An Interview with Miriam Kurtzig Freedman, M.A., J.D.: On Fixing Special Education—12 Steps to Transform a Broken System…
12.29.09 - Michael F. Shaughnessy - Wow! Where to start? Actually, before we get into the challenges and problems, let’s back up and talk about what’s right in special education.
An Interview with Miriam Kurtzig Freedman, M.A., J.D.:
On Fixing Special Education—12 Steps to Transform a Broken System
Michael F. Shaughnessy - 12.29.09
Eastern New Mexico University
Portales, New Mexico
1) First of all, what do you think is the biggest problem in special education?
Wow! Where to start? Actually, before we get into the challenges and problems, let’s back up and talk about what’s right in special education. Special education has been a huge civil rights triumph and success. To echo Jim Walsh’s review of my little flipbook, “our country made a moral and legal commitment to educate all children—regardless of the severity of their disability.”
Indeed, I filled this reader-friendly little book with lots of big ideas, balancing the tale of special education’s success with 12 steps to transform it for the 21st century. I’ve even been told that this book is fun to read! Philip Howard, the author of The Death of Common Sense, has called it a must-read for anyone interested in improving special education.
2) OK, so tell me about what has been achieved in special education in our country.
To understand where we are today, we need to go back in history a bit. My book opens with this story:
On the first day of school on a bright September morning in the late 1950’s, my friend’s mother took her little sister, Eleanor, to school in New York City. Eleanor was six years old. At the school house door, the principal waved them away, “We don’t educate children like that.” Eleanor had Down syndrome. She returned home with her mother and never went to school.
Thus, in 1975, the first federal special education law was passed. Today it’s called the IDEA (Individuals with Disabilities Education Act). The law’s purpose was to provide access to education for all students with disabilities, many of whom, like Eleanor, had been excluded from schools. You may recall that in the 50’s, 60’s, and 70’s, some children were called ‘educable,’ ‘trainable,’ and even ‘non-educable.’ That was then. It seems so very long ago.
Now, everyone receives an education. Our mantra is “all means all; all children can learn.” This is a huge shift and success. The special education law achieved its mission and now provides access for all students.
Today, 70% or so of students who receive special education services have specific learning disabilities (SLD), speech/language disabilities, other health impairments, notably ADD and ADHD, or behavior/emotional disabilities. The other 30% or so of students have, what is generally considered to be more severe disabilities. These include students who are multihandicapped, blind, deaf, deaf/blind, retarded, or who have severe autism, etc. In fact, they are the students for whom the law was initially written. My reform proposals concerns the 70% of students described above, not the 30%. Let’s leave that challenge for another day.
3) So now, let’s go back to my first question. What do you think is the biggest problem in special education?
The biggest challenge is systemic, the way we provide services for students with disabilities. For me, it’s not about individual services or methodologies, per se. The system that delivers special education is broken. No one is happy with it. This law should have had a sunset provision, calling on us to create a different system going forward. But, we all know, the law is still here and continues to grow and expand.
I want to be very clear—fixing special education means that children with disabilities will continue to get the services they need. Not an effort to deny appropriate services, the effort here is to improve the system for all children served by our nation’s schools. We need a paradigm shift. The time of simply tinkering with the system every few years should give way to true reform.
Why? Because, having succeeded in our 20th century mission of providing access to schooling for all students with disabilities, with the inputs and procedural requirements it entailed, we need to move on to the 21st century and focus on improving educational outcomes for all students. We can do this in three ways:
1. Let teachers teach and students learn.
2. Get lawsuits and lawyers out of classrooms.
3. Let parents be parents, not enforcers of a law that achieved its purpose many years ago.
With this little flipbook, I hope to generate and encourage open and honest national conversation to achieve systemic reform. It’s very exciting, somewhat daunting, and long over-due. My book offers solutions—not just more of the same tired airings of concerns and complaints. In fact, some of the 12 steps are rather radical and others, full of common sense.
I am confident in our nation’s ability to transform the system for today’s reality. Clearly, people have been afraid to touch this area of education—beyond endlessly tinkering with it. It is now time to fix the special education system.
4) You have a book on 12 steps to fixing special education. Let’s cover six this interview, and then six next week. What are the first six steps?
