Yale - 2009 Fall - Readings - Public Schools Policy - Case VI Greenwich

Case VI:

Students with disabilities in Greenwich, Connecticut

(3 March)

Yale University Political Science Department

PLSC240 Spring 2009

John Bryan Starr

Case I: Students with disabilities in Greenwich, Connecticut

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Table of Contents The case

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Document #1: Connecticut State Department of Education, Bureau of Special Education and Pupil Services, A Parent’s Guide to Special Education in Connecticut, (Hartford, CSDE, 2001) Excerpts.

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Exhibit #1: Special Education Statistics

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Exhibit #2: The Changing nature of students’ disabilities

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Exhibit #3: Timeline of events in special education legislation

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Document #2: Lorraine M. McDonnell, Margaret J. McLaughlin, and Patricia Morison (eds.), Educating One and All: Students with Disabilities and Standards-Based Reform (Washington, D.C.: National Academy Press, 1997 pp. 46-112.

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Document #3: Joetta L. Sack, “Special education designation varies widely across country,” Education Week, June 24, 1998.

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Document #4: Lisa Fine, “Studies Examine Racial Disparities In Special Education,” Education Week, March 14, 2001

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Document #5: Lisa Fine, “Report Offers Solutions to Special Education Disparities,” Education Week, January 23, 2002

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Document #6: Christina A. Samuels, “Minority overrepresentation in special education targeted,” Education Week, October 12, 2005.

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Document #7: Joetta L. Sack, “States Report Trouble With Special Ed. Testing,” Education Week, March 15, 2000

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Document #8: Joetta L. Sack, “Researchers Warn of Possible Pitfalls In Spec. Ed. Testing,” Education Week, April 19, 2000

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Document #9: Joetta L. Sack, “Alternate-Test Plans Prove Challenging,” Education Week, June 21, 2000

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Document #10: Christina A. Samuels, “Special education test flexibility detailed: Not every state may want to seek relief this year, Spellings says,” Education Week, May 18, 2005.

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Document #11: Christina A. Samuels, “Flexibility detailed for testing students with disabilities,” Education Week, January 4, 2006

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Document #12: Christina A. Samuels, “Ed. Dept. releases final rules on tests for special education students,” Education Week, April 4, 2007.

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Document #13: Christina A. Samuels, “Advocates for students with disabilities balk at proposed NCLB changes,” Education Week, July 6, 2007.

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Document #14: Joetta L. Sack, “Congress Poised To Increase Funding For Special Ed.,” Education Week, April 12, 2000

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Document #15: Erik W. Robelen, “Senate Backs ‘Full Funding’ Of Special Ed.,” Education Week, May 9, 2001

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Document #16: Lisa Fine, “IDEA Funding Plan Draws Fire In Washington and Beyond,” Education Week, May 16, 2001.

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Document #17: Joetta L. Sack, “Lawmakers, Paige Debate Reform, Funding as IDEA Overhaul Looms,” Education Week, October 10, 2001.

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Document #18: Lisa Fine, “Senate Democrats Hope to Pass IDEA Overhaul This Year,” Education Week, March 27, 2002

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Document #19: Andrew J. Rotherham, “The Politics of IDEA Funding,” Education Week, October 9, 2002.

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Document #20: Lisa Fine Goldstein, “Election Results Boost Special Ed. Vouchers,” Education Week, December 4, 2002

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Document #21: Lisa Fine Goldstein, “A Better IDEA: First Draft May be Sanitized Version, Education Week, February 12, 2003.

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Document #22: “Proposed IDEA Changes,” Education Week, March 26, 2003.

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Document #23: Christina Samuels and Erik W. Robelen, “Congress passes IDEA reauthorization,” Education Week, November 22, 2004.

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Document #24: Diana Jean Schemo, “Parts of Special-Ed Bill Would Shift More Power to States and School Districts,” New York Times, November 22, 2004.

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Document #25: Andres Trotter, “Supreme Court rules for school district in IDEA case,” Education Week, November 14, 2005.

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Document #26: Mark Walsh, “Justices rule against parents in IDEA case,” Education Week, July 12, 2006

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Document #27: Mark Walsh, “High Court backs parents’ rights to argue cases under IDEA,” Education Week, May 21, 2007.

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Document #28: Mark Walsh, “Court is split on IDEA private-placement case,” Education Week, October 17, 2007.

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Document #29: Joetta L. Sack, “CEC Report Tracks ‘Crisis’ Conditions In Special Education, Education Week, October 25, 2000.

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Document #30: Christina A. Samuels, “Response to Intervention’ Sparks Interest, Questions: Critics say approach depends on too many complex factors,” Education Week, January 18, 2008.

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Document #31: Bruce Marlowe, “The Special Education Conundrum,” Education Week, April 18, 2001

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Document #32: Laurence M. Lieberman, “The Death of Special Education,” Education Week, January 17, 2001.

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Document #33: Clint Bolick, “A Bad IDEA Is Disabling Public Schools,” Education Week, September 5, 2001

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Document #34: Arthur Levine, “Tomorrow’s education made to measure,” New York Times, December 22, 2000.

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Exhibit #4: Funding special education in Connecticut

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Background information on Greenwich and its public schools

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Exhibit #5: School system statistics

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Exhibit #6: Greenwich School Governance 148

Exhibit #7: Strategic School Profile, Greenwich Public Schools, 2006-07 (Available at: http://www.sde.ct.ov/sde/site/default.asp)

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Exhibit #8: Special Education Strategic School Profile, Greenwich Public Schools 2005-06 (Available at: http://www.sde.ct.ov/sde/site/default.asp)

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Document #35: Richard Dempsey, Claire Gold, Lois Libby, and Kate McGraw, A Study of the Effectiveness, Efficiency, and Management of the Special Education Program in the Greenwich Public Schools (Ridgefield, CT: Educational Leadership Services, Inc., November, 1997). Excerpts.

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Document #36: Interview with Mary Forde, Director of Pupil Personnel Services, Greenwich Public Schools, 11 February 2005.

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Suggested Study Group Questions

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Appendix #1: Last year’s clarifying questions 186

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The case. The Education for All Handicapped Children Act of 1975 was the federal government’s first venture into mandating special treatment in America’s public schools for special needs students. Although the act, and its successor, the Individuals with Disabilities Education Act (IDEA), proposed to cover 40% of the cost of this special treatment, the bill was initially funded at 5% and has never provided more than 15% of the funds needed to provide the mandated services. The balance is made up, of course, by states and local districts. Two other pieces of legislation affect the way in which special needs students are provided an education. Section 504 of the Rehabilitation Act of 1973 “prohibits discrimination, solely on the basis of disability, against otherwise qualified persons in federally assisted programs and activities.” Section 504 is different from IDEA in the following ways: (1) it applies to all education institutions that receive any type of federal funding, (2) it mandates that education benefits be comparable between disabled and non-disabled students, (3) it includes all disabled students, whether or not they are special education identified, and (4) it requires reasonable accommodation for individuals with disabilities. The Americans with Disabilities Act (1990), the third piece of relevant legislation, extends access to state and local programs irrespective of the receipt of federal funding. All public schools must comply with ADA. There are a plethora of policy issues embedded in the question of how best to serve the needs of disabled students. First, how are students identified as eligible to receive special education? What are parents’ and students’ legal rights and how are they protected in the identification process? Second, recent versions of the IDEA legislation press toward including special education-identified students in “mainstream” classrooms to the maximum extent possible. What challenges does this pose for teachers? What is the effect of inclusion on the “mainstream” students’ education? Third, to what standards should special education students be held? Should they be included in the state testing program at all and, if so, what accommodations are appropriately made for them? How should their scores on state tests be counted in the rating of school performance? Fourth, what level of government should provide what proportion of funding for special education? Finally, at what level of government should these four clusters of policy issues be addressed? We look at Greenwich, Connecticut as our case study for considering special education. The town was cited, some years ago, as having had a serious problem of over-


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identification of special needs students driven, it was said, by parents eager to gain the benefits for their children of untimed testing. The identification rate in Greenwich High School in 1997 was said to have reached a figure of close to 33%. The town addressed the problem, in the first instance, by hiring a lawyer as its Direct of Special Education. Today, at 11.6%, the identification rate is much closer to the state and national average. Nonetheless, the district spends $28.2 million on its special education students, twice the per student expenditure for regular education, and 23% of the total district budget. Greenwich is also included as a case study in the course to provide us an opportunity to look at the strengths and the shortcomings of a high-performing, well-funded suburban district. It has excellent facilities and a highly qualified and dedicated faculty. The school budget is generous, and is funded almost exclusively from local property tax revenues. There is an active parent community deeply engaged in their children’s education. Ninety percent of Greenwich High School graduates go on to post-secondary education. Unlike many of its neighboring districts in affluent Fairfield County, however, Greenwich has a minority student population of close to a quarter of those enrolled. Meeting the needs of minority students and assimilating them into the student community poses special problems for the district.

Document #1: Connecticut State Department of Education, Bureau of Special Education and Pupil Services, A Parent’s Guide to Special Education in Connecticut, (Hartford, CSDE, 2001) Excerpts. Special Education and Related Services What is special education? Special education is provided to a child with an identified disability who needs a specially designed instructional program to meet his/her unique needs and to enable the child to access the general curriculum of the school district. It may include special classes, programs, or services. Special education is provided at no cost to you or your child. As a parent of a child who has or who may have a disability that requires specially designed instruction, you will work with a team of educators and, as appropriate, specialists to determine the needs of your child and to design an appropriate program to address your child’s educational needs. What are related services? Related services are those services that are required in order for a child to benefit from special education. Related services may include, but not be limited to, psychological and counseling services, language, speech and hearing, guidance, social work, transportation, physical and occupational therapy and medical services that is required for diagnostic or evaluation purposes… Eligibility


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Who is eligible for special education and related services? To be eligible for special education and related services:

• your child must be between 3 and 21 years of age; • your child must have one or more of the following disabilities:

o autism; o deaf-blindness; o deafness; o developmental delay (for 3 to 5-year-olds, inclusive); o emotional disturbance; o hearing impairment; o intellectual disability (mental retardation); o multiple disabilities; o neurological impairment; o orthopedic impairment; o other health impairment (i.e., limited strength, vitality or alertness due to

chronic or acute health problems such as asthma, attention deficit disorder or diabetes, that adversely affects a child’s educational performance);

o physical impairment; o specific learning disability; o speech or language impairment; o traumatic brain injury; or o visual impairment, including blindness.

• the disability must adversely affect your child’s educational performance; and • your child requires a specially designed instructional program to address his/her

unique educational needs. A school district is also required to provide identification, referral and evaluation services for a child who may be gifted and/or talented. A district has the option of providing services to a child who has been identified as being gifted and/or talented. Referral to Special Education What is a referral to special education? A referral to special education is a written request for an evaluation of a child who is suspected of having a disability and who may be in need of special education and related services. A referral to special education may be made by:

• the student, 18 years of age or older; • a parent, guardian or surrogate parent; • school personnel; or • other individuals from other agencies (e.g., physicians, social workers) to

whom parental permission has been given.


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A prompt referral to a planning and placement team…is required for any child who has been suspended repeatedly or whose behavior, attendance, or progress in school is considered unsatisfactory or at a marginal level of acceptance. What if my child hasn’t started school, but I suspect a disability may exist? If you believe that your child may have a disability and he/she has not started school yet, you may refer your child for an evaluation by submitting a written request to the Director of Special Education in your local school district. For further assistance in referring your child for an evaluation, you may call the State Parent Assistance Line at 1-800-842-8678. What happens when a referral to special education is made? When your child is referred to special education, you will receive written notice of this referral. You will also receive a notice asking you to participate as a member of the school’s Planning and Placement Team…to review existing evaluation data that the school district has on your child and, if appropriate, to determine whether there is a need for any additional data. Your participation in this process is very important. If the PPT decides that additional data is needed in order for it to determine that your child is a child with a disability, you will work with educators and, as appropriate, specialists to design the evaluation procedures for your child. If you disagree with the PPT’s decision to conduct an initial evaluation, you may refuse consent for the evaluation. In this case, the school district may continue to pursue those evaluations by using due process. If the PPT refuses to evaluate your child, you may exercise due process to contest its decision… Planning and Placement Team… What is a Planning and Placement Team? A Planning and Placement Team…reviews referrals to special education, determines if your child needs to be evaluated, decides which evaluations will be given to your child, and determines whether your child is eligible for special education services. As a valued participant of the PPT, you will be working with teachers, school administrators, pupil services personnel, and, as appropriate, other specialists whose expertise may be helpful in designing and interpreting your child’s evaluations. Individualized Education Program Team What is an IEP Team meeting? An individualized education program…team meeting is convened by the school district for the purpose of developing an individualized education program for a child who has been determined to be eligible for special education and related services. The PPT is responsible for reviewing, and as appropriate, revising your child’s IEP periodically, but


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not less than annually. The PPT is also responsible for conducting an evaluation of your child and to process any information that you provide the team for review.


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You have the right to participate in PPTs held for the purpose of:

• planning and reviewing evaluation and reevaluation results; and • developing, reviewing and revising your child’s individualized education

program… The school district must try to schedule PPT meetings at a time and place convenient for both you and for the school staff. The school district may hold a PPT meeting without you being present if it has made repeated attempts to include you and you are unable to attend the scheduled meetings. Your school district must document the results of its attempts to have you participate in the scheduled meetings. At a PPT meeting, you have the right to:

• expect the school district to ensure that you understand the proceedings of the meeting (which may include arranging for an interpreter or sign language interpreter);

• participate in meetings through such means as individual or conference telephone calls, if you cannot attend;

• tape-record the meetings as a means to help you understand the proceedings. A school district may also choose to tape-record the meeting. If either the school district or the parent records the meeting, all participants in the meeting must be informed that they are being taped; and

• invite advisors of your own choosing, at your own expense, to be present at and to participate in all portions of the meeting that are convened for the purpose of developing, reviewing and revising the IEP.

Notice of PPT Meetings How will I be invited to participate in PPT meetings? To assure that you have the opportunity to participate in PPT meetings that are convened for the purpose of developing, reviewing or revising an IEP, the school district must try to schedule these meetings at a mutually agreeable time and place, or arrange for you to participate. If the meeting is scheduled at a time that is not agreeable to you, you can ask the school district to reschedule the meeting or to arrange for your participation in the meeting through an alternative method, such as a conference telephone call. The school district must notify you in writing at least five school days prior to the meeting to ensure that you will have an opportunity to attend the meeting. What information must be included in the notice of a PPT meeting? The written notice of a PPT meeting is provided to you to facilitate your participation in the PPT process. The written notice must state the purpose, time and location of the meeting and must be provided to you at least five school days prior to the meeting, in your dominant language. The written notice must include the following information:

• Inform you of who will be in attendance at the meeting;


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• Inform you of your right to invite other individuals to the meeting who have knowledge or expertise regarding your child or who may provide support;

• If your child is 14 years old or younger, the notice must indicate (if deemed appropriate by the PPT) that the purpose of the meeting will be the development of a statement of your child’s transition services needs, and that your child is invited to attend the meeting; and

• If your child is 16 years old or younger, the notice must indicate (if deemed appropriate by the PPT) that the purpose of the meeting will be to consider needed transition services for your child and that your child is invited to attend the meeting.

Informed Consent What does informed written consent mean? Informed written consent means that you have been given all the information that you need to make a knowledgeable decision about a proposed activity by your school district regarding your child’s education and that you agree in writing to that proposed activity. You have the right not to give your consent. You have the right to revoke your consent at any time. Your failure to respond within ten school days to a request for a written consent will be considered by the school district to be a refusal of consent except when your consent is being sought for a reevaluation of your child. When must the school district obtain my written consent? Your written consent is required in the following situations:

• Before your child is evaluated for the first time to determine whether your child is eligible for special education;

• Before your child’s initial placement into special education; • Before your child is placed in a private placement; and • Before your child is reevaluated. (However, if the school can show that it made a

good effort to get your consent for the reevaluation of your child, and you do not respond, then the school district may proceed with the reevaluation without having obtained your consent).

Written consent to evaluate your child for the first time is not the same as the consent that places your child into special education and related services. A separate written consent is required to begin your child’s special education program. What happens if I do not give written consent for the proposed activity? If you should disagree with the proposed activity for which written consent is required and you do not give written consent for the proposed activity, the school district must take steps, as necessary, to ensure that your child continues to receive a free appropriate public education.


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• If you refuse permission for the school district to conduct either an initial evaluation or reevaluation of your child, the school district may initiate due process procedures as a way for it to proceed with the recommended evaluation(s).

• If you do not give permission for the initial placement of your child into special education, the school district may not use due process procedures as a way to place your child into special education.

• If you refuse permission for the initial placement of your child into a private school for the purpose of providing your child with a special education program, the school district must initiate due process procedures.

If you refuse written consent for any proposed activity for which written consent is required, your child’s current educational placement will not change unless you and the school district reach agreement on a different course of action or until due process procedures have been completed. What if I want to withdraw my written consent after it has been given? Giving written consent is voluntary. You can withdraw your written consent at any time by notifying the school district in writing. Withdrawing your written consent does not effect the actions taken or the services provided during the time the school district had your permission. Must the school district obtain my written consent each time there is a proposal to change my child’s program or placement? No. Once services have started, you or the school district may propose changes to your child’s program or placement at a PPT meeting. The school district must provide you with written notice of the proposed changes. Your written consent is not required to implement the changes to your child’s special education program except for when your child is placed initially into a private school for the purpose of receiving his/her special education program. However, if you do not agree with the proposed changes to your child’s program, you have the right to initiate due process to stop the changes from occurring. Evaluation What is an evaluation? An evaluation study is the process used by the PPT to determine your child’s specific learning strengths and needs, and to determine whether or not your child is eligible for special education services. It must be sufficiently comprehensive to identify all of your child’s special education and related services needs, whether or not those needs are commonly linked to a specific disability category. The evaluation study must be conducted in a nondiscriminatory way and tests must be validated for the purpose for which they are being used. All assessments must be provided and administered in the language or form of communication with which your child is most comfortable, unless it is clearly not possible to do so. The evaluation study will also include a review of information collected by the school district through informal and formal observations, a review of schoolwork, standardized tests and other school records, and talking your child’s teachers. The PPT will also review


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and consider any evaluations and information that you are able to provide. As an active participant in the PPT process, one of your responsibilities is to assist the PPT in the design of the evaluation procedures to be used in the study. When is an evaluation needed? When your child is referred to special education, an evaluation study will be conducted to determine if your child is eligible to receive special education services. Before this evaluation study can begin, you will receive a written notice that describes the tests and procedures to be used with your child. You have the right to withhold your written consent for the evaluation study or to revoke your consent at any time. How will I be informed of the results of the evaluation? Once the evaluation has been completed, you along with a team of qualified professionals will meet to interpret the evaluation data. The interpretation of the data will determine: 1) if your child has a disability; 2) if the disability is having an adverse affect on your child’s education; and 3) whether your child requires special education and related services. You will receive a copy of the evaluation report generated by the PPT. You may also request a copy of any of the individual evaluation reports that were generated as part of the evaluation process. Independent Educational Evaluation What if I disagree with an evaluation conducted by the school district? You have the right to obtain an independent educational evaluation (IEE) conducted by a qualified (licensed and/or certified) examiner who is not employed by your school district. When the school district agrees to pay for the IEE, the criteria under which the IEE is obtained, including the location and the qualifications of the examiner, must be the same as the criteria that the school district would use when it does its own evaluation. Who pays for an independent evaluation? If you disagree with the evaluation conducted by the school district, you have a right to an independent educational evaluation at the school’s expense, unless the school district can prove its evaluation is appropriate. If the school believes its evaluation is appropriate, it can initiate a due process hearing rather than pay for the IEE. In that case, a hearing officer will decide whether the school district’s evaluation is appropriate. If the hearing officer decides in favor of the school district, you may still obtain an independent evaluation, but you will have to pay the costs of that independent evaluation yourself. Do I need to inform the school district if I intend to seek an independent educational evaluation? Although it is often helpful to consult with the school district when seeking an independent educational evaluation, you are not required to inform the school district in advance. Your decision to consult or not to consult with the school district will have no


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bearing on your right to seek reimbursement for the cost of the independent educational evaluation. If I ask the school district for an IEE, what is the school district required to do and how long may it take for the school district to respond? The school district must, without undue delay; either agree to pay for the IEE or initiate due process procedures to defend the appropriateness of its evaluation. Is the school required to accept the results of an independent education evaluation? The school district must consider the results of any independent educational evaluation, including the one you pay for, when making decisions regarding your child’s educational program. However the school district is not required to agree with or implement all or any of the results or recommendations of the independent educational evaluation. You may also submit the results of an independent educational evaluation as evidence at a due process hearing. How do I find a professional or clinic to conduct an independent educational evaluation? The school district must provide you with a list of qualified independent evaluators when you ask for an independent evaluation. Individualized Education Program… What is an individualized education program…? If your child is determined to be eligible for special education services, you will begin the team process of developing an IEP to meet the specific needs of your child. The IEP is a written plan that describes in detail your child’s special education program. A few key elements of a child’s IEP include the following:

• Present levels of educational performance; • Measurable educational goals for the coming year and short-term instructional

objectives derived from those goals; • Evaluation procedures and performance criteria; • The extent to which your child will participate in the regular education program; • The extent to which your child will not participate in the general education

program, and the justification for removal from general education; • Modifications and accommodations your child needs to participate in the general

education curriculum including nonacademic and extracurricular activities; • Special education and related services required by your child including

transportation and physical and vocational education programs; • Recommended instructional settings and a list of people who will work with your

child; • The date services will begin and end, and the frequency of the identified services;


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• The length of the school day and year; • Whether modifications are needed to facilitate CMT/CAPT testing1; • Recommendations for participation in alternate assessments (if needed); and • Transition service needs.

You have the right to:

• Receive a copy of your child’s IEP within five school days after the PPT meeting held to develop or revise your child’s IEP;

• Bring others with you to the PPT meeting who have knowledge or expertise regarding your child or who may provide support; and

• Tape-record PPT meetings. Be sure to inform other members of the team prior to recording the meeting.

1 CMT is the Connecticut Mastery Test, administered to students in grades 3-8. CAPT is the Connecticut Academic Performance Test administered to students in grade 10.


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Next, some background information on special education nationwide: Exhibit #1: Special Education Statistics (1999-2000)2 Number of special education students nationwide

6.2 million

Special education students as a percentage of total student enrollment

13.5%

Cost of providing special education services to identified students nationwide Cost of providing regular education services to identified students nationwide

$50 billion $27 billion

Total cost of educating identified students nationwide National average per pupil expenditure for special education students National average per pupil expenditure for non-special education students Educating identified students as a percentage of total education expenditures

$77 billion $12,600 $6,600 16.6%

Federal expenditure on state grants for special education

$3.7 billion3

Per student federal expenditure on state grants

$6004

National average per pupil expenditure for special education students $12,600

National average per pupil expenditure for non-special education students

$6,600

Federal share of special education costs 7.4%

2 Source: Jay G. Chambers, Thomas B. Parrish, and Jenifer J. Harr, “What are we spending on special education services in the United States, 1999-2000?” (Washington, DC: Center for Special Education Finance, 2002, updated June 2004) http://csef.air.org/publications/seep/national/AdvRpt1.PDF 3 The line item in the Presidents 2009 budget proposal is $12..1 billion 4 The 2009 figure would be $1,805


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Exhibit #2: The Changing Nature Of Students’ Disabilities Type of disability 1976-77

(%) 1988-89

(%) 1996-97

(%) 2002-03

(%) Specific learning disabilities 21.5 43.8 46.2 48.3Speech or language impairments 35.2 21.3 18.2 18.7Mental retardation 26.0 12.4 10.1 9.9Emotional disturbance 7.7 8.2 7.7 8.1Hearing impairments 2.4 1.2 1.2 1.2Orthopedic impairments 2.4 1.0 1.2 1.2Other health impairments 3.8 1.1 2.8 6.6Visual impairments 1.0 0.5 0.4 0.4Multiple disabilities 1.8 1.7 2.2Deaf-blindness <0.05 <0.05 0.0Autism and traumatic brain injury

0.8 2.4

Developmental delay 1.0 Total number of students served 3,694,000 4,529,000 5,729,000 6,293,000Number served as % of total enrollment

8.32 11.27 12.56 13.50

Source: National Center for Education Statistics and Quality Counts 2004 Exhibit #3: Timeline of events in special education legislation 1973 Congress passes the Rehabilitation Act. Section 504 of that act

“prohibits discrimination, solely on the basis of disability, against otherwise qualified persons in federally assisted programs and activities.”

1975 The “Education for All Handicapped Children Act” (PL 94-142) is passed by Congress. It provides that all children in need of special education must be provided “free and appropriate” public schooling, and that each child’s education be determined on an individualized basis and be designed to meet needs in the “least restrictive environment.”

1990 The Americans with Disabilities Act is passed, mandating access to state and local programs irrespective of the receipt of federal funding. An amendment to the Education for all Handicapped Children Act renames it the Individuals with Disabilities Education Act (IDEA).


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1997 Under the 1997 amendments to the IDEA, states are required to

include as many special education students as possible in regular assessments, with appropriate accommodations, and to create alternative assessments for students judged to be unable to take the regular tests. States are also required to monitor the participation rates of students with disabilities taking assessments.

2001 In debate over renewal of the Elementary and Secondary Education Act, the Senate adopts a proposal funding the IDEA at 40% of total costs and shift IDEA funding from the discretionary to the mandatory side of the federal budget. The House rejects the proposal.

2002 Renewal of IDEA is deferred to the 108th Congress. Republicans, meanwhile, propose a special education voucher plan.

2003 The House and Senate each debate a version of the reauthorization of IDEA, but by November the legislation is sidetracked. It appears unlikely the bill will be taken up again until after the November 2004 elections.

2004 November

Congress passes the IDEA reauthorization. The House vote is 397-3; the Senate follows suit with a voice vote. The reauthorized IDEA mandates quality standards for special education teachers, streamlines disciplinary actions involving students with disabilities, and attempts to reduce the number of lawsuits stemming from the statute.

The following excerpts from a textbook on special education are included to familiarize you with some of the complexities, legal, procedural, and educational, of serving the needs of students with disabilities. Document #2: Lorraine M. McDonnell, Margaret J. McLaughlin, and Patricia Morison (eds.), Educating One and All: Students with Disabilities and Standards-Based Reform (Washington, D.C.: National Academy Press, 1997) Excerpts from Chapters 2 and 3

SPECIAL EDUCATION Federal Initiatives Federal statutes and regulations, along with judicial interpretations of the constitutional due process and equal protection clauses, have played a preeminent role in the education of students with disabilities for the past 25 years. These federal policies are mirrored in state law and regulations and in many state court decisions, some of which expand the protections afforded individuals with disabilities beyond those offered in the federal laws.


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Individuals with Disabilities Education Act The Individuals with Disabilities Education Act (IDEA) is the primary federal law providing funding and policy guidance for the education of students with disabilities; its major policy goals have remained constant since the IDEA’S predecessor, Public Law 94-142, was enacted in 1975. The IDEA is basically a grants program that provides funds to states to serve students with disabilities in need of special education on the condition that the states ensure an appropriate education for them. The IDEA is also a civil rights law extending the constitutional right to equality of educational opportunity to students with disabilities needing special education. The law sets out three basic requirements with which states and local districts must comply:

• All children with disabilities and in need of special education must be provided a free, appropriate public education.

• Each child’s education must be determined on an individualized basis and designed to meet his or her unique needs in the least restrictive environment.

• The rights of children and their families must be ensured and protected through procedural safeguards.

The primary mechanism for ensuring that the educational objectives of the IDEA are met is the individualized education program (IEP) that must be prepared for each child identified as having a disability and in need of special education. The IEP is a written statement that describes the child’s current level of educational performance, the annual goals and short-term objectives that have been established for him or her, the specific educational and related support services to be provided, and procedures for evaluating progress on the stated goals and objectives. The IDEA is the second-largest federal program supporting elementary and secondary education and currently provides about $2.3 billion a year5 to help fund the extra costs associated with educating students with disabilities. When Public Law 94-142 was passed, the initial funding to states was 5 percent of the estimated excess costs of special education. The legislation authorized the phasing in of additional support, with the goal that the federal government would fund 40 percent of the average excess costs of special education by 1981. That objective has never been met. At its highest level, in 1979, the federal appropriation reached 12.5 percent of the excess costs. Currently, federal aid provides about 7 percent of the excess cost6, with states and localities responsible for the remainder… The centerpiece of the law is Part B, which authorizes the grants to states and outlines the requirements that states and districts must meet as a condition of funding. Part B is permanently authorized. However, other sections of the IDEA, which authorize funding for various discretionary grant programs, expire every 3 to 5 years.

5 [$8.5 billion in FY2003.] 6 [18% in FY 2003.]


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Although the IDEA is both a civil rights statute and an education statute, the line between the two aspects is blurred. As one commentator has suggested, its legislative history shows that Congress clearly intended not to choose between these two goals and purposely left to state and local officials the responsibility for defining an appropriate education and deciding various policy issues, such as the resource trade-offs between groups in meeting excellence and equity goals. Furthermore, Congress purposely left resolution of these matters to evolve over time rather than setting specific national educational priorities (Yudof, 1984). The advent of standards-based education reform is a prime opportunity for testing how the excellence and equity goals for students with disabilities that were sought by Congress have evolved over time.

Section 504 of the Rehabilitation Act of 1973 Because the IDEA is essentially a federal grants program, state participation is voluntary and the act’s requirements are imposed on states and local districts only if they choose to accept the funding. All states are currently accepting IDEA funding. However, even in its absence, school districts would still have a legal obligation to serve students with disabilities because of two federal civil rights statutes: Section 504 of the Rehabilitation Act of 1974 and the Americans with Disabilities Act of 1990. Section 504 prohibits discrimination, solely on the basis of disability, against otherwise qualified persons in federally assisted programs and activities. It applies to virtually all public schools, since the overwhelming majority receive some form of federal assistance. In the context of elementary and secondary education, the regulations implementing Section 504 require that local districts provide a free, appropriate public education to each school-age child, regardless of the nature or severity of the person’s disability. Although many of the steps taken to comply with the IDEA’S requirement for a free and appropriate public education also meet some of the requirements under Section 504, Section 504 differs from the IDEA in four significant ways. First, Section 504 applies to any educational institution, public or private, that receives any type of federal funding, making its reach broader than that of the IDEA. Second, as a civil rights statute designed to ensure nondiscrimination and equality of opportunity. Section 504 requires that comparable educational benefits be provided to individuals with and without disabilities. Third, whereas the IDEA addresses individuals with disabilities who need special education, Section 504 defines and protects a broader category of these individuals, whether or not they require special education programs or related services. So, for example, elementary and secondary students requiring only special accommodations but not special education are covered by Section 504. Fourth, Section 504 requires the provision of reasonable accommodations for individuals with disabilities who are otherwise qualified to participate in an educational program or activity.

Americans with Disabilities Act The Americans with Disabilities Act of 1990 (ADA) is a comprehensive federal civil rights statute that provides a “national mandate to end discrimination against individuals with disabilities in private-sector employment, all public services and public accommodations,


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transportation, and telecommunications” (Hardman et al., 1996:13). The ADA requires “reasonable accommodations,” a term that has not yet been definitively interpreted by the courts. Perhaps the greatest impact of the ADA on the education of students with disabilities is the increasing availability of accommodations for persons in the private sector in employment, recreation, living arrangements, and mobility, thus necessitating a more comprehensive effort to prepare students for greater participation in community settings. The ADA’S Title II mirrors the nondiscrimination provisions of Section 504. It extends civil rights protections for otherwise qualified persons with disabilities to include services, programs, and activities provided by “public entities,” which include state and local governments and their instrumentalities. Consequently, access to state and local programs must be provided irrespective of the receipt of federal funding. Thus, even public schools not covered by other federal laws governing special education must comply with the ADA. State Laws In addition to the federal laws governing the education of students with disabilities, all states and many local governments have enacted statutes and regulations designed to promote the rights of students with disabilities. Since states must have a plan to qualify for IDEA funds, all have enacted special education statutes that incorporate the major provisions of the IDEA. Some state laws, however, extend beyond the federal criteria for an appropriate education. Melnick (1994) notes, for example, that Massachusetts law refers to the “maximum possible development of handicapped children” and that New Jersey’s statute establishes the principle that all students “be assured the fullest possible opportunity to develop their intellectual capacities” (p. 174). The First, Third, and Ninth U.S. Circuit Courts have all argued that the IDEA should be interpreted to include such state laws. Because the U.S. Constitution does not create a fundamental right to education (San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 1973), the constitutions of all 50 states contain provisions setting forth each state’s responsibilities for educating its citizens. Over the past 25 years, lawsuits have been brought in 27 states alleging that the state system for financing and operating public schools violates these constitutional mandates. Early cases focused solely on funding inequities, aiming to increase and more equitably distribute resources among local school districts. Some recent cases have gone further, challenging the substantive adequacy of state education support. These required state courts to assess the impact of state constitutional language specifying the parameters of an adequate education. In six states, a constitutionally adequate public education system has been defined as one that enables students to meet the broad educational outcomes anticipated by the relevant state constitutional provisions. In five others, the courts have held states to a less precise standard, but one that still requires the public schools to provide students with an education sufficient to allow them to function in society (McCusic, 1991; Underwood, 1995).7

7 Not all plaintiffs have been successful, however, in challenging the constitutionality of state funding systems. Over the past eight years, plaintiffs were unsuccessful in six states.


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The outcomes articulated in this subset of school finance cases are part of what constitutes an appropriate education in a particular state for the purposes of the IDEA’S definition of free, appropriate public education. In Kentucky, for example, the state supreme court held that the Kentucky constitution, which requires that the legislature “provide for an efficient system of common schools throughout the state,” means that “every child ... must be provided with an equal opportunity to have an adequate education”; the court then went on to specify a number of outcomes that could be expected for educated persons (Rose v. Council for Better Education, 790 S.W. 2d 186, 1989). In another state case that specifically assessed school finance issues affecting students with disabilities, the Alabama supreme court held that constitutionally adequate education for students with disabilities was the same as that for all children, in addition to whatever special education law required (Alabama Coalition for Equity v. Hunt, 19 IDELR 810; see also Opinion of the Justices of the Alabama Supreme Court no. 3, 624 So. 2d 107, 1993). These outcomes can also serve as a baseline against which the opportunities afforded children with disabilities may be compared for purposes of determining if the state meets the provisions for nondiscrimination required under the ADA and Section 504 (Ordover et al., 1996). Rationale Behind the Special Education Policy Framework Current policy frameworks for special education were initiated by an alliance of families and professionals working with individuals with disabilities and advocacy groups dedicated to disability rights. Special education policy in the United States over the past 25 years is a direct response to a history in which students with disabilities were either excluded entirely from educational opportunities or were often segregated in inadequate programs in inadequate facilities (Sarason and Doris, 1979; Minow, 1990). Current special education policy also reflects the evolving professional practices, knowledge base, and interests of educators and other professionals working with persons with disabilities. As one commentator has noted, “The history of special education has been a tale of exclusion—the exclusion of the handicapped from schools and the exclusion of their representatives from participation in educational policymaking” (Tweedie, 1983:48). Even the advent of compulsory attendance laws in most states in the period between 1852 and the end of World War I allowed local school officials to routinely exempt from attendance requirements students who were deemed “uneducable” (Mayer, 1975; Lazerson, 1983). In addition to, or as a part of, compulsory attendance laws, many states maintained statutes that permitted the exclusion of certain types of educationally difficult children from school (Trudeau, 1971). Although a number of private schools were established in the nineteenth century for children with certain types of disabilities, particularly deaf and blind children, little public schooling was available for students with disabilities before 1900. By the early twentieth century, public education programs for students with disabilities gradually began to be implemented. However, a 1972 report estimated that only 40 percent of all children with disabilities were being provided educational services (Weintraub et al., 1971), and congressional committees, during the debate leading to the passage of Public Law 94-142, concluded that more than half of the children with disabilities in the country were not receiving an education appropriate to their needs (Aleman, 1995).


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The first goal for special education policy in the second half of this century has been access to education for all students with disabilities. Between 1966 and 1974, 38 states and the U.S. Congress passed statutes that began to address this goal. Access to education was expanded to embrace several key policy goals: “zero reject,” the concept that every child with a disability is educable; the principle that, to the maximum extent appropriate, students with disabilities should be educated in the same settings and classrooms as their peers without disabilities; the provision of individually appropriate education for all students with disabilities; and the use of procedural safeguards to protect the rights of students with disabilities (Minow, 1990; Tweedie, 1983; Sarason and Doris, 1979; Butts et al., 1953). The most significant early victories of the disability rights advocates occurred in two pieces of litigation: the 1971 case of Pennsylvania Association for Retarded Children (PARC) v. Commonwealth of Pennsylvania (334 F. Supp. 1257 E.D. Pa., 1971, 343 F. Supp. 279 E.D. Pa. 1972) and a 1972 case. Mills v. Board of Education of the District of Columbia (348 F. Supp. 866, 1972). The settlement agreement reached by the parties in the PARC case and the court decision in the Mills case served as models for many state legislatures and for Congress as they wrote new legislation to ensure equality of educational opportunity for children with disabilities. The U.S. Supreme Court affirmed that these state efforts and the IDEA were means to aid states in “complying with their constitutional obligations to provide public education for handicapped children” (Smith v. Robinson, 468 U.S. 992, at 1009, 1984). Guiding Assumptions and Whether They Are Being Met State and federal policies for the education of students with disabilities are based on a common set of assumptions that were first embodied in the legislative and judicial determinations of the early to mid-1970s. Here we describe the assumptions undergirding special education policy, assess available evidence about their current status, and consider the impact of standards-based reform on these assumptions. All Students Can Learn The most fundamental assumption of state and federal special education policy is that all students with disabilities can learn and that all, no matter the nature or severity of their disability, should be given access to an appropriate public education. Neither the federal nor any state statute has attempted to specify what children with disabilities could or should learn. Instead, an individual determination is to be made for each student, guided by the requirements of the IDEA. One of the benchmarks for assessing whether the goal of education for all students with disabilities is being met is participation rates. In the 1992-93 school year, almost 4.5 million children with disabilities were served by programs aided with IDEA funds (Aleman, 1995:35). As noted by the Congressional Research Service (Aleman, 1995:8), “wholesale numbers of children with disabilities are no longer being denied equal access to public education.” There are, however, some areas for concern about the participation of


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students with disabilities in elementary and secondary education. For example, high school dropout rates are higher for students with disabilities than for those without (see Chapter 3). There are also concerns in many states, such as Massachusetts, that students with disabilities are increasingly denied access to education because of disciplinary exclusions from school through long-term suspensions and permanent expulsions (Aleman, 1995). There remain considerable disagreements over the quality of the services provided to groups of students and individuals. No one disputes that access to educational services for students with disabilities has improved dramatically. To the extent that large numbers of students with disabilities were excluded from schooling entirely when the federal laws were first passed, the goal of greater inclusion of students with disabilities in elementary and secondary education programs began to be realized within the first decade of the statute’s passage. However, concern over educational outcomes for students with disabilities began growing in the mid-1980s, with the publication of follow-up studies documenting high unemployment and social isolation among former special education students (Edgar et al., 1986; Hasazi et al., 1985; Mithaug et al., 1985). Studies such as the National Longitudinal Transition Study (Wagner et al., 1993; see Chapter 3 for further discussion) focused attention on the longterm outcomes of special education. As a result, attention has shifted away from questions of access to ones about the quality of education received by students with disabilities (Aleman, 1995). Consistent with this focus, attention has also shifted to how students with disabilities have fared during their school careers and the extent to which they are included in assessment and accountability systems (McLaughlin and Warren, 1992; National Center on Educational Outcomes, 1992; Brauen et al., 1994). Similarly, attention has turned from a focus on the IEP as an instrument for documenting procedural compliance to the IEP as a vehicle for ensuring school district accountability for student outcomes. Students with Disabilities Can Be Accurately Identified for Education Services The provisions of the federal IDEA and Section 504 and the requirements of most state special education laws that require an individualized, appropriate education for students with disabilities rest on two key assumptions about student evaluation and identification. First, students are not eligible for coverage under the laws unless they have either been identified as “disabled” and in need of special education or, under Section 504, are either “disabled” or “regarded as being disabled.” Consequently, a process has to be undertaken to determine whether each individual is eligible for the procedural protections or services each law provides. Second, the laws require a process to evaluate each individual with a disability in order to identify the student’s capabilities and needs and the appropriate programs and services. Whether the current technology for student identification is sufficient to meet these two assumptions is an issue worthy of further inquiry (see Chapter 3). Under the IDEA and most state special education laws, a student is either eligible or not under the statute, a distinction that is somewhat at odds with current professional practice, which assumes more of a continuum of disability dimensions.


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The federal regulations implementing the IDEA note that the statute applies only to students with learning problems based on a disability and not to students whose special needs stem from “environmental, cultural, or economic disadvantage” (CFR, Title 34, Subtitle B, Chapter III, Section 300.7 [b][10]). These distinctions are not always easily made or even possible, given that such factors as prenatal nutrition and environmental pollution can lead to bona fide disabling conditions. As we discuss in greater detail in Chapter 3, there is a great deal of variability from place to place in the criteria used to define disability and in the local implementing conditions for deciding who qualifies as having a disability. For some students with disabilities (e.g., those with physical or sensory disabilities), the criteria are clear. However, for those with disabilities, such as learning disabilities, mild mental retardation, and serious emotional disturbance, the criteria are much less clear and the implementation practices more variable. Furthermore, research on the extent to which students with mild forms of these disabilities can be distinguished reliably from other students variously called “low-achieving” and “educationally disadvantaged” is mixed (e.g., Lyon, 1996; Kavale et al., 1994). Consequently, decisions about which children have disabilities cannot be made reliably or consistently for some categories of disability. Furthermore, it is not clear that the current research base is adequate to allow such distinctions to be made. Although difficulties with eligibility policy and practice are widely acknowledged among special education researchers and practitioners, there is little consensus about solutions. Besides a lack of consistent identification practices across schools, educators also face competing incentives in serving students who may have disabilities. For example, financial pressures on school districts and a lack of adequate federal and state support may make local officials reluctant to refer students for special education services even when they appear to meet relevant eligibility criteria. At the same time, some schools may view their special education program as a kind of organizational safety valve that allows inexperienced teachers to remove disruptive students from their classrooms, or that responds to the demands of vocal parents wanting additional assistance for their children. Consequently, they may refer students for special education services when other remedies are more appropriate. Although none of these reasons is an adequate or even legitimate basis for deciding whether students are eligible for services, they represent the realities of local implementation. Educators’ efforts to balance their responsibilities by simultaneously serving all students, interpreting applicable legal requirements for individual children, working within existing fiscal and organizational constraints, and responding to parental concerns may result in some students receiving services in one school and being ineligible for them in another. Students with Disabilities Are Entitled to an Appropriate Education The IDEA rests on an assumption that the best way to achieve an appropriate education for students with disabilities is to design a program of education and related services through the IEP process. The process of teachers, other service providers, and parents working together to define an appropriate program and services is as important as the IEP document itself (Zettel, 1982). Consequently, parents and educators have come to rely on the IEP as the keystone of special education, and the IEP process and the resulting


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document have become integral parts of special education, irrespective of the legal mandate (S. Smith, 1990). The IEP process includes both substantive protections governing a student’s educational program and procedural requirements fostering a parental role in educational planning and ensuring an independent review mechanism if irresolvable disputes arise between educators and the family over how or where to educate the student. Research has documented several shortcomings of the IEP, particularly as an accountability tool. Persistent concerns relate to the lack of parental participation and the effectiveness of that participation (Harry et al., 1995; Singer and Butler, 1987; see Chapter 3); limited instructional usefulness (Giangreco et al., 1994; S. Smith, 1990); and a lack of connection to the general education curriculum and instruction (Giangreco et al., 1994; Pugach and Warger, 1993; Sands et al., 1995). These problems may be due not to flaws in the basic concept of individualized educational planning, but to logistical issues such as lack of time for development or excessive paperwork burdens.8 Similarly, the limited utility of many current IEPs may also be attributable to a lack of clarity about the curricular function of the IEP or confusion about the nature and extent of standards-based reform in educational decision making for students with disabilities. Some studies have indicated that teachers find that the IEP is not useful as a classroom pedagogical device (Smith and Brownell, 1995), although it was not really intended to be that. The IEP requirement for individualization has also led to variability in the implementation of the IDEA. Evaluation, placement, and programming decisions for students with disabilities are intended to be idiosyncratic. And, although bureaucratic efficiency promotes standardization, individualization and parental input exert counterpressures. The state and federal courts have played a role in refining the IDEA’S statutory and regulatory requirements for appropriate and individualized education for students with disabilities. Several cases are particularly important in the context of standards-based reform. The first case under the IDEA considered by the U.S. Supreme Court was Board of Education of Hendrick Hudson Central School District v. Rowley (458 U.S. 176, 1982). The case involved Amy Rowley, a deaf elementary school student with excellent lip-reading skills who performed above average educationally and advanced easily from grade to grade; the focus of the dispute was a conflict over the extent of related services required. The Supreme Court held that, in order to be “appropriate,” the package of special education and related services provided to a child with disabilities must be designed in conformity with the IDEA’S procedural requirements and must be reasonably calculated to enable her to receive educational benefits. The Court also held that, to assess appropriateness of education (458 U.S. at 188-89, emphasis added):

Almost as a checklist for adequacy under the Act, the definition requires that such [specially designed] instruction and services be provided at public expense and under public supervision, meet the State’s educational standards, approximate the grade levels used in the State’s regular education, and comport with the child’s

8 Although one study reported that, 10 years into the implementation of the law, districts had begun to overcome the paperwork burden resulting from the IDEA (Research Triangle Institute, 1980; Stanford Research Institute, 1982; Singer and Butler, 1987).


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IEP. . . . Thus, if personalized instruction is being provided with sufficient support services to permit the child to benefit from instruction, and the other items on the definitional checklist are satisfied, the child is receiving a “free appropriate education” as defined by the Act.

