IDEA Is Still The Law Of The Land

Unless you've been living under a rock, you know the US Department of Education (USDOE) rescinded 72 Dear Colleague and other letters of explanation to state education agencies regarding special education. 

Dear Colleague or guidance letters clarify a point in the law. In this case, we're talking about Individuals with Disabilities Education Act (IDEA). Generally, these letters are issued because state education agencies ask for clarification of the law. As advocates, we want this because we don't want local school districts misinterpreting or ignoring the law. Children get hurt when this happens. 

USDOE does, from time to time, "clean house," but as far as I can tell, this many at once is rare. They are removed because new guidance or new regulations replace them. In and of itself, removal is not a bad thing.

It's really difficult to not be skeptical of anything that happens under DeVos' tenure. Her general ignorance of the law, feigned or not, is reason enough to be on guard. 

When the department released the original list of rescinded letters, there was no explanation for their deletion. Later, they did release another list along with a brief comment about why. By that time, I had been through a good portion of the list and was able to cross-reference what I had already found. 

The majority of letters that I could find (not all were listed with a link) were, in fact, outdated. Many had been replaced with either new or updated guidance, or by changes in the law. In the case of letters about how money should be spent, those pertained to fiscal years that are past. 

A couple of things stood out to me. 

First, the guidance letters on transition and vocational training (not IDEA-specific). The federal program related to those letters no longer exists. Further guidance and programs do exist under Office of Disability Employment Policy, which falls under the US Department of Labor. It's clear, the need exists for those kinds of programs in high school, and to age 21. Certainly, NJ could use a much bigger emphasis on trades and vocational training for students with disabilities...and really, students without. 

The other issue is the letter about Least Restrictive Environment (LRE) in preschool. The 2012 letter was replaced in January 2017 with a lot of language about "inclusion" before they got to what is essentially a re-hash of the rescinded 2012 letter about what LRE actually means. To me, this letter is confusing and problematic because it promotes "inclusion" and then reminds everyone of LRE, like it's an afterthought.

I know from my own experiences with parents around the state that local districts either don't understand LRE, or use it as an excuse to provide only inclusion settings to all but the most severely disabled. What causes that ignorance, willful or otherwise, is anyone's guess. Mine would be a caustic mix of lack of funding available to districts and administrators doing as little as possible while hoping parents don't know better. Yes. I'm very, very cynical about LRE. 


What's important to remember.

Please keep in mind that any guidance letter that is rescinded and replaced, or not replaced, but regulation is still in effect, does not change the compliance requirements of IDEA. Those letters are merely further clarification of statute or regulation, usually brought on by a significant level of clarification requests from state agencies. IDEA remains in effect...at least for now. 


As always, if I have missed something, please let me know in the comments below or via PM. 

The End of Special Education Part VI: AZ Parents, Heads Up!

There are generally too many stupid education and special education stories these days to comment on them all, but this one is worthy of everyone's attention. My "The End of Special Education" series has gained a lot of attention since Betsy DeVos' confirmation hearing, so I'm taking it up again. 

Arizona lawmakers want to do away with specially certified teachers for students with disabilities. You can read the article from the Phoenix New Times here. You can read the full text of the Arizona Senate Bill 1317 here. 

The offending language, changing the law to allow non-special education certified teachers is:

INCLUDES INSTRUCTION THAT IS DELIVERED BY ANY PERSON WHO IS CERTIFICATED PURSUANT TO SECTION 15‑203 AND WHO IS DETERMINED BY A PUPIL'S INDIVIDUALIZED EDUCATION PROGRAM TEAM TO BE AN APPROPRIATE PROVIDER BASED ON THE PUPIL'S INDIVIDUALIZED NEEDS.

Arizona lawmakers are giddy over this, however, IDEA (y'know, that pesky disabilities in education civil rights law the SecEd never heard of) clearly states that a teacher must be specially certified to teach students with disabilities. The federal law states (emphasis mine):

SEC. 612. [20 U.S.C. 1412] STATE ELIGIBILITY. 

