“What’s the Big IDEA?” 
By Deborah Blair Porter - June 29, 2009
Columnist EducationNews.org

In California, we know spring has arrived when school districts and education “powers-that-be” begin to bemoan education budget issues. This year’s annual rite of spring, laying blame for California’s fiscal problems at the feet of special education, came right on schedule. California’s local Parent Teacher Associations (PTA) led the way, armed with stats and rhetoric apparently provided by California School Boards Association (CSBA), Schools Services Corp. and other education agency allies, urging parents to take part in weekly letter-writing campaigns, community rallies, and even circulating articles at the state and national level blaming special education students and their parents. 

Apparently shocked and dismayed at the cost of educating students receiving special education services, they imply California’s education crisis is primarily due to the cost of educating California’s children with disabilities. They also seem to believe the responsibility for educating such children lies elsewhere. 

Their letter-writing campaigns once again insist federal representatives “fund your existing mandate for special education, IDEA” (Individuals with Disabilities Education Act) as if the problem lies in Washington and all California’s education problems would be solved if only Congress would “fully fund” the IDEA as “promised” when the law was enacted in 1975. They forget these are California’s children, whose education is the responsibility of California’s state and local education agencies. As always, they perpetuate the “myth” of the promise of full funding, when it’s not the reality. Yet this year was different in two respects: 1) there are federal stimulus funds sent from Washington to help salvage California’s education agencies; and 2) a new level of blame was being directed squarely at parents of kids with special needs. 

Whose children are these anyway?

According to the U.S. Department of Education “Education is primarily a State and local responsibility in the United States. It is States and communities, as well as public and private organizations of all kinds, that establish schools and colleges, develop curricula, and determine requirements for enrollment and graduation.” [1] Therefore, the agency primarily responsible for the education of California’s students, including those with disabilities is, of course, California.

Put another way, were Congress to decide tomorrow to never appropriate another dollar for special education, California would still be obligated to ensure a proper education for ALL our children according to the standards California has articulated for education.

California aspires to high educational standards for students. Superintendent of Public Instruction Jack O’Connell has stated “The job of K-12 education in California must be to ensure that all our students graduate with the ability to fulfill their potential – whether that takes them to higher education or directly to their careers.”[2] A March 23, 2006 Letter from Mary Hudler, then Interim Director of California’s Special Education Division, confirmed this standard for students receiving special education and went further, stating the CDE “is committed to ensuring that all students with disabilities achieve to their maximum potential.”[3]

Unfortunately, given the vitriolic response to the thought of educating California’s students with disabilities, it isn’t much of a stretch to believe that if federal funds ceased, the education of these children would soon revert to the way things were in years prior to IDEA, when they were out of school, out of luck educationally speaking and out of the mainstream of society.

Why IDEA was enacted

Although California has always been responsible for educating ALL its students, including those with disabilities, unfortunately, that wasn’t happening before the IDEA was passed in 1975.

Some background: in 1954, the U.S. Supreme Court issued its decision in Brown vs. Board of Education of Topeka, Kansas pointing out the discriminatory nature of segregation in education and the impact of exclusion from the benefits of education. In his opinion for the majority, Chief Justice Earl Warren found that: “Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.”[4]

Regarding a state’s obligation to provide education to all children, Chief Justice Warren said “Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”[5] Although Brown was the impetus for educational reform, in the years following, the education of minorities did not come without considerable struggle. Who can forget the image of Governor George Wallace, standing in front of the school house door as he attempted to exert his state’s right to thwart federal intervention in Alabama’s schools and exclude black students wishing to attend the University of Alabama?

Subsequently, building on legal rights gained for excluded black children, families and advocates for children with disabilities actively pursued educational opportunity and equity for their students who were routinely being excluded from their local schools. In early 1972, legislation was introduced in Congress and on November 19, 1975, Public Law 94-142 the Education for All Handicapped Children Act of 1975 [EAHCA] became law. (Note: When the law was reauthorized in 1990, it was renamed the “Individuals with Disabilities Education Act” (IDEA)). In enacting Public Law 94-142, Congress intended that all handicapped children would “have a right to education, and to establish a process by which State and local educational agencies may be held accountable for providing educational services for all handicapped children.”[6]

Congress acknowledged the difficult and tragic world children with disabilities experienced before IDEA’s enactment: when “the educational needs of millions of children with disabilities were not being fully met because--(A) the children did not receive appropriate educational services; (B) the children were excluded entirely from the public school system and from being educated with their peers; (C) undiagnosed disabilities prevented the children from having a successful educational experience; or (D) a lack of adequate resources within the public school system forced families to find services outside the public school system.”[7]

Despite state and local agency responsibility to provide them with education, children whose parents had paid taxes to local and state governments and who should have been entitled to the same benefits their state provided to typical children had been excluded from our schools and from receiving an education. Such exclusion wasn’t good for these kids, their communities or society as these children were prevented from having the same opportunity to become productive members of society their typical peers enjoyed.

