Alexa Posny Interview Index of Posts

The series of posts of the substance of my interview with Alexa Posny, the new Assistant Secretary of Education for Office of Special Education and Rehabilitative Services has just ended. I was thrilled that Dr. Posny gave me the interview. She spent nearly an hour answering my questions. She didn't duck the tough ones, and I gave her plenty of thorny topics. She clearly has a vision and she clearly cares about kids with disabilities. I was very impressed with Dr Posny.

One reader had an excellent suggestion - that I create a list of the posts of the substantive interview with Dr Posny, with the topics and dates of the posts. I have placed a link to each post in the part number on the list. I hope that this index should serve as a valuable reference. Here goes:

POST _TOPIC______________________ DATE
PartI Qualities for the new OSEP Director December 14, 2009

Part II The mission and role of OSERS December 16, 2009

Part III Reauthorization of IDEA December 29, 2009

Part IV Seclusion & Restraints December 30, 2009

Part V The Rowley standard; parent's right to participate January 6, 2010

Part VI Early childhood education & poverty January 7, 2010

Part VII Standards by category of disability January 13, 2010

Part VIII Assessment by instructional or grade level January 14, 2010

Part IX Standardized tests; data requirements January 20, 2010

Part X Revocation of Consent; communication January 21, 2010

Part XI The resolution session and arbitration January 26, 2010


A big thank you to Dr. Alexa Posny and her staff. I believe that the interview provided a lot of information for our many and varied readers.

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Alexa Posny Interview - Part XI

My recent interview with Dr. Alexa Posny, the new Assistant Secretary of Education for OSERS (the Office of Special Education and Rehabilitative Services) covered a lot of ground. This is the last substantive post in a series concerning the interview over the last few weeks. At the suggestion of a reader, I will add an index of the topics covered to make reviews easier. "JG" indicates that I am speaking. "AP" indicates that Secretary Posny is speaking.

In this post, Dr. Posny discusses the new resolution session and the possibility of arbitration as a special education dispute resolution mechanism:

JG: So, I find that to be interesting. The dispute resolution systems, the resolution session is a new thing that came in just in 2004. Do you have any feeling as to how that's working or - -

AP: Oh, I've heard nothing but great things about it. Okay, I've heard for both sides, on the school side, as well as with the parent side, because it's a way to at least come together to have a conversation. And so, I've heard that people really - - what's interesting is that some states already had systems like that set up. So, you may not hear as much from them because it was already in place, but for those that didn't, I believe it's been a real boon and I believe we've seen fewer due process hearings as a result.

JG: Yeah, I think that's true. It's definitely kept down the number of due processing hearings and I think for most of the time, it's the right reason. I had concerns, originally, about confidentiality and about the no lawyer sort of emphasis of it, but again, that's I think just my bias coming out as a lawyer, but I think that sometimes they're there for good reasons and I was afraid that it was going to abused in that way, but I have not heard from around the country - -

AP: I haven't either.

JG: - - and it's interesting because I really thought that was - - you know, that was another one of my bad predictions - - my crystal ball is often a little foggy, you know.

AP: Well, but sometimes we don't know and I think sometimes when people say, well, why are you doing that? And it's because there's a part of me saying, we don't necessarily know all the time, but we can at least try. If it doesn't work, well, we'll fix it. I mean, but let's try some of these things and see if we really can get it to work.

JG: Arbitration was in the last reauthorization - -

AP: Yes.

JG: - - in the House bill and then, it didn't make it through the last conference. Do you think arbitration is a good model? I have some thoughts about it.

AP: I don't know. Well, I have some biases about it. My brother-in-law is into that kind of stuff (laughing) and there's a part of me saying, well, does it really work? I don't know. I really don't know.

JG: Alright because it's interesting.

AP: I probably don't know enough about it to be able to weigh in on that and I don't know. I'm one of these and I know I am the eternal optimist, but I really think that we just really need to work together to do this, but I don’t think we need a third party to necessarily come in and say, you'll do this and you'll do that. I don't know. It's too prescriptive.

