An Interview with Miriam Kurtzig Freedman, M.A., J.D.,: Fixing Special Education—It’s the Climate Change we Like!

Jun 17, 2011 by

An Interview with Miriam Kurtzig Freedman, M.A., J.D., author of Fixing Special Education—12 Steps to Transform a Broken System

No One is Happy With the Special Education System We Have—So Let’s Fix it!

Fixing Special Education—It’s the Climate Change we Like!

Michael F. Shaughnessy
Eastern New Mexico University
Portales, New Mexico

1)      Miriam, as you know, the schools are facing a money crunch, as is the nation. Yet, our politicians have committed to educating ALL children and, for students with disabilities, providing a free APPROPRIATE public education (we all agree that it is free- it is the ‘appropriate’ part that is difficult). So what should school systems be doing, and what can they do?

Thank you for this interview. As you know, the last interview we did in late 2009 after my book, Fixing Special Education, was published is still getting comments! It was the ‘Most Commented’ story for a long time.  People are passionate and have strong opinions about special education—whether they are educators, parents, or others. It’s great to start this national conversation and I appreciate Education News for that.

To your question, honestly, I don’t know if we have enough money for needed services.  Though many people believe that we need more money, I don’t think anyone knows. Let me explain. At this point, we don’t really know where the money is going—some $110,000 per year for special education.  Is it for students in classrooms, or process, regulations, compliance, and litigation?

Let’s back up a bit and remember what an amazing success special education has been since the 1975 law. Now all students with disabilities have access to school programs, the opportunity to learn, and the right to receive a FAPE, a free appropriate public education. I agree with you that defining ‘appropriate’ has been very challenging.

Yet nobody likes the system we have. The special education system desperately needs to be fixed.  I will call this fixing “climate change.”  It’s the climate change we like!   Schools don’t like all the regulations and paperwork that interfere with education. Parents don’t like having to fight against schools. Citizens and taxpayers have issues with the system.

How did we get here?   When Congress created the special education law, it assigned to parents the rights of due process—the right to sue schools if they disagree with services for their children.  Thus, the law created a system that is built on distrust, not on positive relationships. The law is based on the premise that parents and schools are not on the same page, doing what’s right for students; that parents have to advocate for their children and fight the schools in order to get appropriate services. The system is adversarial—parents can’t trust the schools and schools can’t trust the parents. Thus, each side covers its every step with paper and more paper! Scarce resources are spent to document, document, document. The system gets ever more complex. It remains compliance-, not outcome-driven. The system is unsustainable.

No wonder no one is happy with it now.

To change the climate, we need to change the premise of this law—to create incentives to build relationships and trust. Schools and parents have to work together, get on the same page and jointly promote the student’s benefit.

Interestingly, your recent popular story about Finland’s education highlights the need for trust in schools. That successful system is built on trust—parents respect and trust the schools and teachers, and schools trust the parents. We need that trust in our special education system.

Now to your question about rising costs and declining resources and what schools should do.   We have no reliable data on the actual cost of ensuring compliance with the myriad rules and regulations of federal, state, and local governments—costs for bureaucracy, paraprofessionals, paperwork, litigation (and the fear of litigation), etc.  After such a study, then let’s talk about whether we need more money for special education and the job at hand:  teaching and learning in classrooms.  At this time, I’m not sure we do. Are you? Is anyone?

In terms of trust and disputes, hopefully I will have a chance to share two reforms we created in Massachusetts—that we’re very excited about!  They are:

–Procedures Lite. It confronts and resolves the ‘too much paperwork’ and trust issue directly.

–SpedEx. It provides a child-centered, FAPE-driven, quick, and free dispute resolution option.

2)      Are parents simply going to have to be trained to do more for their children who have autism, mental retardation, and learning disabilities?

You’ve grouped together three very different disorders and student groups.  Let’s remember that under the law, IEPs (Individualized Education Programs) cannot require parents of students with disabilities to do more for their children than other parents do.  Within that legal framework, it’s hard to make a blanket statement about what parents need to do, since every child is different and every program is individualized.

3)      What about parents of gifted children? Are those gifted kids getting the short end of the stick?