Thanks for asking! As I wrote in the book, fixing special education requires three approaches: climate change, change the path we are on, and rebalance schools for all students. In all approaches, our mantra should be:
Whatever we do needs to promote better teaching and learning for all students. A simple test: if it does, keep it. If it doesn’t, discard it and develop something new.
Let’s deal with the first category—the need to climate change. The climate in special education has become far too adversarial. Litigation and the fear of litigation force educators (like doctors) to practice defensive education. Yet, every moment a teacher uses to do paper work, comply with bureaucratic requirements, attend endless meetings, prepare for litigation—is a moment lost to teaching and learning and a moment of stress and anxiety—not conducive to excellence in teaching. It’s time to get lawyers, regulators, and bureaucrats out of our schools, and empower educators to focus on the mission of teaching all students.
Step 1 calls on us to end the right for parents to sue about a student’s program. It may surprise your readers but, as a lawyer, I believe it’s time to end the right to litigate this issue. Special education provides a ‘free, appropriate public education’ (FAPE) and has done so for almost 35 years. Yet, we still don’t have a clear definition of FAPE and continue to argue about it on a case by case basis. Reportedly, this law is the fourth most litigated federal statute.
How bad for schools and students and wasteful of time, energy, trust, money, and education is that! Let us develop another approach to define, once and for all, what level of services schools need to provide and what accountability measures schools should use for students with disabilities. Schools and parents across our country should not have to reinvent the wheel time after time.
Think about it. It might have been OK for lawyers to sue schools back in the 1970’s to get access to educational services for a child, such as Eleanor. But, it is absolutely not OK for lawyers, judges, and paid ‘experts’ to decide which reading program or behavioral approach to use with a child. That’s what educators are for!
Step 2- Eliminate the fear of litigation that grips schools. The not-so-funny joke is that there are two types of schools—those who have been sued in special education and those who will be sued. That is no way to run our nation’s education system. Sadly, these cases are often more about loss of trust, money disputes, what positions parents want or schools are willing to compromise—than about a child and his right to a FAPE. Too often, the child gets lost in the process!
We need to let educators and parents build trust and cooperation in creative ways and develop different systems to resolve disputes about programming for students with disabilities; perhaps an ombudsman, a public advocate, teambuilding, advocacy training for all adults, or other creative ‘out of the box’ approaches—to move the process along, always focused on the child (not the adults or money).
It’s time for us to keep the focus of special education on learning—not winning and losing. Get litigation out and teaching and learning in.
Step 3—Reduce the bureaucratic morass that chokes educators. Documents don’t teach. Paperwork is not education. We have far too much of each—at last look back in 2002, 813 federal mandates and compliance requirements for states and schools! And that’s before we count in the additional state and local requirements across the nation.
Teachers often leave the field because of its bureaucratic burdens and adversarial atmosphere. Teacher recruitment and retention in special education has become a burdensome national challenge.
In short, let us undertake a systemic review of procedural requirements and discard those that do not directly improve teaching and learning.
The second category is the need to change the path we are on.
Step 4—End our reliance on the medical model and labeling for these 70% of students. To get services, a child needs to have a ‘label,’ fitting one of the 14 disability categories. Unfortunately, this model gets in the way of education, especially for the disabilities described above, as the categories are fluid and not well-defined.
A child may be labeled with a specific learning disability (SLD) in one school district, emotionally disturbed in another, or simply as an ‘at risk’ student in the third. In the first town he gets a panoply of individualized special services, in the second, a panoply of totally different services, and in the third--none. This, in spite of the fact that we know that diagnoses are not exact, and far too often, are based on attributes unrelated to the child, such as socio-economic realities, savvy parents, or zip codes. Yet the categories and labels continue to rule!
Instead, we need to educate all children—starting with where they currently function and moving them forward. In this way, we can include and focus on average, gifted, disabled, talented, bored, at risk English language learners, and others—all of our students.
Step 5 – Change the role of parents. As my little flipbook explains, the IDEA has a fundamental design flaw. That flaw is the requirement and expectation that parents will enforce it. Thus, if parents do not agree with a school’s program or program, they need to ‘advocate’ for the child and fight the school.
Instead, parents should be able to work with school and build positive relationships, and not be forced to ‘advocate’ for their child against their school. We need to end this design flaw.
As well, the law puts the onus for a child’s progress on the school district. Parents can sue schools if their children don’t receive a FAPE or make progress. My book discusses how the law fails to encourage parents to partner with schools for the benefit of their children.
