Special education post-pandemic — what and how?

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As a passionate supporter of public schools since the time I arrived as a nine-year-old immigrant who spoke NO English — on an ocean liner that docked in Hoboken, New Jersey and, within months, was lucky to attend New Jersey’s then wonderful public schools, I know that we need to fix special education without delay. Also ask any superintendent!

Let’s start here. Today’s headlines tell us three very critical and disturbing facts about our public schools.

First, public school student enrollment is down — across the board, with special declines at kindergarten levels. Many parents are not sending their children to school. Instead, they are seeking and creating other options for them.

Second, state and local funding for public education is far down. All those businesses that were forced to close because of the pandemic, all the stay-at-home orders are leading to less tax revenue. In fact, instead of contributing to the general fund, many businesses are receiving funds from public sources. While the federal government may (and probably will) pour new dollars into public schools, those dollars come with strings attached and will not make up for the lack of local public funding. This is very troubling, especially as even before the pandemic, there was already some movement toward less support for public schools for all children.

Third, the teacher shortage has gotten worse, especially among special education teachers. The stress and tensions of the job do not help.

This is clearly a time of turmoil, a time that nominated Secretary Cardona urges that we “forge opportunity out of crisis.”

So, what’s happening in special education? Special education is the federal program for students with disabilities, enacted in 1975 as the IDEA (Individuals with Disabilities Education Act). Today, that law provides services for some 14% of US students. The costs? It’s hard to estimate, as Congress has not demanded an accounting. By estimates, the costs for special education services are around 21% of school budgets and for educating students with disabilities — accounting for both the general and special education services they receive –estimated at 40% of school budgets. Think about that!

If we are concerned about meeting public needs in public education, as I am, I believe that we must put the special education program on the agenda. Yet, a recent Education Week report, tracking Cardona’s views on education, highlighted five issues — Reopening Schools, Charter Schools, High-Stakes Testing, English-Learners and Students of Color, and Teachers & Unions. Not a word about special education ! I do believe this is a missed opportunity that we must correct! Where Biden’s Choice for Education Secretary Stands on Key K-12 Issues (edweek.org)

Even in these dire times, it appears that burdensome bureaucratic requirements continue and have not budged. As well, special education lawsuits continue — both in reality and as in the constant fear of litigation. A brief discussion with a data analyst revealed that nothing has changed in the regulatory space — the same numbers are still being crunched as in pre-pandemic days. As well, my quick informal inquiry about the types of lawsuits that are typically being brought now illustrates the essence of our overwhelming challenge: Whither special education after the pandemic?

The first type of lawsuit grows out of the reality that many school districts now serve only the most vulnerable students in person — students with disabilities who have severe or profound needs — while most students are remote. Not surprisingly, parents of children with milder needs are bringing claims to have their child in school also — claiming that the child is more disabled than the district had determined.

The second type of lawsuit concerns compensatory education — the lawsuits we’ve been expecting. Such lawsuits attempt to make up for services, skills and knowledge lost during the pandemic. It is true beyond doubt that many students with disabilities have suffered learning loss and that many services were not provided. Therefore, these claims will generally prevail.

But, a fact overlooked often in our discussions about special education is that such types of loss are also true for many general education students, especially poor, non-English speakers, homeless, etc. The press excitedly reports the rise in F’s across the country and the fact that many students have dropped away — not logging into remote learning at all! Houston, we have a huge problem!

Yet, only students with Individualized Education Programs (IEPs) under the IDEA are entitled by law to compensatory education. Phyllis Wolfram, the executive director of the Council of Administrators of Special Education warns that if we pay all compensatory services that may be owed to students with disabilities, “It would break the system of public education.” Think about that! Is that what we want for any or all of our children and our public schools?

What is the essence cited above? Special education, the entitlement law of rights through the labeling of a small group of students — can expect that small group to continue to expand until the system breaks down. As I see it, we are there now — at system breakdown.

