PLI Education Law institute 2001:
John Farago
Most of the teachers and clinicians entering special education today had not yet been born when the Individuals with Disabilities Education Act was adopted in 1975. An entire generation of professionals has thus come of age within the assumptions and constraints of the Act.
Indeed, the current school year marks the twenty-fifth anniversary of IDEA’s adoption. During that time, IDEA has transformed special education and, as a consequence, education in general in profound, and fully intended, ways. The Act stands as a paradigm for social legislation that has defined, and then achieved, desired social outcomes by means of indirect, mechanical, and law-driven intervention.
In 1975, the Act responded to twin concerns, expressed primarily by advocates for the disabled that culminated in the landmark PARC and Mills cases (Course Handbook, Chapter 1). In New York City these same issues were raised by a case initially brought as Riley Reid, then (after Riley left the system) Kathy Kelly and finally (once it hit federal court and its name froze in the annals of time) Jose P. (Chapter 1) Jose, of course, is in his 30s now. [It is a matter worth noting that the driving legal force behind Jose P. at its outset – Michael Rebell – is the same attorney who has recently nurtured, strategized, and prevailed in challenging the State’s school funding formula on behalf of NYC parents. Between these two cases, Mike has, over the past quarter decade, arguably had a far greater impact on education in New York City than any other single actor – Mayor, Chancellor, educator, lawyer, parent or activist.]
PARC, Mills, and Jose P. made two quite distinct arguments: first, that children with special needs have a no less compelling right to a meaningful education than do their able peers. Second, that that entitlement should not be delivered in a fashion that unnecessarily isolates them from interaction with those peers or removes them from their neighborhood school. In essence, the argument drew on the work then being done by activist lawyers in two quite disparate sets of cases of that era – the right to treatment cases (O’Connor v. Donaldson, decided in 1975, and its progeny) and the broad range of anti-discrimination cases and legislation.
The juxtaposition of these two distinct rights-based policy claims is not self-evident. In fact, these twin desiderata have from the outset generated a quiet undertow of tension, pulling against each other, at times in counterpoint and at times in dissonance. And yet, that tension has been productive, yielding both a practice and a policy dialogue that has consistently (if not always successfully) balanced the competing demands of the Act’s two simple, stark, and challenging calls:
Each child has a right to a free, appropriate, publicly-provided education.
That education must be provided in the least restrictive environment.
This melding of intrinsically somewhat contradictory policy goals formed the core of the IDEA. Just two years earlier Congress had adopted narrower legislation focused exclusively on preventing discrimination against the disabled, in schools and other public settings (§504 of the Rehabilitation Act of 1973; the current IDEA and §504 regs are reproduced in Chapter 24). That legislation was more directly in keeping with the intense anti-discrimination focus of mid-‘70s federal legislation. It is therefore striking that Congress chose to extend and deepen the reach of federal policy in a way that expressed not simply a focus on eliminating discrimination but a coherent and challenging vision of the roots of public education in the neighborhood school.
In this way, the legislation was and is unusual in the complexity of the policy it reflects and of the techniques it mandates to pursue its ends. But it is also deceptively simple in its approach. For those of us who can recall what teacher training (and teacher practice) looked like at the time IDEA was adopted, the differences between then and now – differences attributable directly to the strictures of the Act –- are both simple and profound, subtle and transformational, hidden and pervasive.
While individuals and institutions have chafed under the Act’s requirements, while teachers and systems have complained of its legalism and the bureaucracy created in its wake, while it appears to champion regulation ahead of educational judgment, it has slowly but surely accomplished a single compelling sea change. It has individualized the practice of teaching youngsters with special needs. It has shifted the focus – for teachers, administrators, schools, even districts – from the classroom to the child. It has changed the driving force of the special ed classroom from the lesson plan to the IEP. (See Chapter 2.)
Twenty five years later, that shift seems both obvious and immutable. Was it ever really ever the case that special ed classrooms, to the extent they existed at all, failed to see each child as an individual? Doesn’t every teacher strive to address each child’s needs in every classroom – regular and special – individually? But the simple truth, if we are being honest in our recollection, is that the first decade or so of implementing the law was rocky, more than for any other reason, because teachers were asked to shift their expectations and their practice away from the class and onto the individual child. They were asked to subordinate classroom planning to child planning. Even though they were provided with student:teacher ratios small enough to render that task manageable, the newness and unfamiliarity of the approach (the non-teacher-centeredness of the classrooms it created) were a daunting and difficult transition. (See Chapter 6.)