JG: Okay.

AP: That's my personal opinion.

How to Find "the Law"

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People often ask me how to find "the law." It can be tricky. If everybody could find it, they wouldn't be able to make people go to law school for three extra years. Maybe the difficulty is intentionally disguised as a full employment measure for lawyers? Seriously though those three years do impart certain basic concepts and foster a method of problem solving and I'm glad I did it! Long story short, sometimes you may not be able to find the law.

Special ed law is new law as we have said here before. For me, "new law" is roughly defined as whatever didn't come over on the boat from England. Because special ed law is of a mid-1970's vintage, it is very new law. Older lawyers don't like new law, especially law that combines social policy. They like property and contracts- areas of the law where you can look at a set of facts and provide reasonably reliable advice to a client. Special ed law is not like that.

Special ed law is also constantly changing. By the time we feel things are settled; the law gets reauthorized and it changes again. If ambiguity bothers you, special ed law may not be your thing. Many times multiple good lawyers can give different opinions on the same set of facts. the frustration is systemic.

Anyway, given all of the limitations above, you still can sometimes find the law. You can of course pay for the premium research services. I use these and they are good, but they cost. I try to provide citations in case a reader has access to the services.

But there are also free methods of finding the law. IDEA and the federal regulations are all available on the idea.ed.gov website. There is a link on the lefthand side of the blog. State special ed regulations are often available on the state department of education website- although many of them are hard to navigate.

Decisions by the U. S Supreme Court are available on its website. The United States Courts of Appeal decisions are available on their websites. Many if not all of the decisions of state high courts are available on their websites.

Trial court decisions are iffy. They are often hard to track down. There are sources. For example if you live near a good law library (law schools generally have a good one as do some large municipalities) (there used to be a great on on top of the Civic Center in Chicago. Is it still there?) The best place on earth to do research is the Library of Congress - although you must register first.

Another good way to find the law is to type the name of a case or a concept (be very specific) or a federal reg into a search engine. That's right fire up the google! You may not get an entire decision, but you will likely get a news article or some other useful information.

And don't forget the other resources on the lefthand side of the blog. In addition to the statute and regs there are links to other useful websites and to a number of other excellent blogs. There are also links to the special ed law groups for Facebook, LinkedIn, Ning, Twitter and Plaxo; these groups often have lively discussions and debates on their pages and they are another good place to find resources.

Of course, this blog is still the best place to stay current on special ed law. Also on the lefthand side of the blog are an archive of this blog and a search button specific to this blog. How cool is that? If you subscribe to the blog, you will be sure to receive every post. If there are other resources that are neutral, please suggest them. Because of my hearing officer, mediator and consultant status, I never link to or suggest sites that seem to favor one side or the other. For the same reason, I don't accept invitations to join other groups, etc. But if you know of additional neutral resources, please let me know.

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Alexa Posny Interview - Part X

My recent interview with Dr. Alexa Posny, the new Assistant Secretary of Education for OSERS (the Office of Special Education and Rehabilitative Services) covered a lot of ground. This is the next to the last in a series of occasional posts concerning the interview over the period of a few weeks. "JG" indicates that I am speaking. "AP" indicates that Secretary Posny is speaking.


In this post, Dr. Posny talks about revocation of consent for special education and the importance of communication:

JG: The other thing that came up a lot when I told people who I know - - and many of the people I know are dispute resolution coordinators, I'll confess that - - but had to do with the new regulations, the relatively new regulations, on revocation of consent. There's a lot of bad feeling about that for a lot of reasons. One is that there are allegations in some states that parents are switching the switch on and off a lot. There doesn't seem to be anything in either the regulations or the statute that stop a parent from doing it as much as they want. The other thing is, I guess, the argument that I've heard is that the - - who is the beneficiary, really, of special education? Is it the child or the parent? And if it really is the child, should the parent even have the right to do that? Once they have already - - not in the beginning - - I think everybody agrees, in the beginning, a parent can say no, but once they get in to special ed, can they turn it off.