The Court expressly declined to establish any one test for appropriateness, but since Amy Rowley was receiving substantial special services and was performing above average in a regular classroom, it limited its analysis to that situation and concluded that she was receiving an appropriate education. The Rowley case received considerable attention, but it was in many ways a poor case to guide educators and judges in future disputes since it involved a student who, despite her parent’s requests for more special education services, was doing quite well. However, for several years the case was the only Supreme Court precedent to provide guidance in interpreting and applying the IDEA. When lower courts have applied the Rowley test to the facts in individual cases, they have had no difficulty judging the procedural due process portion of the test. The issue of what constitutes a beneficial education has been more difficult, but the lower courts have followed the Supreme Court standard and have not substituted their judgment for that of educators on pedagogical or methodological questions; school districts have generally been successful in court if they could demonstrate that they made an earnest attempt to do all they could for a student (Broadwell and Walden, 1988). The biggest problem for parents, educators, hearing officers, and judges trying to implement the Rowley standards is that the case was simply unclear on how to deal with much more difficult issues, such as the meaning of the IDEA’S requirement for education in the least restrictive environment, access to year-round schooling, and the provision of services to students who, unlike Amy Rowley, were not in general education and performing above average compared with their peers. Initially, lower courts reacted in most cases to Rowley by holding that the IEP, and the educational programs called for in the IEP, were appropriate if they resulted in at least some educational benefit for the student, even if the benefit was minimal (Osbome, 1996). Eventually, the lower courts began to expand their interpretations of the “educational benefit” criteria, as did the U.S. Supreme Court in a subsequent decision (Irving Independent School District v. Tatro, 468 U.S. 883, 1984, relying heavily on an equality of opportunity approach in giving abroad definition to the term related services; see Wegner, 1985; Gallegos, 1989). However, all the federal courts were uniform in determining that maximization of educational benefit for a student with disabilities was not required unless this higher standard of service had been adopted by a state legislature (Osborne, 1996; Rothstein, 1990; Strope and Broadwell, 1990; Wegner, 1985). Some commentators have asserted that the lower federal courts have not been uniform in following the Rowley standard (Neal and Kirp, 1985; Wegner, 1985; Melnick, 1994; Weber, 1990). Others have argued that the courts have utilized the Rowley standard and applied it to the disputes about individualized appropriateness before them (Broadwell and


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Walden, 1988; Gallegos, 1989; Rothstein, 1990; Strope and Broadwell, 1990; Tumbull, 1993; Osbome, 1996). At least one prominent commentator, assessing the impact of the post-Rowley cases, has noted that the lower courts have widely applied the essence of that decision, the standard of requiring that a student be provided educational benefit, but not a benefit that would maximize the student’s potential. These courts apply the educational benefit standard on a case-by-case basis, with the student’s present placement, diagnosis, disability, and capability all taken into account to make an individualized determination of what is appropriate for the student. In the inevitable determinations that courts must make in choosing between at least two different proposed placements or programs, the courts have tended to follow a “balancing of benefits” approach. In this approach, the courts consider the student’s capability to make educational progress; appropriate education and educational benefits requirements are met whenever one placement is likely to result in higher outcomes for a student than another and the program uses appropriate curricula to meet the student’s needs. Only a minority of cases, most of them less recent, reject the balancing of benefits approach (Turnbull, 1993). Despite some disagreement among commentators on the impact of the Rowley decision on the lower courts, a legal analysis prepared for the committee indicates that the Rowley criteria provide clear guidance for defining an appropriate education for students with disabilities under standards-based reform. Under the Rowley standards, an appropriate education should include elementary and secondary education as defined by state standards and should be designed to provide educational benefit. In a standards-based system, then, a free and appropriate education includes the special education and related services necessary to allow students to attain the outcomes set forth for them, as well as any programming needed to address their supplemental, individualized educational needs (Ordover et al., 1996). Students with Disabilities Should Be Educated in the Least Restrictive Educational Environment In addition to decreasing the number of students with disabilities who are excluded from education, federal laws also sought to ensure that, whenever possible, participation in special education classes would be reduced in favor of placement in the regular classroom (Benveniste, 1986). The requirement for educating students with disabilities in the least restrictive environment is rooted in the belief that the approach will remove stigma from these students, enhance and normalize their social status (e.g., Nirge, 1970; Wolfensberger, 1970), facilitate modeling of appropriate behavior, provide a richer educational environment, be more flexible and cost-effective, and enhance broader public acceptance of people with disabilities (Weatherley, 1979; Minow, 1990). The issue of what constitutes education in the least restrictive environment is one of the more controversial issues currently confronting special education, particularly among educators, some parents, and more than a few public officials. State and federal statutes specify that, in determining what constitutes the least restrictive environment, the IEP team is to begin with the general education classroom and consider which supports or accommodations can be made; only after determining that this environment would not afford appropriate education should more restrictive placements be considered. School


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districts must maintain or make available a continuum of placements, including special classrooms, schools, and even residential or other instruction. Students with disabilities should be removed from general education settings only to the extent essential to meet their individual needs. Many students with disabilities are currently being educated in general education classrooms for a large part of their school day. Recent data indicate that more than 70 percent of students with disabilities spend at least 40 percent of the school day in the regular classroom (U.S. Department of Education, 1996a; see also Chapter 3). The issue of least restrictive environment for these students is not whether they can access the general education classroom, but whether appropriate types and levels of support will be provided entirely in the general education classroom or partially in a specialized environment such as a resource room, pullout program, special classroom, or separate school. In the past 10 years, there have been many calls to include students with disabilities more fully in general education (Will, 1986; Gartner and Lipsky, 1987; Stainback and Stainback, 1984; Wang et al., 1986). Nevertheless, some parents and advocates, as well as students themselves, view separate and specialized support services as necessary for students with disabilities to meet the demands of the general education curriculum or to attain adequate levels of essential skills. They maintain that a continuum of placement options should be available, and one should be selected only after educational appropriateness is determined (Bateman, 1994; Learning Disabilities Association of America, 1993; Kauffman and Lloyd, 1995). The educational goals defined for many students with disabilities include increased academic competence and emotional well-being or positive social behaviors. Since research has yet to demonstrate that these important outcomes can always be obtained in general education classrooms (e.g., Fuchs et al., 1993; Jenkins et al., 1991), the resulting tension between those advocating inclusion and those wanting to maintain a continuum of placements is strong (Fuchs and Fuchs, 1994; Kauffman and Hallahan, 1993; Shanker, 1994). From the perspective of standards-based reform, however, the issue is not where students with disabilities receive their education, but whether they have access to a challenging curriculum and high-quality instruction consistent with state and local standards. Most disability advocates seek the participation of students with disabilities in key reform initiatives, such as high common standards, large-scale assessments, and curricular reforms, regardless of what stance they take on the general inclusion issue. These advocates endorse higher standards and higher expectations for all students and seek to give students access to a broad and balanced curriculum. Generally, the courts have held that the least restrictive environment mandate is secondary to provision of an appropriate program and services, and that both program and placement decisions should be individualized. Thus, the degree of integration into general education is intertwined with determinations of what the educational goals should be and whether specialized services can be effectively provided in general education environments. A number of recent lawsuits have focused on the standards and criteria for assessing whether the least restrictive environment requirement has been met for a particular child (e.g., Board of Education, Sacramento City Unified School District v. Holland, 14 F. 3d 1398, 9th Cir.


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1994; Oberti v. Board of Education of Borough of Clementon, 995 F. 2d 1204, 3rd Cir. 1993; Daniel R.R. v. State Board of Education, 874 F. 2d 1036 [5th Cir. 1984]). These cases support the right to full participation of students with disabilities in the general education environment. Another related issue of increasing concern is the large number of students with disabilities who are exempted from local and statewide accountability systems used to evaluate school and district effectiveness in helping students meet desired educational outcomes (Brauen et al., 1994). These systems employ a variety of accountability measures related to student participation (e.g., attendance, promotion/retention, suspension/expulsion, and graduation) and student performance (e.g., attainment of minimum competency or common standards). Excluding large numbers of students with disabilities from these systems has resulted in a lack of accountability for the success of their educational programs. In conjunction with the requirement for the least restrictive environment, the IDEA’S definition of an appropriate education requires that the goals and content of specially designed instruction and related services be designed with reference to public education, as defined by state law and practice. The IDEA and its implementing regulations require states and local school systems to adopt and implement a goal of providing “full educational opportunity” to all children with disabilities (20 U.S.C. 1412[2][a], 1414[a][1][c]; 34 C.F.R. 300.304). When states adopt content and student performance standards and aligned curricula, these define “an appropriate . . . elementary or secondary education in the State involved,” pursuant to the IDEA requirements. Accommodations Should Be Provided In order to afford students with disabilities a fair and even playing field, the laws specify that accommodations in educational services should take into account students’ needs stemming from their disabilities. These accommodations, however, must be reasonable and are required only for students who are otherwise qualified to participate in an educational program or activity. Courts have held that the provisions of Section 504 do not require states or schools to alter the content of a minimum competency test used to award high school diplomas, in that a substantial modification would unreasonably alter the graduation requirement, but they do require the implementation of IEPs that facilitate successful participation by students with disabilities (Brookhart v. Illinois State Board of Education, 697 F. 2d; see also Board of Education of Northport-East Northport Union Free School District v. Ambach, 60 N.Y. 2d 758). Although states or school districts using assessments for high-stakes purposes, such as the awarding of high school diplomas, are not required to modify the educational content they measure, they can be required to provide accommodations in administering a test or assessment. For example, the Office for Civil Rights of the U.S. Department of Education has required, under Section 504, that Hawaii provide a reader for a student with a learning disability during a high school graduation examination, as it has provided readers for blind students. It ruled that the state discriminated against the student in violation of Section 504 because it failed to provide him adjustments necessary to offer him an equal opportunity to


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pass the test; the Office for Civil Rights noted that “equal opportunity to obtain the same result” on the test, required under Section 504 regulations, necessitates that the tests be administered so as to measure the student’s proficiency in the subject tested, rather than his or her unrelated disability. Parental Participation Should Be Encouraged Consistent with Procedural Protections Parental involvement in the education of children with disabilities is a key principle of the IDEA. The legislation gives parents many procedural rights, responsibilities, and opportunities to shape the education of their children with disabilities. Both the state and federal laws include procedural protections for families during the special education evaluation and placement processes to ensure a mechanism for family participation in decision making and for impartial review of disputes that may arise between a family and educators about the education of a student with a disability. As the U.S. Supreme Court noted in the Rowley case, educators’ compliance with procedural protections is a crucial element for ensuring that the appropriateness requirements of the IDEA are met. The IDEA requires parents to be notified before their child is evaluated for special education services and requires their consent prior to an initial evaluation for placement in a special education program. Parents have the right to participate in planning their children’s instructional program, to review educational records, and to obtain independent educational evaluations. They also have the right to receive prior written notice of significant school decisions and to file a complaint regarding decisions or actions with which they disagree. Parents are entitled to have an administrative due process hearing on all such complaints and to file a lawsuit if they do not prevail (Ordover et al., 1996:109). Many special educators believe the parents’ role in developing the educational program, particularly the IEP, is the cornerstone of parental involvement in special education. The IEP creates opportunities for parents and professionals to develop individualized approaches for every student’s education, including setting long-term goals and short-term objectives, specifying evaluation measures, determining the related services to be provided and accommodations required, and deciding on student placement and involvement in the general curriculum. The IDEA parental provisions have multiple objectives. First, the law recognizes and seeks to reinforce the positive effects that parents can have on learning and school success for children with disabilities, just as all parents can do for their children. (See Chapter 3 for further discussion of parental involvement and the educational experiences of children with disabilities.) Second, the IDEA acknowledges the critical caretaking responsibilities, support functions, and strong concerns about their children’s futures assumed by parents of children with disabilities. Third, the legislation recognizes that parents, above all others, have a deep, abiding interest in the quality of their children’s education and their general well-being; therefore, the law places the major burden of enforcement and accountability on parents. This advocacy role for parents is the culmination of an evolutionary process. Public Law 94-142 broke new ground in 1975 by granting active decision-making rights to parents of


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children with disabilities. In doing so. Congress accepted the basic premise that public schools may not always, of their own accord, provide an appropriate education for children with disabilities and may need prodding from parents, who have the strongest incentives to ensure that their children receive the services and rights to which they are entitled. No longer were parents expected to be passive recipients of professional decisions about their children, but instead they were to become decision makers and monitors of their children’s education (Turnbull and Turnbull, in press). One of the most significant factors in the implementation of state and federal special education policy is that the burden of enforcement largely rests on parents and advocacy groups. Yet parents have generally been reluctant to pursue procedural protections (Weatherley, 1979; Engel, 1991). With a few exceptions when advocacy groups have become involved, most of those who have pursued procedural remedies have been more affluent families. Standards-based reform may trigger disagreements between individual parents and educators about appropriate IEP goals and objectives, the content of instruction, and the use of alternate performance standards or assessments. Some parents may also invoke their procedural rights when such disputes arise— whether through participation on the IEP team or the filing of a complaint. Parents invoking these rights will do so within the substantive framework of the child’s right to receive a free, appropriate public education as defined by the IDEA, with maximum appropriate integration with nondisabled peers. The use of procedural protections to ensure students with disabilities access to appropriate education has resulted in the “legalization” of special education (Neal and Kirp, 1985; Yudof, 1984). By 1982, there had been nearly 300 federal and state court cases bearing on the meaning of Public Law 94-142, mostly concerning disputes over IEPs (Yudof, 1984). One study estimated that, during the 1980s, there were 342 reported federal cases and 99 reported state cases under the predecessor legislation to the IDEA (Zirkel and Richardson, 1989). Although several commentators have decried what they perceive as a frightening increase in litigiousness on special education issues (Melnick, 1994; Zirkel and Richardson, 1989), the total number of administrative hearings and court cases seems quite small given the millions of students receiving special education under the IDEA and the detailed substantive and procedural protections built into this law. Concerns about the volume of hearings and court activity are also offset by the fact that the majority of the cases have been won by school districts (Kuriloff, 1985; Winnick, 1987). Several studies have indicated that parents win only a minority of the hearings; according to one study of four years of hearings in Pennsylvania, parents achieved some form of victory in only 35 percent of the hearings, a percentage paralleled in a Massachusetts study and in a nationwide survey of 42 states (Kuriloff, 1985). A more pertinent question is what effect legalization has had on the daily activities of educators, the relationships between educators and families, and the educational opportunities of students with disabilities. Studies of the implementation of the 1972 Massachusetts legislation, one of the first state statutes designed to ensure the provision of


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equality of educational opportunity for students with disabilities and a prototype for Public Law 94-142, concluded that teachers and administrators incorporated the new legal requirements into their daily practice, in effect making new policies consistent with, and easily accommodated into, their existing practices and procedures (Weatherley and Lipsky, 1977; Weatherley, 1979; see also Wise, 1979). However, the efforts of well-meaning educators to cope with the added demands of the new policy requirements when resources are limited has resulted in priorities that have often benefited the affluent and penalized the poor (Budoff and Orenstein, 1982; Weatherley, 1979; Singer and Butler, 1987; Neal and Kirp, 1985). It has been easier for educators to comply with the procedural rather than substantive components of IEP requirements (Smith and Brownell, 1995; see also Clune and Van Pelt, 1985; Neal and Kirp, 1985). The combination of detailed legal requirements and insufficient resources has forced local educators to ration resources, sometimes by “slotting” or mass processing students into categories for diagnosis and service to promote administrative efficiency and keep down the cost of services (Weatherley, 1979; Handler, 1986). In these situations, the IEP process often becomes one of political bargaining, with enormous pressures on parents to comply with educators’ recommendations. The collective result is considerable momentum against the high level of individualization required by state and federal laws (Weatherley, 1979; Handler, 1986). CONCLUSIONS The two policy frameworks that define standards-based reform and the education of students with disabilities embody potentially compatible goals. However, before those ideals can be melded into effective classroom practice, two major barriers must be overcome. First, the expectations of those advocating standards-based reforms currently exceed the limits of existing professional practice and expert knowledge. Standards-based reform assumes that rigorous curriculum content, conveyed through sophisticated pedagogy, can be provided to students with diverse needs and abilities by teachers of varied experience and training. Yet research on the implementation of past education reforms and the experience of early implementers of standards-based policies indicate that translating these initiatives into widespread practice will require considerably more time and a greater investment in professional training than many states have been willing to expend. Similarly, one of the key assumptions of standards-based reform is that student performance can be accurately measured by new forms of assessment that will serve as both credible accountability mechanisms and strong instructional guides. Yet the transition away from a sole reliance on multiple-choice assessments has posed a host of technical challenges. Considerable progress has been made in addressing those problems, but technical solutions have come more slowly than the deadlines imposed by policy makers anxious to implement alternative assessments. The professional and technical problems associated with standards-based reform are compounded when it is melded with special education. Some of these challenges…stem partly from the historical


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separation between general and special education, each with its own research base and norms of professional practice. Other challenges are due to the different institutional arrangements that flow from the centrality of the IEP in special education and the emphasis on a common curriculum and public, aggregated forms of accountability in standards-based reform. Still other challenges flow from a lack of experience with the practices necessary for students with disabilities to participate in the standards movement. One example is the design of valid testing accommodations… All these challenges are further complicated because they must be addressed within the rights-based framework of special education, which also has professional and technical limitations. For example, substantive decisions about the participation of students with disabilities in content standards must be made within an IEP process that has become increasingly routinized and procedural in its emphasis. Similarly, assessment accommodations for some students, such as those with cognitive disabilities, will be determined on the basis of a taxonomy of disability that lacks clear and objective identification criteria. Above all, standards-based reform brings into sharp focus the major challenge of special education: ensuring that students with disabilities have access to an appropriate education, with the particular content of that education specified not in law but individually through the IEP process. The challenge is to preserve the rights of individual students within the framework of common standards, with only general guidance from legal precedents and professional practices that have not yet been tested in the evolving context of standards policy. Unfortunately, there are no quick or simple solutions to these professional and technical challenges. Most of them are likely to be solved or at least made more tractable over time. But progress will not occur without a continued investment in professional capacity-building and in clinical and psychometric research. In its articulation of curricular standards and the design of new forms of assessment, the standards framework emphasizes the professional judgment of classroom teachers as well as that of subject-matter and testing experts. The special education framework has a set of legal entitlements at its core, but it too relies heavily on professional judgment to determine which educational services are appropriate to meet the needs of individual children. But politics, broadly defined, also shapes both policy frameworks, primarily through public values about what constitutes a good education, who is entitled to that education, and what kinds of resources should be devoted to it. Consequently, the second barrier is a perceptual and political one that must also be overcome if students with disabilities are to participate in standards-based reform. The broad range of people involved in the educational enterprise need to understand and to agree on what the phrase “all students can learn to high standards” really means. Survey data from teachers and the public suggest that, at a symbolic level, the idea is accepted. But there is considerably less agreement about its operational meaning—how the idea should be applied to individual students and implemented in classrooms, and what consequences should be imposed for non-attainment of the standards.


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The thorny issues of defining and operationalizing “all students” and “high standards” constitute one dimension of the political challenges facing standards-based reform. Reaching consensus on what the specific standards should be—whether or not they are truly high or apply in the same way to all students—is an equally critical dimension. The events of the past few years have demonstrated that the schools remain a major focal point for debates over the cultural values that divide Americans. Yet by definition the standards movement rests on the notion of common standards reflecting what the broader community wants its children to know and be able to do. Debates over the purposes of public schooling are a healthy part of the democratic process if they do not disrupt or impede children’s education. Consequently, ways must be found to have those debates while still seeking consensus. One lesson that emerges quite clearly from the experience of the states that implemented standards reforms early is that the development of new curriculum standards and assessments cannot be solely a technical process with participation limited to experts. Decisions as significant as what knowledge is most important for students to learn and how they should be tested on their mastery of it require open, public deliberation. That participation can be organized in any number of ways, including state-level review committees, forums in local communities sponsored by the Parent-Teachers Association or the League of Women Voters, informal gatherings in people’s homes, and op-ed exchanges in local newspapers and on radio and television programs. Widespread participation should be encouraged from those representing the general and special education communities, from those with school-age children and those without, and from supporters and opponents of standards-based reform. Because deliberation depends on the primacy of talk, it requires time and the willingness of participants to be open to viewpoints different from their own.9 Such openness to new approaches may be especially difficult in special education, because the policy framework and professional practice are well established. Similarly, those outside special education have not really had to confront exactly what their exhortation for common standards really means for students with unique educational needs. Just as standards advocates have had to listen to and accommodate the preferences of those with different cultural values, so they must be open to students whose educational needs do not completely conform to their prior assumptions. Deliberation is difficult, but not to talk constructively across interests and communities is to mock the notion of common standards for public schools. 9 Clearly, deliberation alone does not ensure either consensual or productive decisions. Nevertheless, a variety of empirical evidence from social psychology, political science, and public opinion research indicates that individuals are more likely to approve of the decision-making process, understand outcomes better, and support them—even if they initially disagreed—if the decisional process is one that allows for all sides to speak and be considered (e.g., Tyier et al., 1989; Gamson, 1992). Perhaps the best-known recent demonstration of the impact of deliberation was the National Issues Convention, a gathering of 600 randomly selected, nationally representative citizens who discussed key issues with each other and with candidates running in the 1996 presidential primary elections. Opinion data were collected from participants before and after their deliberations, and the results show that many changed their views on the interpretation of social and economic problems and on their preferences for government action. Participants’ level of information about national issues increased and they reported feeling more politically efficacious. (Information about the National Issues Convention is available on the Internet at http:/wwwl.pbs.org/nic_background.html. Results of the pre- and post-deliberative polls are available at http://wwwl.pbs.org/nic/polLresults.html.)


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Chapter 3: The Diversity of Students with Disabilities This chapter describes the tremendous diversity that characterizes students with disabilities. Most of these students are eligible to receive special education services provided by the public schools. Yet, as this chapter shows, one cannot really speak of them as a group in a meaningful way, except perhaps with respect to the rights that all are accorded under the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act (ADA) by virtue of their having a disability. Some students with disabilities are never taken out of general education classrooms; others never enter a regular school building. Some have very mild disabilities observed only in school settings; others have multiple severe disabilities that affect many aspects of their lives. Some spend only minutes each week with a specially trained teacher, others the whole day. Some graduate from high school with a full academic courseload and go on to highly competitive colleges; others drop out of high school entirely; and still others receive special diplomas or certificates of attendance. Some have parents who are deeply involved in advocating and planning their individualized programs; others have parents who have never attended an IEP meeting. Meaningful discussion of standards, curriculum, assessment, and outcomes cannot occur without some attention to the varied characteristics of these large numbers of children. This chapter examines how their extraordinary diversity complicates efforts to identify and categorize children with disabilities and to design effective educational policies for them. It also analyzes how disability variously affects the school experiences of these students, the roles their parents play in that schooling, and the possible implications for standards-based reform. Who Qualifies For Special Education? Identification The process of identifying students with disabilities is important because it determines who among the general student population is entitled to unique and specific legal and educational rights as well as access to extra resources and services. As explained in Chapter 2, these rights involve extensive due process protections, designed to ensure fundamental fairness in all aspects of the identification and placement of students with disabilities and to prevent misclassification. Once a child is identified as having a disability, then a determination is made as to whether he or she qualifies for special education and related services. Under the IDEA, eligibility for special education services is based on two criteria: first, the student must meet the criteria for at least one of the 13 disabilities recognized in the IDEA (or the counterpart categories in state law) (Reschly, 1987a) and, second, the student must require special education or related services in order to receive an appropriate education (Board of Education of the Hendnck Hudson Central School District v. Rowley, 458 U.S. 176, 1982; Reschly, 1987a). According to the most recent data collected by the U.S. Department of


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Education (1996), approximately 4.7 million children between the ages of 6 and 17 qualified for special education services in school year 1994-95; this represents 10.4 percent of the total student population. This two-part definition means that not all students with disabilities are eligible to receive special education services. For example, students with medical or physical disabilities do not qualify for special education unless they also demonstrate educational need. These children are still protected by Section 504 of the Rehabilitation Act of 1973, which governs all publicly supported agencies. This statute entitles students with disabilities to reasonable accommodations in educational settings to permit them to overcome impairments in critical life activities—even if they do not qualify for special education services. Currently the number of these students, who are covered by Section 504 but are not in special education, is unknown.10 Nevertheless, the legal rights accorded them have the potential to affect the implementation of standards-based reform. For example, an increase in the number of Section 504-eligible students requesting accommodated assessments under standards-based reform would complicate interpretations of the meaning of assessment data. Some children enter kindergarten already identified and receiving special education services. Many others are identified in their first few years of elementary school because they encounter difficulties in general education classrooms. The process of identifying students with disabilities and determining their eligibility for special education typically involves three steps: referral, evaluation, and placement. Referral (usually by teachers) is the primary method through which children begin to be considered for a disability diagnosis. Most of these children are referred by their teachers for “repeatedly poor academic performance or poor social adjustment” (Heller et al., 1982:38). Thus, the performance of these students suggests they may need special education services, but they will qualify only if they are found to have a disability. The IDEA is explicit and detailed about testing and assessment procedures used to qualify students for special education. A number of legislative provisions are designed to protect students and ensure the fair, nondiscriminatory use of tests. These provisions stipulate that decisions about children must be based on more than a single test, that tests must be validated for the purpose for which they are used, that students must be assessed in all areas related to a suspected disability, and that evaluations must be made by a multidisciplinary team. Children are generally tested in one-to-one situations with various school professionals (e.g., a school psychologist, an occupational therapist, a speech and language therapist) on tests that can be individually adapted to match the child’s level. This type of highly individualized testing differs considerably from the large-scale, group-administered assessments usually tied to standards-based reforms. The costs associated with conducting eligibility and other mandated assessments have raised concern. Data from several finance studies (Chambers and Parrish, 1983; Moore et al., 1988) indicate that these initial assessments, as well as the requisite triennial

10 Available data about the numbers and characteristics of children with disabilities, which are discussed in this chapter, are collected for IDEA-eligible children and thus do not include non-eligible students with disabilities.


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reevaluations of students, are very expensive, each costing an estimated $2,000 (Chaikind et al., 1993). Furthermore, research indicates that far too often these evaluations are used to classify a student within a specific diagnostic category rather than to determine specific instructional interventions (Merrill, 1990; Shinn et al., 1988; Smith, 1990). If both the disability diagnosis and special education need are confirmed, then the student has rights to an individualized education program (IEP) designed to improve educational performance and expand opportunities. Evaluation results are used to develop an IEP that specifies the general goals and particular instructional objectives for the child; results are also used to design instruction and related services and to monitor the child’s progress toward objectives and goals. A yearly meeting must be held to update and revise the IEP. Every three years, a student goes through a complete reevaluation; a battery of tests and assessments is again given by a multidisciplinary team and an eligibility meeting held to determine whether the student still has a disability and requires special education services. Thus, students can and do move into and out of the special education system as they pass through the elementary and secondary school years. Little is known about the average length of time students stay in the system, but data indicate considerable movement. Available data suggest that, over a 1-year period at the secondary level, about 4 to 5 percent of eligible students are declassified and return to general education full time (Wagner et al., 1991; U.S. Department of Education, 1996). One longitudinal study of elementary schools in three urban districts suggested a slightly higher declassification rate during elementary school of 17 percent over a 2-year period (Walker et al., 1988).11 National enrollment data by age cohort suggest that enrollments in special education increase substantially between ages 6 and 8, peak for children at ages 9 and 10, and drop off steadily as students get older. This pattern varies, however, across disability categories, with some enrollments remaining relatively stable, whereas others (e.g., speech and language) decrease steadily with increasing age. Special education referral rates can be affected by other policies and practices in a school system. Some have argued, for example, that, in some schools and districts, policies that raise the consequences tied to test scores have led to increased numbers of students being identified as having a disability (Allington and McGill-Franzen, 1992), since special education students, many of whom tend to score lower, are commonly excluded from schoolwide reporting of test scores. The availability of other special programs, like remedial reading and Title I services, can affect the number of students referred for special education (Keogh and MacMillan, 1996). Others have suggested that fiscal incentives, such as basing allocations on counts of students with disabilities, can directly influence the number of students who get referred and placed in special education (Mehan, 1995). In a climate of reform aimed at raising academic standards, many are concerned that special education referral rates may go up if children with disabilities are exempted from certain aspects of reform or treated differently for accountability purposes. Unfortunately, at the current time, no systematic data are available on referral or placement rates that would allow monitoring of these trends over time. 11 In this study, students classified with speech and language disorders and specific learning disabilities were the most likely to move out of special education.


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Defining Disability A number of comprehensive systems exist for classifying various kinds of disabilities, and these have influenced classification in special education to varying degrees (American Psychiatric Association, 1994; Luckasson et al., 1992; MacMillan and Reschly, in press; Reschly, 1992; World Health Organization, 1994). There is, however, no official special education classification system that is used uniformly across U.S. states and regions. Thirteen disabilities are mentioned in the federal IDEA and defined in the accompanying regulations (IDEA 1991, 34 C.F.R. 300.7)… [They include:] autism, deaf-blindness, deafness, hearing impairment, mental retardation (MR), multiple disabilities, orthopedic impairment, other health impairment, serious emotional disturbance (SED), specific learning disability (SLD), speech or language impairment (Sp/L), traumatic brain injury, and visual impairment. Classification criteria are not provided for any of these disabilities except learning disabilities (see IDEA 1991, 34 CFR 300.541). States and school districts do not have to adopt the disability categories in the federal law and regulations. Indeed, classification practices vary significantly from place to place, including names for categories, key dimensions on which the diagnosis is made, and criteria for eligibility determination (Mercer et al., 1990; Patrick and Reschly, 1982; Singer et al., 1989; Smith et al., 1988). These differences have the greatest impact on students with mild disabilities. As a result, it is entirely possible for students with identical characteristics to be diagnosed as having a disability in one state but not in another, or to have the categorical designation change with a move across state lines. Many reasons have been given for the high degree of variability in the classification rates. Some of this variation stems from the different ways that the law has been implemented or that professional practice has been conducted in different jurisdictions. States and districts differ in referral practices, effectiveness of child-find programs, and definitions of disability used. In addition, identification rates are affected by factors such as the strength of professional and special interest groups, the proclivity and capacity of parents to seek services, the availability and cost of services, the stigma attached to various disability designations, and the history of litigation in different places (Singer et al., 1989). Severity of Disabilities The degree of an individual’s disability can range from mild to severe within a category. This means that students who may be considered as having a specific disability, such as learning disability or mental retardation, can be very different from one another. Severity is influenced by: (a) the size of the deficit(s) in behavior along such key dimensions as intelligence, academic achievement, communication/language, motor skills, and emotional adjustment; (b) the number of areas in which there are deficits; and (c) the complexity of developing educational interventions. The adjectives mild, moderate, and severe are usually used to denote the degree of severity of disabilities.


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People with mild disabilities typically have smaller deficits on the key dimensions, have deficits in fewer areas, and can function without assistance in most normal daily activities. Most students with mild disabilities demonstrate no evidence of physical or health anomalies that cause deficits in behavior. For this reason, mild disabilities are largely a school-age phenomenon. Identification occurs after school entrance through a pre-placement evaluation, which usually occurs because a teacher has referred the child due to severe and chronic achievement problems (Reschly, 1987b). Persons with mild disabilities typically require part-time special education programs that are delivered by special resource teachers or in special classes for part of the school day. During the adult years, the vast majority of these persons will not be officially designated as having a disability and will become self-supporting, independently functioning citizens in the community. Their needs for supportive services as adults are generally intermittent and restricted to particular activities or events. Because a disability is mild does not mean that it is trivial or that it magically disappears at age 18 or 21. Students with SLD, for example, are seriously impaired in one of the most important developmental tasks in a technologically complex society: acquiring literacy skills and using them to master bodies of knowledge. Poor reading skills in particular constitute formidable barriers to academic progress and significantly limit adult career opportunities. People with disabilities at the moderate to severe levels typically have a large deficit on at least one of the important behavioral dimensions, as well as moderate to large deficits in one or more of the other dimensions. These deficits tend to have a biological or physiological basis, and affected persons usually carry physical symptoms that influence their appearance. Disabilities at the more severe levels are typically diagnosed initially in the preschool years, often by medical personnel. During the school-age years, people with moderate or severe disabilities typically require assistance with certain daily living activities, such as self-help skills, mobility in the community, basic communication skills, and recreation. Special education programs for these students usually involve extensive assistance, whether in special classes with a very low student-to-teacher ratio (e.g., 5:1) or in general education classrooms with a full-time teacher or aide. Most people with disabilities at the moderate or severe level require lifelong assistance with one or more of the everyday activities of work, recreation, mobility, and self-care. People with disabilities at the most severe level typically have large deficits, often in two or more areas, that result in poor educational performance and require extensive and consistent support. Mental retardation is often a primary disability for people with severe multiple disabilities; for example, approximately 60 percent of people with cerebral palsy have mental retardation (Batshaw and Perret, 1986). In educational contexts, the focus of defining severe disabilities has moved from describing negative behaviors (e.g., self-mutilation, self-stimulation, loss of contact with reality) to describing developmental levels of functioning. This latter approach emphasizes the discrepancy between what is expected in “normal development” and actual student performance (e.g., a student’s developmental level is 50 percent lower than what is expected for his or her chronological age) (Abt Associates, 1974; Justen, 1976). Individuals with the most severe disabilities are far below


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normal development and require continuing assistance, in childhood and adult years, with very basic self-survival skills. Disability Dimensions The 13 disability categories in the federal regulations are based to varying degrees on 8 dimensions of behavior or individual characteristics: academic achievement, intelligence, adaptive behavior, emotional adjustment, communication/language, sensory status, motor skills, and health status, (Reschly, 1987b). As explained in the following pages, each dimension affects how children are identified and served in special education. Academic Achievement. Assessment of achievement in such core academic subjects as reading, writing, and math is nearly always part of the full and individual evaluation provided to children referred for special education, regardless of which of the 13 categories of disability is being considered. A high percentage of children in special education exhibit low achievement in at least one academic area. Achievement as a dimension of disability has important implications for standards-based reform. Serious debate exists about the relative importance of traditional academic literacy skills for students with severe disabilities and for many middle- and high-school-age students with moderate and mild disabilities. The majority of students with severe disabilities will not reach basic levels of academic literacy as they are understood in standards-based reforms. Furthermore, students with mild disabilities may reach plateaus in academic achievement, or, if not actual plateaus, then stages in skill acquisition, at which further progress is extremely slow…[T]he low achievement of some children with disabilities raises difficult issues about whether an academically oriented curriculum is the most appropriate emphasis, particularly if it takes time away from teaching social and functional competencies and vocational skills. Intelligence. General intellectual functioning is typically assessed as part of the evaluation for special education, usually with a standardized IQ test individually administered by a psychologist. Intellectual functioning is a key criteria for classifying students as MR and SLD in most states. Federal regulations define mental retardation as “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior” (34 CFR 300.7). Federal regulations for diagnosing specific learning disabilities require that there be a “severe discrepancy between achievement and intellectual ability” (34 CFR 300.541); most states have established procedures for determining what constitutes a severe discrepancy. Recent research, however, has challenged the validity of using an intelligence-achievement discrepancy to define SLD (see Morison et al., 1996). Although the meaning of the construct of intelligence continues to provoke debate, especially as it relates to achievement, some features of intelligence are reasonably well established. Intelligence is related to efficiency in information processing, the ability to learn abstract concepts, the spontaneous use of strategies to acquire and remember information and solve problems, and the capability to learn from incomplete instruction. Generally the lower the levels of intelligence (and achievement), the greater the need for more concrete, less abstract instruction that proceeds in small steps and includes ample


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demonstration and practice (Campione et al., 1982; Neisser et al., 1996). Intelligence is related to school performance and academic achievement, but the relationships are complex and difficult to separate (Neisser et al., 1996). Intelligence is both a predictor and an outcome of school achievement—that is, schooling both affects and is affected by general intellectual functioning.12 Adaptive Behavior. Adaptive behavior, also referred to as adaptive skills or social competencies, is traditionally defined as “the effectiveness or degree with which individuals meet the standards of personal independence and social responsibility expected for age and cultural group” (Grossman, 1983:1). Included in this concept are domains of behavior such as: (1) independent functioning—examples at the most basic level include toileting, eating, dressing, avoiding danger, getting around the community, handling money wisely; (2) social functioning—e.g., orienting to human contact, complying with rules and expectations, refraining from behaviors that destroy property or injure others, working cooperatively; (3) functional academics—e.g., acquiring language to communicate needs and to interact with others, using basic literacy skills in everyday activities, mastering concepts of time and number used in everyday environments; and (4) vocational-occupational skills—e.g., exhibiting good work habits and positive attitudes, mastering skills related to employment. The mental retardation diagnosis explicitly requires a determination of adaptive behavior deficits and cannot be made solely on the basis of an IQ score. Diagnosis of SED also involves adaptive behavior domains; conduct disorders involving aggression against persons and property and refusal to comply with societal norms and rules are the most frequent kind of SED. Because adaptive behavior expectations vary by age, setting, and cultural group, they are sometimes difficult to assess. But adaptive behavior is essential to every disability category, and adaptive behavior competencies are widely recognized as crucial to the adjustment of students with disabilities, especially as they mature into adults. Emotional Adjustment. Emotional adjustment involves attitudes, values, and emotions that can facilitate or interfere with academic and social behaviors in a variety of settings. A relatively small number of students with SED have problems with emotional adjustment called internalizing disorders. These disorders involve patterns of behavior, such as excessive anxiety, dysphoric mood, and repetitive ritualistic behaviors, that cause distress to the individual and interfere with everyday performance. Depending on state and local practices, children and youth with internalizing disorders may receive related services such as counseling. Communication/Language. Communication skills and language development are central to several disabilities, particularly the Sp/L category. Sp/L disorders vary markedly, from relatively straightforward misarticulation difficulties (such as slurring “s” and “sh” sounds) that may be resolved through short-term treatment, to severe stuttering that markedly interferes with normal communication and requires years of speech therapy. Understanding and using language to communicate also is crucial to determining the level

12 Because the dimensions of achievement and intelligence are so closely related, we use the term cognitive disability throughout the rest of the report to describe disabilities that affect students’ learning and thinking processes.


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of disability in other categories and is a central focus of special education programming for many students with disabilities, Sensory Status. Sensory status, particularly auditory and visual acuity, is the basis for the disability categories of deafness, hearing impairment, deaf-blindness, and visual impairment. Screening for sensory deficits is routinely included in full and individual evaluations for special education. Sensory deficits often accompany other disabilities, especially at the multiple and/or severe levels. Motor Skills. Special education and related services are often needed by students with motor disabilities to compensate for their motor limitations and to treat associated problems such as speech production difficulties. Motor skills limitations also can influence participation in activities associated with the general education curriculum and standards-based reform. For example, many students with motor limitations have difficulties with the response formats required on standards-based assessments (e.g., group-administered paper-and-pencil tests). Health Status. A wide variety of health problems, some of which are life threatening, can result in a disability diagnosis and referral to special education. Some students are so ill that they cannot participate in the general school curriculum or activities associated with standards-based reform. Students with severe head injuries, for example, who are attempting to regain very basic cognitive functions such as awareness and memory, can hardly be expected to participate meaningfully in standards-based reforms. A few students have health problems that are so severe and chronic that their special education and related services do not incorporate any skills that would be included in the general education curriculum at the lowest grade levels. Different Models of Disability The current special education classification system mixes two different ways of thinking about the nature and origin of disabilities: the medical and the social system models of deviance (Mercer, 1979; Reschly, 1987b). Each model implies different assumptions about etiology, identification, assessment, and treatment. The medical model generally applies to disabilities that have known biological bases; retinopathy caused by premature birth as a cause of blindness is an example (Mercer, 1979; Reschly, 1987b). Medical model disabilities are generally lifelong, can be observed across most if not all social roles and settings, and are likely to be identified regardless of cultural context. Medical model disabilities typically are identified by medical personnel during the preschool years, often in the first year of life. Treatment focuses on eliminating the underlying cause, if possible, or compensating for its effects on daily activities to the extent feasible. In contrast, the social system model typically refers to disabilities that are socially constructed and relevant to some but not all settings. In the social system model, disorders are defined as discrepancies from expected patterns or normative standards of performance on important dimensions of behavior. In children, many such disabilities are evident only


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after a child enters school and begins to have difficulty with academic learning. Statistical indices such as percentile ranks and discrepancy scores are used to quantify the amount of divergence from age or grade-level averages. Often a point or two in these discrepancy scores can determine whether a student receives special education services and whether additional thousands of dollars are spent on the child’s education. The 13 disability categories in the IDEA reflect to varying degrees these two models of deviance. The medical model is useful for describing such categories as deafness, deaf-blindness, hearing impairment, multiple disabilities, other health impairment, traumatic brain injury, visual impairment, and the moderate or severe levels of mental retardation. Nearly all of the children and youth with these types of impairments have identifiable biological and observable physiological anomalies that are permanent and that have a direct relationship to impairments in behavior. Disabilities at the mild level in the categories of SLD, Sp/L, SED, and MR are understood best from the social system model of deviance because there is no clearly identifiable biological basis for the disability; the impairments in behavior are restricted to particular roles in specific contexts, and effective treatment focuses on symptoms rather than underlying causes. The mixture of the medical and social system models has the most serious consequences in the area of SLD; there often is confusion over the relative importance of underlying causes and symptoms in the assessment, identification, and treatment of this disability. The conceptualization of learning disabilities as a problem with psychological processing emerged in the 1960s. Various definitions have evolved over time, and most incorporate the ideas that learning disabilities (1) are different from other achievement-related conditions such as mental retardation or slowness in learning, (2) can be expressed as unexpected difficulties in a range of basic ability domains, such as thinking and spoken or written language, and (3) are caused by something within the individual, often presumed to be an underlying neurological condition (Keogh and MacMillan, 1996). The most widely used definition states that SLD is “a disorder in one or more of the basic psychological processes involved in understanding or using language” and refers to such conditions as “perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia” (Mercer et al., 1990; IDEA, 34 CFR 300.7[a][10]). However, the majority of students with SLD do not show identifiable signs of neurological deficits (Hammill, 1990). Further more, recent research on at least one kind of reading disability challenges the notion that it is a discrete diagnostic entity; instead, these authors (Shaywitz et al., 1992:148) argue that:

Dyslexia occurs along a continuum that blends imperceptibly with normal reading ability. These results indicate that no distinct cutoff point exists to distinguish children with dyslexia clearly from children with normal reading ability; rather, the dyslexic children simply represent the lower portion of the continuum of reading capabilities.

Different perspectives on the definitions and key criteria are not the only complication in the area of learning disabilities. Problems in its implementation in the school context include unsound diagnostic practices, unreliable measures, different choices of discrepancy models for operationalizing the definition, different understandings of SLD by those making referrals, and preference for the SLD diagnosis because it incurs less stigma than some other categories (Keogh and MacMillan, 1996; Lyon, 1996). Thus, “the


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heterogeneity evident in any identified group of learning disabled individuals is a function of both conceptual and operational inconsistencies” (Keogh and MacMillan, 1996:316). Eligibility Policy Proper diagnosis of disabilities is complicated by the nature of current policy requirements, especially the all or none character of eligibility—that is, a student must be deemed either to have or not to have a disability for educational purposes. In fact, the capabilities and needs of many students do not fit into such a neat dichotomy but rather exist on a broad continuum, often lacking clear demarcations between students with disabilities and those without. Problems with the current classification system were recognized at least 20 years ago in the massive federally funded exceptional child classification project. Hobbs (1975:102) characterized the conventional categories and the procedures for arriving at them as follows:

They are imprecise: They say too little, and they say too much. They suggest only vaguely the kind of help a child may need, and they tend to describe conditions in negative terms. Generally, negative labels affect the child’s self concept in a negative way, and probably do more harm than good.

Some of the assumptions behind the current categorization system were again questioned in a later report issued by a National Research Council panel on selection and placement of students in programs for the mentally retarded (Heller et al., 1982:21):

To what extent must children be classified and labeled according to a generic class of deficiencies in order to receive special education services? Diagnostic categories such as EMR [educable mentally retarded] may be more an administrative convenience than an educational necessity, allowing schools to count the number of children in this and other special programs in accord with federal requirements. If categorical labels are required for administrative purposes, they could be chosen to reflect the educational services provided, thereby emphasizing the responsibilities of school systems rather than the failings of the child.

Following are brief descriptions of some of the problems involved in classifying disabilities, with selected references for further reading… Students and schooling characteristics Available data on the number of students with different kinds of disabilities come almost exclusively from the Office of Special Education Programs (OSEP) in the U.S. Department of Education. These data are collected on a yearly basis from states and aggregate the number of children being served in special education programs across the 13 categories of disability.13 There are no other population-based data on the prevalence of

13 State counts of the total number of children served under the IDEA on December 1 of each school year (as reported in the Annual Reports to Congress on the IDEA) are auditable because they are used to provide IDEA, Part B, monies to states. As a result, states believe these total counts are highly accurate. In contrast,


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disabilities among children against which to compare the OSEP data. Although other kinds of national surveys have been done, they often rely on parent reports of disability characteristics and specific educational problems and do not provide reliable prevalence estimates (Lewit and Baker, 1996)… Characteristics Related to Disability Status Other than age, OSEP does not collect any demographic information from the states concerning students with disabilities. The data that exist come from other sources. Most data on school-referred samples of children indicate that boys are identified for special education at higher rates than girls (Heller et al., 1982; Wenger et al., 1996). For example, about two-thirds of the sample of secondary students with disabilities identified for the National Longitudinal Transitional Study of Special Education Students (NLTS) were male (Wagner et al., 1991); only in the categories of deaf-blindness and hearing impairment was the gender distribution approximately equal. However, recent data using clinically identified samples of students suggest that approximately the same number of girls and boys are identified when functional characteristics are assessed (e.g., Lyon, 1996). Since the 1960s, there have been concerns about higher proportions of minority children being identified as having disabilities, particularly for the category of mental retardation. This concern about overrepresentation of minorities provoked numerous cases in which the federal courts scrutinized the professional practices of special educators and school psychologists, as well as the validity of IQ tests in making disability diagnoses (see Morison et al., 1996). The only national data regarding race/ethnicity and disability category are collected by the Office for Civil Rights (OCR) in the U.S. Department of Education. Table 3-2 presents data from the 1978, 1986, and 1990 OCR surveys of school districts. These data should be viewed with an understanding that they are not a representative sample, do not use the same sampling methodology over time, and do not include all 13 IDEA categories.14

states define their own eligibility criteria for each disability category; although the data are aggregated across states to get national totals in each of the 13 categories, the comparability of characteristics of students in each category is unknown. 14 Although the OCR sampling unit is the school district, OCR surveys are not a representative sample of school districts in the United States because the sampling includes all of the “large” districts and a sample of “smaller” districts. Furthermore, the OCR sampling strategy has changed over the surveys reported in Table 3-2, and it is impossible to determine with certainty the effects of these changes on the representativeness of the OCR results. Finally, OCR collects data for only 5 of the 13 categories recognized in the IDEA. The most emphasis is placed on three “judgmental categories” (mental retardation, specific learning disability, and serious emotional disturbance), that is, the categories in which a degree of professional judgment is required in diagnostic decision making (Gelb andMizokawa, 1986).


