Why I am an Optimist about Fixing Special Education

I believe in the American dream. As a naturalized citizen, I know that our “streets are paved with gold,” and you can do anything you choose. And it’s here that, when challenges arise and we’ve finally “had enough,” we confront and conquer them.

Examples? We finally are hearing about technology’s addictive power over children and its damaging effects on our democracy. Then there are the #MeToo and Black Lives Matter movements that seemed to rise out of nowhere and travel around the globe. And, the new attention to guns and mental illness that followed Parkland.

There comes a moment when enough is enough! We roll up our sleeves and get to work. Yes, this is America — the land of challenges, big thinkers, innovators, and problem-solvers. Same, I hope, will finally engulf my area of concern: our public schools — especially, the ever-expanding and dysfunctional special education system.

It will happen when….

…the public realizes that today’s students with disabilities (SWD) are not who they think they are.

The vast majority are not cognitively impaired and do not need wheelchairs; instead, 80–90% of SWD have what are called “invisible disabilities” that manifest from learning, emotional and/or communication issues and are educated mostly in general education classrooms with in- or out-of-class assistance and support. The 1975 special education law — enacted when many SWD were excluded from school, is still with us — even though it fulfilled its mission long ago. We now educate more than 6 million students under this law — 13–14% of all students. No one is excluded. Yet the system continues to grow out of control, morphing into an over-reaching institution, and becoming increasingly dysfunctional.

…the public understands that these students and their parents still have an individual entitlement protection from their schools — the ONLY entitlement in our schools.

You read that right — because it’s a private enforcement system, tasking parents with its enforcement, they can and do sue schools (putting teachers on the witness stand!) if they dispute their child’s procedures or program. We now have a “mansion industry” of lawyers, bureaucrats, evaluators, educators, and enforcers to service the law, creating a stranglehold on educators and parents alike.

Special education teachers spend much of their school day on bureaucratic requirements (practicing defensive education to avoid that witness stand!) and, by report, have 27% of the day left for teaching. Many leave the field, creating a teacher shortage that can lead to schools hiring inexperienced or unqualified candidates for these posts. It goes without saying that, often, trust between school and home is killed.

…the public finds out that, combining special and general education costs for SWD, an estimated 40% of school budgets is spent for them, leaving 60% for the other 87% of students.

These are rough estimates because, shockingly, we lack actual numbers, as the federal government does not seem to collect them! We spend 143 times more for these students than we do for the 5–6% who are labeled as gifted and talented.

…the public learns that special education’s impact on schools is far-reaching, yet largely not researched.

Approaches such as focusing on the LRE (least restrictive environment) through mainstreaming/ inclusion and differentiated instruction, student discipline, the misuse and overuse of “accommodations,” and the use of computers to create so-called “specialized instruction” (to name a few,) lack objective research support, especially about their effects on all students. Citizens may well ask why funding is often unavailable to delve into the potential negative effects of today’s government-induced approaches, especially when NAEP test results, the “nation’s report card,” suggests that achievement among identified SWD has been flat over many years. Surely, if this were a business model, it would have been scrapped long ago! Given the above, is it surprising that many parents silently abandon public schools for their own children, leaving public schools ever more for the “have-nots?”

…the public has finally had enough and begins to ask whether there’s a better way to educate all students.

Surely there must be! Here are starter nuggets for big thinkers, innovators, and problem-solvers:

First, for ALL students, build a laser-sharp focus on improving outcomes for all students, from the neediest strugglers to the most advanced — without labels or an interfering “mansion industry.” We know that better general education means less need for special education. Provide targeted, early intervention for all students, universal design for instruction that maintains standards. Leverage student strengths to address or compensate for weaknesses while enrolled in school, preparing them for life beyond graduation. And create competency-based approach for all learners. For examples of successful models around the country, please visit https://www.competencyworks.org/

For SWD —

1. Focus on the LIN — least intervention necessary — instead of the LRE approach. Let us focus on students, not classroom location, as we know that providing more intervention for a student who doesn’t need it impedes, not enhances, her progress.

2. Question why we still need an individual legal entitlement for students with mild and moderate needs who spend most of their time in general education settings. And, why do we still need diagnoses/labels as gatekeepers for services for most SWD, as today’s system requires? It’s a damaging “wait to fail” model. Instead, provide collaborative, trust-building (not killing) needs-based programs for all students, supported by objective and reliable research, without an intrusive and costly entitlement for any group. For the 10–20% of students with severe or profound needs, convene a task force to create an effective, outcome-based approach to address their unique needs going forward.

3. Create and support a community of learners and teachers. Free educators to teach by shedding burdensome regulatory straitjackets. Teachers should spend time with students in classrooms, not lawyers in courtrooms. Define and require participation by educators, students and parents. Education does not happen to a student — it’s an active sport requiring effort by all. Stop blaming only teachers and schools for gaps that don’t close. Instead, honor them, as many countries do, and spread accountability among all participants.

When we finally wake up to the fact that the current 40+ year-old system is broken, America’s can-do spirit will kick in. We will build on the law’s success in providing access for all SWD. We will join together, speak honestly to one another, think BIG, and, in the American way, build a sensible, effective, second-generation approach for all students.

Times-Up on special education as we know it!

Miriam Kurtzig Freedman’s latest book is Special Education 2.0 — Breaking Taboos to Build a NEW Education Law (2017). She acknowledges with deep appreciation the inspiration and leadership provided by Dr. Steve Sandoval, Westminster Public Schools, Colorado. As a lawyer, she represented public schools for many years, following her career as a teacher and hearing officer. As a thought-leader and writer, she speaks to local and national audiences. Please visit her website: www.schoollawpro.com.

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!