It was a bit of policy sleight of hand: The two stated goals of the Act -- provide services to all children, and do so in a way that removes them as little as possible from the mainstream -- says nothing about individualizing instruction or changing the teaching paradigm. And yet it has been precisely this unstated mandate that has been most successful, most transformative, and most supportive of the Act’s core policy agenda.
To understand how special education has changed, one need only look at the difference between special education practice and that of regular education. Mechanical as the IEP may seem, bureaucratic as the due process structure can feel, the simple reality is that children in special education are taken one at a time, while the regular education classroom remains a creature of the lesson plan and group learning.
This shift was accomplished through three explicitly IDEA-driven reforms.
First, most obviously, the creation of the IEP process required the system to reorganize around the individual student, to spend time at least once each year identifying each child’s needs, his or her goals and objectives, and to do so in a way that committed the result to writing and held the system accountable for addressing the plan it had developed. Twenty five years of teachers have complained about the routinization of this system and the meaninglessness of the (often computer-generated and far from individuated) documents it has produced. But the reality is that, like a shallow but steady stream, the process has etched a deep and lasting change in the education landscape.
Second, teachers have been provided with the single tool they most need to accomplish this shift in focus. Put differently, the premise that all children should be treated as individuals by their schools and their teachers is hard to dismiss. That, in fact, is what every parent assumes the public education entitlement to be. Lesson plans and class-driven pedagogy are not the norm because they are the most desirable, or the best, teaching tools. They prevail because they are, simply, what we can afford.
Teaching 20-30 heterogeneously grouped children – the norm throughout America – is an impossible task for one person to individuate. It works because it can be scaled, because children can be grouped, because lessons can be planned class-wide, with room for individual variation within them. A child who sits in an elementary classroom with 24 others, for five 40-minute periods a day with a single teacher receives on average only eight minutes a day of that teacher’s attention, 40 minutes per week. Meaningful teaching can therefore only work if children can be lumped and taught together. And the premise of the regular education classroom is that the most able children can fend for themselves, the four standard deviations or so in the middle can be heaped, and individual program development need only be devoted to a tiny group at the very bottom of the distribution.
To accomplish this, those children’s teachers need time. And time comes down to class size. A recent new York Times article described a policy model that suggests that decreasing class size, by itself, has little impact on how much children learn. The reason for this, the article suggested, is that class size is not the sole, or even the key, variable in what it takes to deliver more intensive instruction to a child. The crucial variable, instead, is the average disruptiveness of the children in the class. When disruptiveness goes up, on average, effectiveness goes down.
It would seem, given this model, that maintaining order, not class size, is the key to productive teaching. But that notion is deceptive. What the model calls ‘disruptiveness’ could more neutrally be described as the degree, on average, of each child’s need for individual teacher attention. The more that need for individualization goes up, the less effective overall collective, class-based teaching can be. And, the research suggests, the more important class size becomes. In short, when the demand for individual instruction increases, the only way for teaching and learning to happen is for class size to come down. And that is precisely what IDEA delivered to every special education classroom in the country (without ever fully paying the cost). [Among the most labor-intensive examples of the ways in which resource demands are linked directly to the need for individual attention lies in the developing caselaw surrounding programs and services for autistic youngsters. Chapter 7.]
The third, least visible reform, lay in the way that the Act has (until very recently) demanded an individuated audit trail of the delivery of resources to children. Through the IEP, and close monitoring of State and Local Education Agency practices, IDEA insists that the resources required to deliver each child’s IEP-mandated services must flow from the very top of the system down to the individual child’s desk. Mechanisms have been put in place to mandate this at the macro level, and the due process afforded by the Act in theory ensures its delivery at the micro level. The key has been deceptively simple: the class size and related services lines of an IEP drive resource allocations. Armed with those few lines of IEP language, parents can seek enforcement, one child at a time, wrenching the needed resources -- out of the system. (See Chapters 9-16.)
The bottom line – from a resource perspective – is that special education classes are, on average, less than half as large as regular education, and the cost of special education, on a per child basis, is more than twice as high. And, from a teaching/learning perspective, the difference has been the gradual shift from a class-based to an individual-based pedagogical model.