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TABLE 3-2: Percentages of African American, Hispanic, and White Students Classified with Mild Disabilities Year and Ethnic Category Disability category: MMR SLD SED Total 1978: African-American 3.46 2.23 0.50 6.19 Hispanic 0.98 2.58 0.29 3.85 White 1.07 2.32 0.29 3.68

1986: African-American 2.30 4.43 1.04 7.77 Hispanic 0.56 4.31 0.46 5.33 White 0.87 4.29 0.57 5.73

1990: African-American 2.10 4.95 0.89 7.94 Hispanic 0.65 4.68 0.33 5.66 White 0.81 4.97 0.69 6.47

2004:15 African-American 11.94 Hispanic 11.35 White 12.45

NOTE: Data in the table represent the percentage of the total number of students in each ethnic minority group who are classified in the particular category given. MMR=mild mental retardation; SLD=specific learning disability; and SED=serious emotional disturbance. SOURCE: 1978 data based on Finn (1982:324-330). 1986 data based on analyses by Reschly and Wilson (1990), using 1986 OCR survey data compiled by the National Council of Advocates for Students. 1990 data based on U.S. Department of Education (1994: 198, 201, 202) Data from the 1990 OCR survey suggest that, over the four categories included in the survey (MMR, SLD, SP/L and SED), 11 percent of both African American and Native American children receive special education services; this is somewhat higher than identification rates of other racial/ethnic groups (9.5 percent of whites, 8 percent of Hispanics, and 4 percent of Asian/Pacific Islanders). Data across time suggest that, although overrepresentation of African American children in some categories still occurs, it has decreased in the past 20 years. Several trends regarding minority participation in special education are apparent from the data on African American, Hispanic, and white students presented in Table 3-2. The overall rates of identification in these mild categories have increased for all three racial/ethnic groups since 1978; the biggest proportional increases have occurred for white children (from under 4 percent identified in 1978 to over 6 percent in 1990). The most recent data suggest that patterns of disproportion vary by disability category. The most

15 Figures from 2004 are from Institute of Education Sciences, National Center for Education Statistics, “Demographic and School Characteristics of Students Receiving Special Education in the Elementary Grades (http://nces.ed.gov/pubs2007/2007005.pdf )


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common disability across all three racial/ethnic groups is SLD, with approximately similar rates for each group (Just under 5 percent of all students in 1990). Hispanic children show the lowest rates of identification across all three mild disability categories. Most of the overrepresentation of African American children is due to the larger percentage labeled MMR, although African American children also show slightly higher rates of identification as SED. Some analysts have argued that other variables, such as socioeconomic status and poverty status, which are confounded with race and ethnicity, may account for at least some of the variation in special education identification rates. Poverty has long been associated with special education placement rates (e.g., Dunn, 1968). It is rare, however, to find analyses and publication of data concerning the actual relationship of poverty to the incidence of disabilities and special education placement.. Appropriate data for these analyses were available from four school districts (Coalition to Save Our Children v. Board of Education et al., U.S. District Court, District of Delaware, Civil action no. 56-1816-1822, 1994). In all four districts, both African American and white students who were poor, as gauged by eligibility for subsidized school lunch, were much more likely to be classified as disabled and placed in special education. In three of the four districts, African American and white students in poverty circumstances had essentially the same rates of diagnosis for and placement in special education— about 19 percent on average. In the four districts, children who were not eligible for subsidized lunch were placed in special education at much lower rates—ranging from 7.3 to 9.2 percent for African Americans and from 5.3 to 7.3 percent for whites; even so, the placement rates for non-poor African American students were slightly higher. Poverty is a plausible explanation for much of the special education overrepresentation of minority children, although additional studies are needed on the relationship of poverty to disability diagnosis and special education placement. Data from the NLTS, a longitudinal study of secondary school youth with disabilities, provides data on several socioeconomic and household characteristics. Table 3-3 presents some of these data as well as approximately comparable numbers for the general population (Wagner et al., 1991). These data suggest that students with disabilities are more socioeconomically disadvantaged than the general population—that is, more likely to come from single-parent households, to have a head of household with lower educational attainment, and to have lower household incomes. Educational Placement Having a disability, mild or severe, can affect a child’s schooling in many ways. It can affect where children are educated, whether they have the same goals for schooling as children without disabilities, and whether they participate in all of the general education curriculum, some of it, or none. Furthermore, it can influence whether they can be taught by the same methods and with the same tools and equipment as other students, and whether they can be evaluated in the same ways. Many children with disabilities work toward the same high school diploma as other students, whereas some will seek a different credential or certificate of completion.


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Very little systematic, representative data exist that describe the range and degree to which students with disabilities participate in the various aspects of general education. In part this is because individualized programs are the hallmark of special education services, making it hard to collect and aggregate data systematically about the school experiences of these students. In addition, re search is scarce on the longitudinal progress and development of students with disabilities, partly because they have been left out of large-scale longitudinal studies and databases or, in cases of mild disabilities, have been included but with no information on disability status. One analysis of major national education databases (such as the National Assessment of Educational Progress and the National Education Longitudinal Study) estimated that 40 to 50 percent of all school-age students with disabilities are excluded from these samples. Furthermore, exclusion criteria vary and exclusion rates are often not reported systematically (McGrew et al., 1993). In addition, the lack of consistent and reliable disability categories within and across studies makes it especially difficult to analyze how longitudinal pathways may vary by disability and to compare results from study to study (McGrew et al., 1995). Among the important decisions made during the instructional planning and IEP development process are decisions about where the child will receive services. Some children need special education services in only one or two academic skill areas (e.g., spelling and written language), whereas others have IEPs that cover academic, behavioral, vocational, and social skill domains. For many children, then, placement decisions vary by skill or goal areas. Views about the optimal educational settings for children with various kinds of disabilities differ. Over the past several decades, policies have shifted regarding whether students with disabilities should be educated in special or regular classrooms. Although since 1975, the IDEA has required that each student with a disability be provided with a free and appropriate education in the least restrictive environment,… for many students with disabilities, debate still continues over what the most appropriate placement is. In addition, it is important to remember that “regular education is not one setting but many different settings that vary considerably from one classroom to the next” (Hebbeler, 1993:1-3). Furthermore, where a child is placed is not necessarily related to what curriculum and instruction he or she receives. Data collected from all states for the 1993-94 school year (reported in Table 3-4) indicate that over 95 percent of students with disabilities served under the IDEA were served in regular school buildings (U.S. Department of Education, 1996), a slight increase since 1977, when data were first collected (Sawyer et al., 1994). The remaining 4.4 percent of students receive their education in either a separate day school, a residential facility, a hospital, or a homebound program. Students diagnosed with specific learning disabilities or speech/language impairments were the least likely to be placed outside the regular school building.


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TABLE 3-3: Socioeconomic Characteristics of Secondary School Youth with Disabilities and Youth in the General Population Socioeconomic Characteristics Youth with disabilities a Percentage of Youth

in the General Populationb

% Standard Error Education of household head: Less than high school 41.0 1.5 22.3 High school graduate 36.0 1.4 38.8 Some college/2-year degree 14.0 1.0 17.8 4-year degree or more 8.9 0.9 21.1 (n=6,650)

Annual household income: Under $12,000 34.8 1.5 18.2c

$12,000 to $24,999 33.5 1.5 20.6 $25,000 to $37,999 16.2 1.2 25.4 $38,000 or more 15.4 1.1 35.8 (n=6,092)

Receiving public benefits Food Stamps 23.7 1.2 12.9d

Medicaid or similar coverage 21.6 1.2 12.6d AFDC 12.5 1.0 12.6e (n=6,631)

Living in single parent households 36.8 1.4 25.6b

(n=6,385) aData on youth with disabilities are from the NLTS. bU.S. Bureau of Census (1988: Table 9, pp. 45ff). Data refer to youth ages 12 to 17 and living with at least one parent in March 1987. cNote that categorical boundaries are set at $12,500, $25,000, and $40,000 rather than $12,000, $25,000, and $38,000. dU.S. Department of Education (1988:34). Percentage of households with youth ages 0 to 18 (not youth ages 0 to 18 in households) in 1985. eU.S. Department of Education (1988:32). Percent of youth ages 0-17 in 1985. SOURCE: Adapted from Wagner et al. (1991) In a regular school building, students may receive services in one of several places: some are served largely in regular classrooms, others spend a significant part of their day in special education resource rooms, and still others spend the majority of their day in separate, self-contained special education classrooms. Although the data are reported in very broad categories and by somewhat different methods, aggregated state child count data give a general national picture of current placement trends (U.S. Department of Education, 1996).16 As Table 3-4 illustrates, in 1993-94, 23 percent of students with 16The intent of the placement data collected as required by Section 618 of the IDEA is to assess the extent to which students with disabilities are being served with their peers without disabilities. Because of state-regulated data collections and specific service configurations used by states, some states crosswalk their placement data with the OSEP placement categories; as a result, despite extensive federal support and technical assistance, the placement data reported in the Annual Report to Congress are less reliable than is the total count of students receiving special education under the IDEA.


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TABLE 3-4: Educational Environments for Students with Disabilities (1993-94) (percentages) Separate

School Regular School Buildings

Separate Class (less than 40% of the day in regular classroom)

Resource Room (40-79% of the day in regular classroom)

Regular Class (at least 80% of the day)

All disabilities

4.4 22.7 29.4 43.4

6-11-year-olds

2.5 19.3 24.8 53.5

12-17-year-olds

5.6

25.9 35.2 33.3

Specific learning disabilities

0.8 18.8 41.0 39.3

Speech/language 0.4 4.5 7.6 87.5 Mental retardation 8.3 57.0 26.2 8.6 Serious emotional disturbance

18.5 35.3 25.8 20.5

Multiple disabilities 27.1 44.1 19.7 9.0 Hearing impairments

18.7 30.6 20.0 30.6

Orthopedic impairments

8.7 33.3 20.7 37.4

Other health impairments

11.6 21.3 27.0 40.0

Visual impairments 15.3 18.3 21.3 45.2 Autism 27.8 54.5 8.1 9.6 Deaf/blindness 50.1 34.2 7.9 7.8 Traumatic brain injury

23.9 30.2 23.5 22.3

NOTES: Students age 6-21. Separate schools include separate day schools, residential facilities, and hospital or homebound programs. Children are counted as being served in a separate day school if they spend more than 50 percent of the day there. This includes private facilities attended by students at public expense. SOURCE: Tables AB2, AB4, AB5, Eighteenth Annual Report. U.S. Department of Education (1996) disabilities spent the majority of their time (more than 60 percent) in such separate, self-contained classrooms. Another 29 percent spent a substantial portion of their time in special education resource rooms, with the rest of their time spent in the regular classroom. About 43 percent of students with disabilities (or about 2 million) are classified as “regular classroom” students—meaning that they spend at least 80 percent of their day there. Many of this group of students are likely to be participating in the general education curriculum and in large-scale assessments, although perhaps with accommodations for both. Data presented in the table indicate that the amount of time spent in the regular classroom varies by disability. Students with autism, deaf-blindness, mental retardation, and multiple


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disabilities are least likely to spend much time in the regular classroom. Data also suggest that elementary school students (ages 6-11) are more likely to be served for more time in regular classrooms than are secondary school students (ages 12-17). Reflecting the national policy trend toward greater integration of students with disabilities into the least restrictive environment, placements in the regular education classrooms increased between 1985-86 and 1989-90 for almost all disabilities, and placements in resource rooms declined. Placements of children in separate classrooms in regular school buildings remained essentially unchanged (Sawyer et al., 1994)… CONCLUSIONS Several themes emerge from this discussion of student identification, disability characteristics, and educational needs. The number of students with disabilities is sizable, and they are extremely heterogeneous. More than 5 million school-age students—or about 10 percent of the school-age population—qualify for special education services, constituting a significant population. Students served by special education vary widely in severity of disability, educational goals, and participation in the general education curriculum. These variations affect many aspects of their schooling. In addition, there is evidence that students with disabilities as a group are at socioeconomic disadvantage compared with their peers without disabilities. Currently the criteria for identifying many of the categories of disability are not well defined or reliable, even though these criteria affect important decisions about which students are eligible for legal rights and special education services under the IDEA. Disability categories are defined largely by state policies; identification rates vary a great deal from state to state, and very different criteria are used in different places. Interpretation and implementation of the disability criteria is largely a district-level concern; no systematic data are available about how the criteria may be interpreted and therefore which students get into which categories and on what basis. Currently, to qualify for special education, a yes-no determination of the presence of a disability has to be made, although disability varies along a number of dimensions, each of which is best described as a continuum of severity. Clear-cut decisions about which children should be served are not easily made. Some children who qualify for special education in one school would not qualify elsewhere. Conversely, some children are not identified as disabled who are likely to have the same educational needs as those who are identified. The implications of standards-based reforms for these children—low-achieving but not currently identified for special education—is beyond the scope of this committee’s work but nevertheless should be considered in implementing and monitoring the effects of standards-based reforms. Meaningful discussion of standards, curriculum, assessment, and outcomes cannot occur without thoughtful consideration of the varied characteristics of the large and diverse number of students with disabilities. The nature of the participation of students with disabilities in the common aspects of standards-based reform is likely to vary depending on their individual characteristics and educational needs. Over the past 20 years, students with disabilities have been participating more and more in general education classrooms and curricula. For some students with disabilities,


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participation in the general education curricula and therefore in standards-based reforms is already a reality and will require minor or no individualized adaptations. The small group of children with very severe cognitive disabilities will present particular challenges for standards-based reforms and are likely to require major adaptations to standards-based curricula and assessments. For another group—largely those with mild to moderate cognitive disabilities—participation in common standards and assessments can be expected to increase considerably as the frameworks are put into place. These children may require some modifications to the common standards, curricula, or assessments to ensure compatibility of their individualized education programs with the standards frameworks. The number of students with disabilities who may need accommodations or other modifications in standards and assessments is unknown and will depend on such factors as behavioral characteristics and severity of disability, extent of participation in the general curriculum, and the instructional needs of students. Nationally representative data are lacking about the population of students with disabilities on any of these factors. The need for accommodations and other modifications will also depend on the nature of a district’s or state’s particular content standards, performance standards, and assessments—which vary significantly from place to place. The role of parents will be key in ensuring the successful participation of students with disabilities in standards-based reforms. Parental involvement and expectations are strongly related to the achievement of their children, even after taking into account the effects of related variables, such as parental education and socioeconomic status; these relationships appear to hold for students with and without disabilities. In addition, parents of students with disabilities have a unique role to play in the process of designing their children’s educational programs. Although the IEP process is the cornerstone of parental involvement, evidence indicates that it has not worked well for all parents. Concerns regarding the IEP process are exacerbated for minority or economically disadvantaged parents. Resolving the barriers to parental involvement takes on even greater importance in the era of standards-based reform, particularly in light of the research evidence indicating its effects on improving achievement. The legal provisions guaranteeing the rights and responsibilities of parents in special education are potentially powerful tools that parents can use to bring about the successful integration of children with disabilities into a standards-based educational environment. At the same time, standards-based reform may place even greater demands on parents, in terms of decision-making responsibilities, participation requirements, and training and information needs. Very few systematic, nationally representative data are available about students with disabilities. As a result, we know very little about the population served by special education—how many children move in and out of special education, how definitions of disability categories are interpreted by individual school staff, how many children are referred but not found eligible, how many have a disability but do not need special education, what the demographic characteristics of eligible children are, how many students complete full requirements for a diploma, how many leave school on some other basis, and so on. Counting and keeping track of data related to the disability status, outcomes, and performance of students with disabilities are complicated by a number of factors specific to this population—for example, many cannot take group-administered tests (usually the primary outcome measure) under standardized procedures, many split their time between


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general education classrooms and special education classrooms, some are served in separate schools not sampled in most data collection procedures, some do not remain with their age or grade cohort as they progress through school, and many move in and out of the special education system over time. The exclusion of students with disabilities from these research and evaluation samples can affect the overall results of these studies. The results of any aggregated data pertaining to general education, and thus to standards-based reform, can be affected if these children are left out, especially since many students with disabilities have lower achievement. Furthermore, systematic, representative data are needed about the educational progress of students with disabilities relative to the larger group of general education students. Without good data on such factors as special education referral and identification rates or graduation rates and types of diplomas, it will be hard to monitor some of the potential effects of standards-based reforms—both intended and unintended—for students with disabilities. Past experience has indicated that new policies often have system-wide effects that were not originally intended, such as increased dropout or retention rates. In addition, specific subgroups of children, such as those defined by gender or race/ethnicity, can be differentially affected. It will be very important to detect whether, for example, standards-based reforms are increasing the rates of referral to special education, changing the demographics of who gets identified, or affecting the dropout rates or types of diplomas obtained. Changes such as these have the potential to affect all students, not just those with disabilities.

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Grossman, H.J. (1983) Classification in Mental Retardation. (Washington, DC: American Association on Mental Deficiency). Hammill, D.D. (1990) On defining learning disabilities: An emerging consensus. Journal of Learning Disabilities 23: 74-84. Handler, J.F. (1986) The Conditions of Discretion: Autonomy, Community, Bureaucracy. (New York: Russell Sage Foundation). Hardman, M.L., C.J. Drew, and M.W. Egan (1996) Human Exceptionality, 5th edition. (Boston: Allyn and Bacon). Harry, B., N. Alien, and M. McLaughlin (1995) Communication versus compliance: African-American parents’ involvement in special education. Exceptional Children 61(4): 364-377. Hasazi, S., L. Gordon, and C. Roe (1985) Factors associated with the employment status of handicapped youth exiting high school from 1979-1983. Exceptional Children 51: 455-469. Hebbeler, K. (1993) Traversing the Mainstream: Regular Education and Students with Disabilities in Secondary School. A Special Topic Report from the National Longitudinal Study of Special Education Students. (Menlo Park, CA: SRI International). Heller, K.A., W.H. Holtzman, and S. Messick, eds. (1982) Placing Children in Special Education: A Strategy for Equity. Committee on Child Development Research and Public Policy, National Research Council. (Washington, DC: National Academy Press). Hobbs, N. (1975) The Futures of Children. (San Francisco: Jossey-Bass). Jenkins, J.R., M. Jewell, N. Leicester, L. Jenkins, and N.M. Troutner (1991) Development of a school building model for educating students with handicaps and at-risk students in general education classrooms. Journal of Learning Disabilities 24: 311-320. Justen, J. (1976) Who are the severely handicapped? A problem in definition. AAESPH Review 1(5): 1-11. Kauffman, J.M., and D.P. Hallahan (1993) Toward a comprehensive delivery system for special education. Pp. 73-102 in Integrating General and Special Education, J.L. Goodlad and T.C. Lovitt, eds. (New York: Merrill-MacMillan. Kauffman, J.M., and J.W. Lloyd (1995) A sense of place: The importance of placement issues in contemporary special education. Pp. 3-19 in Issues in Educational Placement: Students with Emotional and Behavioral Disorders, J.M. Kauffman, J.W. Lloyd, D.P. Hallahan, and T.A. Artuto, eds. (Hillsdale, NJ: Lawrence Eribaum). Kavale, K.A., D. Fuchs, and T.E. Scruggs (1994) Setting the record straight on learning disability and low achievement: Implications for policy making. Learning Disability Research and Practice 9(2): 70-77. Keogh, B.K., and D.L. MacMillan (1996) Exceptionality. In Handbook of Educational Psychology, D. Berliner and R. Calfee, eds. (Washington, DC: American Psychological Association). Kuriloff, Peter J. (1985) Is justice served by due process?: Affecting the outcome of special education hearings in Pennsylvania. Law and Contemporary Problems 48(1): 89-118. Lazerson, M. (1983) The origins of special education. In Special Education Policies: Their History. Implementation, and Finance, J. Chambers and W. Hartman, eds. (Philadelphia, PA: Temple University Press). Learning Disabilities Association of America (1993) Position Paper on Full Inclusion. (Pittsburgh, PA: Learning Disabilities Association of America).


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I.ewit, E.M., and L.S. Baker (1996) Child indicators: Children in special education. The Future of Children: Special Education for Students with Disabilities 6( 1): 139-151. (Los Altos, CA: Center for the Future of Children, David and Lucille Packard Foundation). Luckasson, R., D.L. Coulter, E.A. Polloway, S. Reiss, R.L. Schalock, M.E. Snell, D.M. Spitalnik, and J.A. Stark. (1992) Mental Retardation: Definition, Classification, and Systems of Support, 9th Edition. (Washington. DC: American Association on Mental Retardation). Lyon, G.R. (1996) Learning disabilities. The Future of Children: Special Education for Students with Disabilities 6(1): 54-76. (Los Altos, CA: Center for the Future of Children, David and Lucille Packard Foundation). MacMillan, D., and D.J. Reschly (in press) Issues in definition and classification. In Handbook of Mental Deficiency: Psychological Theory and Research, 3rd Edition, W.E. MacLean, ed. (Hillsdale, NJ: Lawrence Eribaum). Mayer, M. (1975) The Schools. (New York: Harper). McCusic, M. (1991) The use of education clauses in school finance reform litigation. Harvard Journal on Legislation 28(2): 307-340. McGrew, K.S., B. Algozzine, J.E. Ysseldyke, M.L. Thurlow, and A.N. Spiegel (1995) The identification of individuals with disabilities in national databases: Creating a failure to communicate. Journal of Special Education 28(4): 472-487. McGrew, K.S., M.L. Thurlow, and A.N. Spiegel (1993) An investigation of the exclusion of students with disabilities in national data collection programs. Educational Evaluation and Policy Analysis 15(3): 339-352. McLaughlin, M.J., and S.H. Warren (1992) Outcomes assessments for students with disabilities: Will it be accountability or continued failure? Preventing School Failure 36(4): 29-33. Mehan, H. (1995) The Institutional Uses of IQ tests. Unpublished paper presented at a workshop of the Board on Testing and Assessment, La Jolla, CA, January 21, 1995. University of California, San Diego. Melnick, R.S. (1994) Between the Lines: Interpreting Welfare Rights. (Washington, DC: Brookings). Mercer, C.D., P. King-Sears, and A.R. Mercer (1990) Learning disabilities definitions and criteria used by state education departments. Learning Disability Quarterly 13:141-152. Mercer, J. (1979) System of Multicultural Pluralistic Assessment Technical Manual. (San Antonio, TX: Psychological Corporation). Merrill, K.W. (1990) Differentiating low achieving students and students with learning disabilities: An examination of performances on the Woodcock-Johnson Psycho-Educational Battery. Journal of Special Education 24: 296-305 Minow, M. (1990) Making All the Difference: Inclusion, Exclusion, and American Law. (Ithaca, NY: Cornell University Press). Mithaug, D.. C. Horiuchi, and P. Fanning (1985) A report on the Colorado state-wide follow-up survey of special education students. Exceptional Children 51:397-404. Morison, P., S.H. White, and M.J. Feuer, eds. (1996) The Use of IQ Tests in Special Education Decision Making and Planning. Board on Testing and Assessment, National Research Council. (Washington, DC: National Academy Press).


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Neal, D., and D.L. Kirp (1985) The allure of legalization reconsidered: The case of special education. Law and Contemporary Problems 48(1): 63-87. Neisser, U., G. Boodoo, T.J. Bouchard, A.W. Boykin, N. Brody, S.J. Ceci, D.F. Halpern, J.C. Loehlin, R. Perloff, R.J. Sternberg, and S. Urbina (1996) Intelligence: Knowns and unknowns. American Psychologist 51(2): 77-101. Nirge, B. (1970) The normalization principle: Implications and comments. Journal of Mental Retardation 16: 62-70. Ordover, E.L., K.B. Boundy, and D.C. Pullin (1996) Students with Disabilities and the Implementation of Standards-Based Education Reform: Legal Issues and Implications. Unpublished paper prepared for the Committee on Goals 2000 and the Inclusion of Students with Disabilities, June 1996, Center for Law and Education. Osborne,A.G.. Jr. (1996) Legal Issues in Special Education. Needham Heights, MA: Allyn and Bacon. Patrick, J., and D. Reschly (1982) Relationship of state educational criteria and demographic variables to school-system prevalence of mental retardation. American Journal of Mental Deficiency 86:351-360. Pugach, M.C., and C.L. Warger (1993) Curriculum considerations. Pp. 125-148 in Integrating General and Special Education, J. Goodlad and T. Lovitt, eds. (New York: Merrill-Macmillan). Reschly, D.J. (1992) Mental retardation: Conceptual foundations, definitional criteria, and diagnostic operations. Pp. 23-67 in Developmental Disorders: Diagnostic Criteria and Clinical Assessment, S.R. Hooper, G.W. Hynd, and R.E. Mattison, eds. (Hillsdale, NJ: Lawrence Eribaum Associates). ______ (1988) Minority mild mental retardation over-representation: Legal issues, research findings, and reform trends. Pp. 23-41 in Handbook of Special Education: Research and Practice II, M.C. Wang, M.C. Reynolds, and H.J. Walberg, eds. (Oxford, England: Pergamon Press). ______ (1987a) Learning characteristics of mildly handicapped students: Implications for classification, placement, and programming. Pp. 35-38 in Handbook of Special Education: Research and Practice I, M.C. Wang, M.C. Reynolds, and H.J. Walberg, eds. (Oxford, England: Pergamon Press). ______ (1987b) Assessing educational handicaps. Pp. 155-I57 in The Handbook of Forensic Psychology, A. Hess and I. Weiner, eds. (New York: Wiley). Reschly, D.J., and M.S. Wilson (1990) Cognitive processing vs. traditional intelligence: Diagnostic utility, intervention implications, and treatment validity. School Psychology Review 19:443-458. Rothstein, L.F. (1990) Special Education Law. (White Plains, NY: Longman). Sands, D.J., L. Adams, and D.M. Stout (1995) A statewide exploration of the nature and use of curriculum in special education. Exceptional Children 62(1):68-83. Sarason, S., and J. Doris (1979) Educational Handicap, Public Policy, and Social History. (New York: The Free Press). Sawyer, R.J., M.J. McLaughlin, and M. Winglee (1994) Is integration of students with disabilities happening? An analysis of national data trends over time. Remedial and Special Education 15(4): 204-215. Shanker, A. (1994) Where we stand: Inclusion and ideology. New York Times 87. Shaywitz, S.E., M. Escobar, B.A. Shaywitz, J.M. Fletcher, and R. Makuch (1992) Evidence that dyslexia represents the lower tail of a normal distribution of reading ability. New England Journal of Medicine 326(3): 145-150.


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Shinn, M.R., G.A. Tindal, and S. Stein (1988) Curriculum-based measurement and the identification of mildly handicapped students: A research review. Professional School Psychology 3(1): 69-85. Silverstein, J., J. Springer, and N. Russo (1992) Involving parents in the special education process. Pp. 383-407 in Home-School Collaboration: Enhancing Children’s Academic and Social Competence, Sandra L. Christenson and Jane Close Conoley, eds. (Silver Spring, MD: National Association of School Psychologists). Singer, J.D., and J.A. Butler (1987) The Education for All Handicapped Children Act: Schools as agents of social reform. Harvard Educational Review 57(2): 125-152. Singer. J.S., J.S. Palfrey, J.A. Butler, and D.K. Walker (1989) Variation in special education classification across school districts: How does where you live affect what you are labeled? American Educational Research Journal 26(2): 261-281. Smith, S.W. (1990) Individualized education programs (IEPs) in special education: From intent to acquiescence. Exceptional Children 57(1):6-14. Smith, S.W., and M.T. Brownell (1995) Individualized education program: Considering the broad context of reform. Focus on Exceptional Children 28( 1): 1 -11. Stainback, S., and W. Stainback (1984) A rationale for the merger of special and regular education. Exceptional Children 51(2): 102-111. Strope, J.L., and C.A. Broadwell (1990) How P.L. 94-142 has fared in the Supreme Court. West’s Education Law Reporter 58(1): 13-28. Trudeau, E. (1971) Digest of State and Federal Laws. Education of Handicapped Children. (Arlington, VA: Council for Exceptional Children). Turnbull, A.P., and H.R. Tumbull (In press) Families, Professionals, and Exceptionality: Collaborating for Empowerment, 3rd Edition. (Columbus, OH: Merrill/Prentice-Hall). Turnbull, H.R., III (1993) Free Appropriate Public Education: The Law and Children with Disabilities, 3rd Edition. (Denver, CO: Lone Publishing Company). Tweedie, J. (1983) The Politics of Legalization in Special Education Reform. Pp. 48-112 in Special Educa- tion Policies: Their History, Implementation, and Finance, J.G. Chambers and W.T. Hartman, eds. (Philadelphia, PA: Temple University Press). U.S. Bureau of the Census (1988) Marital Status and Living Arrangements: March 1987. (Washington, DC: U.S. Department of Commerce. CPR P-20, no. 423). U.S. Department of Education (1996a) Eighteenth Annual Report to Congress on the Implementation of the Individuals with Disabilities Education Act. (Washington, DC: Office of Special Education Programs). ______ (1995) Seventeenth Annual Report to Congress on the Implementation of the Individuals with Disabilities Education Act. (Washington, DC: Office of Special Education Programs). ______ (1988) Youth Indicators 1988. (Washington, DC: U.S. Department of Education). Wagner, M., R. Newman, R. D’Amico, E.D. Jay, P. Butler-NaIin, C. Marder, and R. Cox, eds. (1991) Youth With Disabilities: How Are They Doing? The First Comprehensive Report From the National Longitudinal Transition Study of Special Education Students. (Menlo Park, CA: SRI International).


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Wagner. M., J. Blackorhy, R. Cameto, K. Hebbeler, and L. Newman (1993) The Transition Experiences of Young People with Disabilities. A Summary of Findings from the National Longitudinal Transition Study of Special Education Students. (Menlo Park, CA: SRI International). Walker. D.K., J.D. Singer, J.S. Palfrey, M. Orza, M. Wenger, and J.A. Butler (1988) Who leaves and who stays in special education: A 2 year follow-up study. Exceptional Children 54(5):393-402. Wang, M.C.. M.C. Reynolds, and H.J. Walberg (1986) Rethinking special education. Educational Leadership 44: 26-31. Weatherley. R.A. (1979) Reforming Special Education: Policy Implementation From State Level to Street Level. (Cambridge, MA: The MIT Press). Weatherley, R.A., and M. Lipsky (1977) Street level bureaucrats and institutional innovation: Implementing special education reform. Harvard Educational Review 47(2): 171-197. Weber. M.C. (1990) The transformation of the Education of the Handicapped Act: A study of the interpretation of radical statutes. University of California, Davis, Law Review 24(2): 349-436. Wegner, J. (1985) Variations on a theme: The concept of equal educational opportunity and programming decisions under The Education for All Handicapped Children Act of 1975. Journal of Law and Contemporary Problems 48(1): 169-219. Weintraub, F., A. Abeson, and D. Braddock (1971) State Law and Education of Handicapped Children: Issues and Recommendations. (Arlington, VA: Council for Exceptional Children). Wenger, B.L.. S. Kaye, and M. LaPlante (1996) Disabilities among children. Disabilities Statistics Abstract No. 15 (Washington, DC: U.S. Department of Education, National Institute on Disability and Rehabilitation Research). Will, M.C. (1986) Educating children with learning problems: A shared responsibility. Exceptional Children 52(5): 411-416. Winnick, B.M. (1987) Congress, Smith v. Robinson and the myth of attorney representation in special education hearings: Is attorney representation desirable? Syracuse Law Review 37(4): 1161-1187. Wise. A. (1979) Legislated learning. Berkeley, CA: University of California Press. Wolfensberger. W. (1970) The principle of normalization and its implications for psychiatric services. American Journal of Psychiatry 127:291-297. Yudof. M. (1984) Education for the handicapped: Rowley in perspective. American Journal of Education 92(2): 163-177. Zettel. J. (1982) Implementing the right to a free appropriate public education. Pp. 23-40 in Special Education in America: Its Legal and Governmental Foundations, J. Ballard, B. Ramirez and F. Weintraub, eds. (Reston, VA: Council for Exceptional Children). Zirkel, P.A.. and S.N. Richardson (1989) The explosion in education litigation. West’s Education Law Reporter 53(3): 767-791.


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The next set of documents address the issue of identification of students with disabilities. It is a federal statute that sets forth the definitions under which students are identified as in need of special services, but it is the special education staff in each district that is responsible for applying these definitions to specific cases. Because the definitions are subject to interpretation, the proportion of students identified varies widely across the country. Document #3: Joetta L. Sack, “Special education designation varies widely across country,” Education Week, June 24, 1998.

In Compton, Calif., a Los Angeles suburb that has long been mired in poverty and poor achievement, one of every 12 students—about 8 percent—is classified for special education.

On the other side of the continent, in the well-heeled New York City suburb of Greenwich, Conn., the proportion is more than twice as high. In a district where the average price of a house is more than $1 million, about 18 percent of students fall into the special education category.

Those divergent numbers illustrate a stark and troubling fact: The criteria used to identify students as needing special education—one of the most far-reaching decisions in a child’s educational career—vary widely throughout the United States and even among districts in the same state. The simple fact of where a child lives can play a greater role in that determination than test scores, teacher evaluations, or other factors.

“Special education has a lot of children in it who aren’t really disabled, and instead of special education, they need something special in their education,” said Gerald J. Reynaud, the executive director for special services for the 19,000-student Oletha, Kan., district. “It is a pretty complex problem.”

In large urban districts, for example, the proportion of students in special education ranged from 4.1 percent in Chicago to Boston’s 21.1 percent in 1994-95, the most recent school year for which comparable data are available from the U.S. Department of Education.

In New Jersey alone, the figures that year ranged from Paterson’s 4.7 percent to more than double that in Camden—11.3 percent. The proportion of special education students in Indianapolis—19.7 percent—was more than four times Indiana’s state average, and well above the national average of 11.1 percent.

The Education Department figures are based on the number of students for whom districts compile individualized education plans, or IEPs, which are required by federal law for students with disabilities. In many districts, the numbers have changed since 1995, and some districts use their own, different means of classifying students.

But the disparities raise serious questions for educators, parents, and the nation’s estimated 5.4 million special education students:

• Are students in some areas being overidentified as disabled—a label that is nearly impossible to shed?


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• Are large numbers of students in other areas being passed over for educational services that would help them overcome potentially serious problems?

• Are districts with a disproportionately high number of special education students spending too much money on costly services for those children at the expense of those in regular classrooms?

Different Criteria

The reasons for the inconsistencies are many, and experts say it is not at all the case that some districts are getting it right and others are doing things wrong.

Approaches to determining which students should be identified as disabled differ vastly from state to state and district to district. The quality of services provided to students in special education programs varies greatly as well.

Although categories of disabilities are spelled out in the Individuals with Disabilities Education Act, the main federal special education law, the federal government has no direct authority over how districts interpret those classifications. Instead, the Education Department’s office of special education programs monitors the state education departments, which in turn monitor local districts.

Educators in schools and districts navigate a maze of complex regulations and define for themselves such terms as “learning disabled” or “mentally retarded.”

Adding to the perplexity are broader social and demographic conditions that may affect how many children wind up in special education.

“We know poverty is related to disability,” said Thomas Hehir, the director of the Education Department’s office of special education programs. Poor prenatal care, exposure to environmental hazards such as lead paint, and a lack of early-childhood education are common problems in impoverished areas that can later lead to disabilities.

“But,” Mr. Hehir added, “there are districts where the opposite seems to occur.”

Parents a Factor

Often, other factors intervene, notably the wishes of parents.

Some parents want to avoid what they see as the stigma of special education and refuse the designation for their children even though they may badly need it. Other parents are willing—even eager—to accept the label, knowing that it will snag extra services for their children.

“I’ve had parents who wanted their child identified as special education because they wanted a tutorial service,” said Gerald Hime, a special education consultant and immediate past president of the Council for Exceptional Children in Reston, Va.


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That’s what officials in Greenwich feared was happening. The school board of the 7,500-student Connecticut district became concerned about its fast-growing population of students identified for special services. In 1997, the board commissioned a team led by a consultant, Claire S. Gold, to look into the matter.

They found that about 15 percent of elementary pupils were receiving special education services in 1996-97, and that nearly one-third—almost 30 percent—of students in the district’s high schools were receiving such services.17

“It’s a very affluent district with parents who have very high expectations, not only of their children but of the school system as well,” Ms. Gold said recently. “Parents really tend to expect a customized education as they might get in a private school.”

But she believed the district’s problems weren’t entirely based on pushy parents demanding Cadillac services. Her team found that Greenwich was offering little in the way of specialized help for students who were struggling in regular classrooms, particularly those having trouble learning to read. That left parents and teachers who wanted extra help with no other option than to ask for a disability label.

“They’re demanding it because it’s really the only act in town,” Ms. Gold said. “It’s how you get help if your child is struggling.”

Mr. Reynaud of the Oletha district in Kansas said he has also seen cases where an evaluation team might “make a decision out of sympathy rather than the child meeting the criteria” for a certain disability, because the needed services were not available through the regular classroom.

Putting students in special education because there is no other alternative for providing remedial services is a widespread problem, said Mr. Hehir of the Education Department. Such a practice, he said, is “a completely inappropriate use of special education.”

Added Costs

For districts struggling with tight budgets and limited revenue sources, the implications of a high proportion of special education students can be enormous.

Numerous studies have documented the rising costs of special education and the burdens such expenses can place on districts. Not only have enrollments increased, but the costs of technology and other related services also have skyrocketed. In many districts, those costs have cut into the money available for regular education.

Economist Richard Rothstein, in a report for the Economic Policy Institute, a liberal think tank in Washington, recently estimated that public schools’ spending on regular education nationwide dropped 2 percentage points on average between 1991 and 1996, from 58 percent of their total budgets to 56 percent. The share for special

17 This figure was disputed by the Greenwich district. See the “Gold Report”—Document #35 p. 185 below.


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education over that same period grew from 17.8 percent to 19 percent, he concluded.

In some districts, special education consumes an even larger portion of the budget. In Greenwich, the figure was about 21 percent in 1996-97.

“The special education budget was increasing at double-digit rates,” said Kathryn Guimard, a member of the Board of Estimates and Taxation in Greenwich, which ordered the study by Ms. Gold. “It was becoming a concern because it was impacting the town and schools’ budgets.”

Too Few Students?

The consequences of identifying too few students for special education can be just as troubling.

In Compton, some teachers and parents fear that students have been routinely overlooked for special education services. The California district, which has been under state control since 1993, fits the stereotype of urban blight: Ninety percent of its students receive free or reduced-price lunches, and more than half come from families on welfare. Two-thirds of its 29,000 students students are Hispanic, and nearly one-third are African-American.

In March 1997, Kathleen M. Elkins became the district’s administrator of special needs, taking over a department that had gone without a leader for several years. She brought a philosophy that is growing within the field of special education: A more individualized education should be provided in the regular classroom, and special education should be used only as a last resort.

“The easy way out,” Ms. Elkins said, is to err on the side of caution and identify too many children for special education. But that can lead to excesses.

But she acknowledged that Compton in the past probably underidentified the number of students who needed a disability label—as evidenced by the dozens of parents and teachers who called her office during her first weeks on the job. The 1994-95 Education Department figure for Compton was 5.5 percent, one of the lowest among urban districts nationwide.

And, even though the figure has climbed to its current level of about 8 percent, some in the district still contend it is too low.

“They’re here,” Thomas Hollister, the executive director of the Compton Education Association, said of students needing special education. “They’re just not getting the help.”

The 1,400-member affiliate of the National Education Association has pressed the district to evaluate more students that teachers suspect may need special education services, Mr. Hollister said. He added that officials there have improved their efforts to offer such services.


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OCR Scrutiny

It has long been a problem in some areas that children from minority groups are labeled for special education at much higher rates than white students because of misperceptions about cultural and language diversities.

Since Norma V. Cantu became the assistant secretary in charge of the federal Education Department’s office for civil rights in 1993, agency officials say they have been more aggressive in investigating special education complaints.

That doesn’t mean, however, that discrimination exists wherever there are racial differences in the proportions of disabled students, said Raymond C. Pierce, the deputy director of the department’s office for civil rights.

“Just because you have a disparity in figures doesn’t mean you have a violation,” he said. “But it gives you ample reason to start asking the hard questions.”

Even when discrimination isn’t to blame, other factors can lead to the overidentification of students for special education.

Asa G. Hilliard, a professor of education at Georgia State University in Atlanta, said a “maldistribution of good teaching” can play a role. Often, he explained, a district’s best teachers may not want to go to schools with the most needy children.

The less able teachers in those schools may be more likely to mislabel children as disabled. Some assessment scores may also be flawed, he added.

Mr. Hilliard recalled visiting an elementary school in which slow learners were pulled out of their regular classes for a special education reading class, which he believes might not have happened if the children had had better teachers.

“They were petrified,” he said of the youngsters. “They didn’t want to be seen walking into that classroom.”

Label Lingers

Once a student is tagged with the special education label, the designation is likely to remain for the rest of his or her academic career. According to the Education Department, very few return to regular education programs.

Of the more than 1 million students ages 14 to 21 with a diagnosis of specific learning disabilities in 1994-95 school year, only a little more than 4 percent—37,184—returned to regular education, according to the department’s latest data.

Mr. Hehir of the department’s special education office said it is no surprise that so few students shed the special education label.

When applied correctly, he added, the designation works to give children the help they need. “If a child is appropriately evaluated in the first place—and that’s an important ‘if’—they’re likely to need the support of special education throughout their schooling.”


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A particularly vexing feature of the variability in identification procedures across the states is broached in the next document. Identifying a troublesome student as in need of special education is a way of getting that student out of the regular education teacher’s class. All too often, it turns out, “troublesome” and “minority” turn out to be overlapping categories. Document #4: Lisa Fine, “Studies Examine Racial Disparities In Special Education,” Education Week, March 14, 2001

Black students are classified as needing special education far more often than white students, and are less likely, once they have been identified as having disabilities, to be placed in mainstream classrooms, according to a report by the Civil Rights Project at Harvard University.18

The report, based on four studies commissioned by the Harvard project, offers fresh statistics on minority representation in special education, long an issue of concern among advocates for racial and ethnic minority groups. For example, the studies found that African-American students were three times more likely than white students to be labeled mentally retarded, and therefore relegated to less challenging special education classes.

Authors of the report, released March 2, view bias against minorities as at least partially responsible for the disparities.

“Despite some far-reaching improvements, both racial and disability discrimination persists,” said Harvard education professor Gary Orfield, a leading expert on school desegregation who co-directs the Civil Rights Project with Harvard law professor Christopher Edley Jr. “As a result, minority children deemed eligible for special education are in jeopardy of being discriminated against on the grounds of both race and disability.”

But not all observers agreed that the studies had found evidence of racial or ethnic discrimination.

“It stands to reason that more minorities are in special education because they are poorer,” said Jorge E. Amselle, a spokesman for the Center for Equal Opportunity, a Washington-based group that takes a generally conservative stand on racial and ethnic issues in education. “It’s more a matter of apathy than racial discrimination.”

Socioeconomic factors, especially poverty, have long been cited as a potential explanation for disproportionately high numbers of black students in certain categories of disability, including mental retardation. But the author of one of the new studies, researcher Donald Oswald of Virginia Commonwealth University in Richmond, suggested that his findings indicated that other factors could be at play. Specifically, Mr. Oswald found that the wealthier the school district, the more likely black males were to be labeled mentally retarded and sent to special classes.

18 The executive summary of a subsequent report, “Racial Inequities in Special Education,” published in 2002 is found at http://www.civilrightsproject.harvard.edu/research/specialed/IDEA_paper02.php The full report is found in Losen, Dan and Orfield, Gary, Racial Inequities in Special Education (Cambridge, MA: Harvard Educational Publishing Group, 2002).


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“Why is it happening more in wealthier communities: Is it because black students stand out? Is it because they are the poor in that area? Are the schools looking at those kids differently?” Mr. Oswald said. “There are people around the country who would say that without a doubt there was discrimination.”

Vigilance Urged

About 11 percent of all students nationwide receive special education services. In 1998, approximately 1.5 million minority children were identified as having mental retardation, emotional disturbance, or a specific learning disability.

Pointing to 1997 data from the U.S. Department of Education, the Civil Rights Project report says that, nationally, black students were 2.9 times more likely than whites to be identified as having mental retardation. They were 1.9 times more likely to be identified with an emotional problem, and 1.3 times more likely to be identified with a specific learning disability.

The report also says that minority students in special education were not likely to be returned to regular classes.

“To the extent that minority students are misclassified, segregated, or inadequately served, special education can contribute to a denial of equality of opportunity, with devastating results in communities throughout the nation,” the report states.

Bill East, the executive director of the National Association of State Directors of Special Education, said the findings saddened him. “School districts and states should be concerned about the way they identify special education students,” he said. “They need to look at programs and practices very closely and do everything they can to make sure that the problems the studies brought out are not happening in their districts.”

John Jackson, the national director of education for the National Association for the Advancement of Colored People, suggested that the report points to “the need for better assessment and placement in special education.”

“We need better teacher training, more resources for special education, and a change in attitude,” Mr. Jackson said. “Special education is not a final resting place for students. It should in some cases put them on an accelerated plan to get them back into regular education.”

Mr. Jackson said parents could help the situation by speaking up for their children. “Parents need to advocate whether or not their child needs special education,” he said. “If they don’t need it, they should fight that classification. If they do need it, they should make sure they have all the services they need.”

Mr. Amselle of the Center for Equal Opportunity suggested that the problem highlighted in the report “reflects a system that feels overwhelmed.”

“It’s easy to put a kid in special ed and write them off,” he said. “It’s an easy way to get the problem kids out of the classroom.”


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The Civil Rights Project authors recommend that the Education Department’s office for civil rights take a more aggressive stance against districts with disproportionately large numbers of minority students in special education. The report also calls on states to intervene in districts where minority students are overrepresented in special education classes.

