Fixing Special Ed, Part 6: Special-ed has a fundamental problem: Government rigidity blocks innovation

Steven Miller

When Congress in 1975 passed into law the legislation now known as the Individuals with Disabilities Education Act, the bipartisan majorities were overwhelming.

In the U.S. Senate, the vote was 87 to 7. And in the House of Representatives, it was 404 to 7.

Nevertheless, the law, in truth, constituted only a first stab at solving a nationwide problem that had long bedeviled America’s conscience — namely, that public schools all across the country continued to routinely and thoughtlessly exclude handicapped kids.

What had happened by 1975, however, was that further dithering was no longer politically possible.

Federal courts were compelling states to address the issue, disabled children’s parents and advocates were becoming politically formidable, and everyone in Congress — especially following the seamy Watergate revelations of 1974 — was eager to appear before voters as high-minded and compassionate.

Yet the fact remained that the “Education for All Handicapped Children Act,” as the law was known at the time, was largely untested and experimental.

President Gerald Ford cogently raised that point, noting in his 1975 signing statement that “this bill promises more than the federal government can deliver, and its good intentions could be thwarted by the many unwise provisions it contains.”

He pledged to administratively address some of those problems by the launch date of 1977. Other problems in the law, however, were beyond any administrative fix.

IDEA and ‘the swamp’

In important respects, the law was effectively a bait and switch: Congress pledged to pay as much as 40 percent of the extra costs of the law’s new special-education mandates, but has never neared that mark. Yet the requirements of the law, as strictly interpreted by courts, can be extremely costly.

So, for all practical purposes, the law soon turned out to be a costly unfunded mandate that Congress had imposed on states and school districts.

It is true that, technically, states can decline the less-than-adequate federal money, and so escape the federal regulatory requirements. Indeed, New Mexico initially did this when IDEA’s precursor was passed, only to reverse that decision in 1984.

Yet few politicians want to risk discovering themselves on the defensive against angry parents or against the easy accusations that other politicians could level at them — such as being “woefully deficient in humanity,” and “hostile to children with disabilities,” etc.

Thus drafters of the law were most likely quite aware that, tactically, they already had their fellow politicians across the country cornered.

Decades later, little has changed. Getting politicians to address the many problems the decades have revealed with IDEA is difficult. Although most politicians find it easy to give lip service to reform, most find uninviting the potential furor they might face, wading into the fray.

The result, acknowledged Chester E. Finn, Jr., president of the Thomas B. Fordham Institute, is that “America’s approach to the education of children with disabilities is antiquated, costly, and ineffective.”

“Special education” as we know it is broken — and repainting the surface won’t repair it. It cries out for a radical overhaul. Far too many children emerge from our special-ed system without the skills, knowledge, and competencies that they need for a successful life that fully capitalizes on their abilities. This ineffectual system is also very, very expensive. Yet for a host of reasons — inertia, timidity, political gridlock, fear of litigation, fear of interest groups, ignorance, lack of imagination, and so on — neither our education leaders nor our policy leaders have shown any inclination to modernize it.

Behind much of this failure, noted Finn, is federal policy:

Even though the education world has changed around it — as have technology, mobility, fiscal conditions, demographics, and so much more — it remains essentially stuck where it was in 1975 …

The federal program is input-driven, rule-bound, compliance-obsessed, and inattentive to learning outcomes. It is sorely out of touch with an era oriented to academic standards and achievement, to giving families quality choices among good schools, to intervening in unsuccessful schools, and to individualizing every student’s education, often with the help of technology. It is also essentially limitless when it comes to the costs to be incurred by states and districts following this law.

Yet, even though Finn acknowledges that federal special-ed law “cries out for …overhaul,” he also points out that the law “does not prevent states from putting into place some practices and strategies that work better than others.”

Reasons for states to act

Moreover, from the states’ perspective, there are ample reasons to do so.

Not only do states and districts provide by far the greatest share of special education’s funding, but this part of their education budgets has ballooned in recent decades — notwithstanding all of the extra-legal antics and foot-dragging that have become so common in school systems across the U.S.

For one thing, the rolls of special-education pupils have swelled, as diagnostic criteria have changed. For another, costs in this realm are exceptionally difficult to keep within bounds — due, in part, to straitjacketing federal rules that require “maintenance of effort” and disallow any on-the-record considerations of costs.