(a) (14) PERSONNEL QUALIFICATIONS.— 

C) QUALIFICATIONS FOR SPECIAL EDUCATION TEACHERS.—The qualifications described in subparagraph (A) shall ensure that each person employed as a special education teacher in the State who teaches elementary school, middle school, or secondary school— 

(i) has obtained full State certification as a special education teacher (including participating in an alternate route to certification as a special educator, if such alternate route meets minimum requirements described in section 2005.56(a)(2)(ii) of title 34, Code of Federal Regulations, as such section was in effect on November 28, 2008), or passed the State special education teacher licensing examination, and holds a license to teach in the State as a special education teacher, except with respect to any teacher teaching in a public charter school who shall meet the requirements set forth in the State’s public charter school law; 

(ii) has not had special education certification or licensure requirements waived on an emergency, temporary, or provisional basis; and 

(iii) holds at least a bachelor’s degree..

(D) POLICY.—In implementing this section, a State shall adopt a policy that includes a requirement that local educational agencies in the State take measurable steps to recruit, hire, train, and retain personnel who meet the applicable requirements described in this paragraph to provide special education and related services under this part to children with disabilities. 

I have no idea what in particular prompted AZ lawmakers to come up with this garbage, other than the usual reformy nonsense that regularly comes out of that state. Clearly, the wellbeing of students with disabilities is not anywhere on their list of priorities. This ranks up there with New Jersey's misguided attempt to lower the requirements of teachers and administrators who work in charter schools. Having teachers who do not know how to specifically address the needs of students with disabilities is no less than an attack on those students' civil rights. I hope parents and teachers push back hard on this. The children of Arizona deserve no less.

BTW, it's handy to have a copy of the law because you never know when the US Department of Education will have "technical" difficulties with only that particular education law's website for a couple of weeks. (To find a mostly complete mirror of the site from 2015 go here.) 

What Will Happen To Special Education?

Yet another reason to be concerned about Jeff Sessions as US Attorney General. Special Education. Back in 2000, when he was an Alabama state senator (formerly the state's attorney general), Sessions made an utterly ignorant, and now potentially dangerous, statement about special education and the federal law which guarantees the rights of students with disabilities, the Individuals with Disabilities in Education Act (IDEA). You can read his whole statement here. 

It's difficult to pull quotes out of the text because the entire statement is so heinous. Yes, students with disabilities have rights. No, those rights, and those exercising those rights are not "a big factor in accelerating the decline in civility and discipline in classrooms all over America." The disqualifier at the beginning of that paragraph does not excuse the ridiculousness of the statement either. So glad to hear that he didn't want to end IDEA.

Sessions quotes parts of letters written to him by teachers who are frustrated by their students and what they described as problems with the Individuals with Disabilities in Education Act (IDEA). While I am sure there are teachers who are frustrated by what they see in their schools, to blame students with disabilities for those frustrations is absurd. 

Sessions does give a nod to the lack of funding associated with IDEA. It has never been fully funded, nor has it come close to the goal of 40% funded. Ever. He should have been railing against a system that purposely defunds, or underfunds, education mandates, no matter whom they directly affect. To blame the students and IDEA is absurd. 

As I read through Sessions' statement and the statements by teachers, I saw what, in my opinion, is violation after violation of those students' rights. IDEA is not a permission slip for students to behave badly. It does not prevent "discipline." It does not require students to be mainstreamed with their neurotypical peers. 

What IDEA does do is requires states, and therefore school districts, to place students in a Least Restrictive Environment (LRE). It requires them to conduct Functional Behavior Analyses, using those results to create Behavior Plans for exactly the scenarios which are described in Sessions' statement. This is not rocket science. This appears to have been completely lost on every one of those teachers and their administrators and Sessions. It also appears to be lost on these people that wrong classroom settings, inappropriate placements, and lack of services contribute to inappropriate behavior - in any setting. 

Before someone piles on here, yes, there are students, unfortunately, who do act out and have no self-regulation or control. God bless the teachers and paras who teach and assist them. It is a reality. However, it should not be happening in a general education setting. LRE does not mean a general education, mainstreamed setting. LRE means providing the best environment for that student. It's a simple concept that is grossly misused. 

