Saturday, January 22, 2011

Can There Be a Middle Ground on the FAPE Standard?

Chevrolet Tahoe Police packageImage via Wikipedia
One of the main guarantees of the special education law, IDEA, is that a child with a disability is entitled to a free and appropriate public education, or "FAPE."  

IDEA is overdue for reauthorization, which includes the opportunity to amend the law.  In the seminal special education ruling, the U. S. Supreme Court in Bd. of Educ, etc. v. Rowley, 458 U.S. 178, 102 S. Ct. 3034, 553 IDELR 656 (1982)  established a two-part test for determining whether a school district has provided a free and appropriate public education to a student with a disability.  There must be a determination as to whether the schools have complied with the procedural safeguards as set forth in IDEA and an analysis of whether the Individualized Educational Plan (or  "IEP") is reasonably calculated to enable a child to receive some educational benefit.  A school district is not required to maximize the potential of a student or guarantee his success. 

School district lawyers generally say that the standard means that the child is entitled to a serviceable Chevy, not a Cadillac.

That was in 1982.  Since then many commentators, and one U.S. District  Court, have questioned whether the bar for FAPE should be higher.  

Unfortunately, though, most of the debate has been whether the standard should be "some benefit" or potential-maximizing. There has been no middle ground.  Sometimes compromise can be a good thing, or at least that's what Henry Clay said.  

So can there be a compromise on FAPE.  Can we create a standard that is more than some benefit, yet not as high as potential maximizing? So it would be not a starter Chevy or the top of the line Caddy, lets say a Chevy Tahoe

What do you think is there a middle ground?  Let me know.

By the way, I continue to be interested in your suggestions for changing IDEA.  Remember I am collecting them.  Thanks.

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  1. Benefit comparable to that provided children without disabilities.

  2. First of all, we have to talk about the huge conflict of interests that rest with schools and special education. Sometimes, this gets in the way of having ethical and honest conversations about the students they serve.

    1. Schools receive dollars, even if there lacks iron-clad evidence that services have been given to a student. (i.e. In the medical profession, evidence of service delivery is clear and is accessible to the client. Additionally, when dollars are given, the claimed service and charges are shared with the client or the clients' representative.)

    2. Schools do the testing. And, at times, the testing utilized is the testing that will only yield results in the schools' favor. For example, if the schools only have X, Y, or Z program, the only results from the testing will be that the student must be assigned to X, Y, or Z program. Testing that might result in A-W placements are not utilized. Hence, not only are
    students simply given what is available, they are denied placements and services that may yield to a better future and/or quality of life.

    3. Once testing is done, schools typically control service delivery and placement. So, we have the student's IEP really isn't individualized (right out of the starting gate), since it is hijacked by testing and evaluation systems that are not ethical. At least if it was easier to get an independent evaluation, or have a medical diagnosis honored (versus the rhetoric of "education diagnosis"), dollars could be saved and one layer of the conflict of interest could be somewhat eliminated.

    4. Families who question this are vilified, and the folks that ESEA professed would be able to keep the system honest are left with either their hands tied, or broke from having to privately serve their children and fight a system that is void of totally honest dialogue, across the system.

    How can we even have this conversation about "Cadillac" versus "Tahoe" when the conflicts of interest gaps are huge? AND, because the school lobby is wealthier than families (and they can travel on taxpayers' dimes, while families have to work, while education lobbying forces are working against students and families, making it easier to vilify and retaliate against people who question the integrity of the system); the hits just keep on coming!

    Fix the ethical issues, which some great educators (and there are many) and outspoken family members (whose words are not an "ax to grind," but instead are the tip of an iceberg of true issues) would not be afraid to admit, if there was an open forum for this dialogue. How many times to we have the honest conversations before IEP meetings, but when we get to the real meeting, everyone sits silent in fear. Why should any one or two decision-makers have so much power to make people fearful, especially when real conversations are needed for the benefit of the child. This just isn't right.

    It may be possible to have Cadillac potential outcomes on Tahoe budgets! But, there are some serious issues that need to be repaired.

    Families lobbied for special education. Were friends of special education. Then, somewhere, that was lost. When will we all be on the same page again?

    I look forward to authentic help for all children, without the expectation that parents have to give up their values, visions, and priorities (with and for their students).

    "Chevy versus Cadillac" is more like "Car or No Car At All."

    Inappropriate services, due to unethical evaluation, is like having no car at all, and can actually put a person at educational risk and cost the system more.