That last proscription — powerful in federal law ever since the 1972 Mills decision — was intended to quash an excuse that school districts had long used to justify excluding children with disabilities from the public schools.

In practice, however, banning that excuse merely suppressed a symptom of the more basic problem.

At the level of the excuse, school districts were, the court noted, attempting to make children with disabilities bear more of the burden of insufficient funding than did normal children. Yet the more basic problem was the casual, all-too-human sociopathy that lay behind the discriminatory exclusion itself.

That problem — residing at the level of the human heart — is unfortunately impossible to fix at the clumsy level of federal legislation or judicial mandates. Moreover, as the late British philosopher Michael Oakeshott once famously observed, “To try to do something which is inherently impossible is always a corrupting enterprise.”

And what is less possible than getting school administrators to ignore costs? After all, the very opposite — attending to costs — is basic to not only their job description and their professional mindset but also to most of the community and political pressures upon them.

Parents face disingenuous districts

Thus, the federal prohibition of on-the-record considerations of cost has only pushed those considerations off the record — into the shadows and back rooms, systematically corrupting school districts’ relationship with special-needs parents, who are routinely denied straight answers.

Regularly, special-ed divisions choreograph beforehand their upcoming IEP sessions with parents. These “meetings before the meetings” are a common phenomenon all across the country. Administrators instruct teachers, psychologists and other staff as to what they can say in the joint Individualized Education Program (IEP) sessions and what they cannot. The goal, of course, is to keep parents and guardians uninformed and compliant.

“I represent families,” one California attorney told Nevada Journal, “but occasionally I get invited to speak to school people. It’s very revealing what teachers have to say, because teachers are often told specifically not to talk at IEP meetings. That’s very common.”

Also, public education’s deeper incentives are not really lined up in a way to make many superintendents and principals care about special education, suggested the attorney.

“Special education won’t make their district look great. It’s not going to give them a great football team. It’s not going to show that they’ve got all these kids going to college. And so special ed is not a high priority.”

He described the situations that special-needs families find themselves in as “often just overwhelming.”

“They go in, thinking that the school officials are people that they should be able to trust, and they often find out that it’s the opposite — that it’s just another bureaucracy. In my mind, I kind of equate special education with Social Security or the Department of Motor Vehicles. You’re dealing with bureaucrats, who don’t really care about you.”

While “there are plenty of educators who got into this business to help kids,” he said, “I think they may get burned out, but they’re still there. I think in the administration is the bigger problem: They’re fighting against the people who actually care about kids.”

This happens regularly, say Jennifer Laviano and Julie Swanson, because of the multiple, often concealed, agendas and incentives that operate behind the scenes as school districts seek to predetermine the decisions that will be “officially” made at the IEP meetings.

Laviano and Swanson’s 2017 bookYour Special Education Rights: What Your School District Isn’t Telling You — explains why just about all IEP team meetings start late: “The administrator is usually making sure that whatever decisions get made at the meeting don’t exceed the resources of the district.”

Say, for example, a mother plans to request that her child have a bit more occupational therapy a week — three sessions versus the current two. The school team expects this discussion because the mother shared her concerns with the occupational therapist, who in turn mentioned it either before or during the “meeting before the meeting.”

Informed of this, the administrator may direct the occupational therapist to support his or her desire that the extra session be denied. The administrator’s concern is that a precedent might be set: If other parents learn about the extra session, they, too, might push for the same extra services and that would require the district to expend more resources. And even if the therapist believes the child should have the extra session, the administrator is her boss, determining her own compensation.

So, at the IEP team meeting, after the mother has brought up her desire, the administrator may well say, write Laviano and Swanson:

“OK, let’s ask the team what they think. Does anyone think Susie needs extended school year services?” Silence. It’s like the scene in Ferris Bueller’s Day Off when the teacher taking attendance calls Ferris’s name. “Bueller? Bueller? Anyone?” Silence.

We spend much of our time reading the body language of participants in IEP team meetings. We’ve seen staff members look at each other as if to say, “I hope they don’t ask me anything.” We’ve also noticed that staff members do not say what you know they would really like to say or what they have told parents in private.

What is the problem with this practice? School districts are not legally entitled to predetermine placement and other IEP team decisions without the parents. What can you do about it? Not much, because proving that a team predetermined a decision without the parents is nearly impossible.