The report prompted U.S. Rep. Chaka Fattah, D-Pa., to call for a federal investigation into the issue of minority overrepresentation in special education.

“On behalf of the millions of all children attending public schools, I am requesting that you immediately launch an investigation into this matter by the Department of Education and by the civil rights division of the Justice Department,” Rep. Fattah wrote in a letter to President Bush and Secretary of Education Rod Paige. “If you truly believe that ‘All of our [nation’s] citizens are created equal, and must be treated equally,’ then you will agree that racial discrimination has no place in our society, particularly not in our public school system.”

Lindsey Kozberg, a spokeswoman for the Education Department, said the department commissioned a study by the National Academy of Sciences on the issue in 1999 and awaits its recommendations, which are expected in the fall. She said that the agency’s office for civil rights monitors minority placements in special education, and that the problems highlighted in the report were nothing new.

“We have seen the Harvard studies and are concerned about the correlation between race and special education placement,” Ms. Kozberg said. “But we are awaiting the results of our own study.” The National Research Council put forward suggestions for how to deal with the overrepresentation of minority students among those who are identified with special needs. Document #5: Lisa Fine, “Report Offers Solutions to Special Education Disparities,” Education Week, January 23, 2002

It’s one of the most persistent issues in education: African-American children, statistically, are more likely to be designated as special education students than white students. Conversely, a much higher percentage of white students are classified as gifted.

A new report from the National Research Council19 suggests some ways to change that situation.

Educators, the report recommends, should be required to provide minority students with high-quality instruction as well as social support—in a regular classroom—before concluding that special education is needed.

Furthermore, schools should adopt early-screening strategies to identify students at risk of failure as early as possible, says the report, “Minority Students in Special and Gifted 19 [The report, “Minority Students in Special and Gifted Education,” is available on the Web at http://books.nap.edu/catalog/10128.html .]


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Education.” Otherwise, the authors warn, academic or behavioral problems can become almost irresolvable.

The report by the research council, chartered by Congress to provide independent scientific advice, also calls for states to stiffen training and professional-development requirements for all prospective and current teachers to help them meet the needs of atypical learners.

“Educators should not wait for at-risk children to fail, or conversely for potentially gifted students to demonstrate success, before taking decisive steps to encourage them within the regular classroom setting,” said Christopher T. Cross, the chairman of the committee that produced the report. Mr. Cross is a senior fellow with the Center on Education Policy in Washington and a former assistant secretary of education in the first Bush administration.

Numerical Disparities

The research council’s advice, requested by Congress two years ago, comes at the beginning of a year when lawmakers are preparing to reauthorize the Individuals with Disabilities Education Act, the federal law that guarantees students with disabilities the right to a free, appropriate education.

The report will likely help shape the law’s revision by Congress and the Bush administration.

In the first of what will be a series of IDEA hearings, members of Congress concentrated last fall on the issue of racial disparities in the identification of students for special education and for gifted and talented programs.

More than 14 percent of black students are in special education, compared with 13 percent of American Indians, 12 percent of whites, 11 percent of Hispanics, and 5 percent of Asian-Americans. The disparities are greater in the categories with the greatest stigmas, the report’s authors said.

About 2.6 percent of black students are identified as mentally retarded, compared with 1.2 percent among white students. About 1.5 percent of black students are labeled as emotionally disturbed, while 0.91 percent of whites carry that label.

Then there are numbers for gifted students. The NRC reports that, nationwide, 7.47 percent of all white students and 9.9 percent of Asian students are placed in gifted programs. Meanwhile, 3.04 percent of African-American students, 3.57 percent of Hispanic students, and 4.86 percent of American Indian students are classified as gifted.

A 1982 NRC report examined why high numbers of boys and minorities were placed in special education for mental retardation. Concern has only increased since, because minorities now make up about one-third of school-age children and the number of special education students has increased to more than 10 percent.

Other findings in the report:


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• There needs to be rigorous research on ways to identify minority students who excel in verbal, math or other skills. Historically, disproportionately low numbers of African Americans, Hispanics and American Indians have been placed in gifted classes.

• States should make sure that teacher-licensing and -certification requirements call for training in effective intervention methods to assist students who fail to meet academic standards, or who exceed those standards. Teachers should familiarize themselves with student values and cultural practices that may affect classroom participation and success.

Federal and state government officials should improve and expand early-childhood services related to health care, family support, and preschool education. The revised and reauthorized version of the Individuals with Disabilities Education Act (IDEA) contains provisions for correcting for minority overrepresentation in special education. Document #6: Christina A. Samuels, “Minority overrepresentation in special education targeted,” Education Week, October 12, 2005.

A new provision of federal law taking effect this school year allows, and in some cases requires, school districts to focus some of their federal special education money on reducing the enrollment of minority students in such programs.

The provision, contained in the 2004 reauthorization of the Individuals with Disabilities Education Act, requires some districts to spend as much as 15 percent of that federal aid on what are called “early intervening” services, which are meant to bolster the achievement of students before they are officially referred for special education.

Educators generally support the provision but some special education advocates worry that the proposed regulations surrounding the provision may not be clear, or could divert federal money from the students who are most in need of services.

When Congress previously reauthorized the IDEA, in 1997, it added a provision that required districts to monitor the racial and ethnic breakdown of students who receive special education services. Advocates have long argued that special education has become a holding place for minority students.

In the 2004 reauthorization, lawmakers added the new provision to take the monitoring process a step further. Districts with an overrepresentation of minority group members in special education are now required to set aside 15 percent of their federal aid for students, particularly those in grades K-3, who need “additional academic and behavioral support to succeed in a general education environment,” according to the law.

Districts that do not have minority students overrepresented in special education can still use up to 15 percent of their federal special education money for early-intervening services, but they are not required to do so.


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States are given the discretion under the revised IDEA to determine what constitutes overrepresentation for the purposes of the provision. Many do so by comparing the proportion of minority students in special education categories with the proportion of minority students in the overall school population. Other states compare how frequently minority students are assigned to certain special education categories, compared with how often white students are assigned to those categories.

Nationally, black students are overrepresented in certain special education categories compared with the student population as a whole, according to a 2003 report to Congress by the U.S. Department of Education’s office of special education programs.

About 17.4 percent of black students are considered mentally retarded, compared with 10.3 percent of all students. Also, about 11.3 percent of black students are considered emotionally disturbed, compared to 8.1 percent overall.

Programs Under Way

By reaching out to members of minority groups earlier, supporters of the new provision say, the numbers of minority students in special education should drop, because they would be receiving extra academic help sooner.

“This is an item that Virginia has supported from the get-go,” said H. Douglas Cox, the state’s assistant superintendent for special education and student services. Mr. Cox is also the president of the Alexandria, Va.-based National Association of State Directors of Special Education. Thirty of his state’s 133 school districts are required to use 15 percent of their federal special education funds for early-intervening services, he said.

W. Mabrey Whetstone, Alabama’s director of special education services, said his state has worked aggressively for the past five years to reduce its overrepresentation of black male students classified as mentally retarded or emotionally disturbed. Nine of the state’s 66 districts will be required this year to spend 15 percent of their federal aid on early-intervening services.

Several programs are already under way that would qualify as early-intervening services, Mr. Whetstone said. They include a teacher-training program that helps educators adapt their lesson plans for particular student needs and early reading and math initiatives.

Experts say that children who receive inadequate instruction, especially in basic subjects like reading, are more at risk for being wrongly identified later as having mental retardation or learning disabilities.

“If you’re overidentifying [students for special education], there ought to be something you’re doing” to address the issue, Mr. Whetstone said. The funding helps draw attention to the problem, he said.

The problem with the set-aside is that the federal government is not providing its fair share of total special education funding, said Deborah A. Ziegler, the assistant executive director for public policy for the Council for Exceptional Children. The Arlington-based council is the nation’s largest special education advocacy group.


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“We support the idea of early intervention,” Ms. Ziegler said. However, her group believes that special education services are already underfunded by the federal government.

“We’re struggling to provide the services we need to under IDEA,” she added. “Do we rob Peter to pay Paul? We need more money in both pots.”

Unclear Rules?

Mr. Cox of the state directors’ group said he can understand the perspective of the CEC.

“But if we can work on some of the early-literacy issues, maybe you wouldn’t have to refer children to special ed,” he said, giving an example of an intervention that the set-aside could support.

DanielJ.Losen, a legal and policy-research associate with the Civil Rights Project at Harvard University, said he believes the U.S. Department of Education has not provided enough guidance on the IDEA’s 15 percent provision.

He said he was concerned about how the money would be spent by districts which find they have an overrepresentation of minority students in special education classes.

The money is intended primarily for students who have no special education classification. But, once a district finds that it has enough overrepresentation to trigger the automatic 15 percent set-aside, he believes that at least some of the money should be spent on programs for the children who are already in special education, since the district has already noted a problem.

“How are you going to help address the issue, if the kids who triggered [the 15 percent set-aside] get none of that money?” Mr. Losen said.

The regulations should say that the law will not prevent districts from spending the set-aside money on students who happen to already be in special education, he believes.

Ronald Felton, a former head of special education for the Miami-Dade County, Fla., district, and an educator who has been involved in special education for 30 years, said that the focus on overrepresentation of minorities is positive.

However, there needs to be more research on the issue, he believes. For instance, he said, “we’re still arguing on how to measure disproportionality.” And, if a district has overrepresentation problem, it might not need to divert a full 15 percent of its federal special education funding to the problem, he said, but the law still requires it.

“The 15 percent [option] is a good thing,” said Mr. Felton, who retired from the 370,000-student district in July. “The mandate is a problem.”


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We turn next to the complicated question of how the academic performance of disabled students should be assessed. Even before the enacting of the No Child Left Behind act, there arose the issue of how to deal with special needs students in a state’s accountability system. Questions arose as to what accommodations should be provided identified students and whether separate testing instruments were appropriate. What becomes clear in the following document is the fact that, prior to NCLB, it was not at all a simple matter to ascertain how identified students were performing on state assessments.

Document #7: Joetta L. Sack, “States Report Trouble with Special Ed. Testing,” Education Week, March 15, 2000

Many states are still struggling to create alternative assessment systems for special education students and to figure out which students should be tested using those alternatives, according to the results of a recent state-by-state survey.

And while more students with disabilities are being included in state tests of academic achievement, only 23 states can provide data on how many are participating, according to the survey by the National Center on Educational Outcomes at the University of Minnesota. The research group has studied assessments for the disabled since 1991, and has repeatedly warned state leaders of their obligations under the 1997 amendments to the federal Individuals with Disabilities Education Act…

The survey also found that reported participation rates varied greatly among those states that could provide such data, as did the types of testing accommodations provided to students.

NCEO Director Martha L. Thurlow said there are many “understandable” reasons for the variability. She added, though, “It’s time we would expect there to be an aggressive push to meet the letter of the law and the intent of the law.”

Under the 1997 amendments to the IDEA, states are required to include as many special education students as possible in regular assessments, with appropriate accommodations, and to create alternative assessments for students judged to be unable to take the regular tests. States are also required to monitor the participation rates of students with disabilities taking assessments, something most states reported having trouble doing, the Minnesota researchers found.

The amendments also require states to have a system for administering alternative assessments, based on standards for disabled students, in place by July 1.

Use of Standards Varies

Of the 43 states that responded to the NCEO’s survey, nearly half reported that they were using the same standards, or some variation, as they did for regular students. Eight states were developing different standards, and 14 were uncertain about what standards they would use.

Luzanne Pierce, a technical-assistance specialist at the Alexandria, Va.-based National Association of State Directors of Special Education, said states see the importance of


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including disabled students in assessments, and are doing the best they can to comply with the IDEA requirements.

“This is a very large group of students with very different and diverse needs,” she said. “It’s a complicated process.”

But the problems cited by the NCEO report could interfere with the rights of disabled students to be included and reported in state and local assessments, advocates say. Including disabled students in assessments, they say, is crucial to determining whether they are getting appropriate educations and meeting their potential.

“If the kids are not part of the assessments, the schools do not have the information they need to figure out what’s best for the school and kids with disabilities,” said Lynda Van Kuren, a spokeswoman for the Council for Exceptional Children, a Reston, Va.-based special education advocacy group.

NAEP Also Studied

Meanwhile, a separate federal study on the National Assessment of Educational Progress—a sampling of student progress often known as the nation’s report card—shows that most disabled students are not taking those tests.

Rules governing the national tests allow schools to exclude students they feel incapable of taking the exams. Testing experts worry that the IDEA requirements and varying rates of inclusion of disabled students could skew the scores in some states.

A federally funded study estimated that at least half of all special-needs students—defined as disabled or limited English proficient—were excluded from the exams in 1992 and 1994.

The study, released by the National Center on Education Statistics last month, surveyed schools on their inclusion rates of disabled and LEP students. The researchers are conducting a larger study on the 1998 NAEP to see whether the exclusion rates affected scores, a debate that has arisen in the testing community.

The U.S. Department of Education’s office of special education programs is urging NAEP’s governing board to make the test more inclusive and expand the accommodations so that more disabled students may be represented in its samples, according to an official at OSEP.

Document #8: Joetta L. Sack, “Researchers Warn of Possible Pitfalls In Spec. Ed. Testing,” Education Week, April 19, 2000

Some types of alternative assessments and accommodations for special education students may present problems as states hurry to create new accountability systems, researchers warned here at the Council for Exceptional Children’s recent annual conference.

Under the 1997 amendments to the federal Individuals with Disabilities Education Act, states and districts must include students with disabilities in their assessments, to the extent


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appropriate, and report the students’ scores. States have until July 1 to come up with guidelines for alternative-assessment systems for students who are deemed unable to take the regular tests even with accommodations.

Martha Thurlow, a co-director of the National Center on Educational Outcomes, based at the University of Minnesota, said more states are looking at implementing “out of level” testing for special education students, in which they would take tests designed for students at different grade levels, usually lower ones. Other states are considering extending the same rewards and punitive measures called for under “high stakes” tests for general education students to special education students as well.

Those efforts will have significant effects on students with disabilities, Ms. Thurlow said.

The NCEO released a report last month showing that states are struggling to create alternative-assessment systems and guidelines to determine which students should be considered for alternatives.

The U.S. Department of Education is greatly concerned about those findings, said Kenneth R. Warlick, the director of the department’s office of special education programs, or OSEP. His office is working with other Education Department offices, such as the office for civil rights, to issue a guidance that would clarify the alternative-assessment requirements in the IDEA. He said he did not know when the guidance would be released.

“Some of these states have a huge learning curve to go through to make this operational in the next year,” Mr. Warlick said at the conference.

Alternative assessments are proving costly, about $150 to $200 each per student, he added. And state directors of special education have reported to him that teachers need much more professional development to be prepared to administer them.

Encouraging Independence

Special education experts consider assessments an integral part of ensuring that students with disabilities are given full educational opportunities and are being held to high academic standards. Ultimately, a student’s individualized-education-plan team—the group of parents, teachers, and specialists that charts the child’s educational course—decides whether the student should take an alternative assessment, or a regular assessment with or without special accommodations.

But signs of a backlash against testing such students have appeared. Martha Brooks, the special education director for the Delaware public schools, said she regularly fields complaints from parents and even some teachers after special education students are given the state assessment.

“They say, ‘How could you do this to my poor little child with a disability?’” she said, adding that they are more understanding after she explains the rationale for the testing.


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At the same time, said Louis Danielson, a research director for OSEP, states shouldn’t make the testing process too easy for students with disabilities. He warned that providing too many accommodations, such as extra time and special settings to take the exams, could inadvertently hinder a child’s path to independence.

“The number-one issue is to overaccommodate,” he said. “Many accommodations are antithetical to the notion of independence.”

Such accommodations sometimes result from educators’ attempts to help disabled students avoid the punitive aspects of high-stakes tests, such as denial of high school graduation, Mr. Danielson added.

Currently, some testing companies flag the test scores of students who have received special accommodations. Mr. Danielson said the Education Department’s civil rights office is considering forbidding that practice, which would reverse a previous OCR decision, out of a concern that college-admissions officers and others may look skeptically at such scores.

Document #9: Joetta L. Sack, “Alternate-Test Plans Prove Challenging,” Education Week, June 21, 2000

Three years ago, after a hard-fought battle to reauthorize the Individuals with Disabilities Education Act, special education advocates were promised a crown jewel.

For the first time, the academic progress of students with disabilities would be assessed and recorded along with that of their peers in regular programs—a policy shift that advocates see as a powerful spur to educational equity. Even students who were unable to take regular tests with special accommodations would be included.

The new IDEA amendments gave states three years—and much flexibility—to create systems for alternative assessment of students with the most serious disabilities. Now, states are facing the July 1 deadline for meeting that requirement, and the crown jewel promised in 1997 has proved a bit elusive.

A new report from a federally financed research center shows that most states are not yet using alternative assessments, though most are close to being able to do so.

States have been developing guidelines, procedures, and training at a “feverish pace” in recent weeks, according to the National Center on Educational Outcomes, based at the University of Minnesota. And states have made significant progress in the past year in putting together and pilot-testing systems to help chart the educational progress of pupils with the greatest disabilities, the report says.

“Many, many states have been getting their act together,” Martha Thurlow, the center’s co-director, said last week. “I say this knowing there are hills and valleys all along the way in the development process.” But for many states, figuring out how to score those tests and report the scores remains a challenge, according to the report, which will be released


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late this week in Snowbird, Utah, at the Council of Chief State School Officers’ annual conference on large-scale assessment

States are coming up with a wide range of strategies for identifying and assessing students who can’t be accommodated in regular assessment programs. Some states have adopted methods including portfolios of student work, videotapes and eyewitness accounts of a student’s skills and behavior, interviews and surveys of parents and others, and “real world” performance indicators.

Crafting statewide guidelines for identifying and assessing a diverse group of severely disabled students has been daunting, many experts agree. Few, if any, of those students are expected to graduate from high school or meet academic standards set for their nondisabled peers.

“One thing that this process has pointed out is that kids with more severe disabilities have typically been getting very idiosyncratic services,” said Ken Olsen, the director of the Mid-South Regional Resource Center at the University of Kentucky. “Each curriculum for each kid is very different.”

He added, “It’ll take many, many years to install something that’s going to work smoothly.”

Additional Pieces Remain

Ms. Thurlow said that while states have made “surprising” progress since the NCEO reported results from a survey on alternative assessment last year, many more pieces remain to be fit into the puzzle.

Testing experts say that only a small percentage of students, between 1 percent and 2 percent of all students at a given grade level, is likely to need the alternative assessments. Mostly, they will be students whose disabilities are so severe that they cannot take the regular assessments, even with extensive accommodations, such as extra time to complete the tests or assistance in reading or transcribing the questions. Many states, in fact, have designed systems that are based on a separate set of special education standards or skills, rather than the regular curriculum, according to the NCEO.

But the federal government gave states little guidance on how to go about setting up such systems, leaving state officials to make decisions on eligibility, types of assessment, and alignment of alternative tests with state academic standards. And while it seemed that the deadline gave ample time—it is the last major piece of the 1997 IDEA amendments to go into effect—many states have been struggling to meet the deadline.

“We’re all in the same boat; for something so new, we didn’t have other state systems to look at,” said Virginia C. Beridon, the state special education director for Louisiana. Her state is currently pilot-testing its system and will meet the July 1 deadline. But she said some states may have rushed to put faulty systems in place to meet the deadline and will have to make major revisions later.


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“Fine-tuning is one thing, but overhauling a system is expensive and time-consuming,” she said. “But when you have a mandate, you do your part.”

Judith E. Heumann, the Department of Education’s assistant secretary for special education and rehabilitative services, said she and other federal officials had spent much time discussing the time frame for the alternative-assessment systems.

The department deliberately left the guidelines for setting up a system vague in order to give states leeway to align the tests with their own standards, another department official said.

The state with the most extensive experience in alternative assessment of students with disabilities is Kentucky, which passed a groundbreaking law to hold its education system accountable, the Kentucky Education Reform Act, in 1990. That law mandated that all students, regardless of ability, be assessed, and the state created an alternative assessment based on a portfolio system that documents a student’s work and progress over a period of several years.

Less than 1 percent of all Kentucky students are eligible for the alternative assessment, and their tests are independently scored and recorded with the scores of the students’ local schools.

Accountability Demands

The accountability movement in special education has seen some resistance from some parents and educators in recent months, as states continue to work with the IDEA requirements that students with disabilities be tested and that the results be reported along with those for other students.

So far, Ms. Heumann said, disabled students who have taken regular assessments have lagged behind their peers in test scores. But those scores have been improving.

States are still struggling to figure out how alternative assessments fit into high-stakes testing, such as high school exit exams, said Ms. Thurlow of the NCEO. Aside from Kentucky, few states that have high-stakes tests have even begun to find ways to work alternative assessments into those requirements.

Other obstacles remain as well. Louisiana, for instance, has many uncertified teachers, and training them to use the assessment system, on top of the other preparation they need, has been a problem, Ms. Beridon said.

Some states are also finding students who cannot take the regular assessments, even with accommodations, but who also do not fit the criteria for alternative assessments.

Sandy Thompson, a research associate at NCEO, said there are some students who are working toward grade-level standards, but are so far behind that they cannot take the regular assessment and get a meaningful score.


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“We have a middle area we really need to address,” she said. Others say that making sure that students with disabilities receive an appropriate education is still a challenge in many schools and that the new assessment systems will bring many problems to light.

“The real issue isn’t assessment; the real issue is getting kids involved in the general curriculum,” said Bill East, the executive director of the National Association of State Directors of Special Education, which has consistently supported the new IDEA assessment provisions. Schools will continue to struggle with assessment issues in special education over the next few years, he said, until all students with disabilities have access to the regular curriculum and high standards.

Ms. Heumann agreed.

“The issue of assessment is finally allowing us to have a more serious discussion related to testing, learning, and results,” she said. “It’s critically important to make sure that disabled kids are viewed as being able to have the same potential as nondisabled kids.” The No Child Left Behind Act requires that special education students be tested annually and that their scores on standardized tests be reported separately (along with ethnic and socioeconomic groupings). Many argue that it is unrealistic and potentially harmful to submit students with disabilities to tests they are very unlikely to be able to pass. They also see a conflict between the requirements of NCLB and the requirement in IDEA that special education students be assessed against their IEP’s. Margaret Spellings, the self-described “soccer mom” appointed by George W. Bush to succeed Rod Paige as Secretary of Education, took on the job of responding to a raft of requests from state education departments to grant exceptions to NCLB’s provisions. The Department of Education promised to build in some flexibility on its requirements for testing special education students. Document #10: Christina A. Samuels, “Special education test flexibility detailed: Not every state may want to seek relief this year, Spellings says,” Education Week, May 18, 2005.

States can start taking advantage of flexibility under the No Child Left Behind Act for some of their special education students this school year, but they will have to clear several hurdles to do so, the Department of Education announced last week.

The new details about the testing flexibility that Secretary of Education Margaret Spellings first outlined in April got a mixed reaction from state education officials, with some suggesting that the requirements were too complex.

Secretary Spellings announced last month that 2 percent of students in special education who have “persistent academic disabilities” could be tested using modified assessments. The result, for some states, is that more of their students who are in special education will be deemed proficient under the No Child Left Behind law’s standards.20

20 Cf. “States to get new options on NCLB law,” Education Week, April 13, 2005.


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The Education Department already allows 1 percent of students with “severe cognitive disabilities” to be counted as proficient even if they take alternative assessments that are below grade level. The additional 2 percent is intended to allow for students who, even with the best instruction, cannot meet grade-level standards, Ms. Spellings has said.

Ms. Spellings said in a May 10 teleconference with reporters that the flexibility options will come with some fairly rigid guidelines. “This is not for everybody,” she said. “It will be for a good number of states, no doubt about it.”

Asked why the flexibility wouldn’t be extended to every state immediately, Raymond J. Simon, the acting deputy secretary of education, explained that the department wants to see progress.

“This groundwork is absolutely fundamental,” Mr. Simon said in the teleconference. “It’s something that every state should be doing anyway.”

To use the short-term options, a state must, among other things, have a 95 percent or more test-participation rate and use the same subgroup size for students with disabilities that they use for other subgroups.

After meeting those requirements, a state has two options. One would allow it to use a mathematical formula to increase the passing rate for students with disabilities. The other would allow the state to count more scores from alternative tests as proficient.

The Education Department will also consider other options a state may offer, as long as they maintain high standards.

Patricia F. Sullivan, the director of the Washington-based Center on Education Policy, said she had no idea how many states would be able to meet all those standards.

Limited Possibilities?

“It would appear under this that a whole bunch of states will be knocked off” at the start from the possibility of using the transitional options, Ms. Sullivan said. And, she said, students with persistent academic disabilities are not conveniently clustered in states that have met all of the Education Department’s requirements.

Robert Runkel, Montana’s director of special education services, said he appreciates that the federal department is allowing more testing flexibility for states. However, under the new options, he believes only one school in his state would have been able to take advantage of the flexibility based on 2003-04 test results. That’s because only one school failed to make AYP solely because of the test scores of students in special education.

Montana has about 145,000 students in public education and 19,000, or 13 percent, in special education.

Mr. Runkel said that children with persistent academic disabilities would be reflected not only in the special education subgroup scores, but also in the scores of any other subgroups in which they fall. Thus, they could be pulling down a district’s scores in more than one category. The federal law requires schools to show progress not just with


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students overall, but with student subsets by race, socioeconomic status, and other factors, including participation in special education.

“I think there might be room for some flexibility in that circumstance,” Mr. Runkel said of students who fit into more than one group.

Other state officials praised the new rules. Patti Harrington, the superintendent of education for Utah, a state that has been in the forefront of opposition to the 3-year-old federal law, said under the former AYP testing rules, some students with persistent academic difficulties were tested at a grade level that was inappropriate for them.

The changes “are doing the right thing by children,” Ms. Harrington said.

Document #11: Christina A. Samuels, “Flexibility detailed for testing students with disabilities,” Education Week, January 4, 2006

A proposed federal regulation on testing students with disabilities provides details on the flexibility available to states and schools for meeting the requirements of the No Child Left Behind Act. While state education officials have generally welcomed the flexibility, representatives from advocacy groups for people with disabilities say they’re concerned about potential erosion of academic standards for such students. The Department of Education announced the proposed regulation last month that would accompany a policy announced months earlier. The proposed rule spells out in detail how states could allow certain students—those who would have “significant difficulty” meeting grade-level proficiency, even with the best instruction—to be tested based on modified achievement standards that aren’t as deep or broad as regular grade-level content. Secretary of Education Margaret Spellings said the move was part of a “more sophisticated” approach to meeting the needs of such students. “At its heart, this policy is all about improving the way we educate and assess children with disabilities. It’s a smarter, more sophisticated way of serving their needs,” Ms. Spellings said in releasing the proposed rule Dec. 14 at Guilford Elementary School in Columbia, Md. The policy, which the department has allowed states to use even before the regulation was announced, permits 2 percent of all students, or roughly 20 percent of students with disabilities, to be counted as proficient under the No Child Left Behind testing mandate if they take tests based on modified standards. That is in addition to another regulation that allows 1 percent of children with significant cognitive impairments—about 10 percent of students with disabilities—to be tested using different standards and tests. Put together, the two policies allow almost a third of students with disabilities to be counted as proficient under the No Child Left Behind law, though they are not being


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tested the same way, or on the same depth of subject matter, as their peers in general education. The federal school improvement law requires that students be tested yearly in reading and mathematics in grades 3-8 and once in high school. It also requires the public release of test scores for various subgroups, including students with disabilities. Students in the subgroups must make adequate yearly progress towards proficiency in order for their schools to meet federal standards. Tennessee Commissioner of Education Lana C. Seivers joined Secretary Spellings during her announcement of the proposed regulation. Tennessee students with disabilities outpaced general education students in their rate of improvement on state tests during the 2004-05 school year. Ms. Seivers said the state launched an intensive effort to improve test scores of students with disabilities in 2003, before such NCLB flexibility proposals were planned. But, she said, the policy is still a good option for her state. “It’s more like a piece of the puzzle, to make sure we accurately reflect every student’s progress,” she said. Tennessee is also working on guidelines to ensure that the appropriate students are taking the tests based on modified standards. “I understand the feeling that parents have, that this is just one more way to push students with disabilities to the side,” but the state will not let that happen, said Ms. Seivers, who has an adult son with disabilities. Looking at the work her state is doing on such issues, “as a special educator and as a mom, that’s encouraging to me,” she said.

Proposals Questioned Ricki Sabia, the associate director of the National Down Syndrome Society’s policy center in Washington, has a different perspective on the proposed rules. Though she sees some potential benefits, she also believes the push to promote flexibility in testing comes from educators who were upset to see their schools deemed to be in need of improvement because students with disabilities weren’t passing the required tests. “There’s a lot of frustration and a lot of negativity about the [No Child Left Behind] law from people who are very powerful, and the law was in danger,” Ms. Sabia said. Candace Cortiella, the founder of the Advocacy Institute, a nonprofit organization in Burke, Va., that works to support people with learning disabilities, said the percentages that the Education Department has put forward are too high. “There’s a lot of us who have felt that the 2 percent, on top of the 1 percent … is going to be excessive,” Ms. Cortiella said. “At some point, you will have ‘used up’ all of the kids


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in the most significant categories,” she said, referring to children who have obvious difficulties that would prevent them from performing well on tests. “Then, you’ll begin to nibble into the categories that, by their definition, should be able to perform to grade level,” Ms. Cortiella said. Katherine Beh Neas, the director of congressional affairs for the Chicago-based Easter Seals, said the Education Department is attempting to answer a good question: “How do you include these kids into the accountability system in a way that’s meaningful?” “To make it so that as many as 30 percent are put on a different standard, with different expectations, gives us pause,” she said, referring to the proportion of students with disabilities who are potentially affected by the flexibility policies. In addition, the Education Department hasn’t defined just who would fall into the 2 percent category, she said. “What we’ve been asking them for is guidance to [individualized education program] teams in how to make this decision,” Ms. Neas said. Such teams, under the main federal law on special education, draw up plans for educating students with disabilities. Under the proposed regulation, states would be required to develop a way of determining which students should take the different tests, and would have to re-evaluate students each year to see if the modified assessments are still necessary. Also, the modified assessments would have to be aligned with grade-level curricula, so a 6th grader could not take a test intended for a 3rd grader, for example. In addition, students assessed under the modified achievement standards would have to be receiving grade-level instruction in the relevant subjects. And the use of a modified test could not preclude a student from earning a regular high school diploma. “We’re open to new ideas, just so long as we all stick to what I call the bright lines of the law—annually assessing students, disaggregating data, and closing the achievement gap by 2014,” Secretary Spellings said. Under the No Child Left Behind law, students in all subgroups must be at 100 percent proficiency by the 2013-14 school year. The Education Department gave states an opportunity to use interim measures to adjust their test scores for the 2004-05 school year. The department plans to extend the interim policy for the 2005-06 school year to allow 75 days of public comment on the proposed regulation, which was published in the Federal Register on Dec. 15. Document #12: Christina A. Samuels, “Ed. Dept. releases final rules on tests for special education students,” Education Week, April 4, 2007.

The U.S. Department of Education today released final regulations to guide the creation of tests for students in special education who are capable of learning grade-level content, but not as quickly as their peers.


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Currently, the only options available for such students are to take the general assessments that are given to all students, which may be too difficult, or tests intended for students with significant cognitive impairments, which are too easy. The new tests will allow a more accurate assessment of what these students know and how best to teach them, Deputy Secretary of Education Raymond J. Simon said during an afternoon press conference.

The tests may also allow some schools to make adequate yearly progress under the No Child Left Behind Act when they had not before. Up to 2 percent of students’ proficient and advanced scores on these particular tests, which the department calls “alternate assessments based on modified achievement standards,” may be counted when measuring AYP. Two percent of all students is equivalent to about 20 percent of students with disabilities.

The Education Department also allows up to 1 percent of all students in a state—equivalent to 10 percent of students with disabilities—to take a different type of alternate assessment and be counted as proficient for purposes of AYP. Those tests, which are the ones used with students with significant cognitive impairments, are less complex and comprehensive.

This testing flexibility was first announced in April 2005, with draft regulations released in December 2005. In the meantime, states were allowed to use a mathematical model to adjust their scores as if the policy were already in place. That flexibility will be allowed for the 2006-07 school year, but after that, if states want to continue using the model, they have to enter into a partnership with the Education Department to develop the “2 percent” tests, Mr. Simon said.

“We believe a state that has not done anything so far, should be able to do what we ask them to do over the next two school years,” Mr. Simon said. “Only those who participate with us in a meaningful way” can use the mathematical model, he said.

Content Important

The final regulations, like the draft version, also make it clear that out-of-level assessments would not be allowed to serve as appropriate tests for students in special education. So, a 6th grader who reads at a 3rd-grade level would not be allowed to take a test intended for younger students.

“The reason we’re taking that position here is we’re really trying to emphasize the importance of students getting access to grade-level content,” said Kerri L. Briggs, the acting assistant secretary for planning, evaluation, and policy for the Education Department.

However, the tests can still be easier than the tests given to the general student population, while reflecting grade-level content. Examples of changes in the tests include offering three choices on a multiple-choice test, instead of four; using math manipulatives to illustrate test answers; or allowing students to receive test questions in spoken word or pictures, in addition to print.


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Some states already have begun offering such assessments to their students, Mr. Simon said. Though those tests haven’t gone through the department’s peer-review process, he said they can be used as a starting point for other states as they consider their own tests.

The response to the new regulations during a teleconference held today with state school chiefs was positive, Mr. Simon said. He said the state school leaders who have created tests told their colleagues that the tests “have given us information that we’ve needed” to improve education for students with disabilities, Mr. Simon said.

The department plans to launch an effort to assist states as they create the tests, including $21.1 million in grant funds for technical assistance, a meeting with the states scheduled for July, and monthly teleconferences.

While many educators welcomed the Department of Education’s flexibility in assessing the performance of students with disabilities, advocates for those students argued the flexibility undermined NCLB’s core principle that grade-level achievement should be a goal for all special education students.

Document #13: Christina A. Samuels, “Advocates for students with disabilities balk at proposed NCLB changes,” Education Week, July 6, 2007.

As Congress wrestles with reauthorizing the 5½-year-old No Child Left Behind Act, some disability-rights advocates fear high standards for students with disabilities could be sacrificed as states seek more flexibility in the law.

Some education groups, as well as lawmakers, have called for more choice in how states can administer the law’s accountability provisions, including greater power for school-based teams to decide what type of assessment a student receiving special education services should take.

That’s a step away from grade-level achievement as a goal for all students, said James H. Wendorf, the executive director of the National Center for Learning Disabilities, a New York City-based group that works to provide opportunities for children and adults with learning disabilities. The law needs tweaks, not wholesale changes to its ambitious achievement goals, he believes.

Mr. Wendorf’s group advocates on behalf of the largest group of children served under the Individuals with Disabilities Education Act, the federal law that mandates special education services for some 6.6 million students nationwide. Students with “specific learning disabilities” account for nearly half the students covered under the law.

“No Child Left Behind has put some real teeth in the IDEA,” Mr. Wendorf said. “It’s given parents some information they wanted desperately, and some information that they didn’t know how much they needed until it was being provided to them.”

The federal law requires schools and districts to report the academic progress of students with disabilities, along with other subgroups of students, such as those in low-income


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families and those who are learning English. The performance of such subgroups on annual tests in reading and mathematics helps determine whether their schools have made adequate yearly progress toward proficiency for all students, as required under the law.

The reporting provision has forced administrators to pay attention to a group of students that is too often ignored, disability-rights advocates contend. They point to studies that show that students with disabilities, even those with cognitive impairments, can achieve at higher-than-expected levels when teachers hold them to grade-level standards.

As disability-rights advocates lobby federal lawmakers, their focus has been on maintaining what they see as the strong standards of the law, while allowing schools to get credit for a student’s academic growth towards proficiency, even if the student occasionally falls short of a particular benchmark.

Hearing ‘Frustration’

For instance, the National Center for Learning Disabilities recently released two reports that outline the progress students with disabilities have made under the No Child Left Behind law, as well as the challenges that remain.

The group says that Congress should maintain the requirements for schools to make adequate yearly progress, or AYP; that all schools should be required to report the performance all student subgroups 20 students or more (current rules allow for a larger minimum); and that students should not be subject to repeated retesting for the purpose of determining AYP. Those recommendations would maintain or tighten existing rules for districts and states.

At the same time, the center supports allowing a “growth model” factor to be a part of No Child Left Behind’s accountability rules. Growth models allow schools to receive credit for improving individual students’ academic performance over time.

The Consortium for Citizens with Disabilities—a coalition of 100 groups, including the Council for Exceptional Children, the Easter Seals, and the National Disability Rights Network—stresses in its NCLB recommendations that “all students with disabilities are general education students first,” and argues that the law “must continue to build on IDEA’s strengths by promoting a learning environment in which all children are expected to become proficient on grade-level content and states, school districts, and schools are accountable for their achievement.”

Advocacy groups have also been calling on legislators to counter what they believe are negative impressions of the No Child Left Behind law, which passed Congress with big, bipartisan majorities in late 2001 but has encountered a host of criticisms during its implementation. Several new members of Congress are serving on the House Education and Labor Committee, and those members may be hearing from their school districts that assessment of special education students is a problem, advocates believe.

“I think they’re hearing a lot of frustration from schools that don’t have the capacity to do what they need to be doing,” said Jane E. West, the vice president for government relations for the American Association of Colleges for Teacher Education, in Washington, and a co-chairwoman of the consortium’s task force on education.


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But states already have a tremendous amount of flexibility under the law, said Laura W. Kaloi, another co-chairwoman of the consortium and the public-policy director for the National Center for Learning Disabilities. She noted that under current testing rules, 1 percent of all students, which is equivalent to about 10 percent of students with disabilities, can be counted as proficient when they pass a test specially designed for students with severe cognitive disabilities.

Another 2 percent of all students, equal to about 20 percent of students with disabilities, can be counted as proficient when they take alternate assessments based on modified, but grade-level, academic standards. Those tests can have fewer questions, fewer choices in a multiple-choice section, and require a lower level of reading skill.

In addition, schools can meet AYP under so-called “safe harbor” provisions, which permit schools to make adequate progress as long as there were more students who maintained or moved up to proficiency in the current school year than in the prior school year. And, some schools don’t have to achieve AYP in the subgroup of students in because the state has a large minimum subgroup size.

“To say that we need more flexibility—to me, it doesn’t pass the laugh test,” Ms. Kaloi said.

Fear of Flexibility

Other education groups, however, including the National School Boards Association, the American Association of School Administrators, and the National Education Association, have banded together to argue for just that.

A move for greater flexibility acknowledges that special education students are a heterogeneous group of individuals that should be tested at their academic-performance level, those groups contend. Even with the flexibility allowed under the “1 percent” and “2 percent” tests, the federal Department of Education has stood firm against testing students with disabilities out of their grade levels, such as giving a 2nd grade reading test to a student in 6th grade. Groups including the NSBA and the AASA find that stance restrictive.

“They need to be assessed by an instrument that meets them where they are,” said Bruce Hunter, the associate executive director for public policy for the Arlington, Va.-based AASA. “You start with an assessment that isn’t built around group norms, and isn’t built around groups.”

The groups are also calling for an end to the 1 percent and 2 percent caps. “Students with disabilities should be assessed as determined by their Individualized Education Program team and not subjected to arbitrary caps,” said a group statement. The IEP team is required under the special education law to determine the services eligible children must receive. Such groups at the school levels are most often made up of parents, teachers, and administrators.

Reginald M. Felton, the director of federal relations for the Alexandria, Va.-based school boards’ association, said he understands the fears of advocates for students with disabilities.


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But, he said, the law requires valid and reliable assessments, and for some students with disabilities, grade-level tests don’t yield valid results.

“When we reauthorized the IDEA, we talked about the power and the relevancy of the IEP team,” Mr. Felton said. “That’s the group we should be empowering.”

But Bill East, the executive director of the National Association of State Directors of Special Education, also based in Alexandria, said IEP-driven assessments have never worked. Instead, he contended, they’ve allowed a different, lower standard to exist for students with disabilities.

“We’ve had 30 years of experience using the IEP as an accountability measure. It has failed miserably,” he said.

Predictions vary on how members of Congress eventually may handle the issue of accountability and students in special education under the NCLB law, whose reauthorization is due this year but could be delayed.

“NCLB really shifted the default [for students with disabilities], and no one wants to shift it back,” said Scott R. Palmer, a lawyer with the Washington law firm Holland & Knight and a consultant on special education to the Council of Chief State School Officers. Students receiving special education services are performing at higher and higher levels.

But when it comes to accountability, “this is an area where I don’t think we have the best answers yet,” he said. “The best practice is still evolving.”

Others remain concerned that the revised law will allow too much leeway.

“I’m very afraid we’re going to have more flexibility than we think the public schools either should have or deserve,” said Jamie Ruppmann, the associate director of The Advocacy Institute, a disability-rights group in Marshall, Va., that has lobbied Congress along with other organizations.

“This is so important,” Ms. Ruppmann said. “They’re saying they shouldn’t be held accountable for educating our children. Who but our kids would anybody say that about?”

We turn next to a series of documents dealing with the question of funding the costs of meeting the needs of students with disabilities. As is indicated in the introduction to the case, Congress enacted the IDEA intending to fund 40% of the cost of educating identified students—a figure based on the average increment incurred in providing that education. But Congress never followed through with that intention. In 2000 there was an effort to increase federal support for special education. Interestingly enough, it was Republican legislators who supported an increase in federal spending.


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Document #14: Joetta L. Sack, “Congress Poised To Increase Funding For Special Ed.,” Education Week, April 12, 2000

Congress has laid the groundwork for increasing its share of the costs of teaching students with disabilities, furthering a long-standing goal supported by a broad coalition of disability-rights groups, educators, and legislators from both parties.

In its nonbinding budget resolution for the fiscal year that starts next Oct. 1, the House calls for spending an additional $2 billion for state grants under the Individuals with Disabilities Education Act, the main federal special education law. The Senate Budget Committee has approved an additional $11.3 billion over five years in its budget resolution.

Supporters say an increase would help districts defray the rising expense of special education.

When the landmark legislation now known as the IDEA was adopted in 1975, lawmakers decided that the federal government should pick up 40 percent of the additional costs associated with the law’s requirements21. But Congress has never come close to that goal.

Spending for the IDEA has risen by 66 percent in the five years since the Republicans—who have made this issue a major priority—took control of Congress. But federal aid still amounts only to an estimated 13 percent of the total state and local costs for special education, according to the Department of Education.

For fiscal 2000, the current budget year, Congress allocated $5.75 billion for state grants under the IDEA, the second-largest federal precollegiate program. Most of that money, about $5 billion, goes to educate students ages 6 to 21 through what are known as Part B grants. The rest goes for early-childhood and preschool programs.

But there are signs that the federal contribution to special education spending could go up.

Rep. Matthew G. Martinez, D-Calif., and Rep. Bill Goodling, the Pennsylvania Republican who chairs the House Education and the Workforce Committee, have introduced legislation to authorize an appropriation of an additional $2 billion each year until 2010, at which time they say the federal government’s contribution would meet the 40 percent mark.

Meanwhile, lobbying efforts continue to intensify. A new grassroots group from Concord, N.H., the National Campaign to Fully Fund IDEA, is aiming to collect a million signatures in support of its position to bring to Washington next January.

The Council for Exceptional Children, a special education advocacy group in Reston, Va., has recommended spending nearly $7 billion on Part B alone, with another $1 billion for early-childhood and preschool programs, in the fiscal 2001 budget. And the National

21 [Which is sometimes referred to as “full funding.”]


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School Boards Association is asking Congress to spend an additional $2.2 billion a year for the next 10 years.

“We view this proposal as a good first-year down payment on achieving our goal for full [40 percent] funding,” said the NSBA’s executive director, Anne L. Bryant.

Kenneth R. Warlick, the director of the department’s office of special education programs, said the department wants to see more funding not only for state grants, but for research programs that would help special education teachers learn about best practices.

Costs Unclear

If current funding trends continue, the IDEA could become the largest K-12 program in the federal education budget within a few years, surpassing the $8 billion Title I program for disadvantaged students.

One difficulty in determining how much the federal government should spend on special education is that officials disagree on the total cost to states and districts.

Part of the problem, according to the Center for Special Education Finance in Palo Alto,22 Calif., is that most states and districts do not keep accurate data on exactly how much they spend on special education services.

“It’s not a trivial amount of money, no matter which way you cut it,” said Thomas Parrish, a co-director of the center, a federally funded research group.

According to estimates by Rep. Goodling’s staff, IDEA state grants for students ages 6 to 21 would need to total about $16.9 billion to meet the federal government’s 40 percent target. The Congressional Research Service estimates that it would take more than $15 billion to meet that goal.

Education Department analysts, who estimate total special education spending at about $41 billion, say the actual amount needed is somewhat lower—$14.7 billion for IDEA grants for infants through age 21.

The question of “full funding arose once again during the course of deliberations over the renewal of the Elementary and Secondary Education Act—the act that, when eventually passed by Congress, came to be known as the No Child Left Behind Act. But, suddenly, it was Democrats, not Republicans, who were championing the cause. And they had a new strategy: make IDEA funding “mandatory” rather than “discretionary,” and thus no longer subject to annual appropriation.

22 http://www.csef-air.org/


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Document #15: Erik W. Robelen, “Senate Backs ‘Full Funding’ Of Special Ed.,” Education Week, May 9, 2001.

Washington: The federal government would pump up to $181 billion into special education over the next 10 years, under a provision the Senate adopted last week just hours after it began deliberations on the Elementary and Secondary Education Act.

Passage of the amendment on May 3, with an ease that caught even its proponents by surprise, came on a voice vote with just three members on the Senate floor.

With Republican leaders realizing they did not have the votes to defeat the proposal, they did not ask for a roll call for members to cast recorded votes, Senate aides said.

“The passage of our amendment finally puts our money where our mouths are and makes the [federal] government true partners in funding this education priority with state and local governments,” said Sen. Tom Harkin, D- Iowa, who co-sponsored the amendment with Sen. Chuck Hagel, R-Neb.

“That is what was promised when [the Individuals with Disabilities Education Act] was created,” Mr. Harkin said, “and that is what this amendment will deliver, plain and simple.”

The provision, actually an amendment to the IDEA rather than the ESEA, would shift IDEA funding from the discretionary to the mandatory side of the federal budget and increase such spending by nearly $2.5 billion annually over the next six years.