This shift, and the resource allocation disparity required to drive it, has been supported through a hidden coalition that has been surprisingly stable for a quarter century: The parents and advocates of children with special needs have sought services and the resources they require; teachers and administrators have wanted to remove challenging (in all senses of the word) children from the large classroom model (quite simply because their demand for individual teacher attention causes that model to break); and the parents of children in regular education (aka taxpayers) have wanted those kids out of their child’s classroom (both because they implicitly have understood that children with special needs violate the assumptions of class-based education and thereby interfere with the system’s capacity to serve their children, and because, in many cases, they are simply intolerant of difference). It is not a coalition built on either purity of vision or identity of goals, but it has worked, since the inception of IDEA, to protect special education and to keep the needed resources flowing.
As federal social policy mandates go, it has been a long and almost entirely smooth run. But the coalition is crumbling, or perhaps more properly re-forming around values with interests that run directly opposite to those initially embodied in IDEA. The effect may well be that we are on the threshold of the most significant attack on special education programs and resources since the inception of the law. (See, e.g., Chapter 5.)
The challenge derives from three distinct critiques: Special education is too expensive, it doesn’t work, and it is anti-egalitarian.
Each appeals to one or more part of the coalition that had supported the IDEA model. When fully a quarter of a school district’s budget goes to support only 10% of its children, when regular education classrooms are overfull and buildings crumbling from deferred maintenance, when regular education budgets are cut or held to zero but special ed budgets grow as a result of unforgiving mandates, when there are not enough textbooks in the regular education classrooms, or enough school buildings, or enough money to address any of these problems, the politicians and taxpayers start sharpening their budgetary knives.
Articulate, moderate, reasonable claims are being made from both the left and the right that our current law drastically over-resources special education at the expense of other compelling social claims on the limited government resource pool. See, for example, Mark Kelman’s and Gillian Lester’s trenchant policy critique Jumping the Queue, in which two Stanford law professors argue (in a book published by Harvard University press) that IDEA improperly deflects tax dollars away from crucial social needs and into the dubious dead end of teaching learning disabled youngsters. (See the inquiry reflected in Chapter 3.)
Second, regular education teachers and administrators, and to a certain degree the parents of children with learning disabilities and affective disorders, have come to distrust the special education system. Starting from a model derived from medical treatment of acute disorders, many implicitly believe that the goal of special education is, if not cure, remediation of the problem to such a degree that no further intervention is required. Measured against this standard, the system comes up very short indeed. Too many children remain far behind their able peers. Too many children enter special education and simply stay there. Too many children don’t seem to progress any better in special education classrooms than they had been in regular education.
This problem is starkest in large urban school systems, and, among those, perhaps starkest of all in New York City. It is so pervasive that the system itself, despite being driven to despair in regular education classrooms, so distrusts special education that it grossly underrefers children to special education citywide. As a percentage of children living in the district’s geographical catchment area, New York City refers roughly 20% fewer children to special education than does the rest of the state, more than a quarter fewer than the other four large cities in the state. Surely there is nothing about New York City that would lead us to assume that there are fewer children per capita here in need of special services, and a good deal to suggest that we likely have the highest level of need in the state. And yet we are among the most reticent sizeable school districts when it comes to referring children to special education.
There are consequences to this reticence. A significant number of children who would be receiving services if they lived elsewhere in the state don’t get them in New York City. Our regular education classrooms have not only higher student: teacher ratios than the rest of the state, they have classes with a higher proportion of children who need individual attention. Our tolerance of unaddressed failure within regular education is higher than in the rest of the state and regular education classroom performance is lower (for this and other reasons). Because something like a third of the children who might be expected to receive resource room, related services only, or consultant teacher services (the range of IEP mandated services that might flow to youngsters who nevertheless remain in a regular education class), those who do get referred to special education in NYC are disproportionately placed in segregated settings.
When one
corrects the data to take into account this under-referral generally (by
comparison with the rest of the state), New York City actually has among the
smallest proportions of youngsters in segregated special ed settings. But because of the under-referral it
appears, spuriously, that just the opposite is the case. (See Chapter 4.)
The important point to note here, however, is that the system simply does not believe in itself. There can be no other explanation for the under-referral pattern in the context of an otherwise stressed system. Neither regular education teachers nor special education teachers believe that the system works. Imagine what that says about administrators, politicians, and the parents of children with significant individual needs.
