their school. Reportedly, IDEA has become the fourth most litigated federal civil statute. Litigation and fear of litigation drive much of special education in many states. In the 2008-2009 school year, California was among the top five states in terms of adjudicated hearings, according to a 2010 article by Perry A. Zirkel and Gina Scala, “Due Process Hearing Systems Under the IDEA: A State-by-State Survey,” in the Journal of Disability Policy Studies.

In creating this role for parents, the law skewed common sense. First, it requires a cooperative team effort by schools and parents and then it allows them to sue each other. How can that be? Second, it imposes no responsibility on parents to work with schools to help their children learn. It’s time for President Obama’s eloquent call: turn off the TV, help with homework, put kids to bed at night. Parents should parent their kids, not fight their schools.

Related to this premise is the one that holds that if students don’t learn, it’s the schools’ fault that parents can seek due process for. This premise, too, ignores common sense and reality – the students’ role and the need for motivation, effort, and hard work – and the parents’ role. Teachers cannot educate students alone.

  • That inclusion is a civil right, to be used for pretty much all students. Inclusion – educating SWD in classrooms with non-disabled peers – is often rights-driven, stigma-removing, or based on other goals that are not pedagogically or ‘best-teaching-practices’ driven. But wait! As a nation, we have not agreed on what our goal is: Is it mainly socialization or academic? Many people will say it’s both, ignoring the dilemmas created. Thus, to make inclusion “work,” schools often hire paraprofessionals, create co-taught classrooms, soften standards, and overuse accommodations. Of course, we have exemplary programs across the country where inclusive programs work brilliantly for all students. But there is scant evidence that these are scalable and that this is the effective way to educate these students in their areas of disability. We need to revisit this premise, once we decide what our national (or state) goals are.
  • That we need two systems, special and regular education, and that essentially all children can (and should) learn the same thing at virtually the same time. Thus, we have the No Child Left Behind Act requirement that all schools show adequate yearly progress in all groups, including SWD, and, in contrast,  IDEA’s requirement that schools meet individual needs. Where is research to support the idea that passing state tests is the way to help students progress in their areas of disability? NCLB’s and IDEA’s confusing and conflicting messages create dysfunctional dilemmas. We need one coherent system, not two.
  • That by focusing relentlessly on weaknesses, we somehow help SWD develop. While the rest of the world focuses on what people can do, IDEA continues its emphasis on weaknesses and largely ignores student strengths. This premise ill serves students. We should focus on their strengths and unique gifts.

This premise fits into our obsession with “closing the gap” for students who are not yet at grade level, while ignoring the other gap between students already at state standards and their higher potential.  Data now shows that our brightest students are not competitive with their international peers. This premise, focusing on student weaknesses and one gap only, serves our nation poorly.

  • That teachers need to spend lots of time on paperwork, documenting all they do – because, let’s be honest, the law distrusts them. This premise has created an endless negative cycle. Many teachers leave the field because of excessive paperwork. We know that recruitment and retention are major challenges, thanks in part to this premise. We need to trust our teachers and let them teach!
  • That, in spite of the law’s amazing achievement to provide access for all SWD to a free, appropriate public education, it’s still OK for special education to be our schools’ only entitlement program. That it’s OK to spend whatever special education costs – even if that constrains resources for other students. Now, about 40 percent of new public schools funds go to special education. We lack research to support this allocation of funding.  It is not wise, equitable, or effective.

Yet, in spite of the broken system, this premise holds that it’s OK to keep special education largely off limits in school reform efforts. While we continue to tinker on IDEA’s edges with each reauthorization, the system remains largely as it was 35 years ago.

As we move to reauthorize IDEA, let us first fix these broken premises. We need to create a system to focus relentlessly on improving teaching and learning for all students, including SWD, and treat teachers like experts and professionals, not defendants in actual or threatened litigation. Let’s build trust into this system and end the broken premise that spawned the adversarial approach. Distrust cannot be a sound basis for education in our country.