The incentives in the law are wrong, and defy common sense. Having a child with a disability is more than challenging enough. The law should not make it more difficult. It currently does exactly that.
Until we change this system and walk away from this ‘parent-as-enforcer’ law that holds schools singularly accountable for student learning, we will not get back to the goal of this law—a cooperative approach for teaching students with disabilities by all concerned parties: students, teachers, and parents. We will simply have more rancor and more time off task.
Step 6—Inclusion should promote teaching and learning. Period. Unfortunately, inclusion and the least restrictive environment (LRE) have, too often, become goals in themselves, a philosophy, and to some, a ‘right’—separate from what works best for teaching and learning for all students. Inclusion should be a means to a good education, not an end in itself.
We should include children in regular classrooms and the general curriculum when it benefits their learning and the learning of others. We should not do so when it impedes their learning or the learning of others. It’s that simple. Sadly, battles about inclusion and the LRE have become hugely complicated--a ripe battleground for lawyers and ‘experts.’
That’s it for the first six steps! Your readers may wish to know that this book is available in two ways: At www.schoollawpro.com or at www.parkplacepubs.com.
So far, I’ve been amazed and thrilled by the positive responses so far and the several presentations I have been asked to make on these issues to open that over-due national discussion. People seem ready, at last, to deal with that huge elephant in the center of room! More on all of this later….
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5) We covered the first six steps of your 12 step book last week. So, let’s cover the last six steps this week. What are they?
OK! Again thank you for this question.
Step 7—Focus on the whole child—what she CAN do, as well as what she can’t. I ask audiences, “How many of you have become as successful as you are in your chosen career by focusing only on what you cannot do? No one ever raises a hand.
Yet, the special education law forces educators and parents to endlessly splice and dice weaknesses and diagnoses. In truth, while the law mentions ‘strengths,’ it does not target or create programming for them. We have inadvertently created a focus on student weaknesses that elevates the label above effort and the weakness above strengths. This is so, in spite of the fact that we all know that for success in life, it is vital to harness strengths. We need to refocus our education of students with disabilities. The book provides several important ways to refocus our efforts.
Step 8—Education is an active process. Yet, this law fails to promote that common sense reality even as everyone knows that learning is not what someone does for a student. Instead, both the special education law (the IDEA) and the No Child Left Behind Act (NCLB) provide sanctions against schools if students don’t learn. Under the IDEA, parents can sue schools. Under the NCLB, schools can be sanctioned. Neither law has any accountability for students to learn or parents to parent—not even contemplated!
We need to change the incentive systems that have grown over the years. As the book shows, this law has fostered disincentives for good teaching, student effort, and parenting. Instead, accountability for student learning needs to be spread around: to students, teachers, and parents working together. Schools cannot do it alone.
Step 9—End the overuse of classroom and testing accommodations. Accommodations are designed to provide students with an opportunity to learn—to remove barriers due to the student’s disability. They are not designed to cover over what students cannot do or substitute for the hard work of teaching and learning. They should not be used just to get students through school. The goal is to provide an educational benefit to students so they learn what they need to know and do. Inflated grades don’t help anyone. There is far too much confusion in this arena in today’s schools.
To borrow Secretary of Education Arne Duncan’s call for high standards for all students, “We have to stop lying to children…and stop ‘dumbing down’ and lowering standards in many places.” Accommodations, unfortunately, play a large role in that process. It must stop. The book shows how and why.
Step 10—Curb the unfairness and excesses in the law. Unfortunately, the oft-repeated slogan, “All means all,” belies what actually happens in our schools. The truism does not reflect reality when, as now, schools focus more attention and funds on some students with a powerful entitlement, than to others, who have no entitlement. Particularly in today’s economic times, we see the rise of conflicts for time, focus, and resources between regular and special education programming. Gifted, average, bored, non-English speakers, at risk students, or other students need to be served in a more equitable fashion. Alas, rights for some create unintended negative consequences for others—and for education as a whole system.
Some would say, ‘Ah, then, why not create ‘entitlements’ for everyone!’ No! That would be so counter-productive! We do not need more bureaucracy, paperwork, litigation, adversarial climate in our school. Instead, our nation should have that difficult conversation to blend the needs of all children, without systemic inequality and unfairness. We must bring back the reality of “all means all.”