I was astonished at the claims that teachers are leaving the profession because of lawsuits brought by special education parents. The statement implies parents are going after teachers. That's not how the law works. It's absurd to state that as though it is fact. 

The last story is from a superintendent. He laments not being able to mete out similar discipline to two students who brought weapons to school. One student, with no disability, was given a 1-year suspension. The other student, with a disability and IEP, was placed for 45 days in an alternate school setting before returning to his regular school. 

I'm twitching as I write this because I cannot believe the rank stupidity of this decades-long educator. IDEA has an entire section dedicated to discipline (Sec. 300.530). In fact, there's even a section on weapons. He most certainly could have suspended that student with an IEP for 1-year, just like the first student. His own ignorance of the law made for the inequity. Further, it made his reference to Animal Farm ("All are equal, but some are more equal than others.") even more inappropriate. 

It also demonstrates that Sessions, as Alabama's former attorney general, either didn't know the law, or he knew and used this sorry excuse of a story to fortify his position that special education is ruining public education and teachers' careers. Shame on them both! 

Unbelievably, the superintendent continues with this ditty: "I became a teacher in 1965 and I do not remember hearing of gun shootings prior to 1975 when Congress began telling ten percent of our students you are not responsible." Gaslighting at its best, folks. When in doubt make an absurd claim, based on nothing, and blame it on the special ed kid. Disgusting. 

Sessions ended his abhorrent statement with this: "I think these teachers make a point. It is a matter we need to give careful consideration to, not overreact, not undermine the great principles of the Disabilities Act Program. But at the same time, we need to say that a child is not allowed to commit crimes, to disrupt classroom, to curse teachers, principals and students, and abuse them and do so with impunity."

Again, that is not what IDEA actually says. You'd think a state attorney general would know that. What will the enforcement of IDEA look like under a US Attorney General who doesn't know the law? Or, perhaps worse, one who does know the law and ignores it?



Edit to add: Valerie Strauss at The Washington Post republished part of this blog in her column Answer Sheet: Trump’s pick for attorney general once linked special education law to ‘decline in civility’ in classrooms. Thank you to Valerie!

Julie Goes to Washington Part 2

Otherwise known as, It Was Supposed To Be Testimony on ESSA, But Really Was Testimony To The Influence of Gates Money. How's that for a title? Perhaps it's a bit wordy. However, it is how it felt walking into that conference room at USDOE on January 11th. If you missed watching the testimony on their livestream, I've posted a link to the day's testimony at the bottom of this post.

The synopsis of most of the testimony was, not surprisingly, test so there is equity, test so students with disabilities and English language learners have their civil rights upheld, test because we need accountability and without testing we won't have accountability, test so we have more data, test so we know which teachers suck, and when all else fails, what the heck, just test some more.

That's your plan? Testing, pseudo-accountability, and test some more? Could anything possibly be lazier? 

I'm going to piss off a few people by what I say next, but here's the deal, standardized tests are not going close educational gaps. It's not a civil right to be tested. If anything, it is a violation of your child's rights to be subjected to these tests especially if they are a student with a disability or/and English language learner. Tests that have not be validated, that are developmentally inappropriate, that serve no purpose other than to rank and sort them, their teachers, and their schools, are certainly not an example of a civil right. It’s more like a violation of FAPE.

It was appalling to listen to the policy directors from The Leadership Conference, La Raza, and MALDEF talk about testing, data, more testing, accountability by using the data collected from the tests. That's the best you can do for your constituents? It is LAZY.

It makes no sense until you look at who contributes money to them. We’re talking about tens of millions of dollars donated to them from The Gates Foundation to specifically push Common Core State Standards and the accompanying tests. I understand they need the money for all the really good work they do for the communities they serve. To say the least, it’s a shame their education policy flies in the face of all that other work.

When it comes to the National Urban League and Business Roundtable, I expect to see the business push. I expect them to be inappropriately forceful about testing and accountability because they very wrongly think they should have a say in P-12 education. Unsurprisingly, National Urban League has taken about $6.5 million from Gates to push their education policy agenda.

Are you seeing the pattern here? Lots and lots of money in exchange for influencing education policy at the highest level. They could have swapped their testimony it was that close in language and nature.