With these transformative steps, we can finally begin to meet the promise of educating all students, beginning with where they are and taking them as far as they can go. It is time to move the needle from broken premises to fulfilled promises.

Miriam Kurtzig Freedman, author of Fixing Special Education, is a parent,  former public school teacher and hearing officer, an attorney, consultant, and authority on special education. She is of counsel to Stoneman, Chandler & Miller LLP in Boston. She divides her year between Boston and Palo Alto, where she is a Visiting Fellow at the Hoover Institution.  For more information and her blog, visit

Filed under: Commentary, Reforms, Special Education


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15 Responses to “The seven broken premises of special education in California”

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  1. Fran Keller on Jan 22, 2012 at 6:10 pm01/22/2012 6:10 pm

    • 000

    The education of children with special needs is mandated by Public Law 49192.  However,  in California it is hard for non-educationese speakers to wind their way through the mighty screen of  clap-trap that is put up front to discourage even the most dogged parent.  Just exactly what is going on in this state?   Certainly it is not in compliance with federal mandates.  Do you get any money from the feds for your programs?
    The above person is not a parent obviously.

  2. John Graham on Nov 22, 2011 at 9:31 am11/22/2011 9:31 am

    • 000

    I took only the one section I feel the most strongly about and made comments after each statement I either agreed with or disagreed with. I did this in bold type. Not to show how strongly I feel, but to highlight my opinion clearly.

    ·  That inclusion is a civil right, to be used for pretty much all students.
    Not true! Their SWD civil right is an appropriate education. Being placed in an Algebra class with non disabled students who have far advanced mathematical skills is a true disservice to a SWD.

    ·  Inclusion – educating SWD in classrooms with non-disabled peers – is often rights-driven,
    Not true. Inclusion, especially inappropriate inclusion is money driven and has little or nothing to do with being rights driven. It is the automatic offer of free and appropriate education for every student in most districts. It is not very often a right that parents are requesting. Unfortunately it is far too costly and confusing for parents to stand up for their children’s rights to remain in an appropriate educational setting where their child will get the education they need.

    stigma-removing, or based on other goals that are not pedagogically or ‘best-teaching-practices’ driven.

    ***Lets repeat this one ten times. It is an absolute truth!!!

    But wait! As a nation, we have not agreed on what our goal is: Is it mainly socialization or academic? Many people will say it’s both, ignoring the dilemmas created. Thus, to make inclusion “work,” schools often hire paraprofessionals, create co-taught classrooms, soften standards, and overuse accommodations.

    Wrong again. No child left behind was purposefully written so that almost all schools would become failing schools ASAP. Use of devices that are necessary (such as calculator) for some SWD is limited by administrators so that the school will not end up a failing school by exceeding the number of percentage of students using them.

    Of course, we have exemplary programs across the country where inclusive programs work brilliantly for all students.

    Maybe most students, but certainly not all, and of course at a tremendous increase in cost. Like the one in that I visited where every single teacher at the middle school had a student teacher from either a close by college of education, and a half day each week devoted entirely to teams working together to deal with the issues the SWD were dealing with in the classrooms. Excuse my sarcasm, but I am real sure we have enough student teachers to put one in every classroom in the state of California.  That does not even address the educational cost of the non-disabled students loss of time being taught.

    But there is scant evidence that these are scalable and that this is the effective way to educate these students in their areas of disability. We need to revisit this premise, once we decide what our national (or state) goals are.

  3. G. Dirkmaat on Oct 24, 2011 at 2:07 pm10/24/2011 2:07 pm

    • 000

    You mentioned in the article “we have exemplary programs across the country where inclusive programs work brilliantly for all students.”
    I  would love to know an exemplary high school program, so I can see what they are doing.