Still subject to approval by the House, where it is likely to face resistance, the move to “mandatory” status is intended to ensure that the money would no longer be subject to the politics of the annual appropriations process.

It seeks to guarantee that the federal government would “fully fund” the IDEA, an elusive goal ever since Congress first enacted the law in 1975.

Currently, the state-grants program for the IDEA is funded at $6.34 billion a year. The amendment would increase yearly funding under the IDEA to up to $21 billion by 2007.

The special education law says states can get per-pupil federal aid for the cost of serving students with disabilities of up to 40 percent of the average national per-pupil expenditure in public elementary and secondary schools.

Advocates see the 40 percent aid level as a promise Congress has failed to keep; some other observers see that level strictly as a ceiling, not a pledge or goal.

Federal aid at the 40 percent level under the IDEA is commonly referred to as “full funding.”

Leeway on Use


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The change, assuming it survives the lawmaking process, could mean districts would have significantly more money or could lower the local tax burden.

The amendment stipulates that a district could use up to 55 percent of the increased funds to supplant what it is already spending. And, if the district could show that it was already sufficiently serving all children eligible for special education, it could use up to 100 percent for other purposes.

Mr. Harkin set the stage for last week’s move with an amendment to the Senate budget resolution last month allowing special education funding to become mandatory…

But that provision died in a deal worked out last week between congressional leaders and the White House.

Some Republicans object in principle to shifting the special education money to the mandatory side of the budget.

“It’s a terrible, terrible way to legislate,” said a Senate GOP aide, who asked not to be named. He predicted that making the spending mandatory would encourage states and localities to place more students in special education unnecessarily.

“The votes weren’t there to defeat it [in the Senate],” the aide said. However, the aide predicted that the measure would be killed when the House and the Senate seek to reconcile their versions of the ESEA later this year. “I can’t imagine the House will accept that,” he said…

‘Big Deal’ on IDEA

While funding for the ESEA was still unclear last week, special education advocates savored what is, for now, a multibillion-dollar victory on the Harkin-Hagel amendment on IDEA funding.

“This is a very big deal,” said a Senate Democratic aide, who asked not to be named. “We thought [the vote] might be close…It wasn’t in the bag. Then it ended up being a cakewalk.”

“It’s extremely exciting that sufficient funds would come into states,” said Rhoda Benedetti, a lawyer for Disability Rights Advocates, an Oakland, Calif., nonprofit group that provides research, education, and legal advocacy.

She said the additional funding, if ultimately approved, would take away excuses from states, which she said often blame the fact that they can’t provide certain services on a lack of federal aid.

“Infusing this program with [more] federal dollars, we would hope, would make the promise of IDEA become a reality in the classroom,” Ms. Benedetti said.


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Of course, the proposal met with opposition.

Document #16: Lisa Fine, “IDEA Funding Plan Draws Fire In Washington and Beyond,” Education Week, May 16, 2001.

Washington: A Senate measure that would require pouring additional billions of federal dollars into special education over the next 10 years continued to be welcomed in some quarters last week, but drew sharp criticism from the Bush administration, along with some special education advocates, educators, and lawmakers.

To mandate such a massive increase in funding without first re-examining how the nation educates students with disabilities would only perpetuate problems in the existing system, some critics of the plan said. Among the problems they cited were a lack of financing for efforts to ensure a supply of well-qualified teachers and to reach students with disabilities at a younger age, shortcomings that were seen as leading some students to be referred to special education unnecessarily.

A statement issued by the White House last week put the administration on the record as “strongly” opposing the amendment, which it called “costly and unwarranted.”

“The administration recognizes the challenges faced by states and localities in carrying out their responsibility to educate children with disabilities,” the May 8 policy statement said. “But the amendment would undermine fiscal discipline by removing the program from the appropriations process and increasing federal spending for special education far in excess of the president’s budget over the next 10 years, with no attention to improving educational results for these children.”

The Senate measure, which passed May 3 on a voice vote after Republicans leaders concluded they lacked the votes to defeat it, would amend the Individuals with Disabilities Education Act to guarantee an increase in funding for the program and move it from the discretionary to the mandatory side of the budget, thereby shielding it from the vagaries of the yearly appropriations process…

The bipartisan amendment was sponsored by Democratic Sens. Tom Harkin of Iowa and Edward M. Kennedy of Massachusetts, and Republican Sens. Chuck Hagel of Nebraska and James M. Jeffords of Vermont. Proposed during the ongoing effort to reauthorize the Elementary and Secondary Education Act, the amendment seeks to “fully fund” the IDEA within six years.

“Full funding” of the act is often referred to as providing states with per-pupil federal aid for students with disabilities that is equivalent to 40 percent of the average per-student cost. The amendment calls for reaching that 40 percent level within six years, thereby fulfilling what many advocates for such students believe was a promise made by Congress when it first passed the IDEA in 1975…

The measure is expected to face significant hurdles in the House.


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“We don’t normally comment directly on pending matters in the Senate,” said Dave Schnittger, a spokesman for Rep. John A. Boehner, the Ohio Republican who chairs the House education committee. “But suffice it to say we do not plan to include a similar amendment.”

The proposal would boost IDEA funding by some $2.5 billion a year over the next six years, which far exceeds the increase in special education spending proposed by President Bush, who wants a $1 billion increase in IDEA grants to states for 2002.

Lindsey Kozberg, a spokeswoman for Secretary of Education Rod Paige, said Mr. Bush and Mr. Paige did not want to discuss the idea of mandatory “full funding” until the congressional debate over next year’s scheduled reauthorization of the IDEA gets under way.

Setting the Stage

Even though it is unlikely to be signed into law, the Senate amendment has revved up momentum in Congress and within the special education community as lawmakers head toward the IDEA reauthorization process. Political observers say the measure has helped set the stage for how the debate will unfold.

The measure would raise spending to $21 billion—the 40 percent funding level—by 2007, Sen. Harkin said in a statement released when he proposed the amendment. The state-grants program within the IDEA stands at $6.34 billion in the current fiscal year—about 15 percent of the full-funding level.

“This is a win-win-win amendment,” he argued. “With [these] advance appropriations, students with disabilities will get the public education they have a right to, school districts will be able to provide these services without cutting into their general education budgets, and in cases where all IDEA-eligible kids are getting the services they are entitled to, property-tax payers will get relief.”

But even advocates for special education didn’t see the amendment’s passage as a clear win. For years, special educators have been used to policies with not enough money to pay for them. Now they are faced with the prospect of a windfall with no public debate on how best to use it, and some people in the field said that situation puts them in a difficult position.

“We are certainly very excited about the passage of the bill,” said Deborah A. Ziegler, a lobbyist for the Council for Exceptional Children, an advocacy group based in Arlington, Va. “But we have been steadfast in believing in not posing amendments to IDEA outside of the reauthorization process, which gives a bigger conception of the law. In this case, the decisions have major policy implications [and] were formed not with consensus from the community.”


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Reactions to the amendment varied from state to state, where special education directors are dealing with the daily challenges of running programs. Some directors said they thought more money would not necessarily be a magic bullet.

In the president’s home state of Texas, the special education director said it was dangerous to dump billions more dollars into programs without changing the culture of special education that has existed for a quarter-century.

“States and local districts have carried the burden for so long,” said Eugene Lenz, the state special education director for Texas. “The key isn’t more money, but how it would be implemented. Just putting in more money would pay for process compliance and not results for kids.”

Mr. Lenz said he would favor an increase in funding for early-childhood programs in reading and mathematics for students in general education, in an effort to prevent students from being placed in special education in the first place.

Meanwhile, Doug Cox, the special education director in Virginia, said the money would be put to good use even without a broader review of the IDEA.

“There are always needs,” he said. “This would be a great thing. It would free up money in the states to be used for other things.”

Views also differ over how the money could be used under the amendment. One issue is whether it would be better to allow schools to use the federal windfall to supplement money already being used for special education, or to supplant state and local special education funding, thus freeing up that money for other purposes.

When the IDEA originally became law, a provision prohibited the federal aid from taking the place of existing special education spending, so schools wouldn’t reduce their own contributions once the new money arrived from Washington. But during the last reauthorization, in 1997, the law was changed to allow 20 percent of new federal funding to be used for other purposes.

The Senate amendment stipulates that states could use 55 percent of the increased funding for purposes other than special education. And, if a local school district could demonstrate to the state that it was serving all eligible children and providing them with the services they were entitled to under the IDEA, the district would be able to use up to 100 percent of the money for other purposes.

Some advocates said that without strict rules requiring schools to use the bulk of the money for special education, schools would divert the money to other needs.

But Bruce Hunter, a lobbyist for the American Association of School Administrators, said there should be no concern over how schools would use the money. “There are very few districts that could meet the requirement of serving all of their students with special needs,” he said. “It’s not like they would use the money to build roads. They’re schools. They would use it to hire more teachers or a reading specialist.”


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Others said they were concerned that special education would be saturated with funding, encouraging more placements of students into special education.

Thomas B. Parrish, the director of the Center for Special Education Finance, based in Palo Alto, Calif., said that with too much money in special education and not enough in general education, special education would become a dumping ground for students with any kind of learning difficulties, because it would be the place with the most ample resources.

“There has to be some supplanting allowed because the problem in special education is increasing enrollment,” Mr. Parrish said. “We know we can serve kids with learning difficulties outside of special education.”

Mr. Parrish predicted that an influx of funding such as that offered by the amendment, combined with standards-based accountability policies in states, would serve to push more students into special education.

“The more we raise the bar, the fewer kids are going to get over the bar,” he said.

For that reason, he suggested that advocates should aim to bridge the divide between regular and special education.

Special education, he said, “should be the program of last resort.”

Even before the No Child Left Behind Act finally emerged from Congress, House and Senate committees were turning their attention to the reauthorization and revision of the Individuals with Disabilities Education Act—a process that ultimately took three years to accomplish. Debate turned on three now-familiar issues: accountability, “full” funding, and minority overrepresentation.

Document #17: Joetta L. Sack, “Lawmakers, Paige Debate Reform, Funding as IDEA Overhaul Looms,” Education Week, October 10, 2001.

Washington: The nation’s main special education law has “serious cracks” and needs more than just money to fix it, Republican leaders said last week.

Secretary of Education Rod Paige told members of the House that the Bush administration hopes to instill more accountability into special education and wants to see better results for students with disabilities. The White House also announced the creation of a commission to study the topic.

In its first hearing on the upcoming reauthorization of the Individuals with Disabilities Education Act, members of the House Education and the Workforce Committee gave a sneak preview last week of what figures to be a contentious overhaul of the 26-year-old law.


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“While its triumphs greatly outnumber its failures, the IDEA system has developed serious cracks that we must work closely together to fix next year,” said Rep. John A. Boehner, the Ohio Republican who chairs the committee.

The focus of the hearing was the proportion of minority students in special education, which is far beyond their numbers in the general school population, but the debate turned to whether IDEA funding should be on the mandatory or discretionary side of the federal budget.

If it were mandatory, lawmakers would be required to add large increases to pay 40 percent of what are considered states’ excess costs under the law—the level of federal support that advocates say Congress envisioned when it first passed the legislation in 1975.

If, on the other hand, special education funding remains a discretionary item, Congress may add or subtract funding as it wishes. The law has received substantial increases in the last five years: State grants under the IDEA are currently funded at $6.34 billion, up 111 percent since fiscal 1996.

Secretary Paige contended last week that some states were having trouble spending that wave of new funding properly. But he could not provide further details, and Rep. George Miller of California, the panel’s top Democrat, disputed that characterization.

“Almost every member has had his credibility challenged” by educators and state officials asking for more IDEA money, Mr. Miller said. “People clearly believe there is an obligation and a promise from the federal government.”

Mr. Miller and other members from both parties were at times visibly frustrated with Mr. Paige’s responses. Later, the secretary was unable to answer questions from Rep. Michael N. Castle, R-Del. on whether local districts’ budgets had been relieved by the recent influx of new IDEA money.”But that’s the reason we have hearings—to get information,” Mr. Castle said.

Mr. Paige said that much more would be known once the commission began its research.

Reform and Funding

That commission, which will be chaired by former Gov. Terry E. Branstad of Iowa, a Republican, includes 15 other appointees with experience in special education, plus five other federal officials who will serve as expert advisers. It will explore how the federal government could improve special education and will recommend policies. It is scheduled to release a report by next April.

“I would not assume the only problem is the lack of dollars,” Mr. Paige said. “That’s why we want to take a good look at reforms, and we want the reforms attached to dollars.”

Committee members disagreed on whether too many students are classified as having disabilities—or not enough.


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While most members and witnesses at last week’s hearing agreed that there is a problem of overidentification of minority students for special education, some suggested that many other students also were incorrectly placed in special education, such as children whose parents simply wanted extra services for them.

But some experts maintain that the rolls are too small. Too often, they say, children languish on waiting lists for evaluations.

Thomas Hehir, a special education researcher and lecturer at Harvard University, said the problem of overidentification of minority students was real and could be exacerbated by inadequate federal funding.

Insufficient money for programs such as early reading instruction and behavioral interventions has led to more students, particularly minorities in impoverished areas, being shuffled into special education for remedial services, he argued.

Mr. Hehir served as the director of the Department of Education’s office of special education programs during the Clinton administration.

The last IDEA reauthorization, completed in 1997, took nearly three years and was mired in disputes over discipline for students with disabilities, among other issues. Some states are still struggling to implement provisions on assessments and other accountability measures contained in that most recent version of the law.

With James Jeffords switch of his affiliation from Republican to Independent, a brief window opened up in which Democrats controlled the Senate. They hoped to capitalize on their position to move forward with their version of an IDEA reauthorization.

Document #18: Lisa Fine, “Senate Democrats Hope to Pass IDEA Overhaul This Year,” Education Week, March 27, 2002

Washington: The Senate education committee plans to move quickly to pass its version of the main federal law on special education, which is up for reauthorization this year.

With elections looming in the fall, and Sen. Edward M. Kennedy steering the Senate’s education agenda by the grace of a one-vote Democratic majority, his party wants to move on the legislation. Even if the Senate’s bill runs aground in the Republican-controlled House, Democrats could gain an election-year talking point.

“There is a lack of real commitment from Republicans on the education issues,” charged Bill Buck, a spokesman for the Democratic National Committee. “Democrats would like to move forward.”

With the dynamics in Congress in flux, Mr. Kennedy may have only the remaining months of 2002 to hammer out his vision of a special education overhaul.


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“We want to reauthorize the bill this year, and Senator Kennedy is going to make sure that happens,” said Jim Manley, a spokesman for the Massachusetts Democrat, the chairman of the Senate Health, Education, Labor, and Pensions Committee. “Hopefully, we will pass the bills all before the end of the year. If we didn’t do this, we’d have to wait to do this until next year, and start all over when everything will be different.”

House Republicans have said they would like to pass a special education law this year as well, albeit one likely to be much different from the Senate version.

Revising the Individuals with Disabilities Education Act—the next major education issue looming in Congress—carries potentially high stakes for both parties in this shortened legislative year, political observers say.

Leaving ESEA Behind

With the “No Child Left Behind” Act of 2001 now behind them, lawmakers are wading into the controversial special education law in the months leading up to the midterm elections.

Education committee members in both chambers may be torn between wanting to ride the successful conclusion of the revised Elementary and Secondary Education Act—without getting mired in the special education debate—and the desire to leave their mark in case a power shift happens to bump them out of control.

“The election is not based on IDEA at this point,” said David Griffith, a spokesman for the National Association of State Boards of Education. “I think for many lawmakers, it’s like a football game. You’ve had a big score; you are deep in your own territory. As you go into the second half of the game, what do you do?”

Sally Lovejoy, a senior staff member for the Republican-controlled House Education and the Workforce Committee, has said House Republicans would not offer any proposals or “get out ahead” of President Bush’s commission on special education, which plans a July release of its recommendations for how to revise the IDEA. The historic law, first passed in 1975 as the Education for All Handicapped Children Act, established the right of students with disabilities to a free, appropriate public education.

Mr. Manley said the Senate committee, however, feels no such compulsion to wait.

“Waiting for the president’s commission on special education’s report—that’s what the Republicans want to do,” Mr. Manley said. “Senator Kennedy is not committed to a schedule.”

The Senate education committee held its first hearing on the IDEA last week, featuring testimony from Robert Pasternack, the Department of Education’s assistant secretary for special education and rehabilitative services, along with advocates and educators from around the country.

The House education committee, chaired by Rep. John A. Boehner, R-Ohio, held one hearing last October to examine the disproportionately high number of minority students


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placed in special education. And the panel will soon release “an aggressive hearing schedule,” leading up to the release of the commission’s report this summer, said David Schnittger, a spokesman for Rep. Boehner.

Mr. Buck, the Democratic National Committee spokesman, suggested that waiting until the summer might also be a political strategy for the Republicans.

“They [Republicans] already had their ‘photo op’ with the president signing the ‘No Child Left Behind’ Act bill. That’s all they need,” Mr. Buck said.

But Kevin Sheridan, a spokesman for the Republican National Committee, said the GOP would only be helped by a chance to advance its education record.

“We are not doing things for political reasons,” he said. “It is more important than any one election cycle. Republicans have the strongest record in education in 2002 that we have ever had.”

“We have erased a huge gap on education with the American people,” he added. “Things with special education will get addressed as we move on. Let’s see what the commission’s recommendations are.”

The ‘Right Children’

Legislators on both sides of the aisle agree there are many problems in special education that need to be addressed.

At last Thursday’s Senate hearing, Mr. Pasternack spoke about such problems as the need for more highly qualified special education teachers.

Mr. Pasternack said that educators need to do a better job of providing the right services to “the right children” for special education, defining such students as those who truly have disabilities. He distinguished them from other other students who struggle for various other reasons and fall behind their classmates.

Sen. James M. Jeffords, the Vermont Independent who chaired the education committee until he left the GOP last year, said at the hearing that he was disturbed by the term “the right children.” That choice of words, he said, indicated that the administration may be anxious to declassify some students from special education to save money.

“There is no effort to do that,” Mr. Pasternack said. “I think I need to work on that phrase. We do not want anyone to be afraid that we are trying to do that.”


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Document #19: Andrew J. Rotherham23, “The Politics of IDEA Funding,” Education Week, October 9, 2002.

Despite all the attention being paid to Iraq, the fight against terrorism, and the economy, a must-do item that remains on the congressional agenda in Washington is passage of spending bills to fund the federal government for the coming year. Not surprisingly, education spending will again cause partisan contention, especially when it comes to special education. A bruising fight is likely with, for the most part, Democrats demanding “full funding” for the Individuals with Disabilities Education Act and Republicans and the Bush administration resisting. However, the IDEA itself is also in the process of being reauthorized, giving policymakers a chance to end this stalemate and seize the opportunity to increase IDEA funding while funding the law differently and smarter than we do now.

The politics of special education funding are bizarre. Only a few years ago, it was Republicans demanding that the federal government make IDEA funding paramount, and Democrats arguing the other way. During the mid- to late-1990s, almost every time President Clinton proposed a new education initiative, Republicans responded with calls to instead fund IDEA first. Democrats were often bewildered when local educators were sympathetic to the Republican position. How, they wondered, could anyone prefer IDEA funding to initiatives for smaller classes, after-school programs, or school construction?

Of course, from the point of view of superintendents and principals, the chronic underfunding of special education was part of the cause for shortfalls in these other areas. Local educators care little whether Republicans or Democrats are championing IDEA funding when they’re struggling to make ends meet in their budgets. During the late 1990s, Republicans astutely picked up on this demand and made it part of their agenda on education.

However, as recent events show, some Republicans were probably motivated less by the policy problems of IDEA finance than a desire to champion some education spending plan as an alternative to the Clinton agenda. As Democrats began to rally around IDEA funding during debate about the “No Child Left Behind” Act of 2001, and the possibility of substantial funding boosts grew, Republicans began arguing that other reforms should take precedence instead.

This turnabout had two causes. As a policy issue, the primary proposal before lawmakers to “fully fund” the IDEA would have made funding a mandatory spending item, rather than subject to annual appropriations. This means that, instead of deciding budget priorities each year, the spending amounts would be fixed. While superficially attractive, this approach is ill-conceived and could wreak havoc on an already strained federal budget. For this reason, even some Democrats sympathetic to increased education spending, like Rep. David Obey, D-Wis., the ranking member of the House Appropriations Committee, opposed it.

23 Andrew J. Rotherham is the director of the 21st Century Schools Project at the Progressive Policy Institute (www.ppionline.org) and served as a special assistant to the president for domestic policy in the Clinton administration


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As a political matter, there was not much money in the wake of President Bush’s tax cut for almost any domestic program. The terrorist attacks of Sept. 11, 2001, certainly complicated matters, but the overall fiscal outlook for nondefense domestic programs in the federal budget was not rosy on Sept. 10, 2001, either. By arguing against large spending increases beyond the No Child Left Behind deal, Republicans were protecting the president from an awkward political situation. After all, although Sen. James M. Jeffords voted in the end for the tax cut, part of the Vermont Republican’s cri de coeur when he switched to the Independent label and lined up with the Democrats was a call for more spending on special education.

So now, instead of new funding, Republicans argue that special education needs reform. They’ve reversed themselves on their Clinton-era stance of pitting special education funding against proposed new initiatives by arguing that President Bush’s Reading First program will reduce the demand for special education dollars. This is partially right, and more recent research supports their claim. Moreover, the IDEA does need more than just a few nips and tucks in the way of reform, and better preventive measures are essential.

But reform will not obviate the need for additional resources. Last year, Chester E. Finn Jr., Charles Hokanson, and I published Rethinking Special Education for a New Century, an ideologically diverse volume of papers and essays about special education. Although we did not specify a dollar amount, we concluded that while many aspects of special education are in dire need of reform, a reformed IDEA still must be adequately funded.

Republicans now argue that the explosion in the number of students inappropriately identified as learning-disabled is the IDEA’s primary fiscal culprit. There is plenty of evidence that in addition to those with genuine learning problems, this loosely defined category has become a catchall for students who were not taught well in the first place or are just struggling academically. But fixing this situation, while an imperative for policymakers, will not solve the funding problem. Even as students are needlessly referred to special education, others who do need help are falling through the cracks because of poor screening and intervention. And it’s worth remembering that prevention itself is costly, and that early-intervention programs are notoriously underfunded.

Moreover, high-cost medical and intensive instructional services are also straining school budgets. The explosion of students classified as learning-disabled should not obscure the high-cost services more severely disabled students need and are entitled to. More specifically, analysis about the relation of the special education caseload to rising medical costs and recent legal decisions about the responsibility of schools to provide these services is urgently needed.

To be sure, many Democrats are focused on IDEA spending at the expense of special education reform, but at the same time, too many Republicans are just trying to come up with rationalizations to forestall funding increases or argue for vouchers. Fortunately, because Congress is considering both IDEA funding and changes to the IDEA statute as part of the reauthorization process, the opportunity is at hand to discuss not only how much more to spend overall, but also how to spend it differently and more effectively.


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There are immediate steps the president and Congress can take toward this end. First, both Democrats and Republicans must acknowledge that special education is expensive, frightfully so, and that the chronic underfunding adversely affects school district budgets. But, if we’re serious about “leaving no child behind,” it’s time to ante up and meet that challenge by providing the necessary resources for the IDEA. That does not mean Congress must create a new budget-busting entitlement, but it’s wishful thinking to try to improve special education without increasing spending.

However, despite demonstrated need for more spending, it’s also time for an honest recognition that no one knows exactly how much is necessary. While President Bush’s Commission on Excellence in Special Education did a lot of valuable work overall and examined the finance issue in particular, it skirted the question of just how much money is required. Considering the recent history and politics of IDEA funding, it’s hard to see this omission as anything other than an administration-sanctioned attempt to duck the issue. That’s unfortunate. Contrary to much of the rhetoric, God did not hand down the oft- cited 40 percent federal-funding target for the IDEA. It’s not sacred, but based on a generation-old political compromise; and, because of the peculiarities of state and local school finance, it may in fact be too little for Washington to contribute or, conversely, more than is required.

To find out, the president and Congress should establish another bipartisan commission or task force specifically to look at special education finance. That commission should be made up of local, state, and national educators, policy analysts, and school finance experts and charged with figuring out, not what we are spending now but rather how much local districts and states can and should pay toward special education and how much the federal government must contribute. Such a commission might also make recommendations to help resolve ancillary funding disputes—for example, about Medicaid—so that school officials have a clear understanding of what revenue is available to fund special education and medical costs. It could also consider preventive costs and other strategies so that policymakers can more comprehensively consider special education funding.

Realistically, reauthorization will not be finished until at least 2003, so there is still time for such a commission. We know a lot more about special education finance now than a quarter-century ago, when the IDEA was first passed. And we should use this information to inform policy.

But even when there is consensus about how much to spend, the money should not be allocated exactly as it is now. It is important to maintain federal formulas that are neutral with regard to identification, to neither encourage nor discourage special education identification. But high-cost students, particularly in small and rural districts, can cause fiscal strains that cannot be adequately addressed through national formulas. Several states have programs to help address this problem, but national action will be more efficacious, and a new funding mechanism should be incorporated during the IDEA reauthorization. In Rethinking Special Education for a New Century, we recommended that, on an individualized basis, the federal government pick up the full cost of education for these students. While education is primarily a state and local function, this is a small subset of students with clear rights in federal law who could be helped by a new way of funding the


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IDEA. At the same time, such a strategy would help alleviate budget problems in smaller communities.

Finally, just as special education students should be integrated into the life of their schools, policymakers must not take a myopic view of IDEA funding. Funding for the IDEA’s smaller program for infants and toddlers as well as the pre-K program should be considered in tandem with the primary IDEA funding stream. It’s also long past time to heed the evidence showing that good pre-kindergarten programs reduce special education referrals and improve the haphazard approach that most states and the federal government now take toward early-childhood education. The politicizing of IDEA funding has hindered rather than advanced a solution to the finance problem and distracted from other important reform issues in special education. Congress and the president can advance the debate by investing more in special education, but doing so based on policy instead of politics. That will require the president to lead and both parties in Congress to make concessions, but action on this issue is long overdue. The interminable special education funding fight is good for Washington partisans, but it does not benefit the students the Individuals with Disabilities Education Act is supposed to help, or their peers adversely affected by current funding shortfalls.


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With Republicans back in control of Congress after the 2002 elections, they concluded that IDEA reauthorization was a perfect occasion for reintroducing one of their favorite educational panaceas—vouchers—for special education students. It was a plan that had been piloted in Florida. Document #20: Lisa Fine Goldstein, “Election Results Boost Special Ed. Vouchers,” Education Week, December 4, 2002

Washington: The push for federally financed special education vouchers gained a gust of momentum from the midterm elections that put Republicans in control of both houses of Congress.

The Republican leaders on the education committees in the House and the Senate, who are gearing up to reauthorize the main federal law on special education— the next big school bill on the congressional table—have both said they favor the idea of school choice programs for students with disabilities.

With the turnover in control of the Senate generated by the election results, one of the idea’s chief opponents, Sen. Edward M. Kennedy, D-Mass., will lose the chairmanship of the Senate, Health, Education, Labor, and Pensions Committee, to Sen. Judd Gregg, R-N.H., a proponent of vouchers in special education.

“Current law allows for the use of public funds to send disabled kids to private schools if the students can’t get the services they need from public schools,” said Annie White, a legislative adviser to Mr. Gregg on labor and education issues. “Senator Gregg wants to explore reasonable efforts to offer school choice programs for special education students.”

It’s too soon to tell if the voucher debate will extinguish the bipartisan spirit that lawmakers say characterized the discussions over the Individuals with Disabilities Education Act before the November elections. Republican leaders, however, say they want to continue the cooperation with the Democrats.

“We have had a history of working in a bipartisan way,” Ms. White said. “Senator Gregg made that a priority when he was on the minority side. That will be the same now that he is on the majority side.”

The Democrats will try and cooperate as long as possible, but they have their own IDEA bill ready to propose at any moment, said Connie Garner, senior disability policy advisor to Sen. Kennedy. Still, the change in the power dynamic on Capitol Hill seems likely to redirect the debate over how to improve programs for the nation’s 6.5 million special education students.

Staff members for the GOP leaders of the education committees said their bosses’ priorities for the IDEA include offering school choice; reducing the amount of paperwork required by schools to document students’ disabilities, needs, and costs; and refining the discipline rules for special education students


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With the White House and Congress now controlled by one party, more people in the special education world likely will hasten to make sure lawmakers give their side of the issues a fair chance, said Andrew J. Rotherham, the director of the 21st Century Schools Project at the Progressive Policy Institute, the think tank affiliated with the Democratic Leadership Council.

‘Fear Factor’

Call it the “fear factor,” Mr. Rotherham said.

“The Republicans’ having complete control has everybody back on their heels,” said Mr. Rotherham, who served as a special assistant for domestic policy to President Clinton. “I think a lot of people might be thinking, ‘Who knows what these Republicans might do?’ The fear factor may result in bringing more people to the table.”

Sen. Kennedy’s spokesman, Jim Manley, said the Senate had already completed several drafts of the legislation when the balance of power changed Nov. 5. Mr. Kennedy had said he wanted the Senate’s IDEA bill out by January.

But Sen. Gregg does not have an IDEA schedule in mind yet, Ms. White said.

David Schnittger, a spokesman for Rep. John A. Boehner, R-Ohio, the chairman of the House Education and the Workforce Committee, said the IDEA would be an immediate priority for the House committee. But Mr. Schnittger also said no specific timeline was in place.

Mr. Rotherham, who remembers the previous reauthorization effort, which took three years to complete, is concerned that the voucher issue will bog down the bill.

“If we end up in a big fight over vouchers, it will be very counterproductive,” Mr. Rotherham said.

The President’s Commission on Special Education recommended that the IDEA include vouchers in its July 9 report. In a twist of good timing for supporters of school choice, the report was released on the heels of the June 27 U.S. Supreme Court decision upholding the use of publicly financed tuition vouchers at religious schools.

The commission report said vouchers should be made available to parents of special education students if their children are not making progress toward their educational goals. But the commission didn’t offer details on how such programs should be set up.

The Florida Way

Lawmakers say the closest model is Florida’s 2-year-old voucher program for special education students.

Under Florida’s McKay Scholarship program, parents of students with disabilities may receive vouchers regardless of how their children’s schools perform in the eyes of the state. Parents of children with disabilities who believe that their schools are not meeting those


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pupils’ needs are eligible to receive vouchers worth either what their school districts pay in annual costs for those children or the price of private school tuition, whichever is less…

The average value of the Florida vouchers for the 4,000 students who participated last year was about $6,000. This school year, 8,082 students are receiving vouchers at 548 participating schools. An average cost for this year’s crop of vouchers is not yet available.

Chester E. Finn Jr., the president of the Washington-based Thomas B. Fordham Foundation, said the Florida program should be used as a template for a federal plan under the IDEA.

“The right thing to do is to allow some genuine experimentation with the choice issue on special education,” said Mr. Finn, who was an assistant secretary of education under President Reagan. “To allow Florida special education to use federal dollars and state dollars, and then evaluate it, is one idea.”

Just as certain issues favored by the GOP have resurfaced as points of contention for the IDEA renewal since Nov. 5, other proposals—advanced by Democrats—appear to be dead on arrival.

For example, with the Bush administration, Rep. Boehner, and Sen. Gregg all opposed to making so-called “full funding” for the IDEA mandatory, the issue may now be moot in the context of this reauthorization of the IDEA. Funding for IDEA grants currently falls under the discretionary side of the federal budget, meaning that Congress may increase or reduce appropriations at will each year.

The funding for programs on the mandatory side of the budget, on the other hand, are entitlements triggered by set formulas and to some degree are shielded from political considerations.

The president’s commission did not recommend making IDEA funding an entitlement program, a proposal that Sen. Tom Harkin, D-Iowa, pushed unsuccessfully last year. During the Senate’s period of Democratic control that began in June 2001, Mr. Harkin assumed the leadership of the education appropriations subcommittee.

But the long-standing question of “full funding” of special education remains to be settled. The Bush administration, Rep. Boehner, and Sen. Gregg have all said they favor full funding. But neither the president nor those lawmakers have offered any specifics beyond saying such funding must be tied to reform of special education.

Unfunded Mandate?

When the special education law was first passed in 1975, Congress set a goal of providing supplemental federal special education funding equal to up to 40 percent of the national average per-pupil expenditure for all K-12 education.

That 40 percent figure is what is commonly referred to as full funding. Because the federal subsidy stands instead at around 16 percent of the national average per-pupil expenditure,


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most special education advocates see the allocation as a failure to meet a promise on funding.

During the Clinton administration, congressional Republicans had cited special education as an example of an unfunded federal mandate to state and local schools. Now, that ball is in their court.

“The Republicans are like the dog who always chased the car, and now he caught it,” Mr. Rotherham said of the funding issue. “Now the dog has the bumper in its mouth, and it doesn’t know what to do with it.”

Sen. James M. Jeffords of Vermont, who had singlehandedly changed the balance of power in the Senate last year when he switched from his Republican affiliation to Independent status and aligned himself with the Democrats, views the midterm-election results as nothing less than a calamity for special education funding.

“Tax cuts are coming and huge deficits,” Sen. Jeffords predicted. “It will be another huge barrier to improving funding.” Congressional education committee members concluded that avoiding controversial aspects of the IDEA reauthorization was the best strategy for beginning the renewal process. This document describes that strategy and the following document summarizes the changes proposed to the IDEA provisions. Document #21: Lisa Fine Goldstein, “A Better IDEA: First Draft May be Sanitized Version, Education Week, February 12, 2003.

Washington

When education committee members in the House and the Senate roll out long-awaited bills overhauling the main federal special education law in a few weeks, their handiwork likely will appear largely defanged. In an attempt to start on safely common ground, congressional sources say, both panels plan to omit the more disputed aspects of special education governance from the legislation.

Measures on knotty issues expected to be the heart of the Individuals with Disabilities Act revision—reducing paperwork related to the law, disciplining special education students, “fully funding” the law, and offering a voucher program for students with disabilities—will most likely be taken up in amendments to the bill or separate bills, staff aides say.

“It makes sense to start from areas from which you can agree,” said Christine Iverson, a spokeswoman for the Senate Health, Education, Labor, and Pensions Committee. “We wanted to start from a position of common ground and make a real commitment to set that tone for the committees’ approach to IDEA.”

Reauthorizing the IDEA, the landmark 1975 law that guarantees the nation’s 6 million students with disabilities a “free, appropriate” public education, will be the first major education initiative of the new Congress, committee staff members say. Lawmakers are


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also slated to reauthorize the Higher Education Act, Head Start, and the Carl D. Perkins Vocational and Technical Education Act this year.

The Senate education committee hopes to unveil its version of the IDEA next month. The House Education and the Workforce Committee could move even earlier and introduce the bill later this month, committee aides say.

Aides said Republicans and Democrats in each chamber still hold out the possibility of introducing separate versions of the IDEA reauthorization if talks fall apart.

“We anticipate that Republicans and Democrats will continue to work together in this process,” said David Schnittger, a spokesman for the House education panel. “But we are prepared to move legislatively. It is not clear if it will be a bipartisan bill or Democrat and Republican bills.”

With lingering memories of the last IDEA reauthorization in 1997, which took a grueling three years, members of both committees decided to leave the most controversial measures to separate, more focused amendments or bills to avoid further dragging out what has already been a sluggish-to-start process, committee aides said. The IDEA was next in line among major education bills a year ago, but remained anchored in the theoretical stage.

These legislative outriders have already begun to surface.

Special educators complain they spend too much time filling out paperwork related to the law, and not enough time with their students. With that in mind, one member of the House education committee late last month introduced the proposed Paperwork Reduction Act. The measure by Rep. Ric Keller, R-Fla., would let school districts draw up individualized education plans—federally required educational road maps for students with disabilities— every three years, rather than annually, as stipulated in the current IDEA.

The change would mean revisiting the IEPs close to transition points in the student’s life—from the elementary grades to middle school or junior high, and then to high school. In between, the school officials would meet with parents for a streamlined annual review to make sure students were meeting the goals outlined in their plans.

Under the proposal, the students would receive a more comprehensive review of their IEPs every three years.

“The legislation will improve the academic achievement of special education students, while also doing away with an overly prescriptive and burdensome process for teachers,” Rep. Keller said in a statement.

But at least one leading parent group has already expressed concern that the measure would make schools less accountable to parents of students with disabilities. The National PTA said it opposes the idea of a three-year IEP.

In another amendment under development, Sens. Tom Harkin, D-Iowa, and Chuck Hagel, R-Neb., plan to try once again to make “full funding” of the IDEA by the federal government mandatory, rather than discretionary.


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For many educators and advocates, the most critical issue in special education is the need for more federal dollars. Without more money from Washington through the years, they argue, states and districts have been forced to cut other programs to pay special education costs. In other cases, districts have had to raise local taxes.

When the original version of what is now called the IDEA was passed in 1975, Congress said it would subsidize the added cost of providing appropriate services for special education students by kicking in up to 40 percent of the national average per-pupil cost of educating students overall.

Federal aid at that 40 percent level under the IDEA is what is commonly referred to as “full funding.”

But the goal has been elusive. Federal IDEA funding for states is at about the 16 percent level. Advocates see the 40 percent aid level as a promise Congress has failed to keep; some other observers see that level strictly as a ceiling, not a pledge or a goal.

While details of the Harkin-Hagel amendment are still being worked out, Republican Senate aides say the two senators’ bill would shift IDEA funding increases from the discretionary to the mandatory side of the federal budget, locking in substantial increases for the next several years.

One approach under consideration would let districts reduce the local funding of special education, replacing it a dollar-for-dollar basis with any new federal special education money. That arrangement would allow districts to roll the local money into the general education budget.

Discipline under IDEA

On another contentious point, some educators believe that special education students who commit serious infractions are not punished as strictly as regular students. Special education students who are disciplined cannot be out of school for more than 10 days without returning to the classroom or receiving services in an alternative setting.

Rep. Charlie Norwood, R-Ga., and Sen. Jeff Sessions, R-Ala., are working on an amendment revising discipline policies. Under one scenario, the measure would say all students were subject to the same punishments, unless a given student’s behavior was caused by a disability or the failure of the school to follow that student’s IEP.

Also, under current law, schools have to assess immediately whether a special education student’s infraction was a result of his or her disability.

One plan under consideration would shift the burden to parents, who would have to request such an investigation and help make the case for why a student had acted as a result of a disability.


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Document #22: “Proposed IDEA Changes,” Education Week, March 26, 2003.

A proposed overhaul of the Individuals with Disabilities Education Act introduced by House Republicans last week would:

• Require parents to have a specific grievance when they file an official complaint and institute a one- year statute of limitations from the time of a violation to the time when a parent could file a complaint.

• Call for local districts with a disproportionately high number of minority students in special education to run prereferral programs that work to reduce the number of such students designated as having disabilities.

• Set up a 10-state pilot program allowing states to reduce the IDEA paperwork burden and allow districts and parents to agree to change IEPs without holding an IEP meeting.n Set up a 10-state pilot program allowing states to reduce the IDEA paperwork burden and allow districts and parents to agree to change IEPs without holding an IEP meeting.

• Encourage training of both special education teachers and regular education teachers to work with students with disabilities.

• Ensure that states align their accountability systems for students with disabilities with state accountability systems under the No Child Left Behind Act.

An amendment on school choice for special education students to be offered by Rep. Jim DeMint, R-S.C., would:

• Encourage states to develop choice programs for children with disabilities and permit states that have such programs to use federal funds to follow the children based on their parents’ choice.

Despite good intentions for a speedy reauthorization, 2003 closed without the process having been completed, and 2004, being an election year, brought the reauthorization to a standstill. With the election over, IDEA was quickly reauthorized, with a focus on accountability. Document #23: Christina Samuels and Erik W. Robelen, “Congress passes IDEA reauthorization,” Education Week, November 22, 2004.

Congress has approved legislation that reauthorizes the main federal special education law, a bipartisan compromise designed to improve the educational opportunities of some 6.7 million children with disabilities.

The House voted 397-3 on Nov. 19 to approve the latest version of the Individuals with Disabilities Education Act. Hours later, the Senate followed suit with a voice vote in favor of the plan. President Bush is expected to sign the measure.


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The reauthorized IDEA would mandate quality standards for special education teachers, streamline disciplinary actions involving students with disabilities, and attempt to reduce the number of lawsuits stemming from the statute.

Shortly before the measure’s passage in the House, Rep. John A. Boehner, R-Ohio, the chairman of the Education and the Workforce Committee, called the final bill “a tremendous achievement of compromise, of vision, determination, and bipartisanship.”

Rep. Lynn Woolsey, the ranking Democrat on the Education Reform Subcommittee, noted that she opposed the original House version of the IDEA bill. That measure passed the chamber in April 2003 with only 34 Democrats in favor.

“Since then, there has been a lot of bipartisan effort,” she said. The three House members to vote against the final bill last week were Rep. Jeff Flake, R-Arizona, Scott Garrett, R-N.J, and Ron Paul, R-Texas.

Rep. George Miller of California, the ranking Democrat on the House education committee, stated before the vote that “this has been a rather toxic season in the political arena and in this Congress. There is not a lot of evidence that there is a lot of bipartisan action taking place in the Congress of the United States.”

But, he added, “in this committee, on this subject, we were able to work through all of those environmental concerns about the atmosphere and arrive at legislation that is going to be very good for those children with special needs.”

At their Nov. 17 session, conference committee members applauded the measure as an example of bipartisan work to reconcile differing bills that passed the House and the Senate during the past two years.

“We have approved what I think is an extremely strong piece of legislation that will move the ball down the field,” said Sen. Judd Gregg, R-N.H., the chairman of the Senate Health, Education, Labor, and Pensions Committee.

Sen. Edward M. Kennedy, the ranking Democrat on the Senate education committee, said: “The agreement we have reached demonstrates what Americans have come to realize—that students with disabilities are a far too important priority to be used as a political tool or cast aside because of an election schedule. Their education is not a partisan issue.”

Rep. Boehner said changes in the bill would bring the special education law closer to the provisions of the federal No Child Left Behind Act.

“The process of education reform did not end with the No Child Left Behind Act. It just began,” Rep. Boehner said of the wide-ranging school improvement measure adopted three years ago.


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Two Years Overdue

The IDEA is the current shorthand for the landmark law that Congress first enacted in 1975 as the Education for All Handicapped Children Act. It was last revised in 1997, and its latest reauthorization—two years overdue—was long hung up in partisan tensions.

The Senate passed its original bill by a vote of 95-3 in May. The House’s initial bill, however, was approved by a narrower margin, 251-171, in 2003. The conference committee hammered out significant differences in the two versions.

But the measure still does not lock Congress into any funding commitments, an omission that prompted a “no” vote in the conference committee from Sen. James M. Jeffords, the Vermont Independent who left the Republican Party two years ago in large part over disagreement about the party’s commitment to funding special education.

Sen. Jeffords had voted against the Senate version of the bill in May, calling it then a “hollow promise” and an unfunded mandate. His was the only no vote among the 28 House and Senate conference committee members voting last week. He continued his opposition to the final measure.

In a statement, Sen. Jeffords said, “As we approach the 30th anniversary of the original IDEA law, it is unconscionable that we, the Congress, will have once again failed to fulfill our commitment to pay the 40 percent share we promised almost three decades ago. In fact, as of today, we are not even halfway there.”

He was also concerned about the definition of highly qualified teachers under the measure, and a provision allowing schools to divert some federal special education funding to other education programs.

This year, the federal government is estimating it will pay 19 percent of the costs of educating students with disabilities, and it has set a goal of funding 40 percent of the national average of per-pupil spending by 2011.

On one of the most sensitive policy issues, the bill would allow school districts greater flexibility in dealing with special education students who have behavior problems.

If students with disabilities required discipline for misbehavior that was not related to their disabilities, they could be moved to another setting. Under the current law, schools are required to prove the need for a change of placement. In the conference committee’s bill, the burden would now be on the parents to appeal the school district’s decision.

The change is intended to eliminate separate punishment tracks for students once it has been determined that their behavior is not related to their disabilities.


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Michael Carr, a spokesman for the National Association of Secondary School Principals, said that disciplinary change was one sought by members of his organization.

“It comes back to if we believe that these students can be in the classroom with all the other kids, the student needs to know how to act appropriately,” Mr. Carr said.

The bill’s provisions on “highly qualified” teachers would parallel those of the No Child Left Behind Act. To be highly qualified under the revised IDEA, teachers would have to be fully certified in special education or pass state special education licensure exams. They also would have to hold a bachelor’s degree and demonstrate knowledge of each subject for which they were the primary teacher.

Veteran teachers would be required to meet the standards by the end of the 2005-06 school year, even if they were teaching multiple subjects to students. New special education teachers would have extra time to become certified in different subjects, as long as they were fully credentialed in at least one.

The topic of teacher qualifications was the only one debated during the Nov. 17 conference committee meeting. Some committee members floated the IDEA of giving veteran special education teachers an extra year to meet the “highly qualified” standards, putting them off until the 2006-07 school year.

Sen. Jeff Sessions, R-Ala., asked fellow lawmakers to consider the one-year postponement, particularly because special education teachers often teach multiple subjects. The amendment, however, was rejected on a voice vote.

“A highly qualified teacher is probably the most important person in this entire process” aside from parents, said Rep. George Miller of California, the ranking Democrat on the House education committee. He noted that the states have had time to create programs to help teachers meet the federal standards.

“If [states] decided to gamble on whether we would eviscerate the standard of a highly qualified teacher, they have lost,” Rep. Miller said.

Kim Anderson, a lobbyist with the National Education Association, said the teacher-qualification provision was a disappointing part of the IDEA bill. States have been waiting for guidance from the Department of Education on creating certification rules for special education teachers, she said.

If flexibility can be provided to rural teachers who instruct students in multiple subjects, as the department has done, the same flexibility should be afforded to special education teachers, she said.

“To us, it seems like it’s slapping the wrong party here,” she said.

Paperwork Reduction?

The bill also includes a provision for teachers and parents to make “minor” adjustments to a child’s individualized education plan-required for all students


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receiving special education services-without reconvening a full IEP meeting. The change is intended to make it easier for parents to be involved in the IEP process without attending numerous meetings. And under a pilot program, 15 states would be given the opportunity to develop plans to reduce paperwork and free up more instructional time for teachers.

Lawmakers also tried to devise a way to reduce the number of lawsuits that special education placements often generate.