Finally, highlighted by this global lack of belief in the capacity of the system to intervene effectively, the third policy critique notes that actual referrals are anti-egalitarian in two distinct and disturbing senses. (See Chapter 4.)
On the one hand, the children who are referred are not an average cross-section of those who need services. They are children who, disproportionately, act out or disrupt the class, children whose parents, disproportionately, are not actively engaged in monitoring their school program, they are the children, disproportionately, of poor and powerless parents, of absent parents. Even within the system, one observes disparate impact on children whose demographics co-vary with poverty, disempowerment, and disenfranchisement. They are more frequently in segregated classes, more frequently in segregated schools, more frequently identified as emotionally disturbed, less frequently placed by the district in private special education schools, and least frequently of all awarded funding by the due process system for unilateral parent placements in private special education schools. (See Chapter 8.)
On the other hand, by segregating these youngsters we stigmatize them and create situations in which it is easy for other children and teachers, and administrators (and let us not forget the parents of other youngsters) to scapegoat them. We undermine their self-esteem, even though precisely that – self-esteem – may well be the single most important teaching mechanism, the resource these children most urgently need. (See the section on Inclusion in Chapter 2.)
These three critiques are forging a new coalition to undercut the hitherto stable special education model derived from and mandated by IDEA. There is a rising wave of demand that money be freed from the special education budget, that children be returned to regular education classrooms, that the audit trails and individuated instructional strategies demanded by IDEA be massaged into a holistic model that is less segregating, more egalitarian, and far more difficult to hold accountable. (See Chapter 5.)
It is important to note that this new coalition is no more cohesive or rational at its roots than its predecessor. All studies suggest that inclusive education is more costly, not less, than segregated instruction. The simple mechanics suggest that these economics will be difficult to override: a teacher who has to serve fifteen children in a single classroom will be able to do so with fewer transaction costs than one who has to travel to five or seven different classes to work with them. Educators understand this and call for increased funding when they propose inclusive models. But the politicians respond system embracing the model but not the budget. For better or worse, we are moving towards a model that, unintentionally, makes it easier for children to languish without making progress, to be denied services without being able to audit their provision or demand their reinstatement.
And it is far from likely that we will eliminate or even diminish stigma. What will happen when we place special education youngsters back in regular education, only to remain far behind their peers in that setting? Will we hold them back on the basis of results from high stakes testing? (See Chapter 20.) How many times can a child take third grade? And won’t stigma follow from summer school, from being held back, from being clustered in a class for children who still are not anywhere near grade level despite having been held back multiple times? What will we call small classrooms of twelve year olds reading at a first grade level, with intensive teacher intervention when we no longer call it ‘special ed’? Or perhaps we won’t segregate those handfuls of children, the five to seven per cent who make little progress from year to year. Will that require a return to automatic promotion? Or will we simply look the other way? Will those children be free from stigma and scapegoating? Is it any surprise that federal attention has largely shifted from provision of services for the disabled to defining parameters for disciplining the unruly? (Chapter 19.)
As we enter the new millennium and the IDEA’s second quarter century, these challenges and the new coalition they represent will shape newly emerging special education policy and re-form it. And they unfold in the context of larger educational and social policy shifts: the core image of what makes a school public is challenged by vouchers and the charter school movement (Chapter 18); the federal state balance in setting social policy is shifting (Chapter 17).
Those just coming into the practice are entering at a time when those with more experience are no more expert than they about what to expect around the next bend. For lawyers and educators alike, the range of ethical issues invoked by serving disabled youngsters is widening, not narrowing. (Chapters 21-23.) In New York City the entire system is bracing for massive changes to be implemented next fall. (Chapter 5.) Inevitably, those changes (in a system of well over a million children, of whom almost hundred and fifty thousand have IEPs) will be rocky and generate glitches. Some have predicted a trebling of special education hearing requests and hearings for the coming year, and that surely underestimates the urgency of the demand for close monitoring, both individual and systemic, of the effects of the changes,.
The small special education advocacy community needs every new pair of eyes and ears it can recruit to work within and with (and occasionally against) the system as it evolves. In large measure that is the goal of this program: to train professionals new to the field and to sensitize and prepare experienced practitioners for the changes ahead.