Thursday, February 3, 2011

Big Reaction to My Call for a Middle Ground on FAPE Standard

View of Capitol Hill from the U.S. Supreme CourtImage via Wikipedia
In a post last week, I suggested that maybe there could be a FAPE standard that does not encompass either extreme. Since 1982, which is a long time when you are dealing with new law, when the U S Supreme Court decided Rowley, the FAPE standard has been that a school district must create an IEP for a child with a disability that is reasonably calculated to confer some educational benefit.  The court described this as the basic floor of opportunity. This case is the cornerstone of special education law.

The lower courts that decided Rowley before it reached the supremes ruled, based in part on explicit language in the legislative history of IDEA's predecessor, the EHA. that the standard was that a school district is required to maximize the student's potential.  Parents often argue that this should be the standard.  Many of us feel that our schools should maximize the potential of all children.  We are not willing, however, to pay the level of property taxes necessary to support such an education system.

Last week I suggested that maybe there can be a middle ground.  We received many thoughtful and heartfelt comments on the blog, numerous emails, and reactions on our related facebook special education law group.   I believe that this may be a debate worth having- especially with IDEA overdue for an overhaul.

As I have argued here before, special education law is new law.  New law is whatever did not come over on the boat from England. The cycle of change is a part of the deal: amendments to the law, new federal regs, new state regs, some hearing officer decisions, some court rulings.  Just when we all are pretty comfortable, it's time for reauthorization and amending the law once again.  The cycle of change continues.

So change is not foreign to this area of the law.  In fact we embrace it.  So why not reconsider the FAPE standard?  

This change would have to come from Congress.  One District Court held that the FAPE standard was outdated, after a very long delay the decision was reversed by the Ninth Circuit Court of Appeals.  Congress will be eventually reauthorizing IDEA, it is overdue, and amendments will be considered.

So what do you think?  Please let me know.

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  1. Jim -- why the assumption that the law needs to change? High expectations and maximizing potential are already in the law, and are being ignored. Section 601 if IDEIA 2004 says:
    "Since the enactment and implementation of the Education for All Handicapped Children Act of 1975, this title has been successful in ensuring children with disabilities and the families of such children access to a free appropriate public education and in improving educational results for children with disabilities.
    "(4) However, the implementation of this title has been impeded by low expectations, and an insufficient focus on applying replicable research on proven methods of teaching and
    learning for children with disabilities.
    ``(5) Almost 30 years of research and experience has demonstrated that the education of children with disabilities can be made more effective by--
    `(A) having high expectations for such children and ensuring their access to the general education curriculum in the regular classroom, to the maximum extent possible, in order to--
    ``(i) meet developmental goals and, to the
    maximum extent possible, the challenging expectations that have been established for all
    children; and
    ``(ii) be prepared to lead productive and
    independent adult lives, to the maximum extent

    Virginia has never been a particularly progressive state in education, but Virginia law requires maximizing potential for all students: " The General Assembly and the Board of Education believe that the fundamental goal of the public schools of this Commonwealth must be to enable each student to develop the skills that are necessary for success in school, preparation for life, and reaching their full potential." I wonder if other state laws have similar language?

    Improving special education so that these promises are met does not require higher property taxes. There is enormous waste, inefficiency, and lack of accountability in education and special education. I see iPads and skinny Apple laptops being purchased for special ed central office staff, while children cannot get assistive communication devices and the special ed teacher in an elementary school cannot get one computer terminal needed to use a remedial math program; I see management staff bloat, while special ed aides are being let go and special ed staffing ratios in schools are climbing; I see special ed teachers with no remedial reading training who are working with struggling readers; I see the special ed department sponsoring a continuing ed course on "social networking" but none on "remedial reading"; I see principals who cannot tell you which students in their building are in special education, and certainly feel no responsibility to monitor their progress to ensure that they are are actually making progress either toward IEP goals or toward state standards. All of these problems impact FAPE but none require money, or changes in the law, to fix.

  2. Anon-

    See the post I made on Saturday, February 5th.

    Thank you for sharing your thoughts.