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Miriam Kurtzig Freedman: Special Education 2.0

Jun 8, 2017 by

An Interview with Miriam Kurtzig Freedman: Special Education 2.0

Michael Shaughnessy –

1) Miriam, first of all, can you tell our readers a bit about yourself and what you do?

Sure. And thanks for this opportunity to tell your readers about me and my new book, Special Education 2.0—Breaking Taboos to Build a NEW Education Law.

I’ve worked in public education all my life—first as a teacher (mostly in junior highs),  then as a statewide hearing officer in Massachusetts and, for many years, as an attorney at a Boston law firm, representing public schools in special education and Section 504. That led me to become a presenter around the country and a writer of articles and several books about the law and education.  I’ve loved it all.

As I see it, public education is the backbone of our nation—without it, we become a splintered people. I’ve personally benefited from our schools, from the day in 4th grade that I walked off the boat in Hoboken, New Jersey, as an immigrant, to the days my children attended public schools.  I wrote the book to as a way to “give back“ and make a difference.  Readers who are interested in learning more about my work can check out my website, http://schoollawpro.com, or Amazon author page, http://amazon.com/author/miriamkurtzigfreedman

2) Now, tell us about your new book Special Education 2.0. What prompted you to write it?

I’m very concerned about today’s public education—and, here, let’s focus on special education. We are going in the wrong direction. I hope this book will inspire a long overdue national conversation and help us rebuild a new law.

The book is called Special Ed 2.0, per Silicon Valley’s naming model—when tech companies create new and improved versions of their products, they use a higher number. IPhone 6 becomes IPhone 7. Here too, let’s view our first federal special education law, the IDEA signed by President Gerald Ford in 1975, as Special Education 1.0, and my proposed new law as Special Education 2.0.

Special Ed 1.0 was groundbreaking. It accomplished its mission and changed schools, minds and hearts.  The mission was to provide access to all students with disabilities to an appropriate education.  At the time, many had been excluded or sat in the back of classrooms without services.  That all radically changed!  The law now provides access for individualized programs for all students with disabilities.  US schools now educate some 6.5 million students under this law. The law taught us many things about how to evaluate and educate students, team up among staff, and educate all students through effective public education programs.

Yet, after fulfilling its mission of access to schooling, the law continued to grow and morph. Today, it is dysfunctional in many ways. We need to rebuild a system for our era, a 2.0 law.  To do that, let’s learn from the past, adopt what works, and change what’s broken.

3) Are there specific realities and challenges you’d like to highlight about the current system?

            Yes, I think that would help to frame the discussion. For starters, consider:

  • Underlying this law is the fact that special education students and their parents are the ONLY groups with an individual entitlement. The law is a private enforcement system, saddling parents with the right (and responsibility) to enforce it. A monumental (and I believe wrong-headed) task to continue into the future.
  • We now educate 13-14% of all students under this law. Of the 55 million students in US public schools, 6.5 million are covered.
  • Yet, we don’t know the true cost for educating these students. It’s estimated that special education services cost 21% of school budgets. To that, we need to add the cost of general education that these students receive–together, estimated at around 40% of budgets.  As an uncapped entitlement, special education continues to distort school budgets. If these vague high numbers don’t shock us to act, what will?
  • These estimates leave just 60% of school budgets for 86% of students—many of whom are also needy, at risk, bored, average, bright, etc. You get the picture.
  • While 5-6% of students are gifted and talented (G & T), the US spends 143 times as much on the 13-14% of special education students as it does on G & T students. Our students used to be tops in international comparisons; they no longer are.  Foreign kids are doing better and taking our university spots.  Given the imbalance of spending in various silos, often ignoring our top students, can we be surprised?
  • The law requires teachers to implement endless bureaucratic hoops, attend meetings and do hours of paperwork, leaving them only about 27% of school time to actually teach! Schools practice defensive education on the backs of teachers. The law is still input, not outcome, driven.
  • Many policies that now affect all students are driven by special education—with scant (if any) objective research support. For example, inclusion and the least restrictive environment (LRE).  Classroom location—where students are placed—is often the focus of these policies.   I’m skeptical that the inclusion movement has benefited (or is even focused on benefiting) all students, including the 86% who are not disabled, in equal measure.  Further, the focus on inclusion ignores other approaches that have strong research support.
  • If these realities don’t concern us, what will?