The committee’s bill encourages the use of mediation whenever possible. Parents and school officials would have to meet and try to solve problems before convening a due-process hearing.

A two-year statute of limitations would be placed on a parent’s ability to file a complaint, with a 90-day limitation on appeals.

Also, hearing officers would have to make decisions based on whether a child was denied an appropriate education, not because of procedural mistakes.

The reauthorization attempted to reduce the paperwork burden on special education staffs. In so doing, some argued, parents’ rights were jeopardized. It was an issue that, as we will see, came to the attention of the U.S. Supreme Court.

Document #24: Diana Jean Schemo, “Parts of Special-Ed Bill Would Shift More Power to States and School Districts,” New York Times, November 22, 2004.

In updating the law governing special education for the nation’s 6.5 million disabled students, Congress has given state and school officials more power to shape the terms for providing services to disabled children, paring down rights that advocates for such students had won during the Clinton administration. Supporters of the bill said the new law was aimed at reducing costs, red tape and the adversarial relationship between parents and school districts. But advocates for disabled children said the bill, which both houses of Congress passed Friday, would make it harder for dissatisfied parents to sue to obtain services for their disabled children. For one thing, they will have to submit to mediation or other meetings to give school officials a last chance to resolve disputes before the courts may intervene. And if the courts deem a suit frivolous, or aimed at harassing a school system, the bill allows school districts to recover legal costs from parents or their lawyers. Though courts have in the past meted out such penalties on a case-by-case basis, the threat of huge legal fees will now be written into the federal law, a victory for school districts that some advocates for children fear will be used to intimidate parents. “For parents and children, this bill represents a step backwards,” said Calvin Luker, a


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lawyer and founder of Our Children Left Behind, a Web site for special-education parents that has monitored the Congressional reworking of the 29-year-old law, known as the Individuals with Disabilities in Education Act. “In a sense, we do feel that it’s painting lipstick on a pig,” Mr. Luker added. “It’s still taking away rights, making it easier for the school districts to do what they want to do, and making it more difficult for parents to protect the rights of their children.” School officials, however, were pleased to see Congress restoring powers schools lost in 1997, when Congress last updated the law on special education. “They’ve cleaned up so many things and made the law less adversarial,” said Bruce Hunter, a lobbyist for the American Association of School Administrators. Mr. Hunter said superintendents and principals were glad that parents would now have to spell out their criticisms precisely before they can sue and stick to their original charges in seeking redress, making it easier for school systems to anticipate and contain legal challenges. The law also gives schools greater latitude to remove disabled children who misbehave, shifting to parents the burden of proving that a disability caused disruptive behavior. Previously, it was up to the schools to demonstrate that the misbehavior was unrelated to the student’s medical condition and to show they had done everything in their power to help the child. Mr. Hunter also said the requirements that parents and senior school officials make a last-ditch effort to resolve complaints before going to court would “save a ton of dough, and in my judgment, solve problems.” Despite their unhappiness over the changes, parents and advocates expressed relief that the final bill abandoned what they saw as the most troubling proposals in an earlier version approved by the House in April 2003. That version, which was widely supported by school and state officials, would have permitted schools to oust disabled children who violated behavior codes, without considering whether the misbehavior was caused by their disability. It would also have allowed states to limit reimbursements to lawyers who win suits for disabled children against school systems. Instead, the final bill largely followed the more moderate version that won bipartisan approval in the Senate last May. And given the more conservative makeup of the House and Senate in the next Congress, groups representing children in special education said they would have fared worse had Congress been forced to start rewriting a bill from scratch again next year. “All the people on the advocate side were protective of current law,” said Kathleen H. McGinley, deputy executive director for public policy at National Association of


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Protection and Advocacy Systems. “But this is the best we could do in this environment, and I don’t think it’s likely we would do better starting over next year.” There are some features in the new law that please advocates for the disabled. One, aimed at reducing the over-identification of African-Americans for special education, requires the federal government to better monitor special-education enrollment and investigate racial disparities. Another creates new demands for states to publicly report on the academic progress of disabled students. Elaine Roberts, a lawyer based in Houston who represents disabled children, said that with the growing importance of standardized exams in rating school performance, schools had tended to exclude disabled students from accountability systems, instead opting to give them alternative exams that can be more open to manipulation. Parents who insist their children take grade-level exams instead find themselves “quickly outnumbered” in meetings with school officials, she said, adding, “The parents are looking for something meaningful.” One of her clients, Kelli D., a 16-year-old in Texas found to have attention deficit hyperactivity disorder, bipolar disorder and clinical depression, was forced out of her neighborhood school after she was accused of buying antidepressants from another student. Kelli now attends an alternative school for children who have discipline problems. She says that long before that, the schools had given up on her, promoting her from one grade to the next whether or not she advanced academically. “They pass me and they don’t really care,” Kelli said. In school, she said, her younger brothers learn important things, like how to write in script. She cannot. “That’s all that really matters to them at school, how to get rid of me,” she said. Her parents agreed, saying that Kelli had not brought home homework since the third grade. “For all practical purposes they just continue to push Kelli up and move her on,” her father said. “They’re not educating her.” The law also takes aim at the disproportionate share of minority students tracked for special education. According to the Civil Rights Project at Harvard University, schools are up to three times more likely to label African-Americans than whites as mentally retarded, and twice as likely to label blacks emotionally disturbed. Nevertheless, the quality of special-education services available to them is often “grossly inadequate,” said Dan Losen, a legal and policy research associate at the Civil Rights Project. The project estimates that 60 percent to 80 percent of young blacks who wind up incarcerated have learning disabilities. The strengthened federal role the new law details, which permits Washington to withhold money from districts that come up short, has infuriated some state officials.


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They say Congress, since it first passed the law in 1975, has consistently failed to sufficiently finance special education. David Shreve, the education lobbyist for the National Conference of State Legislators, said that when schools or states failed to fulfill their obligations to educate a disabled child, “you’ve got to back all the way up the system and figure out why is the promise broken.” “Many promises are broken because the resources aren’t there to follow through on the promise,” Mr. Shreve said.

On four occasions since the reauthorization of the IDEA litigation over the law has risen to the level of the U.S. Supreme Court. The first case, decided in 2005, found that, in instances where parents challenge their school district over the appropriateness of their child’s education, the burden of proof in due process hearings rests with the parent, not with the school district. Document #25: Andres Trotter, “Supreme Court rules for school district in IDEA case,” Education Week, November 14, 2005.

Parents who challenge their children’s education plans under the federal special education law have the burden of proof in due-process hearings, the Supreme Court has ruled.

The court, in a 6-2 decision on Nov. 14, held that whichever party brings such a challenge to an individualized education program under the Individuals with Disabilities Education Act is the one that must prove its case. So school districts would bear the burden in cases in which they challenge an IEP.

But even Justice Sandra Day O’Connor, who wrote the majority opinion, acknowledged that “as a practical matter, it appears that most hearing requests come from parents rather than schools.”

“Absent some reason to believe that Congress intended otherwise, … we will conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief,” Justice O’Connor said.

Jerry D. Weast, the superintendent of the Montgomery County, Md., school district, which the parents of a special education student had sued in the case, said the ruling in Schaffer v. Weast (Case No. 04-698) was “a victory for special education teachers; they’re the ones who are better off by this decision.”

The ruling means that teachers will ultimately not have to spend as much time on IDEA proceedings as they do now, he said.

The parents at the center of the case, Jocelyn and Martin Schaffer, had sought to enroll their son Brian in the 139,000-student Montgomery County district. But they disagreed with the district’s plan to place their son, who had learning disabilities and speech-language impairments, in a middle school setting with classrooms that were larger and with less access to intensive services that they believed Brian needed.


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The parents instead placed Brian in a private school and sued the district. Though they later accepted a placement in a district-run high school with a special learning center, they sought compensation for the private school tuition and related expenses.

An administrative judge ruled that the evidence in the case favored both sides equally, so the case hinged on the question of which party had the burden of proof under the IDEA.

A U.S. District Court judge ruled that the school district bore the burden of proof. The U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., ruled that the burden should fall on the party bringing the complaint.

Court Divided

Lawyers for the Schaffers contended that a family is in a weak position to challenge a school district’s stance on a child’s placement in special education, because of the district’s greater access to expertise and legal services.

But Justice O’Connor described the many procedural safeguards established for parents by the IDEA. She observed that the core of the statute is the cooperative process that it established between parents and schools.

The Schaffers “in effect ask this court to assume that every IEP is invalid until the school district demonstrates that it is not,” Justice O’Connor said. “The [IDEA] does not support this conclusion.”

She noted that Congress clarified in its 2004 reauthorization of the IDEA that school districts may be the ones seeking a due-process hearing over a student’s IEP, such as when they wish to change an existing plan but the parents do not consent, or if parents refuse to allow their child to be evaluated for special education.

Justice O’Connor’s opinion was joined by Justices John Paul Stevens, Antonin Scalia, Anthony M. Kennedy, David H. Souter, and Clarence Thomas.

Justice Ruth Bader Ginsburg wrote a dissent arguing that school districts generally have the “bigger guns” in such disputes, in the form of resources and information.

“It bears emphasis that the vast majority of parents whose children require the benefits and protections provided under the IDEA lack knowledge about the education resources available to their child and the sophistication to mount an effective case against a district-proposed IEP,” she said.

Justice Stephen G. Breyer issued his own dissent that said that because the federal special education law was silent on the burden of proof, the issue should be left for each state to decide based on its own laws or rules for due-process hearings.

Chief Justice John G. Roberts Jr. did not participate in the case. His former law firm, Hogan & Hartson in Washington, represented the school district.

Speedy Resolution

Michael J. Eig, one of the lawyers representing the Schaffer family, expressed disappointment with the ruling.


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“This is going to make it a bit more difficult for parents of disabled kids to make a case on behalf of their child,” he said. “As great and significant a Justice as O’Connor is and has been, I think she unfortunately didn’t appreciate that the protections she talks about are largely protections that exist before the due-process hearing.”

He said that parents often accept individualized educational programs for their children with disabilities but then change their minds after observing that those plans are not working in the classroom. Under the decision, parents now have an uphill battle to change such plans if districts don’t agree, he suggested.

But Naomi Gittens, a lawyer with the Alexandria, Va.-based National School Board Association, which filed a brief supporting the Montgomery County district, said, “We’re pretty pleased with how the case came out.”

Ms. Gittens praised Justice O’Connor’s decision for supporting the collaborative nature of the task of developing a plan to educate a child with disabilities and for recognizing that Congress “took very careful measures to even out the field” for both parents and school districts.

The speed of the decision, issued less than six weeks after the case was argued before the court on Oct . 5, surprised legal observers. Some attributed that dispatch to Justice O’Connor, who is known for her speedy turnaround on opinions that she writes. Justice O’Connor has announced her retirement and plans to leave the court as soon as her successor has been confirmed.

The second IDEA case to be decided by the Supreme Court dealt with the question of who should bear the cost of the fees of experts brought in to challenge district decisions about a student’s IEP. Once again, the Court sided with the school district.

Document #26: Mark Walsh, “Justices rule against parents in IDEA case,” Education Week, July 12, 2006

In the second victory for school districts on a special education issue in the U.S. Supreme Court term just ended, the court has ruled that the main federal special education law does not authorize parents who win a dispute over their child’s individualized education program to recover expert fees.

The court held 6-3 that the Individuals with Disabilities Education Act does not authorize courts to make districts reimburse parents for the fees of experts, such as consultants, even when the parents prevail in disputes.

The state of Connecticut and some legal analysts said the majority’s reasoning may bolster that state’s pending legal challenge to the No Child Left Behind Act.

The court on June 26 said Congress, in its original passage and subsequent reauthorizations of the special education law, did not “unambiguously” alert the states that when they accepted federal money under the statute, they or, by extension, their school districts, were obligated to provide compensation for expert fees to parents who win such disputes.


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“The terms of the IDEA overwhelmingly support the conclusion that prevailing parents may not recover the costs of experts or consultants,” Justice Samuel A. Alito Jr. wrote for the majority in Arlington Central School District v. Murphy (Case No. 05-18).

His opinion was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas. Justice Ruth Bader Ginsburg filed her own opinion, concurring with Justice Alito’s opinion in part and concurring in the outcome of the case.

Justice Stephen G. Breyer, in a dissent joined by Justices John Paul Stevens and David H. Souter, said the legislative history of the IDEA indicates that Congress intended for expert fees to be recoverable, and that such an interpretation furthers the purposes of the special education law.

“The practical significance of the act’s participatory rights and procedural protections may be seriously diminished if parents are unable to obtain reimbursement for the costs of their experts,” Justice Breyer wrote.

Role of Nonlawyers

In November, the high court ruled 6-2 in Schaffer v. Weast that whichever party brings a challenge to an individualized education program, or IEP, under the federal law is the one that must prove its case. Since most challenges to IEPs come from parents, the burden of proof would most often be on them, so the ruling was considered a victory for school districts.

In the Arlington Central case, Pearl and Theodore Murphy, whose son has multiple disabilities, won their original suit against the 10,000-student Arlington Central district, in upstate New York, and asked a U.S. District Court judge in New York City to award them $29,350 in expert fees for the services of an educational consultant, Marilyn Arons. The judge, in a 2003 ruling, concluded that the parents were entitled to recover part of that sum, or $8,650.

The district appealed the fee award and lost again last year in the U.S. Court of Appeals for the 2nd Circuit, also in New York City.

The federal appeals courts have taken several different tacks in interpreting a provision of the IDEA that authorizes the award of attorneys’ fees to the prevailing party in a special education dispute. The Supreme Court agreed to hear the case to decide whether the law’s provision on recovering “costs” would include expert fees.

Ms. Arons, though not a party to the case, was at the center of it because she has long been an advocate for parents of children in special education, and she has been involved in several legal matters addressing whether nonlawyer experts and consultants like her can ultimately recover their fees from districts.

Ms. Arons declined a request for a comment, but she reacted to the decision on the Web site of the Parent Information Center of New Jersey, a Teaneck, N.J.-based advocacy organization for parents of children with disabilities that she founded.


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“For now, Goliath has slain David, the innocent savaged by brute force,” Ms. Arons wrote.

‘Insulting to Parents’

Maura A. Collinsgru, the director of the Parent Information Center, said the court’s ruling was “decimating to parents.”

“This decision renders IDEA meaningless for those who have no resources,” she said.

Ms. Collinsgru referred to Justice Alito’s conclusion that the spending clause in Article I of the U.S. Constitution required Congress to give the states clear notice of an obligation under the IDEA, such as reimbursing parents for the use of experts.

“The majority speaks about our disabled children as though they are commodities under the spending clause,” she said. “It was very insulting to parents and those who work with them.”

Drew S. Days III, a Washington lawyer who filed a friend-of-the-court brief on the parents’ side for the National Disability Rights Network and the Center for Law and Education, said the text and the legislative history of the IDEA suggest that Congress wanted parents to be able to win reimbursement for experts.

“The fact they will not be able to hire educational consultants with the expectation that, even if they are successful, they could be reimbursed will substantially limit the degree to which parents can represent their interests effectively,” Mr. Days, who was a U.S. solicitor general under President Clinton, said in an interview.

But Thomas Hutton, a staff lawyer for the Alexandria, Va.-based National School Boards Association, which filed a friend-of-the-court brief on the side of the Arlington Central district, said the ruling shows the judicial branch is “willing to give the schools the benefit of the doubt on dealing with children in special education.”

“We don’t view this as a victory for school districts over parents,” Mr. Hutton said. “It is a victory for the collaborative approach over the litigation approach.”

In its third case involving special education, the Court sided with parents who sought the right to represent themselves in court without the assistance of a lawyer.

Document #27: Mark Walsh, “High Court backs parents’ rights to argue cases under IDEA,” Education Week, May 21, 2007.24

The U.S. Supreme Court ruled today that parents have their own broad, enforceable rights under federal special education law, and thus they may represent themselves in federal court without the assistance of a lawyer.

24 Staff Writer Christina A. Samuels contributed to this report.


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The decision in Winkelman v. Parma City School District Case No. 05-983 was unanimous on the idea that parents have some rights to represent themselves without a lawyer under the Individuals with Disabilities Education Act. But it split 7-2 on the idea that parents have substantive and procedural rights that encompass their child’s right to a free, appropriate public education under the law.

“Parents enjoy rights under IDEA; and they are, as a result, entitled to prosecute IDEA claims on their own behalf,” said the majority opinion by Justice Anthony M. Kennedy. “The decision by Congress to grant parents these rights was consistent with the purpose of IDEA and fully in accord with our social and legal traditions.”

“It is beyond dispute that the relationship between a parent and child is sufficient to support a legally cognizable interest in the education of one’s child,” Justice Kennedy added.

His opinion was joined by Chief Justice John G. Roberts Jr. and Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, Stephen G. Breyer, and Samuel A. Alito Jr.

Justice Antonin Scalia wrote an opinion concurring in part and dissenting in part that was joined by Justice Clarence Thomas.

Justice Scalia said he would hold that parents have the right to proceed pro se, or for themselves, under the IDEA in federal courts when they seek reimbursement for private school expenses for their child or for certain of their own procedural rights. But he would not let them proceed without a lawyer on the basic question of whether their child’s free, appropriate public education was “substantively inadequate.”

Justice Scalia also warned that cases pressed by parents without a lawyer would burden the court system.

“Since pro se complaints are prosecuted essentially for free, without screening by knowledgeable attorneys, they are much more likely to be unmeritorious,” Justice Scalia said.

Expense Cited

The case was brought by Jeff and Sandee Winkelman, who are not lawyers and want to represent their son in a lawsuit against the 13,000-student Parma, Ohio, school district, near Cleveland, over the child’s educational placement.

They cannot afford a lawyer, and they argued that the special education law allows them to represent their son, Jacob, who has a form of autism. The Winkelmans also contended that they may argue for their own rights under the federal law.

Although the parents lost on both issues in the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, other federal appeals courts have recognized the right of nonlawyer parents to represent themselves, at least on procedural issues.

The Winkelmans say that requiring parents to get lawyers means that many families are shut out of federal court because of the expense, and because of a shortage of lawyers


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willing to take on special education cases. Supporting the family’s position are a number of disability-advocacy groups, as well as the Bush administration, which argues that parents themselves can be aggrieved parties in special education cases “who may pursue their own procedural and substantive claims in court.”

The school district argued that there is no language in the special education law that supports a departure from the basic procedural rule that a nonlawyer cannot represent another party’s interests in court. Parents don’t have the legal skills to represent their children in court, in contrast to less formal due-process hearings, where hearing officers may give them deference, the district said.

More IDEA Lawsuits?

The district developed an individualized education program for Jacob for the 2003-04 school year. The Winkelmans contended that he needed more support than the district was willing to provide. The family sought a determination that Jacob did not receive a free, appropriate public education under the IDEA, that his IEP was inadequate, and reimbursement for the tuition they spent at a private school where they have enrolled Jacob, who is 9 years old. That school, the Monarch School in Shaker Heights, Ohio, charges tuition of about $50,000 a year.

Christina Henagen Peer, a lawyer representing the Parma district in the case, said in a statement that “at every level, the administrative judges and the courts have concluded that the school district fully complied with the requirements of IDEA, offering a free, appropriate public education to Jacob Winkelman. The district looks forward to having the case heard on the merits so that this case can come to closure for the Winkelman family and the school district.”

Sandee Winkelman said the high court’s decision left her feeling “overwhelmed.”

“It’s a good day for parents,” Ms. Winkelman said. “Tomorrow we have to go back to Jacob. But today is parents’ day.”

Ms. Winkelman, who consulted the library at Cleveland State University and prevailed on sympathetic law students to help her find materials on special education law, now says the publicity has prompted lawyers to come forward and offer their assistance with the family’s case. After winning the right to argue the case on their own, it is unlikely the Winkelmans will end up doing so, she said.

“I always believed that everyone needs an attorney. You always have a better chance with one, let’s face it,” Ms. Winkelman said. “I hope parents don’t have to go without, but they can do it, now.”

Francisco M. Negron Jr., the general counsel of the National School Boards Association, said he was concerned that the court’s ruling would prompt more parents to consider filing special education lawsuits against districts on their own, without the assistance of legal counsel.

“Lawyers often serve as gatekeepers,” said Mr. Negron, whose Alexandria, Va.-based organization had filed a friend-of-the-court brief in the case on the side of the Parma district. “Lawyers have an obligation not to bring forward cases that are frivolous or


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without merit. Parents are undoubtedly emotionally involved in their children’s cases. They might not be able to bring the same kind of legal analysis to bear.”

Selene Almazan, a Towson, Md., lawyer who often represents parents in IDEA matters, said it was significant that the Bush administration had entered the Supreme Court case on the side of the Winkelmans, arguing that the text of the IDEA supported parental rights.

Ms. Almazan is a board member of the Council of Parent Attorneys and Advocates, a Towson-based group that filed a friend-of-the-court brief in support of the Winkelmans.

“Families proceed to litigation in very few cases,” she said. “I don’t think this is going to release a glut of lawsuits.”

With Justice Kennedy having recused himself from consideration of the fourth case, the Court deadlocked over a case involving a New York City parent who argued that the city should bear the cost of placing his child in a private school even though the child had not been enrolled in the public school the parent argued would provide an inadequate education. In this instance, the lower court decision held and the city was liable for the costs of the child’s private school tuition.

Document #28: Mark Walsh, “Court is split on IDEA private-placement case,” Education Week, October 17, 2007.

The lone education case granted so far in the U.S. Supreme Court’s new term came to a quick conclusion this week as the justices divided equally over an appeal from the New York City school system about paying for private school placements under the main federal special education law.

The 4-4 tie in the case means that a federal appeals court ruling in favor of a New York City parent was affirmed without an opinion from the justices. The result, which was made possible by Justice Anthony M. Kennedy’s recusal from the case, carries little weight as a nationwide precedent.

At issue in Board of Education of New York City v. Tom F. (Case No. 06-637) was a question under the Individuals with Disabilities Education Act: Must parents of children in special education give public schools a try before enrolling such students in private schools and then seeking tuition reimbursement at public expense?

The case was argued Oct. 1, the first day of the court’s term. The outcome, announced Oct. 10, upholds a ruling by the U.S. Court of Appeals for the 2nd Circuit, in New York City, that the IDEA does not require children to have attended public schools before their parents can seek reimbursement for a so-called unilateral private school placement—a decision to enroll a child in private school without the assent of public school authorities.

The tie in the Supreme Court is a victory for Thomas E. Freston, a former top executive of Viacom Inc., who had battled the New York City school system over the proper education for his son, Gilbert, who has learning disabilities. At stake in the high court case was $21,819 in private school tuition for the student for the 1999-2000 school year.


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“I am thrilled with this decision,” Mr. Freston said in an Oct. 10 statement. “Where a public school district does not offer an appropriate education to a child with learning disabilities, the law makes the opportunity available for private school tuition reimbursement. The court reaffirmed that fundamental principle today.”

Paul G. Gardephe, the lawyer who argued Mr. Freston’s case, pointed out that the appeals court’s ruling will remain in effect in the states making up the 2nd Circuit: Connecticut, New York, and Vermont.

The outcome is “clearly not mandatory outside the 2nd Circuit,” he said, although he noted that the U.S. Court of Appeals for the 11th Circuit, in Atlanta, has adopted the same view that public school enrollment is not required as a prerequisite to private school reimbursement under the IDEA.

Separate Appeal

The 1.1 million-student New York City system had argued that some parents don’t intend to enroll their children with disabilities in public schools but submit them for special education evaluations before placing them in private schools and then seeking public reimbursement.

During the oral arguments in the case, the justices spent considerable time weighing whether a 1997 amendment to the IDEA was meant to require children to be enrolled in public schools before their parents could seek private school tuition reimbursement.

As is its custom with such divided outcomes, the Supreme Court did not disclose how each participating justice voted. It also remained unclear why Justice Kennedy had removed himself from participation in the case.

Leonard J. Koerner, who represented the school system, said that he has argued six times before the justices as an appellate lawyer for New York City, and that this was the second time a case of his had ended in a tie. The other was in a 1988 case involving the city’s police department, when only eight justices participated because of a vacancy on the court.

“When you have an even number, a tie is always a possibility,” he said in an interview. “These are close cases.”

It is possible that the Supreme Court could return to the issue of private school placements under the IDEA sooner rather than later. Another IDEA appeal pending at the court, in a case from the Hyde Park school district in New York state, raises the same legal issue.

The high court, assuming Justice Kennedy did not have the same conflict that required his recusal in the New York City case, could grant review in Board of Education of the Hyde Park Central School District v. Frank G. (No.06-580). The court had placed the Hyde Park district’s appeal on the agenda of its Oct. 12 private conference.

If that case were granted review, there would be little doubt that Justice Kennedy would be the focus of the two sides’ legal briefs and arguments.


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We turn next to a document that provides us some insight into the perspective of special education teachers.. The Council for Exceptional Children is an advocacy organization for special educators and parents of special education students. Their 2000 report suggests that special education teachers and administrators are confronted with mounting problems in meeting the needs of their students.

Document #29: Joetta L. Sack, “CEC Report Tracks ‘Crisis’ Conditions In Special Education, Education Week, October 25, 2000.

Special education teachers face tougher conditions now than ever before, leaving many struggling to do their jobs well, an extensive study by one of the field’s leading advocacy groups25 concludes.

At the same time, general education teachers are not getting enough training to work with the students with disabilities who come into their classes through policies promoting such inclusion, according to the report, which was scheduled to be released this week by the Council for Exceptional Children. The Reston, Va.-based CEC is one of the largest groups representing special educators and parents of special education students.

The findings in the Oct. 23 report may not surprise special educators, many of whom have long complained of large caseloads, overwhelming paperwork, and other burdens. The report does, however, offer the CEC’s perspective on the pervasiveness of severe problems in educating students with disabilities.

It points out “a crisis,” because disabled students will not get an adequate education, according to the CEC, which has been studying its members’ working conditions for several years and advocating improvements.

“Perhaps the most telling message from the survey is that the roles for teachers who work with students with exceptionalities are changing, and little is being done systemically to address these changes. This is true for both general and special educators,” writes the report’s author, Mary Ruth Coleman, an associate professor of special education at the University of North Carolina at Chapel Hill.

Last year, the researchers sent 2,000 surveys to special education and general education teachers, special education administrators, principals, and parents. They received 586 responses, but because of omissions or other problems, deemed only 538 of the responses of use for their purposes. The CEC also compiled anecdotal evidence over several years from teachers attending their annual conferences.

Even as they reported on problems in their profession, however, most of the respondents said they were “satisfied” or “very satisfied” with their work in special education. Only 23 percent of special education teachers and 13 percent of special education administrators reported being “not satisfied.”

But the special education field in recent years has faced significant shortages and high turnover in personnel. 25 The report, “Bright Futures for Exceptional Learners,” is available on the Web at http://www.cec.sped.org/spotlight/cond/bf_report.html.


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The report also includes teachers’ comments and anecdotes about the challenges they face. While large class sizes and caseloads were cited as a concern, the diversity of disabilities within one classroom was also considered an obstacle. Veteran teachers’ training and experience often are outdated for today’s classrooms, and new teachers also are not getting proper training, according to the study.

One special education teacher wrote: “My frustration is trying to be ‘all things to all people.’ I am supposed to keep perfect paperwork, collaborate with regular education teachers, train and grade peer tutors, keep in constant touch with parents, and still find time to teach my students!”

“If half of what they say is true, this is very alarming,” said Joseph Valenzano Jr., the president and chief executive officer of Exceptional Parent magazine, which reviewed the study.

Time Crunch

The report shows that time spent drafting and managing individualized education plans—the federally mandated plans that guide the day-to-day education of students with disabilities—affects not just special education teachers, but general education teachers and administrators as well. For instance:

• About two-thirds of special education teachers, administrators, and principals spend between 10 percent and 30 percent of their time on paperwork related to students’ IEPs. Twelve percent of the special education teachers reported spending more than half their time on IEP paperwork.

• In addition, about 75 percent of all the survey respondents reported spending 10 percent to 30 percent of their time in IEP team meetings.

• Most of the teachers reported spending less than one hour a week of one-on-one time with individual special education students, and a third of the general education teachers reported never having individual time with the special education students in their classes.

Special education classes also often have inadequate facilities and classroom resources such as books, instructional materials, and equipment, the report says. And, the CEC says that 176 of the special education teachers surveyed estimated that their out-of-pocket expenses averaged $500 a year. Most recently, a new approach to identifying students with special needs has taken hold across the country. “Response to intervention,” simply put, is a method for providing students with extensive individualized support at an early age and measuring the response to that intervention—all this before the child is identified as having special needs. Promoters of the method argue that it will address the problem of over-identification, thus cutting districts’ expenditures for special education. Opponents say that RTI is nothing more nor less than “special education lite”—assistance provided by untrained staff that threatens to supplant a genuine special education program.


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Document #30: Christina A. Samuels, “Response to Intervention’ Sparks Interest, Questions: Critics say approach depends on too many complex factors,” Education Week, January 18, 2008.

As a demonstration site designated by Oregon as a prime example of “response to intervention” in action, the Tigard-Tualatin district has had to pare visiting groups down to no more than 25 people. During the last few visits, 50 people descended on the district just outside Portland at one time. “We’re trying to strike a balance between efficiency for our district and, at the same time, offering something for people who want to see what we’re doing,” said David Putnam, one of the RTI project managers in the 12,000-student district. As educators in Tigard-Tualatin and elsewhere are learning, a lot of people want to see what they are doing. Response to intervention—an educational framework that promises to raise achievement through modification of lesson plans based on frequent “progress monitoring”—is one of the most-discussed education topics today. “People are hungry” for information, said Maurice McInerney, a co-project director for the newly created National Center on Response to Intervention. The technical-assistance center, based in Washington, is funded by a five-year, $14.2 million grant from the U.S. Department of Education’s office of special education programs. While supporters are urging widespread adoption of RTI, saying it can transform educational practice, others are offering cautions. Although RTI has shown success with children just learning how to read, skeptics note that the research base is less solid for older students and students in other academic subjects. Some parent groups also are concerned about how RTI fits into the legal process created by the Individuals with Disabilities Education Act, the federal law that guides educational practice for special education. Creating an effective RTI process in thousands of schools, moreover, is a huge undertaking. And other observers are unsure whether RTI can do what federal law suggests—offer a way to diagnose accurately whether a student has a learning disability. Supporters say such a process, properly used, could reduce the rolls of special education and save districts millions. If RTI is a train that is already rolling down the track, “it’s a track that’s being constructed right in front of the train,” said Douglas Fuchs, a professor of special education at Vanderbilt University in Nashville, Tenn., and longtime researcher in learning disabilities. Many Tiers Those concerns shouldn’t halt the adoption of a process that could be a powerful tool for improving student achievement if carefully implemented, say RTI proponents. Federal education law requires that before any student is placed in special education, the school must ensure that his or her learning problem is not linked to inadequate instruction.


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The data-crunching element of RTI is a way to do that, said George M. Batsche, a professor of school psychology at the University of South Florida, in Tampa, and the co-director of its Institute for School Reform. “The law says before we ever think about special ed, we have to look at general ed,” he said. “Support services can’t fix the basic service.” The Reach of RTI States have given the following guidance to school districts about response to intervention as a way to identify students with learning disabilities. Most are permissive, meaning they allow the use of RTI but do not require it. Others are “transitional,” or in the process of requiring the use of RTI. A small number have made RTI mandatory.

In most RTI programs, students are given a basic screening early in the school year, to spot any potential educational deficits. Those who may have difficulties are given additional tests, to allow school-based teams to zero in on the problems and craft an approach to addressing them. ```````````````````Students are then given intensive education in a “multi-tiered” system of service delivery. The small numbers of students who do not respond well to any interventions are considered to be at the top of the tiers, and are more carefully evaluated for possible referral to special education services.


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The promise is that general education teachers will be able to accurately identify the problems that students are having, and nip those in the bud before they lead to entrenched difficulties, or referral to special education. The process has been endorsed by the federal government through the 2004 reauthorization of the IDEA, which allows schools to use up to 15 percent of federal special education dollars on early-intervention programs for students who are not identified as needing special education, but who need extra support in the classroom. The special education law also allows RTI to be used as part of the process for determining if students have a learning disability. Widespread practice for identifying students with learning disabilities involves testing students’ intelligence and comparing it with their classroom achievement. Students who have a severe discrepancy between IQ and achievement are often considered learning-disabled, but that process has been criticized as a “wait to fail” model that identifies students as learning disabled who could be helped just by getting better teaching. Maligned Tools The IDEA does not eliminate severe-discrepancy testing, but says that states must not require it if a school or district would like to use another process. Most states allow districts to use RTI and severe-discrepancy testing or other methods if they choose, but two states—Colorado and West Virginia—have eliminated or plan to eliminate severe-discrepancy as an identification method altogether. Florida and Indiana have proposed doing so, according to Perry A. Zirkel, a professor of education and law at Lehigh University in Bethlehem, Pa. Critics of RTI often focus on the question of how students with learning disabilities are identified. RTI replaces one maligned tool, standardized IQ testing, with another, standardized instruction, they say. But not enough is known about what makes some students respond to certain interventions, they argue, and RTI relies heavily on skilled general education teachers to give students interventions with fidelity—meaning that they are taught the way researchers intended them to be. “I’m concerned that it is a reinvention of ‘wait to fail,’” Naomi P. Zigmond, a professor of special education at the University of Pittsburgh, said of RTI. “Although it was a promoted as a new way of identifying children with learning disabilities, it is still a waiting game as different things are tried.” Ms. Zigmond also suggested that RTI might not cut down on a common criticism of severe-discrepancy testing, which is that it overidentifies students. Teachers using the model will be swimming in data about whether their students are making progress, but the progress targets are “quite arbitrary,” she said. Constant exposure to data, and faulty targets, could cause some teachers to refer just as many students to special education as they have in the past, she said.


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And the tests don’t address children whose disabilities have a clear neurological basis. Such children don’t need more instruction; they need a different kind, said Daryl F. Mellard, a research associate at the Center for Research on Learning, based at the University of Kansas, in Lawrence. Mr. Mellard was also one of the leaders of a U.S. Education Department-funded study on RTI and learning disabilities. “You would hope there would be a more-diagnostic work-up that would be brought to bear” in identifying children with learning disabilities, Mr. Mellard said, “so we don’t rely on the general practitioner to do all the work.” Michael M. Gerber, a professor of special education at the University of California, Santa Barbara, and the chair of the special education department there, has also pointed to differences in teachers’ skill and preparation as a potential stumbling block for RTI implementation. Teachers have different ways of working with students, even when instruction is standardized, he said, and those variations will result in different student results. The problem becomes even more acute as a policy is put into effect on a large scale. “You can’t make people be conscientious and attentive. You can only make them be compliant,” Mr. Gerber said. Others say that while some parts of RTI are well fleshed out, such as interventions and progress monitoring for young readers, questions persist about how RTI can fit into other subjects, and with older students. “With higher grade levels,we are walking on much shakier ground,” said Mr. Fuchs of Vanderbilt. Among questions he believes are still to be answered: How much response must a student make to be considered “responsive”? What role does special education play in RTI, since most of the early interventions are to be given in a general education classroom? How should schools evaluate their success? “If I were a practitioner or an administrator right now, I would certainly implement RTI, but I would be very strategic in the use of it,” he said. “People need to appreciate that RTI is a complex system, and in order for it to work, all the parts need to work, and they need to work in coordination.” No Alternative? Practitioners acknowledge that response to intervention is a process that still requires research. But that’s not a reason, they argue, to stop the implementation now. As many see it, RTI offers the best method for getting research-based instruction to students, and helping students with disabilities is just one of many benefits. Parents’ concerns that RTI is delaying special education services for their children usually fade when they’re shown that their children are getting an appropriate education geared directly to their needs, proponents say.


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“It’s got connotations of special ed now. Everyone wants to know about RTI and [learning disabilities] identification, but it’s not been my focus. RTI, to me, means integrated service delivery,” said Judy L. Elliott, the chief of teaching and learning for the 47,000-student Portland, Ore., school district. She also implemented RTI practices as an assistant superintendent in Long Beach, Calif. “When you work in the trenches and see that this really works, you know it’s not a fly-by-night thing,” she said. One of the strongest messages about the worth of RTI, Mr. Batsche of the University of South Florida said, is that being sent by the federal government. By creating technical-assistance centers and sponsoring events that allow RTI researchers and practitioners to share their views, federal officials are proving that RTI is important to the future of general and special education, he said. Mr. Batsche, one of the speakers at a recent RTI summit held just outside Washington, said he could not remember in his 35 years of education experience a similar event where federal education officials asked teams from all the states and territories to gather to discuss an educational issue. “The message was straightforward: We’re going to be doing this,” Mr. Batsche said. “That’s a very simple message, but very powerful.”

This section of the casebook concludes with four op-ed articles on special education. In the first, Bruce Marlow comments from the teacher’s perspective on the implications of “full inclusion.”

Document #31: Bruce Marlowe26, “The Special Education Conundrum,” Education Week, April 18, 2001

My home state of Vermont has been committed to “full inclusion” since long before it became a national issue. As a teacher-educator in a state where virtually all students with disabilities are placed in regular education classrooms, I have a mandate to prepare prospective teachers for classes in which there will be a wide range of student abilities. And while mainstreaming is often a hot topic of debate with my students, the primary emphasis in my classes has always been on how to plan, manage, deliver, and evaluate instruction effectively in diverse classroom settings—as this is what new teachers must do when they graduate, regardless of their politics.

My own view has always been that, given the right supports, inclusion is a powerful educational philosophy for both academic and social reasons. Unfortunately, in the last 10

26 Bruce Marlowe is a professor of special education at Johnson State College in Johnson, Vt.


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years, we have seen a gradual erosion of these “supports,” and inclusion has become an increasingly difficult ideology to sell to my students, and to myself.

Perhaps the greatest threat to inclusion is the reluctance of competent special educators to work as special educators, particularly when they can secure regular education teaching positions. Like almost every state in the nation, Vermont is now facing an urgent special education crisis.

While there are numerous openings for special educators, few want these jobs because of the enormous disincentives. These include: a staggering amount of paperwork, overwhelming caseloads, endless meetings, escalating discipline problems (with little support from agencies outside the school), and increasingly adversarial, uncivil, and litigious parents. In addition, many feel that the job requires almost daily compromising of one’s integrity, as special educators often must choose between protecting the fiduciary interests of the school (on which their jobs depend), and the educational needs and civil rights of the students on the caseloads.

More fundamental issues, however, are also at stake. Imagine, for example, being rushed into the emergency room on a gurney. Your heart is beating irregularly, you are flushed; sharp pains shoot through your chest and left arm. Soon, a cardiologist arrives on the scene. She looks down at you plaintively, turns to the nurse and says: “This is serious; I’d say a heart attack. You know Edith, who volunteers upstairs in the flower shop? We better have her come down right away and take a look—I’ve got some Medicaid forms to complete.”

Sounds crazy? As Richard Lavoie aptly observes, this parable depicts special education as it is practiced today. All too often, the most highly trained special educators wallow in a sea of paperwork while well-meaning, but undertrained (and underpaid) paraprofessionals, volunteer grandmothers, and special education aides provide direct service to the nation’s neediest students.

Such direct “service” invariably occurs in regular classrooms, often more closely resembling babysitting than quality educational programming. Virtually no one benefits. Many students with disabilities get an education that is anything but special. Special educators are frustrated and are leaving the field in huge numbers. Paraprofessionals turn over even more quickly; despite their hard work and dedication—many work for the minimum wage—they often lack the skills they need to work with our most challenging students.

What should we do instead? First, let’s begin by being honest. Simply licensing more special educators will not solve these problems. Instead, we need to make the kind of sweeping changes that keep talented individuals in the field. This means radically overhauling special education, so that professionals can actually spend most of their time working with students. Second, let’s acknowledge that the system does not need paraprofessionals.

We need paralegals who can take care of the enormous volume of state and federally mandated paperwork, so that special educators can do what they are uniquely trained to


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do: teach our neediest students, and provide expert consultation to help mainstream teachers provide students with disabilities an appropriate education in the context of the regular classroom. Many people enjoy and are skilled at clerical tasks. Shouldn’t we be training them (perhaps in one-year undergraduate programs?) to handle the distinct administrative demands that are part and parcel of modern special education?

Third, and most important, it is time to challenge shortsighted “cost containment” procedures masquerading as philosophical arguments for inclusion. Adoption of these policies comes at a steep price at the expense of our children. In Vermont, and in many other states around the nation, recent legislative mandates encourage schools to curb special education costs by making fewer students eligible for services. Many students with emotional disturbances, for example, may soon find themselves ineligible for special education under the Individuals with Disabilities Education Act because the therapeutic services they require do not constitute “specialized instruction.”

For students who are too depressed, anxious, or aggressive to learn, what could possibly be of greater value than specialized instruction in prosocial behaviors like empathy, goal-setting, and anger management? Will counseling no longer be permitted in school under the auspices of IDEA because it is not considered “instruction”? It is ironic that here in Vermont, and elsewhere around the country, we lack enough beds for students who cannot function in the mainstream, yet state education departments continue to propose eliminating the very services that help prevent the need for such residential support. I still believe inclusion is a powerful educational philosophy. But in practice, we have a long way to go. And I fear that unless we make changes—dramatic changes—we will find ourselves where we were before the IDEA, as segregated, institution-like care will begin to look more appealing than what often passes as special education today.

Laurence Lieberman questions the provision in current special education legislation that calls for delivering special education in the “least restrictive environment.” The rationale behind this provision is that both identified and non-identified students will benefit from their interaction in the regular education classroom. Lieberman believes that this new principle flies in the face of the original rationale for implementing a special education program in the schools.

Document #32: Laurence M. Lieberman27, “The Death of Special Education,” Education Week, January 17, 2001.

Special education is dead. It is dead because of the Individuals with Disabilities Education Act Amendments of 1997—federal legislation requiring that aids, services, and other supports for students with special needs be provided in regular classes—and it is dead because of how the law is being implemented in the public schools.

27 Laurence M. Lieberman has been a special education teacher, the learning-disabilities coordinator in the former U.S. Office of Education in Washington, and the chairman of the special education doctoral program at Boston College. For the past 23 years, he has been an independent school consultant in Boston.


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Here, for example, are the first four items on a list presented in the March 27, 1998, issue of the journal Special Educator as “Congress’ 10 IEP Commandments” (rules governing the individualized education plans required for special education students):

1. Consider the effect of disability on involvement in the regular curriculum.

2. Develop goals and objectives enabling students to be involved and progress in the regular curriculum.

3. State the aids and services that will be provided in order for the student to be involved in the regular curriculum.

4. Presume regular education placement.

Use of the word “individuals” in the title of the federal special education law, and of “individualized” in reference to the educational plans required for each child under that law, would suggest that there can be no “presumptions” of any kind in the education of special-needs students, especially in regard to placement and curriculum. But the framers of IDEA ‘97 seem to refer to the individual as a way of avoiding political heat, while conceding nothing with regard to meeting individual needs.

Special education has been swallowed by the beast: the school system, with its mandated curriculum, mandated tests, and mandated standards. Now, children with disabilities are entitled—no, are practically required—to have the same education as every other child, regardless of whether or not that education is of high quality or is appropriate for a child with a disability.

In 1980, I wrote in the Journal of Learning Disabilities that when the original federal legislation governing children with handicaps, PL 94-142, was passed, “a disabled child was not disabled because he was failing in school; he was failing in school because he was disabled.” Two decades later, there are children with disabilities who will continue to fail in the regular education curriculum because they are disabled. It is the wrong curriculum.

Consider the following statement from the “Policy Framework for Special Education,” adopted by the Michigan state board of education in December 1999: “Special education is a support system for students with disabilities to foster their progress in the general curriculum. The general education environment, curriculum, and assessments are accepted as the starting points in designing IEPs for students with disabilities.”

This sentiment is probably representative of most states’ policy frameworks. Yet, special education’s “starting point” used to be the student, not the general education environment. Certainly, Sam Kirk, the generally acknowledged father of modern special education, would not endorse such policies, as Esther Minskoff indicates in her book Learning Disabilities Research and Practice.

“The current adoption in both special education and general education of the philosophy of homogenization, the view that all children are the same and all children should be given the same education, is antithetical to the diagnostic-prescriptive approach,” she writes. “This homogenized philosophy is reflected in


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the popularity of the inclusion movement and the emphasis in special education on making changes in the environment (accommodations and modifications), rather than changes in the child (remediation). [Mr.Kirk] believed that all children have the same right to an education, but not to the same education.”

…If we are to understand whom special education is for and why it is provided, we must first understand the difference between disability and handicap. A disability is an objective condition; it can be measured and observed. In IDEA ‘97, the definition is specified as mental retardation, hearing impairments, speech or language impairments, visual impairments, serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities.

A handicap, on the other hand, is a subjective phenomenon related to limitations of choice and in quality of life. Handicaps do not automatically result from disabilities. Although not likely, it is possible to be disabled and not be handicapped.

Candidates for special education are children with disabilities who are in danger of becoming handicapped if they do not receive special services. That is why the services are provided: to prevent handicaps from developing in children with disabilities and, implicitly, to provide these children with the opportunity to maximize their potential.

It is imperative that, in order for special education services to be provided, there be a measurable, observable disability. Without this imperative, any state education agency or local school system is given the license to develop curriculum standards with no regard for the individual. In other words, any student who cannot succeed in the curriculum becomes a candidate for special education. That is precisely what IDEA ‘97 has done, in its transformation into the At-Risk for Failure in the Regular Classroom Act.

The inherent problem in this conceptual framework is the problem of school and academic failure. A person may be handicapped, and not necessarily disabled, if he or she fails in school. Failing in school will result, more than likely, in limitations of choice and a diminished quality of life, which, by definition, constitute a handicap. The program in place to prevent such handicaps from developing in nondisabled students is called the regular classroom. But, as we know, this program is not always successful; even for large numbers of students. Yet, the framers of IDEA ‘97 allowed themselves to be consumed by the regular classroom and its curriculum.

When a true disability exists, it can result in multiple handicaps. A disability can pervade every aspect of a person’s intellectual, physical, and psychosocial existence. Regular-classroom placement is only one part of life, and it must be put into proper perspective. A student with a disability may be able to “make it” through school, but go on to a diminished quality of life resulting from numerous handicaps. The school might have been able to enhance the student’s life in school, but what about his life? What is required for the truly disabled is an individualized life plan, not an individualized educational plan.