The majority of testimony ignored the very people these educational policies will influence – the children. It was shocking to listen a policy maker from the National Association of Charter Authorizers glibly tell all of us that if a charter school is failing to just close it. That’s it. Don’t have the charter participate in whatever the state’s version of a turnaround program is. Just close the school. I have no particular love of charters, but that statement lacked any recognition of the harm it would bring to the children in that school. This was about a business transaction, not about education, and certainly not about the negative impact of “just close the school”.

So where were the representative voices for the students? The parents? The teachers in the classrooms? Three teacher and two parents are certainly not enough. However, as far as I could tell, we were the only ones not being paid to be there.

When asked what I’d like to see in education policy, I say this, I want policy that is not LAZY. What we have had for 15 years is lazy. Shaping 13 years of a child’s education around standardized tests is lazy. I want to see joy in learning. I want students to be the center of education policy. I want teachers leading the way – they are after all, the people who are the experts. I want to see programs that look like the NY Performance Standards Consortium. I want students to be engaged, love to learn, love to share and demonstrate what they’ve learned. I want existing laws pertaining to special education to be enforced. I want school environments to be inclusive, to the largest extent possible, for all students. I don't think I'm asking for too much.  

  

See the full day's testimony here. Me at 55:00, Jamy Brice Hyde 1:16:23, Marla Kilfoyle 3:20:18, Melissa Tomlinson 4:55:32

Julie Goes to Washington with Jamy, Marla, and Melissa

Last Monday, the US Department of Education held the first of two public testimony hearings on the Every Student Succeeds Act (ESSA). This hearing was held in Washington DC. The next will be in California. Short notice, with release just before the holidays, felt like timing was meant for parents and teachers to miss it. I was not off to a warm and fuzzy feeling about it. 

I didn't see the agenda for the day until after I checked in at USDOE. The speaking order and the approximate times for each of the three sessions were listed. The list of speakers was, predictably, the who's who of education reform -- just off the top of my head, several hundred million dollars or so in Gates funded associations. Disheartening to say the least. From what I can gather, only one other "just a parent" spoke that day and three actual teachers, two from New York (Jamy Brice-Hyde and Marla Kilfoyle) and one from New Jersey (Melissa Tomlinson). 

                                       

                                       

It really was difficult to decide what aspect of ESSA to discuss. From a special ed point a view, ESSA makes NCLB look lenient. The 1% cap on alternate assessments for students with disabilities is particularly cruel. It's also the fuel needed to continue to encourage opting out of these stupid tests. 

I decided, though, to talk about Social Impact Bonds. Sorry if you're getting bored with this topic, but I don't think it can be argued against enough. An experiment, which requires a negative outcome (NOT classifying students) to be considered a success, has no business sitting in the middle of a federal education law. 

Here is my testimony: 

11 January 2016

Testimony on the Every Student Succeeds Act (ESSA) to US Department of Education  

My name is Julie Borst and I’m resident of Bergen County, New Jersey. I am a mother to a 17-year-old student with a disability. I am a parent advocate and an organizer for Save Our Schools New Jersey, Opt Out NJ, and for BATs in Special Education. My comments today are my own. 

I have to admit, it was difficult deciding which section of ESSA to address today. While many are cheering the change from No Child Left Behind (NCLB), I’m feeling much more cautious. As a family, we have not had good experiences under NCLB. It was clearly in serious need of revision, and I don’t believe that ESSA really aleviates the myriad problems with NCLB, particularly for students with disabilities. 

Among the worst, the onerous standardized testing continues. More students with disabilities will be required to take irrelevant, developmentally inappropriate tests. Local districts will continue to waste precious dollars on infrastructure to support these tests, and for what? That’s a conversation that could go on for weeks. Let’s just say, that from where I sit, as a parent and advocate, the tests are a waste of time and money. Well trained, dedicated professional educators are what’s needed. Not more tests. 

