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 After pushback from advocacy groups, the Office rescinded that flexibility in April 2012, less than a year later.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 Alto. For more information and her blog, visit www.schoollawpro.com.
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