Special education in California needs more flexibility

Miriam Kurtzig Freedman

Miriam Kurtzig Freedman

“Flexibility” is education’s new buzzword. Check out all those No Child Left Behind Act waivers, providing flexibility to states, while we await Congress’s NCLB reauthorization. Twenty-six states already have those waivers. More are expected.

In approving a batch of them, Secretary of Education Arne Duncan said, “We all understand that the best ideas don’t come from Washington, and moving forward, these states will have increased flexibility with federal funds and relief from NCLB mandates, allowing them to develop locally tailored solutions to meet unique educational challenges.” (emphasis added)

Hmm. What about some flexibility for special education, the most regulated and rigid public education mandated program, while we await the next reauthorization of the IDEA (Individuals with Disabilities Education Act), the nation’s special education law?

How ironic. By definition, special education is supposed to meet the unique, individual education needs of students with disabilities. One would expect that, especially for these students, the law would allow “locally tailored solutions” for unique situations. It does not. Instead, more than 6 million students with disabilities, their parents, 13,809 school districts, 98,706 public schools, and 5,453 charter schools all have to meet the same rigid legal and regulatory requirements, regardless of the local situation or unique needs of the child or community. In 2002, studies found some 814 federal monitoring requirements for compliance by state and local agencies for programs for students with disabilities. You do the math.

Flexibility is sorely lacking.  Consider these recent examples:

  • While Congress made some welcome tweaks in the last reauthorization in 2004, the system still feels like a regulatory straitjacket where paperwork, timelines, meetings, and compliance rule.
  • While some attempts to provide flexibility were made, several came with new compliance and paperwork requirements.
  • In June 2011, the Department of Education’s Office of Special Education Programs allowed school districts some flexibility in how they spend special education funds (the “maintenance of effort” requirement). After pushback from advocacy groups, the Office rescinded that flexibility in April 2012, less than a year later.

In 1975, Congress passed the special education law. It is adversarial, built on distrust between parents of students with disabilities and schools – with the unproven assumption that somehow more process protects them and improves educational outcomes. Through the law, schools provide students with disabilities with an Individualized Education Program (IEP) of services. The IEP is designed to provide each eligible child with a free appropriate public education. Parents can dispute their child’s IEP, and request due process – mediations or hearings. As a result, educators spend time on meetings, paperwork, testing, writing reports, litigation, and preparing for litigation, and parents spend time learning the law in order to advocate for their children – against their schools. Both take precious time away from teaching and learning.

But what if the vast majority of schools and parents don’t need or want all those requirements, especially when students are doing well? What if the regulatory demands are really designed for the very, very few situations when disputes about an IEP occur?

By way of example, let’s review California’s numbers. California’s public schools educate more than 6 million students. Of these, some 678,000 are students with disabilities who have IEPs. That is approximately 11 percent of its school population.

Of the approximately 678,000 students with disabilities, 2,495 parents/students (parents) filed for hearings with the state during the 2010-11 fiscal year. Note that some requests were for mediations and that some hearings (an additional 15 percent) were requested by schools, not parents.

The 2,495 parents who requested due process represent a mere 0.36 percent of all California parents of students with disabilities. We can assume that the other 99.6 percent were satisfied – or satisfied enough – with their children’s education. Even if some of them were not (or didn’t understand that they could reject an IEP and request a hearing), the overwhelming number of parents of students with disabilities  didn’t dispute their children’s IEPs. Let’s call them the 97-, 98-, or 99-plus percent.

There is scant research on parent satisfaction from across the nation. While we may not have enough research, two reports – from 1989 and 2008 – found high satisfaction rates. In the first, the rate was around 70 percent. In the 2008 study of parents of preschoolers with autism spectrum disorders and other disabilities, the satisfaction rates were 86.8 percent and 90.1 percent respectively. Between 91 percent and 96 percent of parents of children with autism spectrum disorders reported being satisfied or very satisfied with their child’s program, teachers, and services. Clearly, most parents of students with disabilities are satisfied with their children’s programs.

Back to those 2010-11 California numbers. Of the 2,495 due process filings by parents, the state issued just 105 decisions following hearings – a trickle of a trickle of a trickle…

So why do all schools and parents have to comply with all those state and federal regulations and bureaucratic requirements? Could it be that the focus, attention, fears, money, procedures, litigation, fear of litigation, etc. are about the fewer than one half of 1 percent of parents and schools involved in due process disputes in California?

Where are the rights for the vast majority of parents and schools to create trust-based and positive relations? What about parents and schools who don’t want or need all those cumbersome rules? How about allowing flexible, innovative approaches for parents and schools in appropriate situations? Unfortunately, federal regulators continue to push in the other direction, toward rigid compliance.

