|
Article Excerpt
NOTE CONTENTS
INTRODUCTION I. THE HISTORY OF SPECIAL EDUCATION INITIATIVES II. A STATUTORY ANALYSIS OF CURRENT PROCEDURAL PROTECTIONS WITHIN THE IDEA III. DANGEROUS ASSUMPTIONS: WHY SCHOOLS AND PARENTS FAIL UNDER THE IDEA A. IDEA Compliance Challenges Faced by Public Schools 1. Inadequate State and Federal Funding for Special Education 2. The Difficulty of Implementing Highly Individualized Programs 3. Paperwork Burdens of the IDEA B. Obstacles to Effective Parental Advocacy 1. Lack of Knowledge About Disability 2. Lack of Knowledge of Educational Options 3. Difficulty in Interfacing with School Officials and Complying with Procedural Requirements IV. POLICY ALTERNATIVES TO SUPPLEMENT INADEQUATE PARENTAL ADVOCACY A. Models of Policy Analysis : Parental Supplementation vs. Parental Supplantation B. Policy Proposals 1. Policy 1: "Public Defender" Model of Full-Time Advocates 2. Policy 2: Recruiting and Training Community Volunteers 3. Policy 3: Parent Advocacy Centers CONCLUSION
INTRODUCTION
Adam is in the tenth grade at a high school that Newsweek ranked in the nation's top two hundred. (1) For twenty years, the Department of Education has designated this school an "exemplary" high school. Since he was in the first grade, Adam has had an "individualized education program" (IEP), meaning that he is entitled to receive special education services under the Individuals with Disabilities Education Act (IDEA). (2) When he was born, Adam was diagnosed with cerebral palsy. Thanks to very dedicated parents, he received rigorous therapy and underwent multiple surgeries so that he is now able to walk normally. Nevertheless, he has difficulty with fine motor skills and especially struggles in his math classes. For example, Adam has a hard time lining up numbers when completing a math problem and he finds it difficult to write his answers clearly in the small blanks provided on worksheets and tests. His IEP entitles him to several modifications, including extra time on tests and enlarged text on assignments.
At the end of the first semester of his sophomore year, Adam went to school prepared for his math exam. The teacher failed to implement any of the modifications his IEP called for. Despite rigorous studying, Adam failed the test with a score of sixty percent.
Adam's mother is a guidance counselor at a local school and received her master's degree in education. She is well-versed in the procedural protections the IDEA affords Adam and takes advantage of them by attending all of Adam's IEP team meetings (3) and requesting supplemental parent-teacher conferences to monitor his progress. Despite her efforts, Adam's mother cannot ensure that teachers will always provide his IEP modifications. Thankfully, she asked Adam detailed questions about the math test and realized what had happened. The next day she went to Adam's school and, after much discussion, convinced the teacher to readminister the test with the proper modifications. Upon retaking a different version of the two-hour exam, Adam earned a score of eighty-eight percent.
Adam's mother knew that she was entitled to request that the school correct its mistake because she works with students receiving special education under the IDEA on a daily basis in her capacity as a guidance counselor. Adam's mother did not receive any parental training upon Adam's placement in an IEP to inform her of her legal rights. Such training is not required under the law. The IDEA's procedural protections merely provide parents with a brochure and require schools to contact parents before an evaluation or when changes are made to a child's IEP. These safeguards often require an additional level of ability and knowledge: many documents detail the processes in dense, inaccessible language. (4)
Jeremy is a thirteen-year-old student in a large, urban school district. (5) At the age of twelve, he remained in a third-grade classroom in a public school. His physical size made social interactions difficult. This discomfort led to discipline problems, resulting in fifty-three absences in one school year. Jeremy's mother realized that something was wrong, and she repeatedly asked the school to evaluate her son for learning disabilities. The school refused to comply, and Jeremy's mother was unaware that she had alternatives to force the school to act.
After five years of requests for an assessment, the school district finally evaluated Jeremy and diagnosed him with two disabilities, malting him eligible for specialized services under the IDEA. (6) Although the school's administrators did agree to perform the evaluation, they did not release the results of the evaluation for 142 days from the date Jeremy's mother gave her formal consent to the evaluation. This is significantly longer than the sixty day period that the IDEA allows for completion of evaluations. (7) Jeremy's new IEP shows that his oral language skills are at a second-grade level and his basic reading skills at a third-grade level.
A five-year delay in evaluating a child for special education needs represents almost one-half of the time that child will spend in the public school system. In Jeremy's case, it appears that he was not learning at his full potential during the five years he spent without an IEP. He will face a monumental challenge attempting to catch up with his peers so that he is able to graduate from high school on time.
In principle, the IDEA gives every qualified child in the United States access to special education. (8) As with many government-provided services, however, individuals often must take affirmative action in order to receive program benefits. Special education, whose consumers are children, presents unique challenges with regard to asserting one's rights. Children do not have the capacity to identify a disability or understand that their educational needs differ from those of their classmates. They must rely on parents or teachers to recognize their special needs and provide appropriate evaluation. As the IDEA is currently structured, children who are entitled to special education depend upon the school's provision of a "free appropriate public education" (FAPE), (9) or, alternatively, their parents' willingness and ability to advocate for them.