Step 11—Follow the money! OOPS, we can’t! We don’t actually know how much we spend on special education—at the local, state, and federal levels. There are many pots of moneys but the expenditures on special education are not well tracked. Back in 2002, it was estimated that special education costs our nation some $80 billion annually—but we don’t know if this money was spent in classrooms or courtrooms, for teachers, aides, or bureaucrats. Today, schools spend some 20-40% of their budgets on special education. Again, numbers are not precise. You get the picture.
While some argue that we need more money for special education, I would argue that, first, we need to fix the system and to know where our moneys are going and whether they actually promote better teaching and learning.
In our nation’s larger education picture, the stimulus package will pour another $12 billion on top of the billions already spent on special education nationwide. Notably, this $12 billion stands in sharp contrast to the $4.5 billion in “Race to the Top’ funds. As we know, this smaller amount has been the subject of numerous news stories--stories about the competition, the analysis, best practices, accountability, and other measures it ‘Race to the Top’ funds entail. That $4.5 billion, far less than the add-on for special education, should give us pause. Before we simply add another 12 billion to a broken system that has no real accountability to assure taxpayers, parents, students and educators that the moneys are well-spent and directly improve the learning outcomes for students with disabilities, let us fix it.
Step 12—Create an action plan. It is time—indeed, long overdue!
Let us allow open and honest discussion about reforming special education for the 21st century. Let us convene a wide array of stakeholders to do so.
Let us expand efforts to keep what’s working for students and change what is not.
Let us give voice to what many folks already know—the system is broken and needs to be fixed.
In short, let us get real and deal, finally, with the big elephant in the room—always there, but not acknowledged. Always walked around and not touched. It is time to touch it and deal with it. Our children and nation will be the better for it! Let’s roll up our sleeves and work together to transform this broken system.
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6) I note that you have a J.D. after your name, indicating that you are an attorney. What can parents do when they can’t afford an attorney?
Yes, I am an attorney who represented public schools on issues of special education and Section 504. I have done so for some 20 years, following a career as a teacher and a hearing officer. This is a challenging question about which I am not an expert. So just a few thoughts.
Of course, if parents have a winnable case, it is my understanding that there are attorneys willing to take it. If parents prevail at a hearing, the attorney’s fees will be paid for by the school district. It has been so since 1986.
Most states have agencies and non-profit organizations that provide services or funds for parents who cannot afford an attorney or advocate. Most states have mediation services, resolution meetings, and other dispute resolution processes that do not require attorneys. On a practical level, I have always encouraged parents who plan to proceed on their own to consult with a lawyer or research the processes involved and bring a trusted friend, spouse, neighbor or other support person to meetings with schools, to mediations, or other dispute resolution options. There are many websites for parents, including the one that I like to visit, www.wrightslaw.com.
But, as I discussed above and believe passionately, we should be able to work creatively to change the system and make it unnecessary for parents or school districts to hire attorneys and expend scarce resources in litigation in order to serve children appropriately. I hope we can create systemic change to encourage parents and schools to work cooperatively in a trusting relationship that benefits children. page 2
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I think she has missed out on the part of the law that says the districts/
educators select the methodologies to be used with a child with special ed needs.
My son's elementary and 6th grade school years were a living hell much of the time. He was diagnosed early as gifted and ADHD, but had more problems than most. I have spent years listening to educators tell me how unmotivated he is and how we need to hold him more accountable. He had difficulty getting along with peers, and got in trouble for aggression - so he needed to be held more accountable there too. I took him for private evaluations from psychiatric to auditory in search of answers. In 6th grade he spiraled into depression, was suspended so many times I thought he would be expelled, and finally was hospitalized with depression and out of control behavior. (In case you're questioning our parenting skills, his 2 older siblings are Bright Futures scholars and their high school teachers all loved them.) At no time during all of this did the school system even suggest a 504 or an IEP; at no time did they suggest a behavioral evaluation; at no time did they offer any evaluations; they just kept complaining about my kid. He is now diagnosed with Asperger's syndrome. We now have an IEP, something I'm not sure we would have gotten without my attorney present; and I now have a legal method of keeping track of whether my son is being taught the way he needs to be. Fix the system? That would be wonderful - but don't take away a parent's right to try to compel a district to give "appropriate" education to their child, if that's what it takes.