Yes, I believe they are and am very concerned about this.  According to Genius Denied (2004), we spend 143 times more on special education than on gifted education. 58% of states don’t even require gifted students to be educated according to their needs. Think about that!

While there are excellent programs for these students in many schools, our laws largely ignore them. Schools are mandated to ‘close’ only one of two gaps. The NCLB (No Child Left Behind Act) focuses on ‘closing the gap’ between low performing students and those who are at grade/age level. That’s well and good, but what about the second gap, the gap between students at grade level and their growth and potential?  The law is silent.  We need them to be the best they can be, in order to succeed among the best and brightest in the world.  Continuing to ignore these students imperils them and our nation.

Thus, while we actually have two important gaps that schools should close, shockingly and sadly, our policies ignore one of them.  Your question is excellent.

4)      While it is easy to refer to a child as having a ‘learning disability’ many of them have multiple problems with organization, frustration tolerance, low self-esteem, etc. How should parents get all these things addressed in the IEP?

Putting aside the fact that the terms ‘learning disability’ and ‘specific learning disability’ confuse many of us, let’s focus on your second question about parents having to get ‘all these things addressed…’

Think about that!  This question takes us right back to the ‘climate change’ and trust issues discussed earlier.  We seem to forget that it is the schools’ job to get ‘all these things’ covered—not the parents’ job.  Our system is upside down and backward.  Educators should advocate for children. I believe that if we ended the adversarial, bureaucratic, compliance-driven, and litigious climate in our schools, they would step up to the plate again. I well remember from my days as a teacher, before the special education law, we teachers were child advocates. This legalized system gets in the way.

It will, of course, take an honest national conversation and a leap of faith for parents to let go of ‘rights’ and focus on results. I believe we can do so. We need to change the incentive systems to build relationships, so schools can regain their advocacy role and parents can regain their trust. How do we start? Perhaps through ombudsmen, school-based review committees, independent consultants, or other creative approaches.  The mantra should be improved teaching and learning results, not compliance ‘rights’ or getting ‘all these things’ on IEPs.

5)      Let me provide the one phrase that I hear from teachers, the administration “drops and runs “kids into regular education. What should a teacher do?

HMMM. I’m not familiar with that phrase.  But, if you’re talking about inappropriate inclusion, I’m with you. Inclusion (also called mainstreaming) works well for many students, but not for others. Based on my 30+ years as a hearing officer and school attorney, I believe that we went astray because ‘inclusion’ is driven by civil rights, not education.  Until we’re willing to put teaching and learning at the top of our ‘to do’ list—what actually works for students—we will not have a good system.

Inclusion should be a means to an education—not an end in itself.

For example, let’s be honest—many 1:1 aides are hired, not to improve teaching and learning, but to make inclusion ‘work.’ Makes sense? No. The tale wags the dog.

6)      Is mainstreaming and inclusion the answer or will these students just graduate with minimal academic skills, some pre-vocational skills, and maybe lots of social skills?

As I mentioned above, the issue should be what setting and services work for the student; not, how do we make the student fit the inclusive model we think the law favors. Inclusion and mainstreaming are not always pedagogically sound, a ‘best teaching practice’ to improve teaching and learning.  We have to stop driving policy through a legal and philosophical prism and let teachers tell us what works in classrooms for real students.  They are the experts.

7)      Miriam, constantly, I get a daily dosage of special education when school systems e-mail me to ask “ What is Benign Congenital Hypotonia ?” and what are some accommodations for ataxia telangiectasia? And will H1 N1 result in mental retardation?  What is going on out there in the world of special education?

Interesting questions you’re fielding—many of them medical.  As an attorney, I can’t answer them since. As you know, special education (and Section 504) deal with individual children—not groups or trends.  My public school clients provide appropriate services for individual children—no matter what the diagnosis or how rare an impairment may be.

8)      Teachers are up until midnight doing forms, and IEPs . You and I know the burn out rate. Do we all just accept this?

No. We need to stop the paperwork burden on special educators. If we don’t, we will continue to see good teachers leave special education.  Even back in 2002, the SPeNSE Fact Sheet (www.spense.org) reported, “53 percent of elementary and secondary special education teachers report that routine duties and paperwork interfere with their job of teaching to a great extent.”  [Emphasis added]

It has not improved since then.   We should not just accept this burden because it does not work for kids. Paper work is one of the many things wrong with special education. Doing paperwork is not teaching!  The system should focus on teaching and learning, not compliance.