However, the reason I’ve come here today is to talk about Social Impact Bonds, otherwise known as Pay For Success (PFS)¹, ESSA page 797, line 17. The current landscape in special education is a dire one. In states like New Jersey, it has become increasingly difficult for parents to get appropriate identification, classification, and services for their children. OSEP and OCR have become yet another roadblock to appropriate services.
I believe the root of that difficulty is money. IDEA is poorly funded, as it has been since its inception. Money now is spent on everything related to high stakes testing – prep, massive curricula changes, computers, infrastructure, and teacher professional development geared to use of that technology instead of honing the skills of their profession.

In New Jersey, there is a more formalized process, Response to Intervention (RtI), on the horizon. A program that will make it even less likely for a student with a disability to get timely identification, classification, and services. There appears to be little, actual focus on identifying learning disabled students as early as possible and doing something about it. 

Preschool, “high quality” preschool, has become the new mantra in that vein. Studies show that high quality preschool can reduce the percentage of the students who go on to kindergarten and are then classified for special education. Those percentages are anywhere from a reduction of 10% to 50% of students who would have otherwise needed special education services. The impact is clearly a positive one. 

It does makes sense to support high quality preschool. What doesn't make sense is for private investors or Wall St. to fund those preschool programs with the aim of making money off students NOT being classified. 

Pay For Success is use of private money invested into public programs, in this case public preschool. The program, first tested in Utah and now in Chicago, was funded by Goldman Sachs. The program in Utah was claimed to have a 99% “success” rate. 109 of the 110 students identified as “at risk” or possibly needing special education, out of a group of 600 preschoolers, did NOT require special education. Goldman Sachs received money back for every one of those 109 students and will continue to do so for every year those 109 students are NOT classified for special education, through 6^th grade. 

To be perfectly frank, this raises a lot of questions. What was the starting criteria for those students? What diagnostic tests did they use? Medical history? Demographics? How many students would have likely had to have special education if they didn't have the "high quality" preschool experience? How many would they expect to classify even with the experience? What is "high quality" preschool? What does "high quality" preschool cost? How much does Utah spend on preschool? What is the threshold that has to be met for Goldman Sachs to earn its money back? Who would have covered the costs is the program “failed”? 

In Utah’s case, only one test, PVVT, was used. It’s not normally used, especially by itself, to identify students for learning disabilities. English language learners typically do not do well on this test because it is vocabulary based. It doesn’t necessarily mean they have a disability. From the outset, the criteria presumed all 110 “at risk”-identified children were going into special education without the high quality preschool. That is not a valid presumption.
There is also the issue of cost. High quality preschool costs are general 3-4 times what Goldman Sachs invested per student. It’s still not clear how the “high quality” label was actually executed, as some of the students were apparently placed in daycare.  

Utah set the rubric, but they also would have had no preschool at all without the program. Why were they allowed to set the bar so low and so obviously skewed to have this as a win for Goldman Sachs? Perhaps more importantly, what is Utah doing to ensure those “success” students were, in fact, properly NOT identified for special education? 

I understand that on the surface Pay For Success sounds wonderful. Public money, that is already so lacking, will not have to be used to fund preschool programs. However, “success” based on a negative outcome of our most vulnerable students demonstrates the loss of our moral compass. 

Pay For Success has no business being in a federal education law. There are too many unanswered questions. Too many ways for this program to go very wrong for our most vulnerable students – especially in the current environment. There is no magic pill to cure learning disabilities, but there are many well-documented, teacher-driven practices to address identification, classification, and delivery of services. We should be concentrating on those, not on making Goldman Sachs richer at our children’s expense. 

¹ p. 797
17 40) PAY FOR SUCCESS INITIATIVE.—The

18 term ‘pay for success initiative’ means a perform-

19 ance-based grant, contract, or cooperative agreement

20 awarded by a public entity in which a commitment

21 is made to pay for improved outcomes that result in

22 social benefit and direct cost savings or cost avoid-

23 ance to the public sector. Such an initiative shall in-

24 clude—

p.7981 ‘‘(A) a feasibility study on the initiative de-

2 scribing how the proposed intervention is based

3 on evidence of effectiveness;

4 ‘‘(B) a rigorous, third-party evaluation

5 that uses experimental or quasi-experimental

6 design or other research methodologies that

7 allow for the strongest possible causal infer-

8 ences to determine whether the initiative has

9 met its proposed outcomes;