4)         Does your book make recommendations?  Can you share some with us?

Yes, and thanks for asking.  Special Education 2.0 is a much needed antidote to the above reality. It breaks out of the special-education reform mold that has tried to fix this law through periodic tweaks and reauthorizations. It provides timely and important information and analysis.  With the new administration in Washington, the issues raised here are timely and urgent. In a call to action, the book links its proposed rebuild to the current movement toward parental choice and vouchers.

I’m not talking revolution. I’m talking evolution.  As mentioned above, we need to build on the success of the IDEA, the nation’s first law, Special Ed 1.0. Let’s start with a vital and robust national conversation.  So far, that discussion has been taboo — like a third rails that neither policy makers, educators, nor government officials have been willing to touch.

I believe it is urgent that we take a fresh look at special education in the context of public education for all students.  It is time for us to take a step back and not focus solely on the students with disabilities community. We need to focus on ALL students.

From my perspective, I don’t see anything getting better unless we start thinking in those terms.  To get us started, I propose that we start with an open conversation among those of us who share a three-part vision:

First, we want to have excellent and equitable public schools for all students.

Second, we see that the current special education system is broken in many ways—it is too adversarial, not outcome-based, too bureaucratic, etc.—for starters.

Third, we have an open mind about how to move forward to benefit all 55 million students in US public schools.

5)  Can you be more specific about your recommendations?

Yes, I call them Directions. There are five.

Direction 1— let’s focus on equity and excellence. To do so, we need a laser focus on improving general-education outcomes for all students (from the neediest strugglers to the most advanced). Why? We know that better general education means we will need less special education and more children will be well served. We need challenging standards and timely interventions, through objective, research-based approaches. Let’s balance mainstreaming/ inclusion with the education needs of all students and focus on what works; e.g., the LIN (least intervention necessary) instead of the LRE approach, performance-based teaching and learning, etc. Special Ed 2.0 frees teachers to teach and parents to parent. It funds programs equitably for all—based on objective research.

Direction 2— let’s boldly meet modern needs and realities of students with disabilities. The world has changed radically since 1975—and so have the students served by special education. No longer centered on those with significant and profound needs (just 10–20 percent of today’s cohort), 80–90 percent of students served by special ed today have mild and moderate needs.  I was pleased to see that the Supreme Court in Endrew F. v. Douglas County acknowledged this reality and, in effect, split in the special education community into two groups, as I recommend in the book.

Direction 2 builds upon this reality in a radical departure from current law. One size does not fit all.  I recommend that we convene a task force to study how to serve the smaller group—the 10-20% of students with severe and profound needs that are often complex, challenging, costly, and may require the cooperation of multiple federal and state agencies.

Direction 3— let’s define and require positive participation by educators, students, and parents. Each has a vital role to play in this partnership.  Education is an active (not passive) activity for participants who all need to roll up their sleeves and get to work—together.

Direction 4— in focusing on the 80-90% of students described above, let’s create a trust-building, collaborative governance approach for all students, without an individual entitlement for any group or private enforcement by any group.  This radical departure from current law needs open and honest discussion.

Direction 5— and finally, in this evolution, let’s celebrate and build on Special Ed 1.0’s success to create a new law for all students.

The book invites readers to join in, think BIG, and dream aloud. Together, let us ask—WHAT IF?  It is time—as we cannot continue to feed the broken system. It’s time to rebuild, not tweak!

6)         Your recommendation is both common sense and radical. How shall we proceed to consider them?

Great question. We need that national conversation, to break taboos and allow people to have an honest exchange of ideas—reflecting the whole school community. I am currently involved in getting those conversations going around the country—an exciting and optimistic step!

The time to act is now. I am concerned that if we don’t fix this broken system, competing forces will further erode our national treasure—our schools.

7) Obviously, you know about the recent Supreme Court ruling about kids with autism, and special education services. In your mind, what were the most salient points made in that ruling?