Adam's story illustrates that, even in an exemplary school, it is often still necessary for someone effectively and assertively to advocate for a child in order to receive the full benefits of special education. Jeremy's story shows that in a school with more limited resources or professional expertise, well-intentioned parental advocacy is often not enough to prevent children from falling through the proverbial cracks. Because special education law today relies upon a system of procedural protections without detailed substantive requirements, schools can often make errors in judgment about the appropriate treatment plan for a disabled child. Such a formulation assigns parents to be the check on school systems, which is problematic in a system as complex and varied as special education.
This Note argues that, in the context of special education, neither teachers nor parents can act independently as effective representatives for children in the realm of special education. The right to an adequate education has long been an issue of great importance for policymakers in this country, in part because the effects of education policy reach almost every family at some point in time. In passing the IDEA, Congress recognized that public education should not exclude children with disabilities, and thereby extended the benefits of free public education to a class of children who, prior to the 1970s, had been drastically underserved. (10) Congress also recognized that advances in special education have vastly improved the educational prospects of children with disabilities. (11) Without effective advocacy, however, the promise of special education for children with disabilities cannot be realized.
The absolute necessity of successful special education programs is well-established. The successes of the disability rights movement over the past few decades have resulted in the normalization of the movement's goals: accommodation of difference, preparation for independent living, and the right to work and participate fully in the community. (12) For children with disabilities, full participation in the community is largely achieved through special education. In 1970, studies showed that nearly two million children with disabilities were excluded entirely from public education. (13) Today, no state allows public schools to exclude children, and as of 2003, 6.63 million American students received specialized services under the IDEA. (14) Many disability rights advocates emphasize the economic sensibility of special education programs by stressing that integration and quality education will always be less expensive over time than the forced dependency of disabled people. (15)
Despite enormous gains in the area of special education over the last few decades, there is still much room for improvement in utilizing special education programs to expand community participation and opportunities for individuals with disabilities. Evidence suggests that in some instances identification under the IDEA has not been sufficiently accurate. Despite similar incidences of dyslexia in males and females, for example, four times as many boys as girls are identified for special education. (16) The blurry edges of the definition of disability (17) may enable problems of accuracy in the identification of students and the provision of special education. Nonetheless, enhanced representation and assistance for parents in their advocacy efforts would address these concerns of equity and accuracy in the provision of special education. This Note endeavors to address the failures of the special education system by proving that parents of students receiving special education are in dire need of external expert assistance.
Part I of the Note explores the history of special education initiatives since the 1970s. This discussion also includes a brief history of the role of parents in special education prior to the IDEA and of the ways in which that history motivated the formulation of parental participation in current federal special education laws.
Part II examines the current legislative landscape, focusing on the IDEA and its provisions. This discussion shows the heavy emphasis the IDEA places on parental advocacy. The IDEA requires, for example, that parents be notified and have the opportunity to participate whenever a school initiates an evaluation or changes the placement of their child. This Part argues that the current system of procedural safeguards lacks detailed substantive benchmarks and as such relies almost exclusively on parental advocacy to ensure procedural compliance.
Part III problematizes the assumption made by the IDEA that parents are well-equipped to act as a child's advocate in special education matters. This Part first discusses the need for special education advocacy by introducing several reasons why schools are sometimes unable to fulfill their obligations. For example, chronic federal underfunding and the local politics of school budgets limit the resources schools have to spend on special education, which often creates an incapacity to appropriately identify and serve all students with special needs. After demonstrating that schools may not always have the capacity to provide children with adequate services, this Part discusses parental advocacy and argues that special education represents an area of the law where parents, acting alone, are usually not the best child advocates. Parents often lack the necessary knowledge about disability and educational options, and often have difficulty interfacing with school officials in special education proceedings. These gaps in knowledge and ability make it difficult for parents to advocate effectively for their children without any external help.
Understanding the problems of parent advocates in special education leads into the Note's final Part, which proposes several policy options for external advocacy. These options should be viewed as a first step in increasing procedural protections for children receiving special education, and the various options will represent a range of policy choices that can be customized for individual school districts. Admittedly, there is little empirical evidence as to what type of program would be effective. This Note concludes that educational agencies or nonprofit organizations should fund pilot programs based on the various policy proposals presented here to determine what would work in various jurisdictions.
I. THE HISTORY OF SPECIAL EDUCATION INITIATIVES
Special education is, without question, a fundamental part of our modern educational system. Although there is persistent debate about the underlying theories of the IDEA, very few would advocate the abolition of special education altogether. It is useful for the purposes of this Note to examine the historical developments that led to the passage of the IDEA, the landmark special education legislation. Understanding the problems faced by children and their parents prior to the passage of the IDEA will illuminate the goals of the Act. This Part will also describe the importance of parental involvement in the special education process, which underscores the need to provide parents with extra help so that they are able to advocate effectively for their children.