  4. Regina on Oct 19, 2011 at 10:05 am10/19/2011 10:05 am

    • 000

    Wow, this sounds rather simplistic and ignorant.  As well as heartless.  You are SO lucky to have nobody touch your life who has any afflictions,  or who needs a little help.  And if you find any one in your life DOES need help in the future, hopefully they’ll be wealthy so they can afford to pay for the private stuff you expect the tax-paying parents to pay for despite the fact that their children are legally entitled to the  public-employee provided help under the laws protecting them.  Despite the fact that the majority of them don’t actually get what they need, and suffer the consequences.  As far as “enjoying” the services provided by the public schools – are you kidding me??  I pay privately – at a cost of $1400.00/month – for the necessary therapies my children need…do we “enjoy” the expert clinical help?  Not quite sure how to answer that one, but I certainly pay for it because these people know what they’re doing.  But as far as “enjoying” the crappy sub-standard, law-violating school services that they make you fight for, and then make you cry over??  Uh….I think not.  Maybe you should do a little research on where the schools are actually SPENDING all that special ed money, because more often than not, it’s NOT on the children who need it.  Maybe on the lawyer fees to fight off parents who know what their kids need, yet are forced to fight for the bare bones of that.   Just take a look at the circuit=breaker funds, and how much of the UNSPENT special ed money gets kicked back to other NON-special ed programs at the end of the fiscal year.  HELLO?  And if the parents are not so wealthy?   Hopefully, those of us who “birthed” those darn SWD kids will just disappear.  Maybe you should take a walk in my shoes and see what we go through, and the financial and emotional resources we spend in addition to what the school provides (or not…)  to ensure our children will be independent adults.  Yes, my disabled children will go to college and work and be independent. As a parent/advocate, I have the ability to work hard and provide the extra to make that happen.  If you had your way, they’d be homeless and sucking drains off the system, so you would have something else to complain about and protest.  Why is it that you think the typical child is entitled to an education to help them become independent and productive adults, but children who are already struggling and suffering the stigma of their disabilities, whatever they may be, are so easily written off as undeserving?  You feel YOU need to get out there and protest, while you proudly advertise your expectation that laws in place to protect the vulnerable be broken and those who suffer with these challenges be vilified in your march?
    You make statements as if you’re an authority on the subject of outcomes for those students who actually HAVE received appropriate services under the IDEA. Where did you get your data that those SWD’s who have been “streamlined” have accomplished nothing in their lives?  HELLO?  Have you heard of Bill Gates? Madame Curie? Ed Hollowell? Temple Grandin? among MANY others who DID receive appropriate supports and tolerance despite their disabilities?  How blind, and how sad.  Go take a good long look in the mirror.  And educate yourself before posting inanity.  Knowledge is power.

  5. fran waldman on Oct 15, 2011 at 8:57 pm10/15/2011 8:57 pm

    • 000

    The amount of $ spent on litigation and settlements by districts to parents is appalling. It is time to say “NO!”  SpeD teachers can not fix your child, we can only maximize their strengths and learning styles, if they have the cognition! We can only work in tandem with you, the parents. If you abrogate your responsibility for homework and attendance, it is not our fault. In addition, don’t take your child on a lengthy Christmas vacation (4 to 6 weeks) and expect them to attain their IEP goals. In other words, the elephant is in the room; are we blind?

  6. Cara Lucier on Oct 15, 2011 at 2:24 pm10/15/2011 2:24 pm

    • 000

    Ms. Freedman,
    Your article offer slogans, not solutions.  By blaming parents of children with disabilities you may find a sympathetic audience among school district administration or those “tired of entitlements” but this is a cheap shot.
    The answer to the issue is much more complicated.  No one likes the mess of the current special education system but turning back the clock to 1970 will not solve the problem.  At that times many states had laws excluding children with disabilities from attending public schools.
    Your use of statistics is highly flawed.  Newer technology and diagnostic tools show that many “severely disabled” students are much more able than we previously thought.  Many students with “just” a learning disability have more systematic issues than we previously detected (motor planning, executive functioning etc.)
    All of our students deserve better, whether disabled or not.  I sincerely hope that your article is intended to sell books and products and not a reflection on yourself.
    Cara Lucier
    Special Education Attorney, Former School District Attorney

  7. Marie C. Palmeri on Oct 15, 2011 at 1:04 am10/15/2011 1:04 am

    • 000

    Perhaps you have a background in law but I am certain you have no understanding of special education nor have you taught all these disabled folks.