What has happened in this case, however, is that the school district has essentially deprived Susie of the Individualized Educational Program supposedly guaranteed her by federal law.

Instead, the administrator implicitly — no doubt unconsciously — deemed Susie’s individual developmental needs as something merely negligible within the great and glorious collectivity that he serves: the district’s industrial-model mass school system.

Unfortunately, this sort of dismissive mindset is still today — as documented by much of the reporting in this series — all too often the default among public school systems’ special-ed administrations.

A virus common since the common schools

Yet this particular ideological virus was afflicting public education long before the federal special-ed reforms of the early 1970s. Indeed, it has been a quietly militant part of public education ever since Horace Mann’s founding of the common schools — a collectivizing movement well documented as an effort to suppress the growing religious diversity of America and shape immigrants drunk on their new freedom into a compliant, manageable mass.

Horace Mann and his Unitarian allies had come back from their tours of Europe possessed by the notion that monarchist Prussia — when traumatized by Napoleon’s swift and violent victories over German armies early in the early 1800s — had blazed a collectivist educational trail that unenlightened Americans must be made to follow.

As Boston University Professor Charles L. Glenn showed in his massively documented The Myth of the Common School, Mann and his allies believed their own, liberal, Unitarian beliefs were the true Christianity, while those of orthodox, traditional Trinitarian Christianity needed to be suppressed.

Thus, a Unitarian professor of moral philosophy at Harvard, Francis Bowen, called the Prussian system “the most elaborate and complete system of common schools which had yet been devised in the civilized world,” which needed to be emulated. Bowen chose to overlook the fact, noted Glenn, that the system “had been developed by an absolute monarchy concerned to control its subjects more efficiently.”

Bowen was just one among many in the American elites who, confronted with distasteful commoners, found it comfortable to evade just why Prussia laid such stress on controlling and directing its subjects’ “intellectual and moral improvement.”

By the time that Woodrow Wilson, then president of Princeton University, spoke to the New York City School Teachers Association in 1909, progressivism had distilled its dislike for common Americans and their messy freedoms into an explicit program.

“We want,” he told the teachers, “one class of persons to have a liberal education, and we want another class of persons, a very much larger class, of necessity, in every society, to forgo the privileges of a liberal education and fit themselves to perform specific difficult manual tasks.”

Many parents of special-needs children have sensed similarly dismissive attitudes coming at them, too:

Because fate anointed your child, and thus you, to be “problems” for the school district — seems to be a common administrative assumption — you should gratefully defer to whatever desires the district system has regarding the resources to be granted to your child.

Lately, however, special-needs families have found increasing ways to escape the district’s mass-education model.

That’s the story that Parts Seven and Eight of this series will explore.


Earlier in the series:

Part 1: Supremes’ decision on special-ed sets higher standards for care

Called ‘a recipe for financial disaster’ by unhappy
public-schools groups

Part 2: New, higher special-ed costs looming for State of Nevada

9th Circuit signals lack of patience with ploys
school districts have used to suppress costs

Part 3: School systems have circumvented federal special-ed law for decades

Los Angeles, Texas, New York exemplify noncompliance styles

Part 4: CCSD asked for special-ed audit then attempted to hide results

Revealed: Records tampering, state and
federal law violations, illegal IEP changes

Part 5: 2001: CCSD, State of Nevada lose precedent-setting Amanda J. case

Apparent shift in district’s strategy follows: Fight until jury trial looms, then settle with parents

Part 6: Special-ed has a fundamental problem: government rigidity blocks innovation

Leaves school administrators stuck within
a system-corrupting dilemma: kids vs costs


Steven Miller is managing editor of Nevada Journal and senior vice president at the Nevada Policy Research Institute.


Steven Miller

Senior Vice President, Nevada Journal Managing Editor

Steven Miller is Nevada Journal Managing Editor, Emeritus, and has been with the Institute since 1997.

Steven graduated cum laude with a B.A. in Philosophy from Claremont Men’s College (now Claremont McKenna). Before joining NPRI, Steven worked as a news reporter in California and Nevada, and a political cartoonist in Nevada, Hawaii and North Carolina. For 10 years he ran a successful commercial illustration studio in New York City, then for five years worked at First Boston Credit Suisse in New York as a technical analyst. After returning to Nevada in 1991, Steven worked as an investigative reporter before joining NPRI.

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