Recognizing the failure of many states to educate disabled children, Congress enacted legislation which essentially federalized education for children with disabilities. Perhaps seeing the difficulties of the “stick” approach in President Kennedy’s federalizing Alabama’s National Guard and ordering its units to the University of Alabama campus, Congress chose the “carrot” approach, offering funding conditioned upon a promise by states and their local educational agencies to comply with the law’s provisions, including taking steps to find children with disabilities and providing them with a free appropriate public education.

Federal Funding of Special Education

According to the President’s Commission on Excellence in Special Education July 2002 Report, at the time EAHCA was enacted, legislators estimated significant funding would be needed to ensure the millions of children excluded could at least begin integrating into school populations with increased funding for teachers, services and facilities. “In 1975, the congressional conferees arrived at the 40 percent funding level in reconciling differences between the House and Senate versions of their originally passed bills. The conferees tied special education funding to APPE [average per-pupil expenditure] because they believed the cost of special education was approximately twice the cost of regular education.”[8]

The Report also states “Since 1975, the ‘up to 40 percent’ APPE target has taken on symbolic value far beyond congressional intent in 1975. Many still perceive this 40 percent figure as a representation of “full funding.”[9] The Report continues “Over the past several years, marked increases in IDEA Part B funding have been based on a desire to meet this ‘full funding’ target. However, the increases to meet this target have been based on expenditure-driven data, rather than on estimates of the true excess cost of achieving excellence for students with disabilities.”[10]

So Congress authorized up to 40% of APPE to be provided in annual appropriations, with annual reports of accountability. It was never a “promise” nor did the law mandate “full funding.” Congress made an educated guess at best, and since the original law was an appropriations bill, not an entitlement, it required appropriation every year, meaning appropriated amounts would likely change depending on expenditures and economic conditions. Actual appropriations vary from year to year, one year reaching 16-17%, another 19%, etc.

Not only was there never a promise to “fully fund,” the President’s Commission reiterated how significant accountability was to the process, stating “The Commission believes that . . . [a]fter determining a more reliable value for excess costs . . . IDEA should provide that any funding beyond the set threshold percentage of definable excess costs be allocated to states based on their state improvement plans and improved academic and postschool results for students with disabilities. Both states and local districts would be responsible for designing and implementing a program of accountability as part of their state improvement plans and demonstrating definable and measurable student results and outcomes prior to receiving these additional funds.”[11]

Over the years, funds have been appropriated by Congress with the condition states comply with the law and ensure the inclusion of all students with disabilities; that reforms would be instituted; and that states and local school districts would ensure the provision of a free appropriate public education, so educational outcomes for kids with disabilities would be significantly improved and these kids could, as the Commission notes, take steps toward “achieving excellence.”[12]

Yet the “myth” of full funding up to 40% persists, despite the fact that as the July 2002 Report noted, ”There is no scientific or particular public policy basis for defining full funding of the federal portion of special education at 40 percent of average per-pupil expenditure [APPE].”[13]  Somehow this “myth” has even led people to believe that educating children with disabilities is solely the responsibility of the federal government.

Since IDEA 1997 and more so since IDEA’s 2004 reauthorization, parents of children with disabilities have witnessed and been subjected to increasingly vitriolic rhetoric blaming special education, as well as children who receive special education services and their parents for all problems budget related. Besides demands for Congress to “fully fund” the IDEA, citing to the “promise” Congress supposedly made in 1975, IDEA is referred to as an “unfunded mandate.” Given the billions of federal dollars in education funding flowing to states since the law was first passed in 1975, it clearly is nothing of the sort.

This mythical “promise” to “fully fund” the IDEA has become the mantra of state and local education institutions pursuing more federal funding, with the education establishment repeating these phrases so often they have become gospel.  It is said “a lie oft repeated becomes the truth.” But it’s not the truth and lost in the shuffle is that any funding should be tied to accountability.

Accountability for improved outcomes

Since IDEA 1997, numbers of students with disabilities in America’s schools have increased, with greater numbers in the general education classroom and mainstream of the school community. Although their physical numbers have increased, their progress lags significantly behind typical peers.