    I know how the system was designed and how the financing did not come with the finished law P.L 94-142 in 1975. In fact I studied with Dr. Ignancy Goldberg, Dr. Margaret Jo Shepherd, Dr. Jennette Fleischer and Dr. Robert Blackman at Teachers College, Columbia University from 1975 through 1977.  All of these great talents in special education and pschology more than created a wonderful 35 years, but they have given to the students needing to be supported and taught us as graduate students how to teach  compensation skills  to many different populations of disabling conditions.

    Dr. Larry Picus, as one of my advisors for my dissertation at USC, wrote a book about throwing money at educational problems. However, special education is a very different type of educational endeavor. Money is one of the needs in special education which is always promised but never delivered at the 40% level as written in 1975 in P. L.94-142.

    So, untill the real mconey for technology and data based long term studies can be done with the ideal conditions of 40% funding, I would personally let go of the negatives about special education. Many of us have put 40 years or more into this field and no one can say that special education has not created a better world for special needs students. Being visually impaired and partially deaf, I know our world is MUCH richer for the work of my colleagues at Teachers College, Columbia University and in all the classrooms I worked in with a team of the BEST educational specialists in special education anywhere in this world.

    So lighten up and be delighted to know thousands of special needs students are now adults doing pretty amazing things in our world because of our work and our dedication. NO promises  were ever made but in fact many students keep that light of education burning brighter than ever because  they vow to do so within themselves.

    God Bless,
    Marie C. Palmeri

  8. John Carr on Oct 14, 2011 at 8:56 am10/14/2011 8:56 am

    • 000

    First, public education means the right to an free education for all citizens. You redefine it to your benefit and one result would be poor (and many middle class) parents could not afford to enroll their children in school and then, according to current law, would be charged by the police and a judge would put them in jail for failure to get their children in school.
    Second, few parents of SWDs do  ENJOY the public education provided their children – it is all too often extremely substandard. My child with a learning disability was ignored by the principal and general ed teachers and had a crappy special ed teacher throughout middle school because all they cared about were “Mr. Weere’s” kids who scored high on state tests no matter who good or bad teachers at that school were. Now the district is paying a huge price to send my son to a private school to avoid a lawsuit for breaking the law and failing to educate him for three years. I tried to work with the middle school, they knew I’m considered an expert in education, but they were so much like you – treat SWDs like garbage.
    Third, “equal education” does NOT mean the same books, teaching approach, etc. for every student. Political conservatives often misunderstand this term. It means that my child should have an equal opportunity to learn the grade level standards and eventually be prepared for college and a meaningful career as your child – and what it takes to provide that equal opportunity will be different. It means allotting funds and services according to need. I’m sure you don’t fully understand and agree at this point, but I’ll move on (not being disrespectful to you of course).
    Fourth, there is emerging research findings that the inclusive approach benefits both SWDs and nonSWDs socially and academically.  And it may be that the inclusive approach yields a reduction in special education spending because of more effective use of personnel and many students never “fall behind” because of the failure of general ed teachers and so never need to be placed in a “special ed classroom.” The nonSWD is actually being short-changed in a school where “one size teaching fits all” because humans are diverse, they do learn best in diverse ways. The traditional lecture to the whole class all period/day is effective for a small minority of students, so all the others are short-changed. A significant portion of high school dropouts are the “gifted” students who are bored and see education as irrelevant. A significant portion of child suicides are the result of unrelenting bullies who hate anyone who is “different.”
    As a father, I want an effective education for my son with autism. As a consultant in education, I want what is best for all children. As a taxpayer, I want to pay  relatively low taxes  for a high quality education – it has been diverse great minds and character that has made America great. People like Albert Einstein (SWD) shouldn’t have to fight the system to become a great contributor to humanity.