AP: Well, okay, and you know, you're a lawyer - -

JG: Yes.

AP: Okay, and since when does the parent not have the right to do what he or she wants with his or her child? Does that bother me? Well, of course, it does, but yet, I'm a parent as well. I should be able to call the shots, and if I say no, the answer should be no. And I think that's why this came about. I mean, it is clearly - - shouldn't the parent have the right to say, no, I don't want this anymore? Now, will it cause some concern? Oh, absolutely. And was this heartbreaking? Of course, it was because there's a part of me saying - - you know because I think about neglect.

JG: Right.

AP: And when does this cross the line and turn into neglect or abuse or whatever? And that's a hard line to call, but that's where having been a special ed director and a special ed teacher and all of that that's where having established a relationship with a parent, I'm here to tell you, I would use that and I would never give up. I mean, I would go to that parent and just say, you know, this is it. I've had a lot of those tough conversations. I remember being with a parent and I wrote a minority opinion on an IEP because I was recommending that this child, this severely learning disabled child, go into more of a segregated classroom and I said, I honestly think he needs it. And this was in high school. I said, I just don't think he's going to get the benefit without it and very seldom do I push towards that and the parent disagreed.

JG: Wow.

AP: And she said, no. She said, I want him to be mainstreamed and she said, well - - and she said, I'm going to tell him that he better do well or I'm going to threaten to put him in there. And I said, don't. And I knew this parent very well and I said, don't do that because I said, if you ever find out you need to, I said, he's not going to want to go. He's going to view it as punishment and I talked to her and I said, I really believe this, a year later, and she put her child in the other program. But I want to be able to - - that's the same way, and if we have these relationships with these parents, we should be able to have these conversations and be able to help them through this.

JG: Right. And too often, when I see them as a hearing officer, the relationship has been so badly destroyed. My main problem with that new regulation is that it does not allow mediation as an option, and I don't understand that - -

AP: I know.

JG: - - because I can understand not allowing a due process hearing to override because the idea is that the parent is going to be acting in the child's best interest, as you said, and we do have to use that as the model because that's that law, basically. But if a school district thinks that continued special education and related services would help a child, why can't they call in a mediator and try to mediate the dispute over consent? the current federal regulations prohibit mediation in these situations and I feel that ir should be changed.

AP: Okay, no, it's a good thought.

JG: Yeah.

AP: It is.

JG: But that regulation does not even allow for mediation, which is - - that's - - and again, I'm an advocate of mediation. I think it's - - having seen hearings and mediation, I really think mediation is much better.

AP: I do too and my whole life is basically been spent in special ed because I even did special ed when I worked with the Title I Technical Assistant Centers. I have never been involved in a due process hearing and someone said, well, you must have given them everything. I said, absolutely not. I worked in the Shawnee Mission School District - - extremely wealthy - - and I said, absolutely not and the parents knew it. I couldn't. We didn't have that kind of money. So, I mean, there are ways to work together.

JG: Right.

AP: Absolutely. And I know darn well that in every job I've had as a special ed director, you spend 95% of your time with about 5% of the parents, but it's time well spent.

JG: Right. And I think you're right. And I think that the relationship issues are very important. It's interesting to me, doing hearings both in many places, the different - -

AP: Oh, what a difference.

JG: - - different ends of the scale. And again, some of it, I think, is communication. Some of it is - - I've done some work with ACRES, the rural special education group - -

AP: Yes.

JG: - - and many of the professors involved with that group think that there just aren't enough lawyers in some parts of the country that will represent people. Now, in some parts of the country, like Philadelphia and other urban areas, there are maybe too many.

AP: I agree. Yeah, I know. In Kansas, we're lucky if we had eight or nine due process hearings a year.