·         Young people with disabilities drop out of high school at twice the rate of their peers.

·         Enrollment rates of students with disabilities in higher education are still 50 percent lower than enrollment among the general population.

·         Most public school educators do not feel well prepared to work with children with disabilities. In 1998, only 21 percent of public school teachers said they felt very well prepared to address the needs of students with disabilities, and another 41 percent said they felt moderately well prepared. Since then, these numbers have improved only minimally.

·         Of the six million children in special education, almost half are identified as having a “specific learning disability” with this group growing more than 300 percent since 1976. Of those with “specific learning disabilities,” 80 percent are there simply because they haven’t learned how to read so that up to 40 percent of children receiving special education do so because they weren’t taught to read. Although reading difficulties may not be their only area of difficulty, it is the area resulting in special education placement. Sadly, few children so placed close the achievement gap to the point where they can read and learn like their peers.

·         Children of minority status are over-represented in some categories of special education, with African-American children twice as likely as white children to be labeled mentally retarded or emotionally disturbed and placed in special education.[14]

Accountability for Implementation and Enforcement

The National Council on Disability’s January 25, 2000 Report to President Clinton Back to School on Civil Rights found “In the past 25 years states have not met their general supervisory obligations to ensure compliance with the core civil rights requirements of IDEA at the local level. Children with disabilities and their families are required far too often to file complaints to ensure that the law is followed. The Federal Government has frequently failed to take effective action to enforce the civil rights protections of IDEA when federal officials determine that states have failed to ensure compliance with the law. Although [then] Department of Education Secretary Richard W. Riley has been more aggressive in his efforts to monitor compliance and take formal enforcement action involving sanctions than all his predecessors combined, formal enforcement of IDEA has been very limited.”[15]

Since 2000, progress has been at best procedure-related, with states seeming to improve in dotting their “i’s” and crossing their “t’s” in IEPs and the completion of forms, but with substantive improvements for children and meaningful enforcement of procedural safeguards a long way off. The 28^th Report to Congress on the IDEA reports graduation rates for students with disabilities in California lag significantly behind those for typical students at the same time dropout rates for students with disabilities reach 30%.[16]

Despite continuing noncompliance and far too many children still not receiving an appropriate education, states and local school districts continue to receive IDEA’s federal funding. They’re not doing the job they’re supposed to in order to get the money, yet the money keeps coming. What if the rest of the world operated this way? Would there be any incentive to make change for the better?

How can it be acceptable for kids with disabilities not to get the education federal funding is paid to ensure, yet states and local education agencies continue to receive that federal funding as if they did? Why do districts which take IDEA money, but don’t make good on the promises made as a condition of receiving funds, continue to be rewarded with federal tax dollars despite persistent non-compliance and providing inadequate education? Despite documented pervasive noncompliance, are local school districts held accountable in any meaningful way by the CDE? Are states held accountable by the U.S. Department of Education? Unfortunately, the answer is no.

As any special needs parent will tell you, the only way districts are ever held accountable is when parents bring legal action to enforce the law. Given the lopsided outcomes in California’s due process system which finds for school districts over parents an estimated 60 to 90% of the time, children still come up empty-handed. Families that manage to prevail or achieve some relief must depend on a district’s willingness to comply with state orders. Unfortunately, noncompliance with state orders, as with state complaints, seems to be the rule rather than the exception. Even when school districts are required to pay monetary damages, instead of learning from their mistakes and committing to improve, many return to their noncompliant ways, continuing to victimize other students and families with mediocre education at best while they spend ever-flowing federal funds, and even local taxpayer dollars, on items such as legal fees to fight the provision of services, without compunction or accountability.

What other law requires parents to enforce it in this manner? What do parents get when they do take action? In many school districts, they are targeted by well-intentioned but uninformed parents, urged on by school personnel, school administrators and their affiliated state associations who increasingly blame children and families for budget increases associated with special education. Citing “encroachment” they blame kids who receive special education as if they were some group of outside infiltrators bent on taking typical children’s education dollars. What’s troubling is that it appears education agencies are actually on board with, if not behind, these campaigns to demonize “special education.” Is this how educators are supposed to act?

The same old song but with new words

This year two new elements found their way into the ritual springtime budget bash:  first, the federal stimulus package, with Washington’s infusion of significant education funding, including the largest increase in special education funding in decades. The second is the blame being leveled directly at parents and the litigation they’ve been forced to pursue in order to enforce the IDEA when California school districts and the State of California have failed to comply with the law and live up to their obligations.