    • Julie on Jan 7, 2013 at 4:34 pm01/7/2013 4:34 pm

      • 000

      Well said and thank you from a mom trying to navigate this…(can’t find the words).

  9. sayitok on Oct 13, 2011 at 8:53 pm10/13/2011 8:53 pm

    • 000

    I’m a special educator, and I live this maze each day.  My observation is that much of what drives the expense of SE is litigation (or the threat of it).  Lawyers become educators, and at $450/hour for parent(s) attorneys the stakes become astronomical.  If the schools lose, they pay.  We often have to negotiate, not always in the best interest of children, to avoid extreme costs.

    For immediate relief I say put a cap on lawyers fees.  I’d like to see us put money into education, not fancy suits and cars.

  10. el on Oct 13, 2011 at 1:50 pm10/13/2011 1:50 pm

    • 000

    Some great points in the essay.
    I’d like to see special ed funded 100% at the federal level, with money that follows the child, especially for the cases of severely disabled kids. These kids are special cases, kids that none of us could afford to pay for out of our own pockets, and expecting them to land proportionately in school districts is not sensible.

  11. T. Jenkins on Oct 13, 2011 at 11:00 am10/13/2011 11:00 am

    • 000

    As a parent of a profoundly disabled child I laud your piece. It is an outstanding analysis. The system is broken and I support your analysis. Equal education would be providing no more dollars for my disabled child than for my others who are not.  Bravo!

  12. Mike on Oct 13, 2011 at 10:22 am10/13/2011 10:22 am

    • 000

    ” I also believe that if parents of SWD children want their kids to have the type of services they are currently enjoying in the public school system, they should personally pay the difference in cost over the ‘average cost of instruction’ of those children without SWD.”
    And once the child’s family has been bankrupted, then what? The whole point of special education services is to try and make most of the child’s potential – which reduces the burden they place on the rest of society from then on. Special education is expensive, but compared with a lifetime of disability pensions, residential care or incarceration, it can turn out to be a wise investment.

  13. Margaret on Oct 13, 2011 at 9:43 am10/13/2011 9:43 am

    • 000

    Wow M.Weege – your opinion is a little harsh and a little over-simplified… who are you to say that a SWD “will (not)/could (not)/should (not) actually grow into adults who will be productive members of our society”?
    Most SWD just need additional supports to access the educational system – equitable access to education does not mean equal.  Some children just cost more to educate, and as a society we need to be educating all children.
    Now, in regards to the blog post – I thought is was well written and well thought out.  I hope people who are looking at re-authoring IDEA and NCLB will think about some of these issues before creating more pages of regulations.

  14. M. Weege on Oct 13, 2011 at 6:54 am10/13/2011 6:54 am

    • 000

    Great question….is the goal to socialize or educate?  I’m sorry, it cannot be both.

    The amount of financial and labor resources that go into ‘streamlining’ these individuals does not/has not proven to have accomplished anything other than to reduce opportunities for the 90+% of the students that are not SWD.

    Are we really doing this for the children, or to placate some guilt of parents who birth SWD children? 

    I mean no disrespect, and although I cannot truly say I understand the emotional place parents of children with SWD end up at, but what/how/why are the rationale determined to spend upwards of 40% of a school district resources on less than 10% of it’s clients?  This is just not right.

    I believe it’s time for parents whose children are being shortchanged by these regulations and are having resources ‘channelled away’ from their kids need to be vocal and protest.  I also believe that if parents of SWD children want their kids to have the type of services they are currently enjoying in the public school system, they should personally pay the difference in cost over the ‘average cost of instruction’ of those children without SWD.

    Currently, all kids in the public school system are not being treated equal.  We’re shortchanging most of those kids who will/could/should actually grow into adults who will be productive members of our society in favor of a few who have very little to do so.

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