One suggestion: While maintaining the school’s responsibility to assure that the child receives a free appropriate public education, let schools and parents voluntarily agree to suspend some procedural requirements, knowing that either of them can opt back in to the standard regulatory requirements at any time? A simple agreement can be developed (without new federal paperwork mandates!), allowing parents and schools to agree to:

  • Develop a short, focused learning plan instead of the procedurally-bound IEP; or
  • Update the child’s program without annual team meetings when the program is working well; or
  • Build positive, effective communication between school and home outside the team process; or …

This post is not about any specific innovation. It’s about the fact that in spite of “flexibility” in the wider education community, special education is still bound by a 35+-year-old, burdensome, adversarial, and regulatory system – even when schools and parents don’t want that and children are doing well.

Misguided uniform approach

We need to serve the vast majority of schools. The law should allow them flexibility without creating new paperwork burdens. In spite of the fact that no evidence supports the current compliance-driven use of scarce public resources as a way to improve teaching and learning for students, special education simply does not allow such flexibility. Its one-size-fits-all approach is sorely misguided.

Parents and schools should have flexibility to work together for the benefit of students, and be able to opt out of requirements that they don’t need or want, especially when children are doing well. Real flexibility can be provided in two ways:

  • Secretary Arne Duncan’s Department of Education should publicly encourage flexibility in special education. The Department should allow states, schools, and parents to agree to collaborate for the benefit of students – not for bureaucratic compliance – with flexibility in regulations, funding, and bureaucratic compliance when a free appropriate public education is already provided.
  • Second, in its next IDEA reauthorization, Congress should explicitly provide for flexibility (without adding new regulatory requirements) in appropriate situations.

The current rigidity does not serve students, parents, or schools well. It is not the way to run an education system, especially when we consider the far larger community of California’s regular education students – some 89% of its students – whose interests and needs also have to be met. We need to focus squarely on education and positive, trust-based relationships, not compliance. The time for flexibility is long overdue.

Miriam Kurtzig Freedman, author of Fixing Special Education, is an attorney, writer, 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 AltoFor more information and her blog, visit www.schoollawpro.com.


Filed under: Commentary, Special Education



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8 Responses to “Special education in California needs more flexibility”

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  1. el on Jul 20, 2012 at 11:13 am07/20/2012 11:13 am

    • 000

    What I think is sad and hilarious about Duncan’s press release about “flexibility” from “onerous regulation” in terms of NCLB is that if they really feel that way, they should grant waivers to all the states without demanding concessions in return.


    • Navigio on Jul 20, 2012 at 11:38 am07/20/2012 11:38 am

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      Yes El, this is why I think it’s impossible to take Duncan’s rhetoric seriously.

  2. el on Jul 20, 2012 at 11:09 am07/20/2012 11:09 am

    • 000

    A lot of this comes back to being under-resourced. If Arne Duncan were to fully fund special ed, and if that extra money followed the kids easily, I think that a lot of flexibility he thinks should exist would naturally follow.

    It’s natural that special ed kids are going to concentrate in certain schools and districts. It makes sense to fund them specifically and from the largest possible base. For most districts, special ed encroaches on the general fund and thus a $50k kid moving in means that a classroom teacher has to be exchanged for that single child. It’s not surprising that such situations might create adversarial tension.

  3. Sonja Luchini on Jul 20, 2012 at 10:18 am07/20/2012 10:18 am

    • 000

    When someone like Arne Duncan is asking for “flexibility” – it’s a code word for “how to get around compliance laws and still appear compliant”. The suggestions:
    “Develop a short, focused learning plan instead of the procedurally-bound IEP; or
    Update the child’s program without annual team meetings when the program is working well; or
    Build positive, effective communication between school and home outside the team process; or:…???
    are meaningless if the school personnel are not willing to do this. If not FOR the legal documentation that an IEP provides, families would not have proof for recourse when things go south (as they usually do with our students with disabilities).

    Peter is right in his comments about parent fears. Schools claim on one hand that they “value” our input, but when we make suggestions that could help our students in the classroom – we suddenly become “disruptive”. We get upset because services are not provided, complain about it then get labeled “hostile”. We can’t win and realize we never will be true partners in the IEP process since many school sites just don’t want to deal with us at all.

    Instead of attempting to mask lack of compliance by using phrases like “flexibility”, we need our leaders to step up and fully fund IDEA, add a funding mechanism for parent training and outreach so families are aware of their rights and responsibilities. The current Special Education Community Advisory Committee mandate is not funded. We, as families and community members, are required to have these advisory committees, yet there is no funding component to facilitate it.

    Here in California, the funding depends on the grace and goodwill of the administrator and there are many small district SELPAs (Special Education Local Planning Area – all SELPAs are required to have a CAC) that have dictatorial leadership refusing to work with their CACs. The less families know – the less they “complain” about lack of service provision.