JG: And I don't think the goal is to have a lot of due process hearings, but at the same time, I think that sometimes that at the same time that the system is over legalized, it's also under legalized in certain parts of the country and I just - -

AP: Yes.

JG: In many rural areas just to bring a due process hearing is sort of like suing the school, which is sort of like suing the community.

AP: Yes. And that's very true in rural areas.

JG: Right.

AP: Yes, very much so.

Alexa Posny Interview - Part IX

My recent interview with Dr. Alexa Posny, the new Assistant Secretary of Education for OSERS (the Office of Special Education and Rehabilitative Services) covered a lot of ground. This is the ninth in a series of occasional posts concerning the interview over the next few weeks. "JG" indicates that I am speaking. "AP" indicates that Secretary Posny is speaking.


In this post, Dr. Posny talks about standardized tests and data collection requirements:

JG: Okay. The other thing about no child left behind that many people have challenged, including President Obama when he ran, was the idea of putting everything into one big standardized test - -

AP: Yes.

JG: - - and measuring everything on that. Is it fair to do that? If you don't use the one standardized test, what else do you use, unless you develop your growth model you talked about?

AP: Okay, well, growth model is part of it, but what we haven't been able to do and it's just because just the sheer volume and if we have to start somewhere, are the performance measures. I mean, what are the other things? How can they put this into practice? All we're getting is what they - - all we can do is on the multiple-choice tests. We need to do performance. We need to take a look at some of these other skills that they really need to be there and I've always been the biggest proponent of multiple measures. The issue is, is how do we do that for the enormity and the number of kids that we've got to be able to do this. And the other thing is, is that what we've got right now is a summative measure. It is a measure for a point in time. It has validity, it has reliability, and it has merit, but it's not the whole picture. It's only one segment of what we should be taking a look at. You know, I look at what special educators have done over the decades, in terms of the continuous progress monitoring. I mean, I think special educators have been doing this - - instructional focus, leading towards the ultimate - - I think that's some of the best things they do. So, I think we can all learn from each other and that's what we want to see now in general ed. But the thing that special educators need to know - - what they needed to do and what NCLB basically forced them to do, is what are the standards. So, again, I just think it's down to yeoman's job of changing how we think about teaching.

JG: Okay, interesting. I've heard a lot of complaints about that. The other thing that came up a lot when I talked to people I know when I told them I was going to do this interview with you was the concept of data collection, in terms specifically of requirements that change from time to time, either in terms of what the data are or how you collect them or what you do and then, when you compare them, whether or not that's even valid after you've changed them from last year. So, again, I think most of people out there in the states are agreeable to the concept of collecting the data and comparing it, but I think they have some trouble with some of the changes in that. Would you like to respond to that?

AP: Sure. But first of all, let me just state, data is my friend. I use data all the time because I think data tells the story and when you change the data sets or you change any perspective within there, can you compare? No. And you shouldn't, unless you can do some kind of an analysis that says, no, it wasn't changed that significantly. It's kind of like what NAEP does. I mean, they have changed the standards. They have changed the assessments and all of that and yet, they're still able to do the comparison over the course of time because they have done the analysis that allows them to say, no, it wasn't changed that significantly and it's the same. But if the definition is changed, there are parameters that really change the construct and the answers, no. And then, you know, when we changed - - and I'm talking about back in Kansas - - when we moved from the three assessments and changed them to the seven, basically, we put in a jagged line, in terms of the trend, and I said, you cannot compare. You know, from 2005 to 2006, I said, the world changed. And I said, so there has to be a break in there, to say there's - - you really can't do a fair comparison.

JG: Okay.

AP: I mean, that's just part of data.

JG: Right, and I think that's the frustration that I've been hearing mostly. It's not so much that they have to do it, it's just sort of that they don't like it to change so much.

AP: And I'm with them 100%. If I don't have to change it, I won't, believe me.