    1. I am from the state of Florida... to quote our Governor Rick Scott, "The K-12 system must also meet STEM demands in both the K-12 setting as well as in its workforce education programs. Our students must meet high academic standards with strong preparation in science and math in order to be prepared to compete with an increasingly competitive global workforce. We must continue reforms that reward and promote excellence in the classroom, demand accountability of our schools, and ensure that our students are receiving the best education possible. "Why are no good lawyers successfully contesting working chervrolet vs cadillac analogy in the courts when it comes to students with disabilities and eduction? How old is this case…30 years? Neuroscience, behavioral management, digital and virtual technology… I mean, lets face it, in this decade the American Cadillac and its design appeal and state of the art technology may give the German BMW a run for its money in some circuits…;but …… a Chevy against a Honda or a Toyota? People don’t buy a ‘Civic’ or a Corolla’ 'because they are nice cars… they buy them because the ‘brand’ Honda and Toyota are badges about as close as you can to a guarantee of quality and reliability.' There's a perception among many buyers that Japanese cars are simply better than American cars and that's why they don't prefer working chevys... It also sums up why the next decade needs to herald action by smart civil rights lawyers to steer quality and equality back into special education in the United States of America.

  3. Board has maximum policy

    use Section 504

  4. I absolutely agree with the above post. Though there are some great schools which do a great job with spec ed students, in my experience, IDEA assumes too much integrity from the schools which simply does not exist. It is counter-intuitive to 'demand' a practically non-existent standard of progress, and expect a school district to go out of their way to try to educate the child when they can, in many cases, get off scot-free doing nothing. There is little motivation on the school's part to even attempt any real, solid educational gains.
    HO's have repeatedly allowed trivial benefit because of the presumption that the school knows what is best. The fact is the school is a self-interested entity which seeks to serve its own purposes while getting paid to not serve the child's.
    Lastly, It is too easy for the school to blame the child for lack of progress because the child "can't" and IDEA has nothing in place to stop that. Until the standard changes, spec ed children remain under-educated and IDEA provides little help to those who try to successfully push for these children to achieve up to a range consistent with their actual potential.

  5. It is interesting that in movies like "Waiting for Superman" the discussion is always about excellence in education for the students. I believe Congress and we as a country need to have this discussion for all children including those with learning differences. If we fail to educate any population of children we pay the price later in prisons, hospitals etc. So the question really is do we want to pay through our education system or later on as the children grow up and become adults. It seems for now we have chosen the latter course of action not only for special education students but for many students. My belief is that we need to consider our entire education system from the way we train our teachers to the way we operate our schools.

    1. I work in education. Don't be so quick to assume schools are this evil entity out to deny your child an education. These educators are your neighbors and members of the community. It benefits us to have students succeed. You wonder as to why the school has so much control over assessment and services and service providers.... I received a prescription from a medical doctor stating a child needs a dog for his anxiety. Right there, a parent goes out and gets a private opinion, in which people with no accountability (and most of the time no understanding of public education) offer services in which schools have to provide and pay for. It is no secret that parents can essentially go out and "buy" a diagnosis. I see it over and over, it is always the same Doctors or psychologists. Your child's right to FAPE is not a right that can come at the expense of others (non-disabled). The request I receive each year would easily bankrupt our district if they were obliged, then what will you do, enroll in the next district and do the same. We do need to have an honest discussion, I have colleagues that need to go, and there is no way to get rid of them. We need to have an honest discussion as a nation, why are our schools so underfunded? Why does the military and prisons (in California) get their budget cuts after education has already been gutted. I don't want to see special ed kids left out in the cold, or become failing members of society, but it is not as easy as "give parents everything they want."


    Take a peek at this YouTube video. Of interest are each of the comments. They ring so true.

  7. Thank you for acknowledging the integrity of some school programs. It saddens me to think there are schools out there that continue to test for X,Y,Z without consideration for the individualized needs of the child. I am very proud of the services offered in my district and always seek to provide what is in the best of interest of students.

  8. Folks,

    Thank you for all of the stimulating comments.


  9. PA's highest level

  10. I think there is benefit to the student with special needs when an IEP is in place and there is accountability and portion of responsibility is given to ALL of the team members, including the parents, and the students when they reach Transition age (as they are able). I am saying this as a Special Education Teacher and as a parent of a child with physical and cognitive special needs. I have never relied on the school, he is my son and I am his first and most qualified teacher. Kids with disabilities should expect to work harder than their typical peers and a DISability is not an excuse, it's a DIFability. Life is not equal or fair and kids/ parents must learn how to deal with the hand they are dealt. And IEP can level the playing field, but if a student doesn't do their work, won't try when he/ she is working with the special ed teacher, or if the kid has ADHD to the extent that he cannot focus for 2 seconds without medication, then what is a school supposed to do??? We are not miracle workers and we cannot cure children of their disabilities, no matter what "No Child Left Behind" thinks.

    The schools and teachers do their best, they may be nudged to do something different by administration, but I don't see why... the schools get money for kids with special needs. And if they do it right, some schools can make money by slave-driving their teachers.

    So let's not lose sight of the big picture- schools have a responsiblity, but so do the parents and the students themselves as they are able. When the team works together, great things can and do happen, but when parents expect the school district to do their job and when parents parents disable the child or have low expectations for their child, then not a whole lot of good is likely to happen, no matter how good a school district is.

  11. P.S. do a little more research as to the $ schools get to serve disabled students, it is no where the amount you think. I have seen our reimbursement levels as low as ten percent!!