9)      IEP meetings on Saturday- appropriate or time saving?

Probably not. Schools are not usually open on Saturdays.  Far better to try technology—conference calling, video conferencing, etc., so meetings happen at times that work for schools and parents.

10)  You mentioned some reforms in Massachusetts. What are they and can you tell us about them?

So glad you asked.  Let’s talk about them!

SpedEx- how does it work in Massachusetts, and would it work in Alaska?

YES! SpedEx is an innovative, child-centered and quick alternate dispute resolution model offered to schools and parents by the Massachusetts Department of Elementary and Secondary Education (ESE). It evolved out of discussions at Special Education Day and responds to the frustration many of us have with the current adversarial system. SpedEx is free to parents and schools, is non-adversarial, and involves no attorneys. SpedEx can kick in when there is either a rejected IEP or a hearing request. It resolves the dispute within 30 days.

In brief, here’s how it works.

  • Parents and schools voluntarily agree to use SpedEx in a dispute.
  • They mutually agree on which consultant to use, selected from the ESE list.
  • The consultant reviews records, meets with parents and school personnel and the student (if appropriate) and writes up his/her recommendation for the student—a program where the student will receive a FAPE in the least restrictive environment. This report becomes part of the student record.
  • The parents, school, and consultant meet to review the recommendation.
  • If parents and school agree, the IEP is developed and signed.
  • Within a month or so, the consultant observes the child in the accepted  program.
  • If the parents and school do not agree, they retain all of their due process rights and proceed as they choose.

We are very excited about this innovation.  People are learning about it as a great way forward. For more information, please visit www.mass.doe.edu/sped/spedx.

Sure, it would work in Alaska—and other states—if the state education department supports and funds it. Our Massachusetts ESE has supported SpedEx with funding for several years. We are very grateful for that support and we hope to expand upon this creative innovation.

Tell us about Procedures Lite.

Procedures Lite, a voluntary option, is wonderful in the right situations. It’s free to everyone, but it’s not for everyone. It’s built upon and expands the existing trust and positive relationship between school and parents.  Schools and parents who already work well together with an accepted IEP can voluntarily agree to use Procedures Lite (PL) going forward.

PL also evolved from discussions at annual Special Education Day events.  Many participants cited the paperwork and regulatory requirements as realities that impede relationships, destroy trust between parents and schools, and take time away from teaching and learning for students.   The purposes of the PL option are to:

  • Promote effective services by streamlining special education procedures
  • Enhance communication and trust between schools and parents by exchanging thoughts­­­­­, ideas, and concerns without the backdrop of cumbersome regulatory requirements
  • Allow for more time for teaching and learning.
  • And, most importantly, to focus efforts on student learning by diminishing bureaucracy and reducing paperwork to improve student performance

Generally, schools and parents volunteer to develop PL agreements after they have successfully completed at least one year of special education programs/services under an accepted and implemented IEP.  Also, usually, the PL option is used for two years. In the third year, the parties revert to federal and state procedures for the development of that IEP. After that, assuming the IEP is accepted and implemented, the parties can again choose the PL option going forward.  And of course, since parties that use PL knowingly waive rights, they also agree that either party can choose to end PL at any time and revert to the regulatory requirements. Of course, parents or schools that wish to pursue PL  and have concerns or questions about this option, should consult with their attorney.

It is a non-binding model PL prototype is available that parties may wish to adapt and develop between themselves. For information, please visit  www.specialeducationday.com.

We’ve been inspired to watch how PL works in several Massachusetts districts and hope that more districts initiate it.  PL is a trust building approach that parents and schools are happy with. Talking about PL is a great way to end this interview!

11)  What have I neglected to ask?

I think you covered the bases well and asked thought-provoking questions. It’s been an honor to try to answer them. My goal is to help educators, parents, and policy makers realize that they can make a difference, that climate change is possible at the local levels, and that we should work for the climate change we like!

Let’s continue the national conversation to get the job done right for all students. Excellence, equity, and fairness for all students should be our goals. Also, if your readers want more information about my books, I invite them to visit www.schoollawpro.com

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