    Flexibility does not mean more “freedom” – it will mean less service and fewer identified children who need help.

  4. Peter Attwood on Jul 19, 2012 at 10:50 pm07/19/2012 10:50 pm

    • 000

    Felix Frankfurter said it well, “The history of liberty is largely the history of due process.” There’s nothing today to stop people from taking vsrious procedural shortcuts if all can agree. My district often won’t even if you offer. But the routinely lie to people and cheat them, which is not so unusual. District bureaucracies, like others, have their priorities, and the needs of kids are in the nature of things not first.

    Miriam Freedman, school attorney, is firmly in that tradition of white supremacists back when that said there were no problems except agitators, because, “We love our nigras.” The districts love their special ed kids, too, and send them away empty-habded whenever they can get away with it. I’m sorry we need procedural safeguards, but things being what they are, we need more. For instance, we could use strong federal protections to keep their staff from beating up, maiming, and even killing kids, which the school board associations are absolutely opposed to.

  5. SPED parent on Jul 19, 2012 at 6:00 pm07/19/2012 6:00 pm

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    Without the procedures set forth our children with special education needs would get even less of what they need done. Let’s see — no annual IEP meeting, then anyone who doesn’t have a strong program will get no meeting to discuss anything, because the District don’t want to “rock the boat baby”! That will leave them more time to hold IEP meeting for parents that do ask for help for their kids – to intimidate and harass them about any requests.

    No timeline for getting evaluation done – then those evaluations will happen just like when I first started out and requested those evaluations verbally – nothing will happen. Also the district will say “There is no timeline for that so we can do it when we want” just like they responded to my request to be reimbursed for an IEE that they had previously approved.

    Oh, and yes, there was the time that the district determined that they didn’t have to provide service to an entire school of children because the SLP went out on maternity leave. Or perhaps the day the district determined that although they knew in advance that they would not tell the parents or the NPS that they were planning to call off an IEP meeting, instead waiting until 32 minutes prior to the meeting to share this information – thus costing the parents and the NPS for substitutes and sitters, not to mention time off work, and the headache of it all.

    You see it makes no sense to me to remove any of the regulations given that so many districts can’t follow what they have and put in place reasonable programs for the kids they are to be serving. This pie in the sky thinking would only make sense if the districts were actually doing the great job the author of this article implies. In fact, the only reason I wasn’t screaming for more before I did was because the district service providers and administrators were lying to me. They were telling me my daughter was getting SLP services – when in fact the SLP was telling the teacher how to help our kids with speech – it was called “collaborative” or “crock of you know what” in reality. Shouldn’t that be a given – not a “service” on an IEP? Or the time that the SLP told the OT not to work with my daughter because she was too “difficult” – let’s call it what it is please – she had autism – but the district refused to assess her – I didn’t realize that unless I wrote it down it wouldn’t happen – even when I asked at an IEP. They just didn’t do it and I didn’t know how to make them do it. And, given that she was so “difficult” why was no assessment done for behavioral therapy? They were supposed to have assessed for every area of suspected disability, they didn’t suspect she had behavioral needs despite her falling to the ground and crying and hitting herself in the face on average a hundred times an hour or the fact the she would run for exits whenever she could? They finally did that assessment and described all of her behavior after we got an attorney involved.

    Parents don’t take the districts to task more because they either don’t know how, they think being nice will get their kids’ needs met, or because they are intimated by the districts and the process, or a combination of these.

    So I will agree to less procedural “safeguards” once the districts start educating rather than litigating and when they know how to do what they are supposed to do with those safeguards are in place.

    I hate going to IEP’s. I hate requesting IEE’s and going through all the rigamarole. I hate filing for due process. I hate that I spent tens of thousands of dollars on attorneys and could only be reimbursed for a portion of that cost. But what I hate most is seeing my kids and my friends’ kids get no education because the district would rather spend their money on attorneys than give our kids what they need to learn and be people who can function and participate in life. The only reason parents take the district to due process is because the district dares them to by refusing to do what any halfway intelligent person knows is reasonable.


    • Long Beach Parent on Dec 21, 2012 at 4:24 pm12/21/2012 4:24 pm

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      DITTO! I couldn’t have said it any better my child and other children within this school district which is in a very large district in the state of California Are amazed at what lengths and waisted time and money the district spends to fight FAPE they had to pay 50,000$ just for one mediation with me that could have been settled for free if the district would have come to the table to actually look at the Appropriate part! With them it’s our way or the legal battle way.

  6. Special Ed on Jul 17, 2012 at 10:42 am07/17/2012 10:42 am

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    I am saddened every time I am part of the IEP process and witness how IEP meetings have become more of a game between the parents and the school district in terms of how much funding each side will receive in the end. Often, specific goals and benchmarks for the students seem to become lost in this tedious process.

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