While headlines at the time seemed to focus on the student’s “win,” as a school attorney, I saw the decision as far more nuanced, reasonable and workable for schools and parents alike.

First, it’s fascinating that the Supreme Court decision seems to adopt the second of my five Directions for a new law (discussed above).  What do I mean?  It differentiated between Endrew F., a student whose needs meant that he was not functioning in the general curriculum and Amy Rowley, the student in the 1982 decision, Rowley v. Board of Education. Amy Rowley, in spite of her deafness, was doing well in the general curriculum. For students like her, the Supremes held that in order to provide a free appropriate public education (FAPE), a school’s program needs to be “reasonably calculated to provide educational benefits.”  In 2017, for students like Endrew F., the Supreme Court extended that standard to “a program that is “reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”  Let’s explore this grouping further through the task force I recommend.

Second, this decision is a workable restatement of current practice. FAPE for students with disabilities was defined by the Court more than 30 years ago in Rowley. In 2017, the Court upheld that standard and rejected the parents’ argument for a higher standard of an ideal, maximizing, or equal program.  The Court also rejected the standard that was applied by the 10th Circuit—namely, that a program needs to be “merely more than de minimis.”  Since many states, like Massachusetts where I practiced law for many years,  already had a higher “meaningful” benefit FAPE standard, it’s hard to see how this decision will make a real world difference in many states. Stay tuned. In short, the Supreme Court followed Rowley and clarified what a FAPE means for a subset of students with disabilities.

The Court gave great deference to the expertise of school personnel. I welcome this! School personnel are the experts and I appreciate the Court’s view.  Undoubtedly this decision will not settle the matter and unfortunately, we’ll have disputes and lawsuits about all the words the Court used for years to come. Having great deference where it belongs–in school personnel expertise—is a plus and should help resolve disputes.

More can be said about this decision, but I’ll stop here.  As I see it, the decision was reasonable and workable for schools and parents alike.

7) Now, let ‘s discuss those kids with severe/profound needs- for example the student who is both deaf and blind, the child who is non-ambulatory, nonverbal and not toilet trained, and the student with severe autism. What kinds of guidelines do you have for those parents?

Thanks for this challenging questions. You’ve grouped many individuals together, including those with severe and profound needs.  I see this as a follow-up question to the discussion of the recent Supreme Court decision.  I am skeptical that current law serves students with severe and profound needs and their parents well, and I urge us to convene a task force to come up with a better system—that may well involve other agencies—medical, social, etc.

8) What is your opinion about learning styles or learning preferences? Should all kids be given a learning styles test, and then should teachers adhere to it?

I generally don’t get into classrooms and what teachers should do. But, let me note this. As I read the literature, while objective research has debunked the “learning styles” notion, it remains popular! I see the continued use of “learning styles” as an example of where special education goes astray—away from objective verifiable evidence.  I urge us to create programs based on what we know actually works. That need underlies Direction 1 and my entire book.

9) What have I neglected to ask?

You’ve asked thought-provoking questions. It’s been an honor to try to answer them.  I’d like to add my thoughts about the challenge we face: what if we don’t start that conversation, what if we don’t dream big, and move boldly?

As I see it, we face a challenge to public schools in a new powerful force in Washington.  The Secretary of Education has made the point: if public schools don’t serve all students well—she will help them opt out. Vouchers.  Choice. Etc.  It’s up to us to make the schools work well.

Special education law has many legal challenges and ambiguities because of the way it was written.  It is still input driven, even as our world has become outcome, research-based and accountability- driven. It’s adversarial, requiring parents to be its enforcers, and setting up legal battles inside our schools!  It’s grown a huge “mansion industry” of experts, lawyers, advocates, etc. It is a bureaucratic stranglehold in our schools. It’s expensive, but lacks data that our money is well-spent. If these realities don’t shock us into action, what will?

We need public schools to work for all students. We need to create a new law that builds upon what we’ve learned over the past 40 plus years.  The need is urgent and the time to converse and act is now.

For more information, readers are invited to check out my website, http://schoollawpro.com, or Amazon author page, http://amazon.com/author/miriamkurtzigfreedman

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1 Comment

  1. Thanks for posting. Let’s get on the road to 2.0!

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