This suggests another important aspect of our increasing emphasis on the regular classroom and regular curriculum: It puts a priority on compensation for disabilities, almost to the exclusion of remediation. This is true even for special educators. Their most important


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role has become helping regular educators circumvent the disability of the student. It is all about supplementary aids and supports, not helping the student overcome his disability.

Remediation implies going right at the disability: teaching to cure it (building up the muscles and balance of a child with cerebral palsy so that he can walk); teaching to diminish its impact (using an individualized, highly structured phonics approach with a child with dyslexia to enable her to read, even with difficulty); or teaching to raise competence to a minimally acceptable level (teaching a child with emotional disturbance, or with impulse-control problems, to verbalize when his or her frustration tolerance is at its limit).

Compensation, on the other hand, is associated with getting around the disability: ignoring it in a direct sense, while indirectly using it to dictate teaching approaches, and strengthening substitute abilities. A decision for either remediation or compensation is a disservice to the student. Rather than asking “which,” the more appropriate questions we should ask are “where” and “who.”

Our response should be this: that the special educator emphasize remediation outside the context of the regular education curriculum, while the regular classroom teacher provides opportunities for the child to compensate through alternative requirements for task performance and information acquisition.

In fact, what is special about special education, and what requires specific training to teach disabled populations, is remediation. The emphasis in IDEA ‘97 fails miserably in this regard. Services to be provided outside the classroom that do not directly pertain to the regular education curriculum are looked upon with suspicion and regret.

Even when direct services are provided, they are usually in the form of a low-intensity pullout model, with as many as 12 or 15 students in a resource room, with absolutely no individualization. This represents the demise of special education. And everything points in the direction of IDEA ‘97’s continuation of feeding the resource room, without any real emphasis on overcoming disability or providing remediation.

When people with cerebral palsy walk, and the blind navigate with a cane, and someone with mental retardation is employed and living semi-independently in the community, when a once-disturbed, out-of-control youth has a wife and family and contributes to the community, and a dyslexic child reads and writes, it has very little to do with the regular classroom curriculum. It has to do with special educators’ working with people with disabilities, trying to prevent them from becoming handicapped.

Clarion calls for high standards are worthwhile, but they can also be misguided attempts to take higher students higher, at the expense of others. The purpose of the school is to provide an educational opportunity that will meet the needs of all students, collectively and as individuals. The standard for excellence should be predicated on how effectively this occurs.

Meeting the needs of individuals requires much more than having them demonstrate mastery levels in content areas or achieve high test scores. No such standard of excellence


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ever created an excellent life or an excellent contribution to life. Only the quality of the educational system’s response to the individual can create that kind of excellence.

Prior to the passage of the Individuals with Disabilities Education Act Amendments of 1997, there was some semblance of balance for the student with a disability. But when the special education law itself abandons the individual, balance is completely destroyed.

The death of special education is not from natural causes, and the program will not necessarily be reborn in a better form. We are at the beginning of a trek across a vast wasteland, where special education services have been demolished and parents have been duped into thinking that their children will be better off with group process than with individual attention to their needs.

Clint Bolick writes from a parent’s perspective and, reporting on two studies of IDEA, finds it to be an unfunded mandate that inequitably relegates children of color to something less than the education they deserve.

Document #33: Clint Bolick28, “A Bad IDEA Is Disabling Public Schools,” Education Week, September 5, 2001

A powerful toxin infects our nation’s education system, imperiling the ability of every public school to fulfill its mission. It is not school vouchers or inadequate funding, but the federal Individuals with Disabilities Education Act, or IDEA.

Tracing back to the 1975 legislation enacted to ensure equal educational opportunities for children with disabilities, the IDEA now covers 6.1 million schoolchildren at a cost of $41.5 billion annually, accounting for 40 percent of all new education funding over the past 30 years. Because only 12.5 percent of the money is provided by the federal government, the idea constitutes the largest unfunded federal mandate in American education. Far worse, it creates perverse incentives that have deepened stratification within public education to the detriment of minorities and the poor.

For 26 years, the IDEA has been politically sacrosanct. To criticize it was to be condemned as hostile to disabled children, whose needs the legislation commendably serves. But two new pathbreaking studies, spanning the ideological divide, provide strong support for systemic reform. A report earlier this year by the Harvard University Civil Rights Project found that African-American children were far more likely than white children to be relegated to special education, but less likely to receive the help they need. This summer, a joint study by the moderately conservative Thomas B. Fordham Foundation and the “new Democrat” Progressive Policy Institute delivered a far more sweeping condemnation.

Passed with the most benign of intentions, the IDEA mandates that states and local education agencies provide a “free appropriate public education,” based upon an “individualized education program” (known as an IEP) geared to each student’s needs, to

28 Clint Bolick is the litigation director for the Institute for Justice in Washington.


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all public school children with disabilities. Accompanying the federal rules were funds that eventually were to equal 40 percent of the program’s cost.

But the program has evolved in ways that are dizzying yet all-too predictable when education policy is dictated from Washington. Participation in the program was capped at 12 percent of American students. Demand has increased to meet supply: While 8.3 percent of students were classified with special needs in 1976, today that figure is—guess what?—about 12 percent. The overall number of special-needs students has increased by 65 percent in 25 years, attributable to an expansion of the concept of “learning disabilities” that has transformed the IDEA, in the words of G. Reid Lyon of the National Institute of Child Health and Human Development, into a “sociological sponge to wipe up the ills of general education.”

My interest in the IDEA emanates from personal experience. Seven years ago, my younger son was classified as learning-disabled. When I questioned the battery of experts constituting his IEP team at his Fairfax County, Va., public school about the nature of his disability, I was told that he had a “deficit” in his writing abilities relative to his intellectual capacity. “This is a symptom, not a disability,” I replied. For an hour we went round and round, until finally I realized my son had no disability at all. But the only way the school could get him the extra help he needed in writing was to assign the “learning disability” label—a fact the IEP team reluctantly acknowledged.

In addition to the physical and psychological disabilities that IDEA specifically lists, the law encompasses “specific learning disabilities,” which are not physical disabilities but rather “processing disorders that interfere with one’s ability to perform a number of learning tasks”—a category so murky that James E. Ysseldyke at the University of Minnesota says 80 percent of all children could qualify. The category has exploded from 796,000 children in 1976 to 2.7 million in 1997—a 233 percent increase—so that today more than half of the children covered by the IDEA have no physical disability, but amorphous learning “deficits.” In private schools, these kids would simply receive tutoring or extra help; under the IDEA, they are branded with a label. Meanwhile, slow learners who do not have “deficits” in particular areas, or who can’t get into the program because of capacity or administrative backlogs, often receive no extra help at all. The program creates two segregating impulses: to warehouse certain children, typically minorities and children from impoverished families; and to “cream” others, particularly children whose parents are sophisticated enough to recognize special advantages that the IDEA can confer upon their children.

The program works least well for children who most need educational opportunities. The Harvard Civil Rights Project study found pervasive, statistically significant overrepresentation of African-American children in special-needs programs in 45 states. Overrepresentation is most acute in the category of mental retardation. But socioeconomic factors do not seem causative: The likelihood of labeling African-American children as mentally retarded actually decreases as the incidence of poverty rises. Meanwhile, African-American special-needs children are far less likely to receive speech, occupational, and physical therapy than their white counterparts.


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Two incentives exist to overidentify children from poor families. First is federal funding. Many poor children qualify for federal Title I compensatory education funding; IDEA funding makes them a “two-fer,” in the words of Wade F. Horn and Douglas Tynan in the Fordham Foundation/PPI study. Also, school officials can often exclude special-needs students from high-stakes testing, thereby inflating their standing under state accountability standards. Kentucky, Louisiana, and South Carolina recently reported large gains in reading scores—along with large increases in the percentage of special-needs students excused from standardized tests.

At the other end of the spectrum, sophisticated parents clamor to have their children labeled learning-disabled in order to glean special accommodations, such as reduced homework assignments, extra or unlimited time on tests, laptop computers, personal tutors and note-takers, and so on. In affluent Greenwich, Conn., nearly one in three students has the learning-disabled, or LD, label and the accompanying benefits. Such accommodations can continue through the SATs, the LSATs, and even the bar exam, yielding enormous advantages. The scam is widespread: Although kids from families with incomes over $100,000 make up only 13 percent of those taking the SAT, for example, they account for 27 percent of those receiving special accommodations.

Yet for all the accommodations, a study by the economist Eric Hanushek and others found virtually no academic gains for children with specific learning disabilities. That is unsurprising, given the IDEA’s monomaniacal focus on process—abetted by a battery of lawyers who tie school districts in knots—rather than academic progress.

The program is rule-laden and expensive. In Michigan alone, some 6,000 rules govern special education. Special-needs children cost 2.3 times as much as mainstream children to educate—an average of $13,000 per student vs. an average of $6,200 for all others. In the District of Columbia, one-third of the education budget is expended on 10 percent of the students.

But while other education spending is discretionary, for IDEA beneficiaries it is mandatory and open-ended. In 1999, the U.S. Supreme Court ruled that the Cedar Rapids Community School District in Iowa was required to pay for a full-time nurse for a paralyzed teenager. Previously, the court had ruled that when public schools default in providing an “appropriate” education, they must foot the full freight of private schools—creating, in essence, the nation’s largest voucher system, providing private schooling for 100,000 youngsters at a cost of $2 billion annually.

Meanwhile, the IDEA creates a double standard for school discipline, requiring educators to determine the extent to which discipline problems are caused by disabilities—a mandate that typically leads to diminished behavioral standards for children labeled disabled.

The Individuals with Disabilities Education Act unquestionably has helped millions of severely disabled kids achieve to their abilities. But the program is systemically dysfunctional and damaging to public schooling as a whole. The law exacerbates educational stratification, warehousing the have-nots while further enriching those who can successfully navigate the system. Worst off are slow learners from poor families who


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may receive no help at all. The IDEA skews education funding toward a small segment of children while leaving others with no alternatives.

My son has benefited from compensatory efforts designed to improve his written-communication skills. But every year I have to fend off accommodations that would send false signals about his academic skills. Early on, when I insisted that reduced homework assignments be reflected in his grades, the IEP team looked at me as if I were from another planet. “Don’t you want your son to get good grades?” one team member asked. Last year, an IEP team member reassured me about my son’s lack of progress in spelling by telling me, “It doesn’t matter. We don’t do spelling anymore.” It struck me that I was witnessing the demise of public schooling. And if it’s this perverse for me, I wonder how the system works for parents who, unlike me, do not sue bureaucrats for a living.

An opening for reform exists in the 2002 IDEA reauthorization. Sen. James M. Jeffords of Vermont and others want the federal government to substantially ratchet up its share of IDEA costs. But it should do so only in exchange for three systemic reforms.

First, the focus of the IDEA should shift from process to performance. Federal laws already prohibit discrimination against disabled youngsters in public schooling. The IDEA, by contrast, is supposed to be about opportunity. Evidence suggests that the IDEA does not produce academic gains. Funding incentives should be geared toward individual student progress. Second, the “specific learning disabilities” category should be excised from the law. Because states provide the lion’s share of IDEA funding, this would leave the states with responsibility, flexibility, and funding to take care of non-disabled kids with special needs. It might also reduce the accommodations that create a separate and unequal system while doing nothing to improve learning. The result would be an IDEA focused exclusively on students with physical or psychological disabilities, who now number fewer than half the program’s beneficiaries.

Finally, the system should provide parental choice. In Milwaukee and Cleveland, low-income parents have the option of sending their children to private schools, which often can provide a more appropriate learning environment for children with mild disabilities. In Florida, children with disabilities can receive “McKay scholarships” equal to the amount the state would have spent on their education to use in private schools of their parents’ choice. Choice options bolster the program’s accountability while helping ensure the program meets the children’s individualized needs.

At last it may be possible to talk about such reforms. But talk needs to translate into action fast, lest our public schools descend further into a costly, bureaucratic morass that misses entirely the point of the enterprise: to provide equal and high-quality educational opportunities to all American schoolchildren. As is clear by now, the unique characteristic of special education lies in the fact that is tailored to the needs of the individual student. This stands in contrast with the “industrial model” of education adopted in America at the end of the nineteenth century. Arthur Levine, former president of Teachers College, suggests that, looking to the future, the individualized approach may be more appropriate for every student.


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Document #34: Arthur Levine29, “Tomorrow’s education made to measure,” New York Times, December 22, 2000. A growing number of America’s children are being identified as having learning disabilities that affect their ability to use written or spoken language. In 1987, a federal task force concluded that approximately 5 to 10 percent of the population had this sort of condition. Today about one out of every eight school children (a little more than 12 percent) is enrolled in programs for the learning disabled, and the rate of participation is increasing. Between 1980 and 1998, the number of students enrolled in special education in New York City more than doubled. In Greenwich, Conn., 19.8 percent of students are learning disabled. And the Dalton School in New York City found that 36 percent of its kindergartners had learning problems. Critics use these statistics to charge that the “learning disabled” label has become a fad, a classification that is being overapplied. They complain about the expense. Special education costs between two and three times the amount of traditional programs. They cite a rising tide of litigation as parents battle with schools to get their children proper support. They criticize the unfairness of such programs, since affluent families are more likely than less wealthy ones to take advantage of accommodations for the learning disabled, like time extensions on standardized tests. And critics charge that mainstreaming of learning disabled students—the trend toward including them in traditional classes—creates disruption. The critics are wrong. What we are witnessing is not a fad, which will pass or whose excesses will be corrected. We are witnessing the start of a revolution that will transform American education forever. It is part of a revolution we are undergoing in every other aspect of American life. The United States is shifting from an industrial society to an information society. Among other things, this means there is less emphasis on mass production and more customization of products and services. We can see these changes in retailing, for example. In the clothing business, stores are offering their customers personal shoppers to assist them in creating wardrobes, traditional off-the-rack shops are promising customized clothing built to the body of the shopper, and online software allows a shopper to create a computer scan of his or her body and then use that image to customize 25,000 fashion design details into purchasable clothing. Web sites even permit shoppers to examine, in fine detail, the button design, stitching and 29 Arthur Levine currently serves as president of the Woodrow Wilson Fellowship Foundation.


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fabric weave of brand-name clothing. The increase in the number of children diagnosed with learning disabilities is very much part of this same phenomenon. Our school system was created for an industrial society and resembles an assembly line. Students are educated by age, in batches of 25 to 30. They study for common periods of time, and after completing a specified number of courses, they are awarded diplomas. It is a notion of education dictated by seat time. Teaching is the activity that occurs during the time when students are in their chairs. The expectation is that the typical child at any age can master the material taught in the traditional 180-day school year. Those who are capable of mastering the material more quickly or more deeply are classified as gifted. Those who are unable to learn it as speedily or in the same fashion as their classmates are said to have learning disabilities. In this sense, special education, except for the gifted, is regarded as a deficiency on the part of a child. In an information society, this model of education works far less well than it once did. Indeed, in the years to come, the educational system may become, by necessity, increasingly individualized. First, our children are diverse in their abilities, so we need a more varied curriculum. Second, through advances in brain research, we are discovering how individuals actually learn, and this will allow us to develop the educational program each child needs. Third, new technologies that provide different pedagogies and learning materials are burgeoning. We are heading to an era in which schooling will change profoundly. The teacher will not be the talking head at the front of the classroom, but the expert on students’ learning styles, the educational equivalent of a medical doctor. Children will no longer be grouped by age. Each student will advance at his or her own pace in each subject area through individualized tutorials, student-centered group learning and a cornucopia of new technology and software. Research has long documented a variety of learning styles, but as we continue to discover more about the brain, a growing proportion of students are likely to be diagnosed as learning disabled. Eventually, the nomenclature will change, and we will recognize so-called disabilities for what they really are—differences in how people learn. Rather than call them learning disabilities, we will call them learning differences. At the moment, the old education system is dying and a new system is being born. For those of us living through the change, it is easier to see what we are losing than what is emerging—a system of customized education for each of our children. We must make the transition as short and as painless as possible. The largest mistake we can make is to cling unquestioningly to the existing model of schooling. We need a new vision of education—one that recognizes the unique way every student learns.

• • •


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We turn now to our case study district. As we read in Document #3 (p. 61 above) and again in Clint Bolick’s op-ed article (Document #33, p. 137), Greenwich, Connecticut figured in the press as an example of overidentification gone wild. Here the issue was not one of overidentifying minority students, but rather, a situation in which parents were pushing to have their students identified in order to secure the benefits of accommodations on testing. In fact, as we will see, the stories of overidentification were exaggerated, but the district took the problem seriously and concluded that providing struggling (but not disabled) students with extra support would greatly reduce the number of special-education-identified students in the district.


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Exhibit #4: Funding special education in Connecticut Connecticut special education expenditure per student (1999)30

$10,788

Sources of Connecticut special education funding (2003): Federal31 6.6%

State32 5.6% Local

87.8%

Sources of Greenwich special education funding (2003): Federal 3.0% State 5.4% Local

91.6%

Expenditures per special education pupil in Greenwich (2005-06) $28,791

Expenditures per regular education pupil in Greenwich (2005-06)

$14,919

Background information on Greenwich and its public schools

Population.

Population (2000) 61,101

Ethnic composition:

White 90.0%

African American 1.7

Hispanic 6.3

Asian American 5.2

Native American 0.1

Other 3.0

Median household income (1999) $99,086

30 Education Week Quality Counts 2004 p. 992 31 The federal government provides three special education grants to states under the Individuals With Disabilities Education Act (IDEA). The largest of the three is called “IDEA Part B. ” This grant supports special education programs provided by states and local school districts for children in grades K-12. Two smaller grants support preschool programs (those for children aged 3 to 5 in Connecticut) and programs for infants and families (the so-called Birth-to-Three Program). 32 By law, the state pays the entire cost of providing special education and related services for any student that exceeds five times the school district’s average per-pupil expenditure for the preceding year. For example, if a district spent an average of $9,000 to educate each student, it would be responsible for paying the first $45,000 of special education costs for any of its students and the state would pay any costs above that amount (“excess costs”). (Source of notes: http://www.cga.ct.gov/2004/rpt/2004-R-0470.htm)


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History.33 In 1640 settlers from the New Haven Colony purchased land from the Siwanoy Indians in the area now known as Old Greenwich. Shortly thereafter the English joined the Dutch in a dispute with the Siwanoys, which resulted in their massacre. After the disappearance of most of the Indians the industrious newcomers carved out larger and larger land holdings on which to raise potatoes, grain, and fruit. Settlements grew along the shore from Stamford on the east to the Byram River on the west and north to the border with New York State. By 1730 the 50 square miles that comprise present-day Greenwich were laid out. For its first 200 years the acquisition and cultivation of farmland was the major enterprise of residents, although gristmills signaled the beginnings of local industry and active shipping was conducted from the Mianus River. The relative calm of these years was broken by the Revolutionary War. Greenwich was a garrison Town that experienced occupation by both British and American armies as well as raids from irregulars. The seven-year long war was fought on the roads and farms of Greenwich, destroying homes, crops, and human lives.

The coming of the railroad in 1848 marked a significant improvement in transportation and brought increasing numbers of new residents to Greenwich. The Irish came to work on the railroad and settled close to Greenwich Avenue, the Town center. In an adjacent neighborhood called Chickahominy, Italian stonemasons congregated to be near the Byram quarries. Other Italians settled further east in North Mianus where they worked in the Mianus Woolen Mill. The Germans went to Byram, then know as East Port Chester, and found work in the Abendroth Foundry. Glenville, on the Byram River, attracted Poles who worked in the felt mill and Russell Burdsall & Ward, manufacturers of nuts and bolts. Each of these areas developed as distinct neighborhoods that have continued to be home to second and third generation descendants.

Greenwich also developed as a resort catering to New Yorkers wishing to escape the noxious city for the summer. Along the shore, hotels were erected to house, feed, and entertain these visitors. Many decided to build homes in Greenwich, creating such areas as Belle Haven, Field Point Park, Byram Shore and Rock Ridge. People with easily recognizable names - Benedict, Bruce, Converse, Gimble, Havemeyer, Mallory, Milbank, Rockefeller, and Teagle⎯amassed large land holdings upon which to build the estates for which Greenwich is famous. These families became great benefactors to the new community.

The 20th century burst upon Greenwich with yet another improvement in transportation. The trolley from Rye to Stamford connected Greenwich from west to east with a convenient, in-town service. The automobile then took precedence after the First World War. In 1938 the Merritt Parkway cut through the northern section of Greenwich, followed in 1957 by I-95 on the south. Once again new arrivals swelled the population of Greenwich. This time the newcomers were the employees of corporations leaving New York City for suburban headquarters. While the beginning of the century saw the creation of great landed estates, the post World War II period witnessed their dissolution into smaller building lots that accommodated the new residents. Growth and development brought about the reorganization of the town government, the consolidation of the school

33 Greenwich Chamber of Commerce Web site. (Available at http://www.greenwichchamber.com.)


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system, and the establishment of a network of independent, non-profit organizations that supply the town with its social services and cultural institutions.

Economy.34 The age of telecommunications and the computer has placed Greenwich just milliseconds away from New York City, hub of national and international commerce and the world’s largest financial center…In fact, finance is the town’s largest industry with more than 50 firms trading and investing billions of dollars annually. Many executives have moved from Wall Street, finding it just as easy to conduct business in Greenwich, earning themselves a more casual lifestyle and extra time with their families.

Sector Firms % of

Total Employees % of

Total Agriculture 116 2.2 545 1.1Construction & Mining 480 9.3 1,967 4.0Manufacturing 202 3.9 3,886 7.8Transportation & Utilities 244 4.7 3,364 6.8Trade 1,085 20.9 14,480 29.1Finance, Insurance & Real Estate

782 15.1 7,152 14.4

Services 2,249 43.4 16,991 34.2Government 22 0.4 1,349 2.7Total 5,180 100 49,734 100 Greenwich is one of those towns whose public employees (as well as many who are privately employed) are unable to afford to live in the town.

Politics. Greenwich has a Representative Town Meeting/Board of Selectmen form of government. The First Selectman is nominally the CEO, but shares authority with the Board of Estimate and Taxation (BET), which is responsible for the town’s fiscal affairs. The BET has adhered to a healthy pay-as-you-go policy and as a result the town has incurred no operating debt.35

The most hotly contested issues in the town have to do with planning and zoning. There is an active movement afoot by developers to purchase existing large homes, raze them, and replace them with elephantine McMansions. A second set of planning issues revolves around the protection of open space, which currently amounts to some 8,000 acres of protected land, including 32 miles of coast, 20 parks and four beaches

34 Ibid. 35 Ibid.


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Exhibit #5: School system statistics 2006-0736

Student population 8,959 Ethnic composition: White 76.1% African American 2.7 Hispanic 13.0 Asian American 8.1 Native American 0.0 School budget $144,335,000 Per student expenditure $16,111 Sources of school funding: Federal 1.7% State 3.4 Local 94.9 Teachers 723 Teacher to student ratio 1:12.4

36 Data drawn from the Greenwich Strategic School Profile (see Exhibit #6 below).


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Exhibit #6: Greenwich School Governance

Connecticut State Legislature

(Democratic majority in both

houses)

Board of Education(8 members, elected at large, 5 Republicans, 3 Democrats)

SuperintendentBetty J. Sternberg

(Appointed by Board of Education)

15 Schools:

11 Elementary Schools 3 Middle Schools 1 High School

GovernorJodi Rell (R)

State Board of Education

(Appointed by governor)

CommissionerMark McQuillan

Connecticut Department of

Education

First Selectman Peter Tesei (R)


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Exhibit #7: Strategic School Profile, Greenwich Public Schools, 2006-07 (Available at: http://www.csde.state.ct.us)

BETTY J. STERNBERG, Superintendent

Telephone: 203-625-7425

This profile was produced by the Connecticut State Department of Education in accordance with CT General Statutes 10-220(c)

COMMUNITY DATA

County Fairfield Public School Enrollment as a percent of

town population 14.4

2000 Population

61,101 Public School Enrollment as % of Total Student Population

73.6

1990-2000 Population Growth

4.6% Percent of Adults without a High School Diploma in 2000

8.5

2000 Per Capita Income

$74,346 Adult Education Enrollment in 2002-03 School Year

252

Number of Public Schools

15 Number of Adults Receiving Diplomas in 2002-03 School Year

18

Number of Non-Public Schools

19

District Reference Group (DRG): B. DRG is a classification of districts whose students’ families are similar in education, income, and need, and that have roughly similar enrollment.

DISTRICT NEED

Current and Past District Need Year District DRG State

% of Students Eligible for Free/Reduced-Price Meals

2006-07 2002-03

7.8 7.3

5.2 n.a.

27.3 25.4

% of K-12 Students with Non-English Home Language

2006-07 2001-02

17.2 16.2

6.6 n.a.

12.8 12.8

% of Elementary and Middle School Students above Entry Grade who Attended this School the Previous Year

2006-07 2001-02

93.2 92.4

93.9 n.a.

88.6 86.9

% of Kindergarten Students who Attended Preschool, Nursery School, or Headstart

2006-07 2001-02

94.9 94.1

91.1 n.a.

79.3 75.1

% of Juniors and Seniors Working More than 16 Hours per Week

2006-07 2001-02

9.6 25.6

16.0 n.a.

20.2 29.1


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STUDENT ENROLLMENT AND RACE/ETHNICITY

Enrollment Race/Ethnicity Number Percent

Grade Range PK-12 American Indian 3 0.0Total January Enrollment 8,959 Asian American 727 8.15-Year Oct Enrollment Change 1.8% Black 244 2.7Projected October 2011 Enrollment

Hispanic 1,167 13.0

Elementary 3,891 White 6,818 76.1 Middle School 1,819 High School 2,568 Total Minority

2006-07 2,141 23.9

Pre-K, Other 141 Total Minority 2001-02

1,807 20.5

EFFORTS TO REDUCE RACIAL, ETHNIC AND ECONOMIC ISOLATION

Connecticut law requires that school districts provide educational opportunities for its students to interact with students and teachers from diverse racial, ethnic, and economic backgrounds. This may occur through magnet school programs, public school choice programs, charter schools, minority staff recruitment, inter- or intradistrict programs and projects, distance learning, or other experiences. Below is the description submitted by this school district of how it provides such experiences. Greenwich is characterized by socioeconomic and demographic diversity. While per capita income is among the highest in Connecticut, 7.8% of the children enrolled in public school qualify for free or reduced price meals. 17.2% of the school population come from homes where English is not the dominant language. Minority students total 23.8 % of the school population. Given this diversity, efforts to reduce racial, ethnic and economic isolation have focused primarily on bridging the gaps within the town rather than developing relationships with other communities. The primary challenge to reducing economic, ethnic and racial isolation with the Town of Greenwich is geographic. While sufficient building capacity exists to accommodate projected increases in enrollment, a long-standing tradition of neighborhood elementary schools and recent patterns of enrollment growth have contributed to racial imbalance in some schools and overcrowding in others. In the late 1990’s, the district developed a plan to reconfigure some buildings into “magnet” or theme schools. The hope was to induce the parents in overcrowded elementary attendance areas to voluntarily choose to send their children to one of the magnet schools. Since the magnet schools tend to have a higher percentage of minority students and the overcrowded schools a lower percentage of minority students than the district average, the magnet schools would serve to distribute elementary enrollment more efficiently across the eleven school buildings and reduce racial imbalance. The first intradistrict magnet school, International School at Dundee, opened in September 2000, and was followed by Hamilton Avenue School in 2002 and Julian Curtiss School in 2003. The Dundee magnet was successful in attracting an enrollment that reflects the overall diversity of the school system. The growth of the minority population at Julian Curtiss School has stabilized since the magnet opened and is now just


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below the threshold for “impending racial imbalance.” The magnet program has been less successful at Hamilton Avenue School due to facilities issues. Hamilton Avenue is temporarily located in a modular building during renovations. The educational specifications for the renovated school scheduled to open during the 2007-08 school year stipulate that the school will be built to a capacity sufficient to address racial imbalance through the magnet program. Since January 2007, a district-wi9de committee has been reviewing the issues of facility utilization and racial imbalance in the Greenwich Public Schools. The Board of Education will consider the committee’s recommendations in the fall of 2007.

DISTRICT RESOURCES

Staff Count (Full-Time Equivalent

Average Class Size District DRG State

# of Certified Staff Grade K 2006-07 2001-02

19.3 18.3

18.8 n.a.

18.218.3

Teachers 722.7 Grade2 2006-07 2001-02

19.6 19.6

19.6 n.a.

19.519.6

Administrators 56.0 Grade 5 2006-07 2001-02

22.5 20.8

22.4 n.a.

21.221.5

Department chairs

4.1 Grade 7 2006-07 2001-02

20.6 19.9

21.0 n.a.

20.821.9

Library/Media Staff 21.0 High School

2006-07 2001-02

20.3 21.3

20.1 n.a.

20.019.9

Other Professionals 10.81 % Minority 2006-07 8.1 % Minority 2001-02 6.6 # Non-Certified Instructional

196.4

Professional Staff Experience and Training District DRG State

Average Number of Years Experience in Connecticut 15.0 14.5 14.4 % with Master’s Degree or Above 87.0 84.5 78.9


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DISTRICT RESOURCES, continued

Total Hours of

Instruction per Year*

Dist DRG State Resource Ratios

Dist DRG State

Elementary 970 989 987 Students per Academic Computer

2.9 3.5 3.2

Middle School

1,058 1,019 1016 Students per Teacher

12.4 14.0 13.5

High School 1,027 976 1002 Teachers per Administrators

12.0 14.3 13.9

*State law requires at least 900 hours for gr. 1-12 and full-day Kindergarten, and 450 hours for half- day Kindergarten

EQUITABLE ALLOCATION OF RESOURCES AMONG DISTRICT SCHOOLS

Below is the description submitted by this district of how it allocates resources to insure equity and address

needs:

Staff and budget resources are allocated to schools on a per pupil basis using projected enrollments. Adjustments to this per pupil allocation are made based on student need and performance. Principals and program leaders then develop a spending plan based on the improvement priorities of their buildings or programs. Additional funds are available to schools with high need student populations through the Consolidated Grant. A fifteen-year capital plan, which is reviewed and adjusted annually, ensures the maintenance of district facilities.


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STUDENT PERFORMANCE

Class of 2001

Class of 2006

Of All Districts in State

SAT® I: Reasoning Test

District District State

Lowest %

Highest %

% of Graduates Tested 90.2 89.6 74.7 23.8 100.0Mathematics: Average Score 570 582 510 284 604Mathematics: % Scoring 600 or More

46.6 47.5 23.9 0.0 55.6

Critical Reading: Average Score 548 565 505 346 595Critical Reading: % Scoring 600 or More

35.9 42.5 21.3 0.0 48.5

Writing: Average Score n.a. 560 504 337 595Writing: % Scoring 600 or More n.a. 37.3 20.3 0.0 48.8

Of All Districts in State Physical Fitness District StateLowest % Highest %

% Passing All 4 Tests 50.7 36.1 0.0 85.0


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Connecticut Mastery Test, Fourth Generation, % Meeting State Goal: The goal level is more demanding than the proficient level, but not as high as the advanced level, reported in the No Child Left Behind Report Cards.

Of all districts in state Grade and CMT Subject Areas

District

StateLowest % Highest %

Grade 3 Reading 73.1 52.3 13.1 86.4 Writing 76.6 60.8 20.0 88.9 Mathematics 77.3 59.4 15.0 91.3 Grade 4 Reading 79.6 57.0 14.1 91.3 Writing 84.0 65.1 20.0 90.2 Mathematics 82.7 62.3 17.9 100.0 Grade 5 Reading 80.7 61.4 19.5 92.3 Writing 83.2 64.6 25.0 95.5 Mathematics 83.4 66.0 23.5 93.3 Grade 6 Reading 80.7 64.3 16.7 96.3 Writing 77.6 63.0 20.8 93.6 Mathematics 79.1 63.9 10.2 92.8 Grade 7 Reading 81.7 65.9 3.8 96.8 Writing 77.0 60.4 0.0 95.0 Mathematics 75.2 60.3 7.7 92.0 Grade 8 Reading 83.8 66.6 4.8 94.0 Writing 79.7 64.0 0.0 94.6 Mathematics 81.1 60.8 4.5 95.7 These results reflect the performance of students with scoreable tests who were enrolled in the district at the time of testing, regardless of the length of time they were enrolled in the district. Results for fewer than 20 students are not presented For more detailed CMT results, go to www.ctreports.com To see the NCLB Report Card for this district, go to www.sde.ct.gov and click on “No Child Left Behind.


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STUDENT PERFORMANCE, continued

Connecticut Academic Performance Test, Third Generation, % Meeting State Goal: The CAPT is administered to grade 10 students. The goal level is more demanding than the state proficient level, but not as high as the advanced level, reported in the No Child Left Behind Report Cards.

Of all districts in state

CAPT Subject Area District

State

Lowest %

Highest %

Reading Across the Disciplines 71.0 45.6 2.8 87.2 Writing Across the Disciplines 76.2 52.9 0.0 87.4 Mathematics 70.8 45.2 0.0 86.3 Science 61.8 44.4 0.0 84.5 These results reflect the performance of students with scoreable tests who were enrolled in the district at the time of testing, regardless of the length of time they were enrolled in the district. Results for fewer than 20 students are not presented. For more detailed CMT results, go to www.ctreports.com To see the NCLB Report Card for this district, go to www.sde.ct.gov and click on “No Child Left Behind.

Of all districts in state

Graduation and Dropout Rates District

SState

Lowest %

Highest %

Graduation rate for class of 2006 97.2 92.2 66.7 100.0Cumulative Four-Year Rate for Class of 2006

2.8 6.6 0.0 72.5

2005-06 annual dropout rate for grades 9-12

0.8 1.8 0.0 19.2

2000-01 annual dropout rate for grades 9-12

1.2 3.0 n.a. n.a.


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Activities of Graduates Class of

2006 # in District District % State %

Pursuing Higher Education 2006 2001

564421

90.289.8

82.7 79.1

Employed or in Military 2006 2001

4041

6.48.7

12.9 17.1

Unemployed 2006 2001

144

2.20.9

0.8 0.7

[…]37

DISTRICT REVENUES/EXPENDITURES 2002-03

Expenditures may be supported by local tax revenues, state grants, federal grants, municipal in-kind services, tuition and other sources. ERG and state figures will not be comparable to the district if the school district does not teach both elementary and secondary students.

Expenditures Per Pupil Expenditures (All figures are unaudited)

Total (in

$1000s) District PK-12

Districts DRG State

Instructional Staff and Services 92,433 10,302 6,882 6,677 6,888Instructional Supplies and Equipment

3,301 368 247 231 249

Improvement of Instruction and Educational Media Services

2,058 229 415 422 402

Student Support Services 8,802 981 720 761 719Administration and Support Services

12,708 1,416 1,186 1,143 1,197

Plant Operation and Maintenance 16,723 1,864 1,206 1,215 1,199Transportation 4,541 439 560 515 558Costs for Students Tuitioned Out 3,495 n.a. n.a. n.a. n.a.Other 274 31 135 148 132Total 144,335 16,125 11,595 11,357 11,558

Additional Expenditures

Land, Buildings, and Debt Service 5,811 648 1,866 1,286 1,834Adult Education 185 n.a. n.a. n.a. n.a.

37 Section on special education omitted. See following document.


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Revenue Sources, % from Source. Revenue sources do not include state funded Teachers’ Retirement Board contributions, vocational-technical school operations, SDE budgeted costs for salaries and leadership activities and other state-funded school districts (e.g., Department of Children and Families and Department of Corrections).

District Expenditures

Local Revenue

State Revenue

Federal Revenue

Tuition & Other

With School Construction

94.6 2.9 2.1 0.3

Without School Construction

94.4 3.1 2.2 0.3

Selected Regular Education Expenditures, Amount Per Pupil and Percent Change from Prior Year. Selected regular education expenditures exclude costs of special education and land, building and debt service.

District DRG State Expenditures by Grade Level Per

Pupil %

Change Per

Pupil %

Change Per

Pupil %

Change Elementary and Middle

Total $13,123 12.4 $9,121 6.2 $9,520 5.1 Salaries & Benefits 10,576 14.0 7,562 6.3 7,850 5.3 Supplies 495 17.0 510 6.3 547 6.6 Equipment 564 -33.0 147 -19.2 124 -6.8High School Total 12,963 7.8 10,342 4.1 10,074 4.5 Salaries & Benefits 10,364 9.0 8,410 3.8 8,120 4.7 Supplies 485 12.0 619 4.6 625 6.8 Equipment 553 -35.9 181 -3.7 150 -1.3

SCHOOL DISTRICT IMPROVEMENT PLANS AND ACTIVITIES

The following narrative was submitted by this district The vision of the Greenwich Public Schools is to set the standard for excellence in public education. The mission of the Greenwich Public Schools is to educate all students to their highest level of academic potential and to teach them the skills and knowledge to become capable, creative and responsible members of society. The Greenwich Board of Education sets strategic directions and specific indicators of success as a means of measuring progress toward achieving this vision and mission and providing focus for improvement efforts. Strategic direction 1: Maximizing achievement for all students and closing gaps in achievement among students. The Connecticut Mastery Test and the Connecticut Academic Performance Test are state-mandated measures of core academic skills. After improving steadily during the 1990’s, the percentage of students performing at or above


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the goal in reading, writing and mathematics on the CMT has remained stable over the last four years. CAPT scores have improved slighted over the last five years. In response to this “leveling off” of improvement in scores over the last four years and disparities in performance among disaggregated subgroups of students, the district has adopted a strategic direction of maximizing achievement for all students and closing gaps in achievement. Key initiatives to improve student achievement in 2006-07 include refining the implementation of new mathematics and literacy programs at the elementary level, redesigning the middle school writing program, and improving monitoring of students performing below grade level standards. Strategic direction 2: Developing greater capacity and systems for improving teaching and learning. Two key strategies have been identified as the district addresses Strategic Direction 2. First, the district will support staff members with comprehensive, systematic professional development which is aligned with instructional priorities. Second, the district will provide the necessary resources and tools to support teaching and learning. Several initiatives have been undertaken this school year that will support staff and provide necessary resources:

• The district has implemented a comprehensive Professional Learning Program which is directly linked to the priorities detailed under Strategic Direction #1 above. The PLP provides professional staff members with the high-quality, targeted training they need to improve instruction and maximize achievement for all students.

• Student achievement data drives instruction decisions. The newly developed “Data Dashboard” utilizes current technology to provide historical and current assessment and achievement information about each student to professional staff members to facilitate these decisions.

• Direct supervision and dialogue about classroom teaching are the best ways to improve practice and increase the professional capacity of both teachers and administrators. During the 2006-07 school year the teacher evaluation plan was reviewed and revised. The revised plan will be piloted during the 2007-08 school year.

Strategic direction 3: Aligning adults in support of improving teaching and learning. In order to make continuous progress toward achieving the Greenwich Public Schools’ mission, aligning adults (teachers, administrators, parents, staff, and members of the community) in support of improving teaching and learning is essential. It is important to clarify roles and responsibilities, support common goals, and to communicate effectively. To that end, the Greenwich Board of Education, with support from the district and school administration, has worked over the last two years on implementing an new governance system. Board policies have been significantly streamlined, clarifying roles, responsibilities and outcomes. A district-wide approach to measuring success on key performance measures has also been implemented, allowing the Board and the public to monitor progress toward the fulfillment of the district mission and vision. A biannual survey administered to students, parents, teachers and community members is used to assess the satisfaction of key stakeholders with the services provided by the public school system.


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Exhibit #8: Special Education Strategic School Profile 2005-06, Greenwich School District38

Larry Leverett, Superintendent39 Telephone: (203) 625-7400

Mary Forde, Director of Pupil Personnel Services

Telephone: (203) 625-7400

This profile was produced by the Connecticut State Department of Education in accordance with CT General Statutes 10-220(c). Unless otherwise noted, data were provided by the local school district during the fall of 2003.

Table 1: OVERALL DISTRICT DESCRIPTION

Total Number of Students for Whom the District is Fiscally Responsible (Excluding Pre-K and Adult Education)

8,956

Number of Students with Special Education Disabilities for Whom the District Is Fiscally Responsible (Excluding Pre-K and Adult Education; Including Private Pay*)

1,036

District Special Education Incidence Rate (% of Total Students with Disabilities) 11.6Number of Students with Disabilities Place Out-of-District** 43Number of Private Pay* Students with Disabilities 7 K-12 Full-time Equivalent (FTE) Teachers

719.2 Total District Expenditures***

$121,971,071

K-12 FTE Special Education Teachers

82.5 Special Education Expenditures***

28,258,935

K-12 FTE Administrators 57.6 % Special Education Students Who Are:

Regional Education Service Center (RESC)

CES Limited English Proficient 1.7

Educational Reference Group (ERG)****

B Free/Reduced-Price Meal Eligible

13.7

* Private Pay = Private/Parochial students, not placed or referred by public agencies, whose basic education is paid through private resources and who receive special education and related services at public expense under a service plan.

**Excludes Endowed and Incorporated Academies and private/parochial students placed out-of-district by parents. ***Expenditures are Unaudited figures from the full 2002-03 fiscal year. ****ERG is a classification of districts whose students’ families are similar in education, income, and occupation, and have similar enrollment.

38 Source: Connecticut State Department of Education Web site (http://www.sde.ct.gov/sde/site/default.asp) 39 Betty Sternberg replaced Larry Leverett as superintendent in September 2006


161

SPECIAL EDUCATION INCIDENCE/PREVALENCE

Incidence is a special education rate of occurrence statistic. It indicates the percent of students in a district (ERG or state) who are students with disabilities, receiving special education and related services. This number is calculated by dividing the number of K-12 students with disabilities for whom a district is fiscally responsible (excludes preschool and adult education students). Statewode, the special education incidence rate has been dropping for several years, although Connecticut’s incidence rate is still slightly higher than the national average.

Table 2: Special Education Incidence Trends (%)

93-94 98-99 99-00 00-01 01-02 02-03 03-04

School District Rate 13.8 15.3 14.0 13.5 12.1 11.3 11.6

ERG Median Rate 11.2 12.3 11.3 10.9 10.3 9.6 10.1

Statewide Rate 13.4 13.5 12.8 12.5 12.3 12.2 12.1

Table 3: Special Education Incidence by Disability

K-12 Count of

Students with Disabilities

Incidence

Rate (%)

Special Education Disability

02-03 03-04 02-03 03-04

Comparison

ERG Incidence

Rate (%)

State

Incidence Rate (%)

Learning Disability 398 406 4.5 4.5 4.2 4.8

Intellectual Disability 30 25 0.3 0.3 0.3 0.6

Emotional Disturbance

76 81 0.9 0.9 0.6 1.3

Speech Impairment 191 209 2.2 2.3 2.4 2.5

Other Health Impairment

216 216 2.4 2.4 2.1 1.7

Other Disability* 86 99 1.0 1.1 1.0 1.2

Total 997 1,036 11.3 11.6 10.6 12.1

CT identification rates for Emotional Disturbance (ED) and Other Health Impairments (OHI) are significantly higher than national averages, ranking among the top 15 states for ED and the top 5 for OHI. CT is in the bottom 15 for identification of students with Intellectual Disabilities.


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*2003-04 Count of Specific Disabilities within “Other” Category

Visual Impairment 6 Traumatic Brain Injury 1

Orthopedic Impairment 2 Autism 57

Deaf-Blindness 1 Multiple Disabilities 16

Hearing Impairment 5 Developmental Delay** 11

**CT statute limits the identification of students as Developmental Delay to children ages three through five.

The U.S. Department of Education’s Office of Special Education Programs (OSEP) requires states to monitor the disproportionate identification of students with disabilities by race/ethnicity. CT public school districts monitor this issue through the comparison of race/ethnicity proportions within disability subgroups to the expected proportions found within all district student data. Large variation in proportions may indicate potential problems, although small student subgroup counts impact data interpretation and unique district circumstances can alter the racial/ethnic makeup of disability subgroups.

Amer. Indian/ Alaska Native

Asian/ Pacific Islander

Black/ African

American

Hispanic or Latino

White Other Race

Disability Totals

Learning Disability

0 0.0% 7 1.7% 9 2.2% 45 11.1% 345 85.0% 0 0.0% 406 39.2%

Intellectual Disability

0 0.0 3 12.0 2 8.0 2 8.0 18 72.0 0 0.0 25 2.4


0 0.0 1 1.2 6 7.4 5 6.2 69 85.2 0 0.0 81 7.8

Speech/Language Impairment

0 0.0 10 4.8 9 4.3 37 17.7 153 73.2 0 0.0 209 20.2

Other Health Impairments

0 0.0 0 0.0 12 5.6 10 4.6 194 89.8 0 0.0 216 20.8

Other Disability 0 0.0 6 6.1 1 1.0 9 9.1 83 83.8 0 0.0 99 906District Total Students With Disabilities

0 0.0 27 2.6 39 3.8 108 10.4 862 83.2 0 0.0 1,036 100.0

Comparison Statistics: District All Students

7 0.1 711 7.9 206 2.3 1,036 11.6 6,996 78.1 0 0.0 8,956 100.0

PERCENTAGE OF TIME WITH NON-DISABLED PEERS (TWNDP)

Time spent with non-disabled peers (TWNDP) is an important indicator of student access to the general curriculum as well as demonstration of compliance with the IDEA requirement that students with disabilities are educated with their non-disabled peers to the maximum extent appropriate. Two ways to look at TWNDP are to examine the data for all students with disabilities for whom the district is fiscally responsible and then to review the data for students with disabilities whose education is provided in-district. The data reported in the next two


163

tables reports on the three federal TWNDP categories. O-40.0% is considered the most isolated setting. 40.1-79.0% is typically a pull-out or resource room type of setting. 79.1-100% is considered a general education placement. In the third table, TWNDP data is examined with amore detailed breakout across 10 TWNDP groups.