Regarding stimulus funds, despite the increases in federal education spending, including record IDEA funding, local PTAs trotted out the same old cry to “fully fund the IDEA,” apparently not only ignorant the “promise” of full funding is in fact a “myth,” but again urging parents to “write Congress” as if oblivious to Washington’s recent largesse. Washington’s education stimulus funding appears to far exceed California PTA’s Public Policy Agenda recommended increase of $2.3 billion in IDEA funding, yet it was as if the stimulus funds didn’t exist. [17]

When local education officials and PTA presidents were questioned about the stimulus funds and how they could benefit local education, they were dismissive, variously claiming: 1) local districts will never see stimulus funds as the State of California will use them to balance its budget (which California really can’t do with categorical IDEA funds); 2) stimulus funds come with strings attached (of course they do); 3) they’re “one time funds”(annual appropriations are always “annual”); and 4) they’re negated by CA’s budget cuts (at the same time Jack O’Connell himself stated State Fiscal Stabilization Funds actually “make up for the cuts” in California’s budget).

So, Congress has legislated a “dream come true” with perhaps the largest increase in IDEA funding in decades, something PTA moms have written letters about for just as many years, but now that it’s here, it doesn’t matter? Maybe the “gimme” hand has been outstretched for so long California’s education establishment doesn’t know any other way to act. Maybe they need someone to blame, anyone but themselves, even kids with disabilities, to deflect attention from their failure to ensure appropriate student progress. Maybe they just want to use special education as a whipping boy.

This  Spring the “blame game” reached a new low with an article circulating the Internet claiming many school districts have “greatly suffered” from lawsuits brought by parents claiming their special needs child’s rights were not met. As with many aspects of this “blame game,” this claim is easily refuted by facts.

First, parents who believe their child’s rights have been denied under the IDEA are supposed to seek redress through IDEA’s due process procedures.  In the “case in point” the article cited to, Porter v. Manhattan Beach USD, the litigation was brought only after Manhattan Beach USD (MBUSD) and the State of California did not do what they promised as a condition for receiving federal funding, i.e., provide a child with services they agreed he needed and enforce the IDEA by ensuring compliance with a state due process hearing decision. In fact, throughout the litigation, both the district and state chose NOT to follow the law despite those promises. Ultimately, MBUSD and the state of California signed the settlement, which was confirmed by the Court.

The notion that school districts “suffered” because of this litigation is not only absurd, it is contradicted by the district’s own words in its August 17, 2005 press release regarding the settlement, which stated “This settlement agreement will not significantly impact the District’s budget or ability to operate its schools in the same manner that it has in the past.” Yet, within six months a local paper quoted MBUSD telling its teachers that budget difficulties, caused in part by this settlement, prevented it from granting teachers raises under their labor contract. Not even a year had passed and MBUSD was reverting to blaming special education and the litigation it had forced parents to pursue because of its non-compliance with the IDEA.

Today, almost four years after that settlement, someone bent on bashing parents reaches into the past to a 2005 settlement which didn’t impact MBUSD’s budget then to now claim it does, once again blaming special education and litigation for a district’s fiscal failures, when it is no truer now than it was then. The reality is that MBUSD and other districts like it only “suffer” when they choose to not follow the law, despite promises to do so as a condition of getting federal funds. That they blame children and the pitiful special education services they receive and urge PTA parents to do the same so as to deflect blame from where it properly lies is appalling.

Where are our education leaders?

There is no doubt special education costs have increased over the years. So have general education costs.[18]  But do we demonize kids receiving general education instruction or blame them for these increased costs? Do we blame their parents for expecting their kids to be educated? We may decry a lack of funding for important education needs, but we don’t go after typical kids or their families, anymore than we point the finger of blame at children of color, English language learners or those who are economically disadvantaged. So why do we tolerate blaming special education costs or kids with disabilities? That such attacks are directed at kids is reprehensible; that they come from the educational establishment responsible for our children’s education and well-being is telling. 

Why would educational agencies and their allies, who are supposed to be looking out for children’s welfare, engineer a “blame game” against children with disabilities? Perhaps to deflect attention from the fact that our educational system continues to receive and spend both state and federal funds to educate students eligible for special education, at the same time they fail to show progress in ensuring meaningful outcomes for them. When 80% of a school district’s budget pays teacher salaries, special education funds are used primarily to pay teachers, so there isn’t much room for “special education expenditures” beyond that. When many teachers are not qualified to teach these students, our tax dollars are being spent on effort without effectiveness and as a result many students eligible for special education do not make the progress their typical peers do.