Prior to the 1970s, special education was not on the political radar. The understanding of special education as a civil right for disabled people largely stemmed from the efforts of disability rights advocates who worked to change the conception of disability in the United States. Through the early 1970s, disability policy adhered to the medical model of disability "in which people with disabilities were presumed unable to function independently in the mainstream of social, economic, and political life." (18) The disability rights movement worked to shift public conceptions away from a medical model of disability, which locates symptoms of a perceived illness within a person and focuses on how to treat those symptoms, (19) toward a social model of disability, which "focuses on how existing social arrangements handicap individuals." (20) This shift in awareness confronted physical and social barriers built by a majority that perceived human deviation as defective. (21) Therefore, facilitating full community participation of the disabled was a key objective of disability policy. Special education has become an essential tool in implementing the disability rights movement's objectives.
As this Note shows, parents have always been and should continue to be central to efforts to obtain equality for children with disabilities. Mobilization before the 1970s, however, was difficult because most parents and disability advocates worked through single-disability organizations. (22) The medical model of disability policy prevented cross-disability mobilization because its goal was to allow disabled people to fit into existing social structures. Single-disability groups also feared that cooperative efforts might, for example, cause resources to be shifted away from their respective groups. This separation of advocacy efforts, along with the incredible diversity of anything that might be called a "disability community," (23) impeded combined parental efforts to advocate for special education.
One of the most important factors in mobilizing disability rights and special education advocates was section 504 in the Rehabilitation Act of 1973, which prohibited any and all discrimination on the basis of disability within federally funded programs. (24) Although most members of Congress in 1973 did not expect section 504 to amount to anything more than a "platitude," (25) the regulations developed by the Office of Civil Rights of the Department of Health, Education, and Welfare framed section 504 as a declaration of civil rights for disabled people. (26) Section 504 set the stage for a shift in the way society viewed disability, which in turn led to a broad push for social accommodation. This development contributed to a realization that public school systems should accommodate disabled students and was a factor in the evolution of modern special education.
In 1975, Congress reported that more than fifty percent of the eight million "handicapped" children in the United States were not receiving adequate educational services and that nearly two million children were excluded from public education entirely. (27) This exclusion had existed since the inception of public schooling. Most disabled students were denied any educational opportunities or were educated in special facilities such as Thomas Hopkins Gallaudet's American School for the Deaf in Hartford, founded in 1817, and the Perkins Institute and Massachusetts School for the Blind in Boston, founded in 1823. (28) By the 1960s, a larger number of disabled children were permitted to attend public schools, but they were placed in severely substandard academic programs. They were separated from the general student population in special education or "health conservation" classes, which were often located in basements or boiler rooms. School officials regarded special education as day care for disabled students. (29)
The poor state of special education in this country became a particularly salient issue after the Brown v. Board of Education decision in 1954, which represented a "sea change in the legal approach to students that based on group characteristics faced separation or exclusion." (30) Although the Brown Court's holding did not affect special education directly, its statement of the importance of education is helpful in understanding the changes taking place in the second half of the twentieth century.
Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. (31)
Two landmark cases in the early 1970s, holding that exclusion policies illegally denied students with disabilities access to public education, bolstered the disability rights movement's efforts to improve special education programs. In 1971, the Pennsylvania Association for Retarded Children (PARC) and a group of thirteen parents of mentally retarded children brought a class action challenging a Pennsylvania statute that excluded retarded children from education and training in public schools. (32) The lawsuit resulted in the approval of a consent agreement that mandated equality of access to education and emphasized a preference for mainstreamed education. (33) The consent agreement in PARC acknowledged that "mentally retarded persons are capable of benefiting from a program of education and training." (34)
In 1972, the parents of seven students with disabilities in Washington, D.C., brought a similar lawsuit. In Mills v. Board of Education, the D.C. District Court held that the denial of public educational services to children with special needs violates the Due Process Clause. (35) In addition to declaring that all children, regardless of disability, were entitled to public education, the court also enunciated the rule that limited financial resources could not justify the denial of services to a disabled child. (36)
The Mills and PARC decisions represented an assertion by federal courts that children with disabilities have the same rights to public education as do other children. These cases served as powerful tools for the special education movement. By 1975, lawyers had filed forty-six right-to-education cases in twenty-eight jurisdictions, basing their arguments on the Mills and PARC precedents. (37) Moreover, it was these two landmark decisions that set the stage for Congress to recognize a disabled child's right to special education.
Shortly after the Mills decision, Congress passed the Education for All Handicapped Children Act (EAHCA) of 1975, which granted unprecedented educational rights to children with disabilities. (38) In 1990, Congress renamed the Act as the Individuals with Disabilities Education Act (IDEA), (39) although the substantive law remained the same. This legislation, which now provides 6.6 million students with specialized educational services, (40) is the legislative centerpiece of this Note and will be simultaneously celebrated and criticized. The IDEA requires state educational agencies to provide a free appropriate public education (FAPE) at public expense to all students. (41) The implementation of the FAPE is based on principles such as the development of an individualized education program (IEP) (42) and placement in the "least restrictive environment" (LRE). (43)
In addition to creating the political impetus...
|
