Editor’s note: This is the second in a three-part series in which Miriam Kurtzig Freedman reflects back on a half-century of special education law in the United States. Part I focused on where we are now and the need for a new law, and Part III outlined the key components for better special education in the U.S.
While the IDEA succeeded in its mission to provide access to education for all students with disabilities (SWD), we also have much to question. Is it achieving the education mission for them? Is it effective and efficient? Equitable and fair? How does it affect students who are not disabled? And teachers, administrators, parents, and taxpayers? So many questions.
A pivotal issue that needs a fix is this one: the IDEA’s uncapped entitlement, built on an adversarial due-process system. Too often, it has led to an emphasis on litigation and the fear of litigation, not learning. It has divided schools, questioned the expertise of teaching professionals, and confused and angered parents—all at great cost with uncertain evidence of success for SWD.
The fact is this. The use for bureaucrats, lawyers, and litigation who seek access to schooling is so mid-20th century because the IDEA solved that challenge years ago. Now, all SWD are included in schools. Going forward, educators, not lawyers, should determine how to educate children. Parents should partner with educators to help their children thrive. Due process rights and litigation no longer belong here.
Education is, at heart, a partnership among teachers, parents, and students—not lawyers and bureaucrats. Years ago, when I visited schools in Holland, I asked a principal whether attorneys attend meetings about students with disabilities. She laughed: “Lawyers? Absolutely not!”
We could learn from that.
I believe that, in many ways, we’ve lost our way and allowed misguided “strangulation by regulation” and other quagmires and unintended dysfunctions to divert us from the basic mission of educating SWD. If we truly want our students to succeed, we cannot continue with the same old 1970s broken framework. It is time to end the entitlement for students with mild or moderate needs and their parents and build a new approach.
Tinkering around the edges, as Congress has done through several reauthorizations over the years, will not do. The IDEA was written in the 1970’s—a very different era. The exclusion of SWD from schools is far from today’s challenge. In fact, many, including me, believe that too many students are labeled as SWD.
Among the many unintended consequences of this law is this one. While one would hope that struggling students in general education classrooms would receive early intervention to help them learn, too often general educators are encouraged to refer these students to special education. We must ask why, in the United States of America today, a student needs a disability label in order to get early interventions. This “wait to fail” model is pernicious, wrong, and contradicts the science of learning. We need, instead, to build a stronger general education approach with built-in supports that will, ultimately, require less special education.
Here are three additional challenges that demand attention.
First, over-identifying many students with mild or moderate needs. Too often students are classified as specific learning disabled (SLD)—by far, the largest group of students with disabilities—because they did not learn to read by third grade. Yet our schools are still fighting bitter “reading wars” between phonics/the science of reading and balanced literacy/the whole language approach. Failure to agree on how to teach this cornerstone of literacy has left many students behind. We must ask if all of these SLD are truly disabled or victims of a confused general education approach that failed them.
Similar questions can be asked about students with speech/language impairment. We know—research has shown—that if young children don’t hear and use enough words at home or in the community, their language development is stunted. Too often, they enter kindergarten already behind! Tragic.
Before we label more students as disabled, let us turn our attention to alternative cures that can be nourished in general education, homes, and communities. Our current ever-expanding approach to label children as SWD is neither healthy nor sustainable.
Second. The adversarial system weakens the science of learning which is built on trust. The due-process structure has turned too many schools into battlefields—parents vs. educators, lawyers vs. administrators. At every point, from referral to IEP development and implementation, a school may make a mistake, often called a “violation.” Lawyers are ready to pounce, making the IDEA an example of a “full employment for attorneys act.” Smart for our SWD? Smart for our nation? The law’s constant legal tension erodes trust and diverts focus from student learning and building partnerships with parents.
Third, stifling bureaucracy and costs in money and time. Even as we don’t know how much money is spent, we do know that precious time for paperwork and compliance is time taken away from teaching and learning for all students. Ask any superintendent.
What do we need instead? At a minimum, I urge us to follow the science of teaching and learning in how we educate SWD, not the constraints and demands of a misapplied legal system. Lawyers, bureaucrats, and legislators don’t educate—teachers do. It’s time to help students, all students, learn. The time for a new law is long overdue.