10 ‘‘(C) an annual, publicly available report

11 on the progress of the initiative; and

12 ‘‘(D) a requirement that payments are

13 made to the recipient of a grant, contract, or

14 cooperative agreement only when agreed upon

15 outcomes are achieved, except that the entity

16 may make payments to the third party con-

17 ducting the evaluation described in subpara-

18 graph (B).’’;

Marla's Testimony:

Testimony of Marla Kilfoyle

Thank you for allowing me to offer my recommendations and advice on Title 1 of ESSA

My name is Marla Kilfoyle.  I have been a public school teacher for 29 years.  I have taught in Rural, Urban, and Suburban school districts.  I have a Masters in Education and am National Board Certified.  My proudest role, however, is  that I am a mother of a child with disabilities enrolled in public school in New York. 

Here are my recommendations and advice:#1 We need to fund Title 1 with more money.  We have seen, over the last decade, more and more of our children living in poverty.  I applaud that the bill increases funding for key formula grant programs. The increases overall of funding by 2 percent each year in 2018-2020 is hopeful. Increases in Title I ($1.2 billion over the 4 years of the authorization), a more than a 20 percent increase. We applaud the increase in authorizations for Title III (English Language learners), Title VI, American Indian and Alaska Native programs and Impact Aid are excellent. Increases in the Mckinney Vento leave us hopeful that our homeless children will be serviced and supported but we will need more.

#2 I have concerns that “personalized learning “ will be a vehicle for students to be placed in front of a computer screen all day or have them moved out of their public school to a school that is not housed in their community.  This school could be an online learning center or a charter school; both which have been proven not to be beneficial over a strong public neighborhood school.    Why should children have to move out of their community school to be educated?  We need to support strong sustainable public schools in the communities that our children live.

#3 I  am vehemently opposed to testing children each year in grades 3-8 and once in high school.  We are the only nation that demands this of our children.  Grade span testing by random sampling will allow more time for learning.  We have done this successfully using NAEP.  Testing has depleted much needed funds for our children in need.  The only people that testing every year benefits are the testing companies.

#4 I also do not agree that our ENL/ELL populations should be subject to multiple statewide interim assessments during the academic year.  This, once again, results in more testing and less learning for our non-English speakers.  What we are seeing for our ELL students is less time with their ELL teachers in instruction to teach them to speak/acquire the language.  The drive to get them ready for a test at the end of the year that they are not yet ready to take, due to lack of language, is abusive and inappropriate.  Although pushing them into classes with their English speaking peers is excellent, there must also be a balance of making sure that we are giving them the instruction that they need to acquire the English language.  This has been taken away from them in many districts across the nation.

#5 I am opposed to computer adaptive assessments listed in the Act.  I feel that testing and technology companies put together inferior products, sell them to districts to make money and now districts are left with inferior assessments and no money.  I am also opposed to the idea of  ‘innovative assessment system', as outlined in Part B Title 1, that could be used as assessments in school districts.  As educators, we have seen technology companies and testing companies pillage the coffers of public education with products that are inferior and do not enhance teaching and learning.  This is not what America wants for its children.  We do not want our classrooms to become places in which children sit in front of a computer for several hours a day and the teacher becomes just a facilitator.  We see a need for technology and to make sure that our students are using it to enhance learning but it should not replace the human interactions that they need in the classrooms to become productive global citizens.  

 #6  Finally from Part A of Title 1 I feel that allowing alternative routes to certification will only guarantee that our neediest children will get the least trained, for example, Teach for America.  We should require every teacher, in every classroom to be fully licensed and accredited from a strong college education program. 

In closing I would like to take a few moments to also address the letter that the USDOE sent on Dec. 22^nd  to the Chief School Officers in states that had high test refusal rates.  The letter, which threatened to withhold Title 1 money for states with high test refusal rates, was absolutely deplorable.  As Mr. King knows from his tenure in NYS, standing between a parent and the decisions that they choose to make for their children is not a good idea.   To create conditions where a local school district must pressure parents into making decisions they do not want for their child is not good for the positive relationships that school districts need to create in order to work cooperatively with parents. 

Thank you again for your time and consideration.