In many ways, the law of good intentions has grown beyond recognition since 1975 — and become ever more expansive in terms of the student labels that it now includes, ever more costly and complex — all the while with questionable success for the students it serve. And, I daresay, intrusive on the continued effective functioning of public schools for all students. Yet, it’s often the third rail — not discussed in polite company!

What to do instead? Here’s a controversial path forward. It is time to acknowledge the obvious so that we can create a sensible path forward. During this pandemic, many school districts worked within the reality that there are in essence, two groups of students with disabilities –the vast majority who have mild/moderate needs (who make up 80–90% of the students covered by this law), and those with profound/severe needs (who make up 10–20% of the students covered by this law). Many schools serve just this latter, smaller group in person. This division also tracks the 2017 Supreme Court decision, Endrew F. v Douglas County. We do have two distinct groups of students with disabilities with very different needs — yet still served under this one complex (and yes, burdensome) law. The fit is not great. One size law no longer fits all. What can we do about that?

The pandemic has also exposed the fact that the vast majority of students with disabilities — the 80–90% — who have mild and moderate needs and their general education peers (especially students who struggle in school), surprisingly, are in rather similar straits now. The gaps among these groups have widened; many students have fallen behind — in both groups. Many have been underserved, to say the least.

A solution? These students need schools to more than ever — to provide better general education. Better teaching. Better instruction. More focused lessons. Personalized as needed. These students need education more than they need “special” education.

Luckily, we have superb models. Please check out competency based education (CBE), as practiced in Westminster Colorado. — Where Education is Personal. https://www.westminsterpublicschools.org/cbswps. And see, in general, the Aurora Institute. https://aurora-institute.org/our-work/competencyworks/competency-based-education/

Another successful model is the “Reading Guarantee” — whereby schools guarantee that every student is able to read and to keep at it until success is achieved. Please check out Nate Levenson’s work and his new book, Six Shifts to Improve Special Education. Since most students with mild or moderate disabilities enter the system because they did not learn to read, this approach is promising. Be direct. Teach reading so these students can fly!

There are many other promising models and fabulous professionals working across our nation for all students who need our support. As I see it, the special education law should no longer include these 80–90% of students as the system has become dysfunctional — and is oven not helpful for the students it seeks to help. The law and its bureaucracy are still way too much about inputs and not enough about outcomes. For example, labeling a student in order to serve him is often not helpful — in fact, it damages many. See, for example, Kalman Hettleman’s writings. https://www.baltimoresun.com/opinion/op-ed/bs-ed-op-0326-special-education-20190320-story.html. Far better for them — along with their general education peers — to get the best possible general education services as quickly as possible.

For the 10–20% of students with severe or profound needs — yes, law’s entitlement should remain in place. Perhaps a task force of all stakeholders can develop a better way forward — that focuses on appropriate education more than compliance or legal procedures.

This need is huge, as I see it. If we don’t fix this, our public schools are in peril. Special education needs to be on that list of issues of concern in the new Biden administration. It can no longer be treated as a third rail.

If it’s not, we’ll see more parents exit as they believe that efforts by schools do not focus on their children. We’ll see less public support for public education. Already, those trends have started. Ultimately, my fear is that broken policies that keep on keeping on and don’t focus on ALL students will leave our public schools evermore for the have nots, the students who can’t leave. Such a development would be tragic — as public education is the backbone of our democratic republic. We need a new model that will make the current old one obsolete, to quote Buckminster Fuller. I’ve set out one controversial path. What is your path?

As a passionate supporter of public education, I see the pandemic as the opportunity to finally fix our very broken system and build schools that can work for all students. Our nation needs that now more than ever. I stand ready to help the Biden administration and Mr. Cardona — as do many of my colleagues and supporters. This matters!

Miriam Kurtzig Freedman is an attorney, reformer, and author. Her latest book is Special Education 2.0. And, check out her pandemic medicine bottle art!

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