I've never heard of any school district doing anything like this. When our private evaluator found our child may have a gross motor deficit, I mentioned it to the school. They decided to "evaluate" by having the gym teacher watch the child during class, along with forty or so classmates. The gym teacher didn't notice anything. No wonder. And this is in a suburb known for its schools. In other places parents have to sue just to get the district to consider a child for evaluation.
Although the IDEA lists the parents first as members of the team who will write a child's education plan, districts rarely pay attention to parent input, and often present parents with fully written plans they are unwilling to change. I've seen plans written by school administrators for children they have never even met. And when the parents feel those plans won't work, the school district "experts" insist it will, and if it doesn't, they blame the child and the parents, never the plan or it's implementation.
Where is this district that practices defensive special education? Do they let the parents write, or even seriously participate in the writing of individual education plans?
I want to see this district. I want examples of this practice.
I agree with one thing as an educator I spend literally 5-8 hours per IEP (this is the writing of the IEP only) and I have 19, the paperwork is overwhelming. To add to the time spent writing IEP's I also complete portfolio's (it takes the place of the state and district test that students without significant disabilities take) on my students that take on average 15 hours per student (In an average year I complete 6 portfolio's per year.) Add to all that about 3/4 of my students participate in Extended School Year- so that is another 1 hour of paperwork per participating student. At the end of each semester I report progress for each of my students goals which takes a minimum of 15 min per student multiplied by the 19 students that I serve. I am expected to do all of this plus develop lessons, grade papers, contact parent, conduct meetings in the 55 minute plan period that I often do not get because anytime one of my children is struggling with behaviors, needs extra help etc...I am there to help. I love my job, my parents (who know their child better than any educator), and my students but the paperwork and the amount of time it takes away from my own family really makes me rethink what I do.
Published on December 27, 2009 by Jennifer Laviano
Am I the only one who yearns for the days before drug companies had ads on television? Remember, back when, if your doctor thought you needed a medication, she would prescribe it? Today, you are practically begged to self-diagnose, and only then ask your doctor “if it’s right for you.” Serious psychiatric conditions are reduced to cartoon characters, which is only trumped by the odd discovery that, apparently, the world’s greatest aphrodisiac is a bathtub on a beach.
While I find most of these advertisements irritating, I do rather enjoy listening to the muted, quickly-read list of potential side-effects, especially when the medication being peddled is to treat something relatively minor…as in “we can reduce your toenail fungus by 80%, but it might cost you your liver.”
Okay, so what does any of this have to do with special education law and advocacy?
I’m getting there. I have always faced the “we can’t afford it” argument from school districts when the parents have hired counsel and are trying to resolve their disputes. But lately, it has reached a fevered pitch. Virtually any discussion or meeting with a school these days, or with their counsel, includes the following phrase “with the economy as it is…” When I hear administrators complain about the costs associated with reimbursing parents for disputed services, I can’t help but think that, just like those medication side-effects, the remedy ends up being so much more risky than the original problem. And why?
Because, ultimately, if the school system had just COMPLIED WITH THE LAW TO BEGIN WITH, they wouldn’t be in a position to have to reimburse parents!
In the many years that I have been practicing special education law in Connecticut, I can tell you that in the vast majority of cases, disputes could have been avoided years before the parents brought in a lawyer. And the kicker is that the blueprint for doing so is right there in the IDEA. When parents call me, it’s usually because there is either a crisis, or something close to it. Yet, in probably 8 out of 10 cases, when I read the file, I can point to several points in the student’s education where basic compliance with the IDEA would most likely have resulted in earlier evaluation, and therefore intervention. Instead of doing that, however, the administration has sat back and hoped the “problem” would just go away. When it doesn’t (and it usually doesn’t), the situation has become urgent…and therefore much, much more expensive.
Astoundingly, some school systems have been willing to spend millions…that’s right MILLIONS of dollars in legal fees battling one family, rather than putting that money towards much needed special education services!
So, leaving aside that providing meaningful educational opportunities to children with special education needs is a matter of Civil Rights; leaving aside that it is mandated by IDEA; leaving aside that our priorities as a society surely must include providing necessary skills to our must vulnerable kids; even leaving aside the fact that doing so is the right thing to do…ultimately, compliance with the special education laws is the fiscally sound thing to do.
Next time you are at a cocktail party, and someone complains about the costs associated with special education services, ask them how costly they think a lifetime of government dependence will be.
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