Federal Categories

Learning Disability Number

Intellectual Disability Number


Number

Speech Impairment

Number

Other Health

ImpairedNumber

Other DisabilityNumber

Total District Number

District Total

Percent

DRG Total

Percent

State Total

Percent

79.1-100% 320 5 27 159 151 54 716 69.1 67.4 58.240.1-79.0% 71 10 21 39 46 25 213 20.6 21.8 23.20-40.0% 12 10 33 11 19 20 107 10.3 10.8 18.6Total 403 25 81 209 216 99 1,036 100.0 100.0 100.0Mean TWNDP (%)

83.2 47.0 48.0 82.3 67.0 77.0 76.4 77.1 70.6

Table 6: TWNDP: In-district* Students with Disabilities Only

Federal Categories




Number

Speech Impairment

Number

Other Health

ImpairedNumber



District Total

Percent

ERG Total

Percent

State Total

Percent

79.1-100% 320 5 25 156 150 50 706 71.6 69.9 61.340.1-79.0% 71 10 20 39 46 25 211 21.4 23.4 25.00-40.0% 12 6 23 9 13 6 69 7.0 6.7 13.7Total 403 21 68 204 209 81 986 100.0 100.0 100.0Mean TWNDP (%)

83.2 56.0 54.0 83.0 80.0 77.0 79.2 80.3 74.7


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Table 7: Ten TWNDP Categories: All Students with Disabilities




Number

Speech Impairment

Number

Other Health

ImpairedNumber



District Total

Percent

ERG Total

Percent

State Total

Percent

0-10.0%

8 5 21 6 11 16 67 6.5 6.5 9.4

10.1-20%

1 1 5 0 2 1 10 1.0 0.9 3.1

20.1-30%

3 2 4 0 1 1 11 1.1 1.3 2.5

30.1-40%

2 2 3 5 5 2 19 1.8 2.0 3.6

40.1-50%

8 4 6 5 9 10 42 4.1 2.5 4.4

50.1-60%

13 2 5 8 8 5 41 4.0 4.8 4.8

60.1-70%

24 2 9 8 18 3 64 6.2 6.5 6.2

70.1-80%

32 2 1 25 14 7 81 7.8 9.3 8.9

80.1-90%

205 2 23 74 96 15 415 40.1 26.5 21.8

90.1-100%

110 3 4 78 52 39 286 27.6 39.5 35.2

Total 406 25 81 209 216 99 1,036 100.0 100.0 100.0

EDUCATIONAL PLACEMENT

In 2002-03, CT was identified by OSEP as a state with significant concerns in the area of placement of students into private and public separate school facilities, ranking 9th from the bottom among states. CT placed 4.5% of all students with disabilities (ages 6-21) into separate school facilities. This is more than 50% greater than the national average of 2.9%. Out placement reduces a student’s change of interacting with their non-disabled peers and accessing the general curriculum.

Table 8: Students Placed Out-of-District

Placing Agency

Learning Disability



Speech Impairment

Other Health

Impaired

Other Disability

Autism Disability

Total District

District Percent

DRG Total

Percent

State Total

PercentPlaced Out by District

1 0 12 5 5 3 15 41 85.4% 74.0% 60.5%

Place Out by Other Parties*

0 0 4 1 1 1 0 7 14.6 26.0 39.5

Total Placed Out

1 0 16 6 6 4 15 48 100.0 100.0 100.0


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*Other parties include DCF, other state agencies, juvenile and superior courts, as well as physicians and others

Table 9: Educational Placement of Students with Disabilities (count and percent by 6 Federal Categories)

Education Placement

Learning Disability



Speech Impairment

Other Health

Impaired

Other Disability

Autism Total District

District Percent

DRG Total

Percent

State Total

Percent

Public School

422 26 64 226 171 30 60 999 99.5% 95.3% 93.5%

Public Separate Facility

0 0 6 1 2 1 3 13 1.2 0.9 1.7

Private Separate Facility

0 0 3 3 1 1 8 16 1.5 2.7 3.2

Public Residential Facility

0 0 0 0 0 0 0 0 0.0 0.1 0.1

Private Residential Facility

1 0 6 1 3 1 4 16 1.5 0.9 1.3

Hospital/ Homebound

0 0 0 0 0 0 0 0 0.0 0.2 0.2

Total 423 26 79 231 177 33 75 1,044 100.0 100.0 100.0

Public School includes all students attending CT public school districts including Endowed/Incorporated Academies, Charter and Magnet Schools. Public Separate Facility includes students attending RESC’s (non-magnet schools). Private Separate Facility includes students attending Private Special Education Facilities and Other Agencies. Public Residentail Facility includes students attending RESC’s who reside in group homes/shelters or attend out-of-state public residential facilities. Private Residential Facility includes students who reside and are educated at Private Special Education Facilities, students who reside in group homes/shelters, and students who attend out-of-state private residential facilities. Hospital/Homebound includes students who live and are educated in permanent family residences, or students who receive their education in a home/hospital setting, both in- and out-of-state.


166

Table 10: Home School* Attendance by Students with Disabilities (%)**

Learning Disability



Speech Impairment

Other Health

Impaired

Other Disability

Autism Total District

District 99.8% 100.0% 81.0% 97.8% 96.6% 90.9% 80.0% 95.7%DRG 98.1 81.8 76.4 98.3 95.0 81.9 76.1 93.5State 95.0 82.4 64.4 95.4 90.6 70.0 70.3 87.9* Home School is defined as where the student would otherwise attend school if not disabled.

** Students attending magnet and charter school programs as a result of school choice options (identical to those of their nondisabled peers) are considered to be attending their home school, unlike students placed into programs as a result of PPT programming decisions.

OUTCOMES FOR STUDENTS WITH DIABILITIES

Table #11: Extracurricular Participation by Students with Disabilities (%)

Learning Disability

IntellectualDisability


Speech Impairment

Other Health

Impaired

Other Disability

Autism Total SWD

District 71.9% 76.9% 48.1% 51.5% 71.2% 42.4% 49.3% 63.0%DRG 43.7 57.7 31.6 29.6 45.3 32.5 31.1 39.1State Participation

41.2 41.0 26.3 30.6 40.5 24.6 25.3 35.5

Table #12: Students with Disabilities (Ages 14-21) Reported in Dec. 2003 As Exiting Special Education During the 02-03 School Year

Reason for Exiting

Learning Disability



Speech Impairment

Other Health

Impaired

Other Disability

Autism DistrictTotal

District Total

PercentGraduated with Diploma

35 3 11 6 23 2 0 80 65.6%

Graduated with Certificate of Completion/IEP

0 0 0 0 0 0 0 0 0.0

Dropped Out 1 0 0 0 2 0 0 3 2.5Returned to Regular Education

5 0 2 2 2 1 1 13 10.7

Reached Maximum Age, Moved, or Deceased

6 0 2 3 13 1 1 26 21.3

Total 47 3 15 11 40 4 2 122 100.0


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Regardless of the reason for exit, all students must, as part of their IEP and starting at age 14, receive effective transition planning for life after high school

Graduation and Dropout Rates

District State

Special Education Graduation Rate 83.3% 67.7%

All Student Graduation Rate 96.5 91.2

Special Education Drop Out Rate 0.7 5.6

All Student Drop Out Rate 0.7 1.7

Graduation, drop out and suspension/expulsion are all indicators of student access to the general curriculum.

Percent of Students by Racial/Ethnic Group included in the graduation rates above

American Indian

Asian American

Black White Hispanic

All Students 0.0 5.8 2.5 81.8 9.9

Special Education

0.0 1.3 1.3 90.0 7.5

Percent of Students by Racial/Ethnic Group included in the dropout rates above

American Indian

Asian American


All Students 0.0 5.0 10.0 45.0 40.0

Special Education

0.0 0.0 0.0 100.0 0.0


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Table #13a: Out of school Suspension and Expulsion Data (2004-05 School Year Data, PreK-12)

# Unique Students

Suspended/ Expelled

Unique Student

Suspension Rate

Total Incidents*

of Suspension/Expulsion

Incident- Based

Suspension Rate

Total Days Of

Suspension/ Expulsion

General Education Students

133 1.68% 188 2.38% 1878

Special Education Students

76 6.69 108 9.51 1242

Table #13b: Suspension and Expulsion of Students for greater than 10 days (PreK-12) (Rate of suspensions and proportion by race/ethnicity, 2004-05)

# and rate of suspension/expulsion for 10+ days

American Indian/Alaska Native

Asian/ Pacific Islander


General Education

16 0.2%. 0.0% 0.0% 12.5% 43.8% 43.8%

Special Education

7 0.6 0.0 0.0 14.3 57.1 28.6

All Students

23 0.3 0.0 0.0 13.0 47.8 39.1

Racial proportion for all district students 0.0 8.2 2.9 76.6 12.4


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DISTRICT RESOURCES

Table #14: Certified Staff: Special Education Teachers and Pupil Services Staff

Full-Time Equivalent

(FTE) Number of Staff

Full-Time Equivalent

(FTE) Number of Staff

Special Education Instructional Staff

K-12 Pre-K Only

K-12 Pre-K Only

General Special Education Teacher

82.8 8.5 Speech-Language Pathologist

14.6 5.2

Partially Sighted 0.0 0.0 Psychological Examiner

0.0 0.0

Deafness 1.0 0.0 School Psychologist 21.0 0.0Blindness 0.0 0.0 School Social Worker 14.8 0.0

School Nurse-Teacher 0.0 0.0School Counselor 26.0 0.0

Total 83.8 8.5 Total 76.4 5.2

Table #15: Staffing Ratios: Index of Staff (K-12) per 1,000 Student Population (K-12)

District DRG State

Special Education Teachers 9.4 7.6 8.7

Speech Pathologists 1.6 1.6 1.5

School Nurses (non-certified) 1.9 1.9 2.0

School Nurse-Teachers 0.0 0.0 0.0

School Psychologists 2.3 1.6 1.5

School Social Workers 1.7 1.0 1.2

School Counselors 2.9 2.5 2.3

School Psychologists and Social Workers and Counselors 6.9 5.1 5.1

Special Education Aides 15.1 12.9 13.5


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Table #16: Special Education Expenditures 2002-03 (Unaudited)

District, State and

Federal Dollars

District Percent

DRG Percent

State Percent

Certified Personnel 14,563,458 48.5% 45.2% 40.8%Non-certified Personnel 4,544,349 15.1 15.1 14.0Employee Benefits 4,204,596 14.0 13.5 12.8Purchased Services 1,521,042 5.1 4.6 4.8Tuition to Other Schools 3,046,713 10.1 14.0 18.8Instructional Supplies 233,584 0.8 0.6 0.6Property Services 72,074 0.2 0.2 0.2Special Education Transportation 1,790,420 6.0 6.5 7.4Equipment 55,525 0.2 0.2 0.2Other Expenditures 26,780 0.1 0.2 0.3Total 30,058,541 100.0 100.0 100.0

Connecticut continues to receive increasing amounts of IDEA funds to help address resource issues within the state. Additionally, utilization of other State supported opportunities for high quality professional development at minimal cost is another method to maximize resources (i.e., SERC, CPAC, etc.).

Table #17: Percentage of Expenditures for Special Education 2004-05 (Unaudited)

District DRG State

School District Expenditures for Special Education 22.5% 19.2% 20.0%


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Table #13: Preschool Student Data

Age Education Setting (%) Race/Ethnicity (%)

3 year-olds: 23 Early Childhood

80-100% TWNDP

98.1 Amer. Indian/Alaskan Native 0.0


40-79% TWNDP

0.0 Asian American 5.6


0-40% TWNDP

0.0 Black/African American 0.0

6 year-olds: 0 Separate classroom 0.0 White (non-Hispanic) 75.9

7 year-olds: 0 Separate School 1.9 Hispanic 18.5

Home 0.0

Itinerant Services 0.0

FAPE* at Three Percent of Time with Non-Disabled Peers

District State

Students Placed Out Of District (%)

All Pre-K Without Itinerant Services Students

Count 10 1156 In District 98.1 79.1-100% 96.3 98.1Yes 70.0% 91.9% Out 1.9 40.1-79% 0.0 0.0 Parochial/Private 0.0 0-40% 3.7 1.9 Mean 94.3 96.1*FAPE: Students who exited the Department of Mental Retardation’s Birth to Three program at age 3, were referred to special education, had a transition conference convened at least 90 days before the child’s third birthday, and received a Free Appropriate Public Education by age three.


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District Description of Activities and Efforts around Special Education Program Improvement

Over the last ten years, the Greenwich Public Schools engaged in two major reviews of special education programs and services for students with disabilities. Many of the issues cited in the original 1997 study40 were addressed in subsequent years (for example, the identification rate of students has showed a steady decline from 16.2% of the student population to 11.2%). A follow-up 2005 review of the Special Education program continued to identify some issues from the previous study, including: lack of consistent early intervention process and explicit early reading program and lack of systematic approach to differentiation of curriculum and instruction. Differentiation of instruction has been highlighted as a priority in the district five-year improvement plan. A new reading program with a greater focus on phonics instruction and early intervention is scheduled for implementation during the 2006-07 school year. A cross-role steering committee has been convened to oversee these improvements and to make recommendations for other activities that would draw on the combined resources of general and special education to address other persistent areas of concern (such as early intervention).

40 Document #35 below.


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PARTICIPATION IN AND PERFORMANCE ON STATEWIDE ASSESSMENTS

Table #19: Percentage of Students Performing at Proficient or Above on Statewide Assessments

[Fall 2003 CMT: Grades 3, 4, 5, 6, 7 and 8 CAPT: Grade 10 Spring, 2006]

Mathematics Reading Writing Science Students

With Disabilities

All Other

Students

Students With

Disabilities

All Other

Students

Students With

Disabilities

All Other

Students

Students With

Disabilities

All Other Students

Grade 3 District

66.2 93.1 46.2 90.5 73.0 95.7

Grade 4 District

51.9 65.1 41.0 94.1 63.3 97.7

Grade 5 District

62.3 95.7 48.1 93.9 70.1 98.3

Grade 6 District

62.8 96.1 56.4 94.9 69.9 95.5

Grade 7 District

63.3 94.5 60.7 92.9 55.9 95.1

Grade 8 District

65.2 96.6 58.2 93.2 74.4 96.4

Science is not a subject

tested on the 2006 Connecticut Mastery

Test (CMT)

Grade 10 District

63.8 94.9 59.0 95.4 57.1 95.8 56.4 94.2

Table #20: Participation in the 3rd Grade CMT by Students with Disabilities [Spring 2006] (%)


Math Reading Writing

Taking Standard CMT 94.2 94.2 91.3

With an Invalid CMT Test 0.0 0.0 2.9

Taking Skills Checklist 5.8 5.8 5.8

Exempt from CMT 0.0 0.0 0.0

Total # Students Assessed

69 69 69


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Table #21: Participation in the 4th Grade CMT by Students with Disabilities [Spring 2006] (%)








81 81 81









82 82 82









84 84 84


175









71 71 71









94 94 94


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Table #26: Participation in the 10th Grade CAPT by Students with Disabilities [Spring 2006] (%)


Math Reading Science Writing

Taking Standard CMT

93.0 90.7 90.7 89.5

With an Invalid CMT Test

0.0 2.3 2.3 3.5

Taking Skills Checklist

7.0 7.0 7.0 7.0

Exempt from CMT 0.0 0.0 0.0 0.0


86 86 86 86

Table #23: Participation in the 10th Grade CAPT by Students with Disabilities [Spring 2004]

Students with Disabilities StudentCount

District%

ERG Total%

State Total %

Taking Standard CAPT 106 92.2 89.7 82.2 With an Invalid CAPT Test 1 0.9 1.4 4.8 Absent 8 7.0 6.5 6.5 Taking Skills Checklist 0 0.0 2.4 6.4 Exempt from CAPT 0 0.0 0.0 0.0

Math

Total (Grade 10) 115 100.0 100.0 100.0 Taking Standard CAPT 105 91.3 88.3 82.5 With an Invalid CAPT Test 2 1.7 3.2 5.2 Absent 8 7.0 6.5 6.5 Taking Skills Checklist 0 0.0 2.0 5.8 Exempt from CAPT 0 0.0 0.0 0.0

Reading

Total 115 100.0 100.0 100.0 Taking Standard CAPT 103 89.6 87.6 81.0 With an Invalid CAPT Test 2 1.7 2.4 5.7 Absent 8 7.0 6.5 6.5 Taking Skills Checklist 2 1.7 3.5 6.8 Exempt from CAPT 0 0.0 0.0 0.0

Writing

Total 115 100.0 100.0 100.0 Taking Standard CAPT 105 91.3 90.6 84.6 With an Invalid CAPT Test 2 1.7 0.9 3.4 Absent 8 7.0 6.5 6.5 Taking Skills Checklist 0 0.0 2.0 5.5 Exempt from CAPT 0 0.0 0.0 0.0

Science

Total 115 100.0 100.0 100.0


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To address the problem of parent-driven over-identification of special needs students, the Greenwich Board of Education engaged four consultants—among them the former superintendent, Claire Gold, from neighboring Westport—to conduct a study of the district’s special education program. Following are excerpts from what came to be called the “Gold Report.” Document #35: Richard Dempsey, Claire Gold, Lois Libby, and Kate McGraw, A Study of the Effectiveness, Efficiency, and Management of the Special Education Program in the Greenwich Public Schools (Ridgefield, CT: Educational Leadership Services, Inc., November, 1997). Excerpts. Purpose of the Study The purpose of this study was to: (1) assess the effectiveness and efficiency of the special education program in the Greenwich Public Schools; (2) develop recommendations that would meet the current and future demands placed on the school district; and (3) provide an information base for better long-range planning and more informed decision making. To achieve this purpose the consultants: (1) focused their attention on the organization, administration, staffing patterns, [and] support services [of] the current special education programs; (2) studied and assessed the efficiency and cost effectiveness of existing programs, staffing and instructional costs; (3) analyzed recent historical trends; and (4) provided oral progress reports and a final written report that included findings and recommendations… SECTION TWO: Special Education Processes—Findings and Recommendations Introduction While the consultants’ charge was to assess the efficiency and efficacy of the special education program, it became quickly apparent that this could not be done in isolation from the rest of the school system. A systemic analysis of the entire school system was required to understand the interplay between regular education and special education. In a sense, special education exists to accommodate student needs that cannot be met in the regular education classroom. To the extent that curriculum and teaching methodology do not address the ability and learning styles of the diversity of Greenwich youth, the steady and unabated growth of special education will continue. This growth is reflected in both incidence data and the increasing percentage that special education consumes of the total budget (17.4 percent in 1994-1994 to 20.8 percent in 1996-1997). Greenwich is not alone in experiencing this proliferation of special education. Demands for special services similar to those heard in Greenwich are being voiced in nearly every school district in Connecticut. Programs generally grow in response to the availability of financial and human resources. It is unfortunate that concomitant to the unprecedented expansion of special education, the concept of “normal” has increasingly narrowed. Those behaviors that fall within the normal range of variability and those that constitute exceptionality need to be redefined. Examples abound of Greenwich students who are


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unable to benefit fully from the standard curriculum. These include students who need a systematic, carefully sequenced phonics program emphasizing word attack skills, as well as comprehension in order to read with ease and confidence. It also includes slow learners and students with attendance and behavior problems. While these students need thoughtful consideration, many are inappropriately classified as either learning disabled or emotionally disturbed, though many fail to meet special education admission criteria. They could be better served in the regular classroom. Presently, special education is perceived as “the only act in town,” for students who depart from an unfortunately narrow concept of normal. Greenwich has evolved into a dualistic school system of regular education and special education. There is a separate and different administrative hierarchy for each and different administrative responsibilities that result in an uncoordinated curriculum, staff hiring process unique to each, ambiguous staff evaluation practices, and confusing accountability. Of most serious concern is the apparent absence of any vehicle for coordinated long range planning and problem solving. Although the school system is rich in bright talented staff, a forum does not exist to deal with critical educational questions. As new curricula are adopted, there is inadequate consideration of the potential impact on the community of diverse learners. These include students who have recently moved to Greenwich, students for whom English is a second language, students who may not be college bound, students who are academically talented and are college bound, those who are average but are college bound, those who are intellectually below average, and students who have developmental delays or disabilities. A public school can appropriately set a goal for each student to reach his/her greatest potential. It cannot, however, set the same goal for all students and expect them all to achieve it with an equal degree of accomplishment These include students who are unable to benefit fully from the standard curriculum. The role of the central administration is to set the agenda, to coordinate, to balance, to meld, and to consider the best interests of the heterogeneous student body. This can only be done by on-going dialogue, careful analysis of data, identification of problems, and hard-nosed decision-making. It can only be done by those who can speak to the potential impact of problems not solved and decisions not made. It will require a structure that fosters communication among principals, special education administrators, curriculum coordinators, ESL specialists, the superintendent and all others with administrative responsibilities. Change in a large complex institution such as the Greenwich Public Schools requires not only intense scrutiny, but also careful and logical sequencing over time. The consultants heard staff members report that they were inundated with new and different programs, that they were unable to master one new program before another was imposed, and that multiple programs were in the early trial stages when they were superseded. Moreover, there is a great unevenness in program implementation from one elementary school to another, e.g., Project Read, the new language arts program, and the Alternative Intervention Program. The consultants believe that the greatest curriculum change that the Greenwich Public Schools should make is to place a moratorium on contemplated curriculum changes for a


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year or more (particularly at K-8) and set to work achieving mastery of those things already initiated. As an example, the consultants heard middle school reading/language arts referred to as a “knee-jerk” program — change the language arts coordinator, change the program. One middle school principal speaking solely for his school said, “We purchased 500 anthologies for the old language coordinator, then threw them out when the new coordinator arrived. We now have 500 new anthologies and 1,000 trade books and some of these may go because there’s no non-fiction and that’s what the Connecticut Mastery Test (CMT) is emphasizing.” Change must be coupled with a forthright assessment of what is working and what is not. These program changes are not only costly, but they cause cynicism on the part of the staff who question their leadership’s decisions. Student learning is the ultimate yardstick against which all new programs should be measured. Incidence of Special Education The Greenwich Public School’s 1996-1997 incidence of special education in grades K-12 was 16.2 percent (Connecticut State Department of Education data). This placed Greenwich second from the top in its Educational Reference Group41 (ERG) B and third from the top when compared with ERG A, the highest socioeconomic group42… Greenwich schools are in an unusual position, since some schools compare with ERG A schools and others with ERG H schools. The Greenwich elementary schools exhibit a large variation in the incidence of special education identification, ranging from 8.1 percent (Riverside) and 11.2 percent (North Mianus), to 21.2 percent (Julian Curtiss) and 21.8 percent (New Lebanon). The middle schools’ incidence of special education identification range from 19.2 percent at Eastern to 23.8 percent at both Central and Western Middle Schools. Greenwich High School has the highest percentage of special education students with 29.3 percent. Even within the high school there was a large disparity in the incidence of special education among the houses. (In looking at the incidence of special education in each Greenwich school, the consultants used April 1997 data provided by the Greenwich staff and this latest count yielded a system wide incidence of 20.3 percent. There is a data discrepancy between the Greenwich Public Schools and the Connecticut State Department of Education. This is largely attributable to different timing in the collection of data.) The consultants have presented incidence data in table form that should be seen as a management tool. Especially noteworthy are: the steady overall increase in the total special education population; a relatively high percentage of severely emotionally disturbed students in comparison to similar school districts; an inordinately large representation of males in almost all categories of disability; and the disproportionate number of Hispanics identified as having speech and language disorders.

41 The state, as we have seen in the Strategic School Profiles we have read, has substituted District Reference Group (DRG) for Educational Reference Group (ERG) 42 An Educational Reference Groups (ERG) is defined as groups of school districts with similar characteristics: median family income, percentage of family incomes below the poverty level, percentage of single-parent families, percentage of non-English home language, percentage of families with a high school education, and percentage of families with white collar or managerial occupations. The data were based on characteristics of all families served by the school district and were based on 1990 census information


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Incidence data, like budget data and test scores, are management tools… As an example, the following chart illustrates a significant upward trend in the number of children with disabilities. Prevalence of K-12 Special Education students in the Greenwich Public Schools

1993-94 1994-95 1995-96 1996-97 13.8% 14.8% 15.5% 16.2%

This type of data raises questions such as: Is the high and low incidence reasonable? Are placements appropriate? Are other programs, such as English as a Second Language (ESL), more appropriate? Are there over or under zealous psychologists or principals making costly decisions? It is recommended that:

A. The incidence data found in the tables be carefully studied and that the information presented be viewed as a tool upon which decisions may be made.

B. A database be established, including historical data, to monitor longitudinal trends.

Overidentification The staff confirmed the consultants’ observation that state and federal regulations are not always met for the identification of students with Severe Learning Disability (SLD). Students who do not meet the state and federal regulations for this or any other disability may be placed in special education. Students are often overidentified for the following reasons: PPT decisions; independent evaluations that are rarely challenged and usually. accepted at face value; and lack of other placement options, e.g., slower learners and students with behavioral problems who do not truly qualify for a Severely Emotionally Disturbed (SED) classification; and/or simply to “help” students. The procedures and diagnostic criteria for identification of special education are well spelled out. There are many different forms available that are clear and useful, but unfortunately, are not used with consistency. Overidentification of students who need special education attention is a significant problem because once students are identified they tend to remain in the special education pipeline throughout most of their school careers. The consultants found that although criteria for program admission are adequately defined in the procedural manual, these criteria are neither uniformly applied nor consistently met. This is further evidenced by the wide variability in incidence among Greenwich schools as well as the four houses in Greenwich High School. For example, the Greenwich Public Schools have a large number of SLD children especially at Glenville Elementary School, 9.6 percent. Central Middle School, 14.6 percent, Western Middle School, 14.3 percent, and Greenwich High School 12.9 percent.


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The staff attributes middle school SLD emphasis partly to a lack of trained reading teachers, and the staff at all levels feel there is nothing they can do with lower functioning students except place them in special education. Elementary schools with a higher incidence of SLD students tend to identify them in the lower grades. The special education staff voiced concern over a perceived failure of regular education teachers to help the divergent learner; the often-ensuing special education designation is viewed as a quick and easy solution to the problem. The special education staff reported that principals compound the special education identification problem through lack of consistency from school to school when dealing with student problems. This often results in either long delays in making referrals for help (characterized as “foot dragging”) or a rush to place students in special education. On the other hand, it was reported by an elementary school principal of a low incidence school that pressure had been exerted by a special education administrator to identify more special education students. When several teachers work together to focus on student growth, greater progress can be achieved and potential learning problems can be identified and addressed before they become more serious. Quality time spent in collaboration among teachers has also been found to be one of the most effective strategies to provide appropriate interventions for those students with learning difficulties. Although the Greenwich Public Schools provide opportunities for collaboration through pre-referral meetings, a systematic review of all students’ needs at grades K-l, with appropriate pre-referrals where necessary, is in order. It was found that Pupil Study Team (PST) meetings do not always have time allocated to explore and implement pre-referral strategies before a child is placed in a special education program. Presently, sufficient time is not provided for collaborative efforts. The consultants noted that overidentification increased from elementary, to middle school, to high school (elementary schools 15.2 percent; middle schools 22.2 percent; high school 29.3). It would appear that the Greenwich schools have not focused attention on the steadily increasing numbers of special education students as they progress through the grades. Several questions came to mind as the consultants reviewed these percentages: Are the elementary schools identifying too few students? Is the elementary schools’ educational environment too nurturing and over protective? Are the middle schools and high schools identifying too many students? Is the remediation program inadequate in addressing early literacy problems? Are the middle schools too nurturing or not nurturing enough? Is the high school too inflexible and/or too high powered? Why do teachers make referrals based on the belief that students will be unable to succeed at the next level? Is this caused by misunderstanding of the academic expectations at the next level? Is there a breakdown in the curricula that fails to provide for differences in ability and learning styles? These and similar questions should be addressed in order to answer the overriding question of why there are so many more special education children at the end of the education cycle than at the beginning.


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It is recommended that:

A. Criteria for admission to special education programs be reviewed by special education administrators with each PPT and the entire administrative staff.

B. PPTs consistently adhere to admission requirements. C. A data monitoring system be established for all schools so that early level PPTs

can be reviewed by principals for adherence to the criteria. D. Much more extensive discussion about alternative strategies to special education

placement be systematically developed. E. Staff come to grips with the issues in a variety of problem solving forums: staff

development workshops; using Greenwich case studies; PSTs; PPTs; and building level meetings.

F. The Greenwich Public Schools undertake a Student Assistance Team model (a team composed of regular education teachers with pupil personnel and special education consulting assistance) especially at the lower grade levels. It is further recommended that the Greenwich Public Schools consider consulting with the State Special Education Resource Center on establishing and training student assistance teams.

G. Staff development be provided on criteria for admission, managing pressure from parents, improving communication with parents, and on non-special education ways to work with diverse learners.

Planning and Placement Team The PPT process appears to be thorough, well organized, and the paper work complete. The consultants observed that the professional PPT staff members at meetings were congenial. However, the PPT process was found to be formal, long, the professional teams large, and with considerable use of educational jargon. Some parents appeared to be overwhelmed with the plethora of data given them. A special education staff member described the typical PPTs as “not user friendly.” Some parents appeared to be intimidated and others in awe of the large number of professionals assembled to discuss their child (this was especially noteworthy when the parent was more proficient in a language other than English). The consultants recorded one occasion where the PPT recommended psychotherapy for the child (if the district recommends therapy, it is liable for the cost). The PPT process, as practiced in Greenwich, can easily become duplicative, overly complicated, and fraught with pitfalls for litigation, all in an effort to make certain that there can be no basis for litigation. The consultants found an undue emphasis on a medical model. Most of the discussion at the PPTs that were observed by the consultants focused on deficits and disabilities with little attention paid to how student strengths could be used by teachers., The consultants believe that the PPT should avoid discussion of or pressure for the use of medication beyond factual reports of what may have been prescribed by a medical doctor. If parents raise questions about medication, staff should refer them to the appropriate medical authority.


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The consultants believe that PPTs are frequently over staffed, e.g., they observed a PPT where there were four administrators, a regular classroom teacher, a special education teacher, as well as a psychologist and a social worker. At minimal hourly rate of $75.00 per professional, it is safe to say that the cost (including an equal amount of preparation time) to the school district of that PPT was about $1,200.00. There are many different levels of PPTs and all should be organized on the basis of including only the essential staff members. Much information sharing among staff members can take place prior to the PPT. It is recommended that:

A. Consideration be given to the most efficient and effective ways to conduct each PPT and that only those essential to the process should be in attendance…

Litigation and the Legal Process In the spring of 1997, the Greenwich Public Schools had nineteen (19) cases in litigation. The Town of Greenwich’s special education attorney indicated that there are procedural and programmatic issues including lack of clarity of the original diagnosis and evaluations which lead to legal problems. The professional staff have a fear of becoming involved in litigation. They feel that litigation is presently dominating the agendas and often getting in the way of both sound professional decisions and conventional wisdom. Decisions are sometimes made not in terms of what may be in both the child’s and the Greenwich Public School’s best interests, but whether it will prevent litigation. A random sample of four litigation files were reviewed. The files tended to be disorganized, lacked important content, contained misfiled documents, and included information that was not appropriate. For example: (1) there were no individual education plan (IEP) or minutes of meetings in one file;. (2) another file included a status report from the town attorney that contained a discussion of several other students by name; (3) one file contained a PPT recommendation that “compensatory therapy due to personnel changes” be offered. In two of the four cases, settlement agreements were reached. There has been much discussion about whether legal services for special education should emanate from the Greenwich town attorney’s office or be contracted through independent counsel and the arguments on both sides of the issue were heard at length. The consultants found the town attorney to be knowledgeable about special education and the handling of special education cases appears to be appropriate. However, the consultants are impressed with the high level of expertise displayed by several independent Connecticut attorneys specializing in special education, each of whom has a long term proven track record. There is no question but what town counsel is less costly. But what has not been reconciled is whether town counsel should be placed in an adversarial position with citizens of the community over issues of public education. To put the question to rest will


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require that the issue be studied and a decision made as whether the public schools will be better served by town or independent counsel. The consultants believe that the legal needs of the school district transcend the issues of litigation. The staff of the Greenwich Public Schools needs extensive staff development assistance in: (1) understanding what can and cannot be done to ward off potential legal entanglements; (2) who should be identifying children for special education, how PPT’s should be conducted, and the most protective way to handle and maintain student files; (3) involvement in due process hearings with parents; (4) productive utilization of mediation to resolve controversial issues; and (5) oversight of post settlement follow-up. Regardless of source of the school district’s legal counsel⎯town or independent service⎯the staff needs on-going information and discussion on these and related problems. These preventive services should be an important element of the an attorney’s commitment. It is recommended that:

A. The Greenwich Board of Education and administration take immediate action to study the alternative approaches for legal representation and which alternative will provide the Greenwich Public Schools with the most effective and cost efficient service.

B. As an integral part of legal service, the provider should assist the staff of the Greenwich Public Schools with a staff development program designed to avoid legal entanglements.

Our consideration of special education in Greenwich concludes with an interview of the district’s current Director of Pupil Personnel Services, who gives a current picture of what drives the identification process in her district. Document #36: Interview with Mary Forde, Director of Pupil Personnel Services, Greenwich Public Schools, 11 February 2005. JBS: In an Ed Week op-ed piece in 2000, Clint Bolick cited an identification rate for special education in Greenwich of “nearly one in three.” Was that an accurate figure? MF: The identification rate peaked in 1998-99 at 15.3%. Our high school rate is always higher than the overall rate. For example, this year’s overall identification rate is 11.6% and the high school is something like 17%. It is possible in 1998-99 that the high school rate was as high as 20%, but never “one in three.”43 JBS: Did the rate of identification become an issue for the Board of Education? MF: It did. The Board commissioned an evaluation of the district’s special education program. The “Gold Report,” as the evaluation study was called, contained a number of

43 The “Gold Report” (see Document #30 p. 118) found an identification rate of 29.3% in Greenwich High School in 1997.


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recommendations for dealing with the issue of overidentification. The district made several changes pursuant the consultants’ recommendations. We implemented a district-wide literacy initiative several years ago to address our students’ problems in reading. As a result, problems are identified very early and can often be handled by the mainstream teachers. We also consolidated the identification function into the central office. Where earlier special education teachers at each school team did the evaluations, and, as a result, the identification rate varied significantly from school to school, now a single team does all of our identifications. As a result, we have a uniform and lower identification rate at the elementary level. The report also addressed the question of excessive and costly litigation. In part as a response to this issue, the Board replaced the then director of special education with a practicing lawyer. JBS: You mentioned earlier that the identification at the high school, while lower than it was eight years ago, is still higher than that at the elementary and middle schools. Why is the high school rate high? MF: In the elementary schools, classroom teachers are able to meet many of the special needs of their students, and the identification rate for special education remains pretty low. This is also true, though less so, for our middle school students, where teaming means that a group of teachers consults frequently about the students they have in common. Our high school’s motto is “Independence with Responsibility.” The school has got the “independence” part down, but they haven’t yet dealt very effectively with the “responsibility” part. Beginning in their sophomore year, students have “opens”—free periods. The school is designed around a large open court where food is available all day. Students need to pass through this “student center” to get from class to class. Some never make it. In this setting, special education teachers become a “lifeline” for many high school students, and much of their work is helping students with their classroom assignments. JBS: Bolick implied that over-identification was the result of parents seeking extra time on examinations for their children. How much of the identification at the high school is parent-initiated? MF: Roughly speaking about two-thirds of the identification is teacher-initiated and one-third is parent-initiated. JBS: Isn’t there a stigma attached to the special education label and aren’t parents reluctant to encumber their kids with that stigma? MF: In Greenwich there’s absolutely no stigma whatever attached to special education. In fact, sometimes it seems like a badge of honor. As you know, the system provides for what are called “PIPE’s”—parent-initiated private evaluations. Greenwich has something of a cottage industry of psychologists ready to sign off on referrals to special education. And parents come in with a laundry list of


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interventions that they want for their children, and often the conversation ends with “Oh, and by the way, here’s my lawyer’s card. He’ll be in touch with you.” It’s a very litigious community. In the past, it apparently seemed easier to go along with parents’ demands rather than spend the time and money it would take to resist them. JBS: Over-identification of minority students is a problem nationwide. By comparison to its neighboring districts in Fairfield County, Greenwich has a significant minority population. Is that population over-identified for special education? MF: Actually, our minority population is under-identified.44 Seventeen percent of our students are English language learners (ELL), most of them Hispanic, but less than 2% of our SPED-identified students are ELL. JBS: Your special education budget is currently about 23% of the overall district budget45. Is that an issue for your Board? MF: There is concern that the district has a growing number of severely disabled students for whom the per-student cost of education is very high. The district appears to have been identified as having a particularly effective program for autistic children, and we currently have 64 or 65 autistic students enrolled in the district. There appear to be cases where corporations that are relocating employees into the New York area whose children have learning issues are recommending that they settle here in Greenwich. More broadly, there is a problem with the fact that Greenwich as a community is lacking in the range of social services that towns and cities with a comparable population would be likely to offer. As a result of that, there is more pressure brought to bear on the public schools to compensate for the community’s lack of social services. JBS: What would you say is the more important problem that you and your staff face in your work in the district today? MF: The paperwork burden is far and away our most important problem. Particularly in the litigious environment in which we work, everything has to be documented. There comes a point where members of my staff say, “I can offer the services the child needs or I can document what I am offering, but there isn’t time in the day to do both.”

• • •

44 The overall identification rates are 8.9% for minority students and 12.3% for white students. 18.9% of African American students, however, are identified as having special needs. (Source: Special Education Strategic School Profile, Greenwich School District, 2003-04). 45 As compared with 18.7% in the ERG districts and 19.7% in the state.


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Suggested Study Group Questions:

1. What are the differences in provisions and coverage among the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act?

2. How do you account for the wide discrepancies among states in the percentage of students in the various SPED classifications?

3. How is the special education identification process abused? What is an appropriate policy for reducing or ending this abuse?

4. What are the advantages and disadvantages of including special education students in standardized state assessments of student performance?

5. What decisions about the education of students with disabilities (e.g., identifying, mainstreaming, funding, assessing) are best made at the local, state and federal level? What proportion should each level bear of the cost of carrying out these decisions?

6. To what extent, if any, are the rights of general education students and teachers impinged upon by the requirement to fund special education and to place special education students in the least restrictive educational environment?

Appendix #1: Last year’s clarifying questions

Case I: Students with disabilities in Greenwich, Connecticut (February 5)

Clarifying questions

1. In nationwide programs and the Greenwich case specifically, what is the correlation between the institution of pre-K programs and reduced special ed classification? (1) I don’t have statistics on that correlation. I could speculate that some children enrolled in a pre-K program might be identified by their teachers as in need of special education services who might have been missed if the identification were left up to parents. This could increase the special education population. On the other hand, early intervention might obviate the need for special education services for some children enrolled in a pre-K program. This could reduce the special education population. Children age 3 and older who are identified as in need of services before enrolling in Kindergarten are already receiving special education services that are required by law whether or not the district has a pre-K program for all students. 2. In Greenwich, were additional elementary, middle, and high school tutoring programs and supplemental services provided in addition to pre-K programs and early identification? (1) Yes.


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3. Has there been any federal/state legislation or court cases defining the rights of gifted students? (1) Federal legislation requires schools to identify gifted students. It does not require the district to provide special programming for those students who are identified as gifted. I know of no litigation challenging that legislation. 5. Does the overclassification of minority students for special education occur more frequently in racially homogeneous or heterogeneous districts and schools? (1) Overclassification of minority students for special education occurs most frequently in districts where there is a large non-minority student population. 6. In similar cases of the overidentification of minority students for special ed, has the Greenwich model been replicated in less affluent districts? (1) Greenwich actually underidentified minority students (see Mary Ford’s interview, Casebook I Document #35 p. 162). The district’s problem with overidentification involved non-minority students. The Greenwich solution to its overidentification problem—additional support services for students before they were identified—is costly, but probably, over the longer term, could save money in any district, affluent or not. 7. Do you have any information on median expenses for educating special education students, or on the variability in costs for educating special education students? It seems that some highly disabled students programs might take a great portion of the special ed expenditures such that the additional expenditure might not be that large for the average special ed student. (3) I don’t have the median figure. The high-end costs for special education are incurred when students must be placed in special programs operated outside of the public schools (i.e., in state-funded centers or private facilities). A case in New York state was cited in the press several years ago in which services for a single out-placed student amounted to $300,000 per year. The study cited in footnote 1 above gives a national average expenditure figure for special education services of $26,400 per student in programs operated outside of the public schools as compared to a figure of $6,000 per student for programs operated within the schools 8. The NCLB data excludes from its analysis schools with special education populations of less than 20. Do you have any sense of how special education students perform in these schools? With such small special ed populations, these schools may be able to more closely tailor programs to students in need—or might lack qualified resources to deal with special ed students. Is it reasonable to assume that all students [schools?] have at least some students enrolled in a special ed program? (3) Since data on student performance on standardized tests are not required under NCLB to be reported for very small populations of special education-identified students that information would only be available within individual districts. Some argue, and I would agree with the argument, that a better measure of performance of special education-identified students is the IEP. 9. It has been mentioned that integration reduces stigma. What are the measurements used for this and are there statistics on stigma and disabled students? (4) The relevant references in McDonnell, McLaughlin and Morison (Casebook #1 Document #2) are Nirge, B. (1970) The normalization principle: Implications and comments. Journal of Mental Retardation 16: 62-70 and Wolfensberger. W. (1970) The principle of normalization and its implications for


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psychiatric services. American Journal of Psychiatry 127:291-297. There are some more recent citations on www.scholar.google.com under “normalization principle” and “inclusion in special education.” Anecdotal evidence from my own experience in observing public schools is that inclusion has been highly successful in undermining stigmatization of the disabled on the part of non-disabled students. It would be a good question to pose to Patricia Moore this evening. 10. Are there many private schools that are focused on students with disabilities? How do students in those schools perform compared to their public school counterparts? (4) There are private schools that are focused on students with disabilities. Many receive referrals from public schools unable to provide the services required by the disabled student. Document #28 covers the case of a New York City parent, Tom Freston, who wanted to place his son directly into the Stephen Gaynor School, a highly-touted Manhattan private school for disabled students and have the city cover the tuition. Other coverage of that case noted that New York City out-places 7,000 of its roughly 100,000 special education students in private schools. Because these schools are private, we do not have comparable student performance data. 11. Have studies shown whether there is a decline in test scores or performance from non-special education students after integrating classes with students identified for special education? (4) I am not aware of such studies. Non-special education students’ performance would be affected by regular education classroom teachers’ ability to differentiate instruction and by the presence or absence of a special education teacher or teacher aide in the classroom. 12. Considering the amount of parental involvement required to get students identified as in need of special education and to continue to obtain support from their schools and districts, have studies demonstrated any correlation between socioeconomic status and numbers of students identified as in need of special education. With regards to identification of students in Greenwich, what checks are in place to verify a student’s disabled status? Were any of the recommendations of the 1997 Study actually implemented and effectual? (4) As you know, students are identified for special education in two ways—one in which the PPT is initiated by the parent(s) and one in which the PPT is initiated by the school staff. In the former case, I would expect that socioeconomic status would be closely correlated with identification, since it takes a very well informed parent to advocate for her child and a very well-heeled parent to cover the legal costs involved with litigation if it comes to that. In the case of school staff initiated PPT’s there is considerable evidence of overidentification of minority students, many of whom would come from families with low socioeconomic status. In Greenwich, identified students are evaluated against their IEP annually. Since it is in the district’s interest to move students out of special education (because of its additional cost), it would be unlikely to keep non-disabled students in special education. And note that the current rate of identification in Greenwich is 11.6%, only slightly above districts in its DRG and very close to the state average of 11.2%.

13. Two out of the four recent Special Education-related Supreme Court cases were decided in favor of the district, and were met with dire predictions that parents would have a much more difficult time challenging their children’s placements. Has any follow-up reporting been done to determine whether there has been a drop in parent challenges and whether such challenges have been less successful than before the Court’s rulings? (2) Since the cases are all quite recent, it is probably too soon to look for trends in the number of successful


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parent challenges to student placements. And recently there has been a reaction against the Supreme Court rulings:

“New Jersey lawmakers recently changed state law to require schools to bear the burden of proving, if there is a dispute with parents, that the educational plans they create for students with disabilities are appropriate. The state’s action, which follows a similar move by New York state in August, is considered a success by parents and advocacy groups interested in chipping away at the public-policy change made by a 2005 U.S. Supreme Court decision on the issue. In Schaffer v. Weast, the high court held that the party that has a complaint about an individualized education program—most often, the parents—bears the responsibility of proving that the plan is insufficient. That’s unfair to parents, who don’t have the expert resources at their disposal that a school district does, argues state Sen. Stephen M. Sweeney, a Democrat, and one of the co-sponsors of the New Jersey legislation. It was signed into law Jan. 13.”46

14. There is an obvious tension between the individualized focus of special education services and the uniform high expectations inherent to the NCLB accountability system. Have any states worked on an assessment system that accounts for the special needs of a heterogeneous group of disabled learners, yet is standardized to the extent that performance data can justifiably be used to sanction schools if their learning-disabled test-takers fail to make progress? (2) The “assessment system that accounts for the special needs of a heterogeneous group of disabled learners” is the Individual Education Plan (IEP). But, of course, it is not “standardized to the extent that performance data can…be used to sanction schools.” The compromise system advocated by many states is the expansion of the number of special education-identified students who are permitted accommodations in testing, including off-year testing based on the provisions of the IEP (an eighth-grade student taking a sixth-grade test, for instance). The DOE currently limits the number of students permitted accommodations to 10% of the SPED student population. 15. What attempts have been made, if any, to “degrade” schools to the extent that Levine argues for in the final article of the casebook? This is a long-term goal of many standards-based reformers and critics of the outdated structure of public schooling, but it seems to want for supporters willing to put the idea to work. (2) I would use the term “individualize” rather then “degrade” to characterize Levine’s argument. I know of school districts that are beginning a conversation about Levine’s ideas—usually captured under the topic of “teaching twenty-first century skills”—but I don’t know of any (private or public) that has moved in the direction of implementing an individualized education for its students. I and a colleague of mine on the New Canaan Board of Education put forward the proposal in 1992 that all New Canaan students be provided with IEP’s. At the time, it seemed to me like a reasonable proposal in a high-performing and affluent district. But now that I’m older and wiser—particularly with respect to parent expectations about their child’s IEP—I realize it is both very expensive and fraught with potential problems. My other board colleagues and the district administration already knew that in the early 1990’s. See also Associated Press, “Wisconsin moves to avert court shutdown of virtual schools,” Education Week, January 30, 2008.

46 Christina A. Samuels, “Some states shift IEP burden of proof to school districts,” Education Week, January 30, 2008.

Yale - 2009 Fall - Readings - Public Schools Policy - Case VI Greenwich

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