Perhaps these allies wish to hide the fact that state and local education agencies, as well the educational “powers that be,” are bent on preserving the status quo and their place at the trough of public education by keeping funding flowing as always, despite the lack of competency or accountability necessary to truly benefit students. Unfortunately, many organizations advise school districts about how to avoid providing services and benefit from the resulting conflict. Associations such as CSBA, Schools Services Corp. and law firms like Fagan, Friedman and Fulfrost are paid dues and fees to represent the interests of school districts, taking “education” funds for litigation and lobbying. But the interests of school districts and their allies are not necessarily the same as those of parents concerned about the education of their children. Their desire is to keep the focus and the blame elsewhere while they rake in education tax dollars spent on litigation and lobbying rather than education, and to them special education is the perfect whipping boy.

PTAs and the moms who do the lion’s share of work for them don’t seem to realize they are simply the latest pawns used by school districts and the education establishment as “mouthpieces” in furtherance of their interests, rather than the interests of ALL our children. They don’t want the real story out there as it would impact their ability to continue to feed at the public trough, behind the scenes and without accountability, instead preferring to use parents to fight parents with a “divide and conquer” approach.           

These attacks send our children, parents and communities the horrible message that our children who are disabled are not worthy of the expenditure of our education dollars and that it’s perfectly acceptable to balance our budgets on the backs of children receiving special education, because it’s expensive. As the saying goes, “If you think education is expensive, try ignorance.”

What is the impact of this ongoing blame and scapegoating? It divides communities, pitting parents of typical kids vs. parents of kids with disabilities. It “disappears” parents of kids receiving special education services, afraid to be associated with special education and ashamed, made to feel their child receiving services is the cause of a school district’s budget woes or other students not receiving the education they deserve. It renders parents who could otherwise contribute to the school community as volunteers, donors and participants, silent and afraid to speak up, much less participate or advocate openly for their child or other children with disabilities for fear of being seen as the cause of all problems education-related. It renders a divided parent community ineffective and powerless in oversight of their school district public agency, enabling districts to function without the accountability necessary to ensure that ALL children are appropriately educated.

What’s worse is its impact on our children, targeting them in the eyes of parents, the community and even other children as responsible for a community’s budget woes. It “disappears” these children, who are so ashamed of being identified as needing assistance or stigmatized by receiving special education services they, as well as their classroom teachers, end up without needed services and supports. Imagine what such targeting does to their self-esteem.

Ultimately, these attacks are insidious for they go after the very children least able to stand up for themselves. That some in our education establishment seem to be at the forefront of this campaign is shameful. That others in education do not speak out strongly against such blaming is inexplicable. That these claims are repeated with such consistency they are now regarded as truths for which it is considered acceptable to blame children is shameful.

These are hard fiscal times to be sure. In hard times, true leaders craft new ideas to unite the community and confront common challenges, including the lack of funding for what is everyone’s priority, an appropriate and meaningful education for ALL children.  They don’t go around dividing the community by repeating mean and insensitive comments. They don’t blame kids for what are, after all, our problems.

Our educational establishment needs to STOP blaming our children who are not responsible for our budget crisis or our failed educational system; they are its victims.  Our local and state education agencies need to take responsibility and demonstrate leadership in these tough times by making sure they provide an adequate education for ALL students, not unnecessarily fighting parents over direly needed services.

Let’s put the blame squarely where it belongs: on a failed education system that despite the infusion of federal funds over the past 35 years still isn’t ensuring an adequate education for kids with disabilities; that fails to support its teachers with proper training and supports in the general education classroom where children with disabilities are increasingly placed as their least restrictive environment; that funds attorneys to fight the provision of services rather than the services themselves; that instead of speaking out against the stigma and intolerance found in the world of special education, actually exacerbates negative attitudes with negative messages.

Or perhaps we blame ourselves for not ensuring the promise of education is available to ALL students in our great state, so that students with disabilities, like their typical peers, have the opportunity to reach their highest potential; and for not ensuring that education is the priority it should be, given how critical it is to the welfare of our children’s lives, our communities and our overall national security.

If education truly is a priority worthy of the expenditure of our tax dollars, instead of arguing over what is a small sliver of the pie, we need to get bigger and better pies and there needs to be a whole lot more of them. If education truly is our priority for all, it’s time to stop blaming children with disabilities or their families. After all, they already have enough challenges to contend with.