The seven broken premises of special education in California

It’s not a typo. It’s meant to be an “e.” Today’s special education system is built on many broken premises that detract from the law’s purpose: to provide students with disabilities (SWD) a free, appropriate public education in the least restrictive (appropriate) environment so that they can  learn and make progress. The system should promote services and opportunity, focused on teaching and learning. It’s really not that complicated when you think about it. But it has become so.

Special education matters to all of us. It affects all schools and educates 13-14 percent of all students, some 6½ million students nationwide. We spend some $110 billion annually on special education. In California, during the 2008-2009 school year, there were 678,105  students with disabilities, 10.8 percent of all students. California spent 23 percent of its public school funds on special education. Statewide and nationwide special education is big business.

As we move to reauthorize the Individuals with Disabilities Education Improvement Act, the 35+ year old federal law, let us first examine how many of its flawed premises undermine its purpose.

For starters, consider these seven broken premises.

  • That the system needs uniform rules and federal and state bureaucracies with stifling regulations and procedures for all SWD. Ignoring the necessary cornerstone of trust for effective schooling, IDEA manifests the premise of distrust between parents and schools. Congress created this education system to be adversarial. It’s as simple as that.

To feed that broken premise, we’ve created layers of “protections” and “rights” for parents and schools. IDEA is 120 pages; its regulations add 113 pages, all small type, single-spaced. California adds more laws and regulations. What is a parent or school to do?

I suspect that one reason for the complexity and regimentation of this system is that it serves a very diverse group of SWD – from the most severely disabled, including mentally retarded, multiply handicapped and deaf and blind students (for whom the law was initially written) to students with milder disabilities, including those with  specific learning disabilities, speech/language impairments, or other health impairments, including ADD and ADHD. Notably, this second group now makes up the vast majority of all SWD. In California, of the 609,665 students served in 2007, according to the last-available 29th Annual Report to Congress by the Office of Special Education Services, students with learning disabilities, speech/language impairments, or other health impairments added up to 483,613 students – 79 percent of all SWD in the state! Surely we can agree that their needs are very different from the first group of SWD. Yet this system is premised on treating all SWD the same in terms of process, bureaucracy, regulations, legal requirements, etc. In any event, this piece focuses on the latter group – 79 percent of California’s SWD – with milder disabilities.

Finally, the belief among many that a wordy IEP (individualized education program, written by school personnel and parents for an individual student) somehow helps the child learn and the teacher teach. Improbable. Indeed,  longer IEPs, some reaching 10, 20, 30, 40 or more pages, may actually reflect a lack of trust between home and school. Micromanaging classrooms with excessive verbiage demoralizes teachers, doesn’t help students, and may give parents a false sense of security. There are not enough hours in the day for all that paperwork!

  • That the parents’ role is to enforce the law. Due to the premise that parents cannot trust schools and need due process protections against them, Congress handed them the job of  IDEA’s private enforcers. They have to advocate for their child against their school. Reportedly, IDEA has become the fourth most litigated federal civil statute. Litigation and fear of litigation drive much of special education in many states. In the 2008-2009 school year, California was among the top five states in terms of adjudicated hearings, according to a 2010 article by Perry A. Zirkel and Gina Scala, “Due Process Hearing Systems Under the IDEA: A State-by-State Survey,” in the Journal of Disability Policy Studies.

In creating this role for parents, the law skewed common sense. First, it requires a cooperative team effort by schools and parents and then it allows them to sue each other. How can that be? Second, it imposes no responsibility on parents to work with schools to help their children learn. It’s time for President Obama’s eloquent call: turn off the TV, help with homework, put kids to bed at night. Parents should parent their kids, not fight their schools.

Related to this premise is the one that holds that if students don’t learn, it’s the schools’ fault that parents can seek due process for. This premise, too, ignores common sense and reality – the students’ role and the need for motivation, effort, and hard work – and the parents’ role. Teachers cannot educate students alone.

  • That inclusion is a civil right, to be used for pretty much all students. Inclusion – educating SWD in classrooms with non-disabled peers – is often rights-driven, stigma-removing, or based on other goals that are not pedagogically or ‘best-teaching-practices’ driven. But wait! As a nation, we have not agreed on what our goal is: Is it mainly socialization or academic? Many people will say it’s both, ignoring the dilemmas created. Thus, to make inclusion “work,” schools often hire paraprofessionals, create co-taught classrooms, soften standards, and overuse accommodations. Of course, we have exemplary programs across the country where inclusive programs work brilliantly for all students. But there is scant evidence that these are scalable and that this is the effective way to educate these students in their areas of disability. We need to revisit this premise, once we decide what our national (or state) goals are.
  • That we need two systems, special and regular education, and that essentially all children can (and should) learn the same thing at virtually the same time. Thus, we have the No Child Left Behind Act requirement that all schools show adequate yearly progress in all groups, including SWD, and, in contrast,  IDEA’s requirement that schools meet individual needs. Where is research to support the idea that passing state tests is the way to help students progress in their areas of disability? NCLB’s and IDEA’s confusing and conflicting messages create dysfunctional dilemmas. We need one coherent system, not two.
  • That by focusing relentlessly on weaknesses, we somehow help SWD develop. While the rest of the world focuses on what people can do, IDEA continues its emphasis on weaknesses and largely ignores student strengths. This premise ill serves students. We should focus on their strengths and unique gifts.

This premise fits into our obsession with “closing the gap” for students who are not yet at grade level, while ignoring the other gap between students already at state standards and their higher potential.  Data now shows that our brightest students are not competitive with their international peers. This premise, focusing on student weaknesses and one gap only, serves our nation poorly.

  • That teachers need to spend lots of time on paperwork, documenting all they do – because, let’s be honest, the law distrusts them. This premise has created an endless negative cycle. Many teachers leave the field because of excessive paperwork. We know that recruitment and retention are major challenges, thanks in part to this premise. We need to trust our teachers and let them teach!
  • That, in spite of the law’s amazing achievement to provide access for all SWD to a free, appropriate public education, it’s still OK for special education to be our schools’ only entitlement program. That it’s OK to spend whatever special education costs – even if that constrains resources for other students. Now, about 40 percent of new public schools funds go to special education. We lack research to support this allocation of funding.  It is not wise, equitable, or effective.

Yet, in spite of the broken system, this premise holds that it’s OK to keep special education largely off limits in school reform efforts. While we continue to tinker on IDEA’s edges with each reauthorization, the system remains largely as it was 35 years ago.

As we move to reauthorize IDEA, let us first fix these broken premises. We need to create a system to focus relentlessly on improving teaching and learning for all students, including SWD, and treat teachers like experts and professionals, not defendants in actual or threatened litigation. Let’s build trust into this system and end the broken premise that spawned the adversarial approach. Distrust cannot be a sound basis for education in our country.

With these transformative steps, we can finally begin to meet the promise of educating all students, beginning with where they are and taking them as far as they can go. It is time to move the needle from broken premises to fulfilled promises.

Miriam Kurtzig Freedman, author of Fixing Special Education, is a parent,  former public school teacher and hearing officer, an attorney, consultant, and authority on special education. She is of counsel to Stoneman, Chandler & Miller LLP in Boston. She divides her year between Boston and Palo Alto, where she is a Visiting Fellow at the Hoover Institution.  For more information and her blog, visit

There are many dimensions to “cheating” and many ways to measure its harm

I’ve read with horror  – as many of us have – story after story about the cheating mess on tests in Atlanta, focusing on 2009 state tests, and in other cities and states.

But then I wonder, what is “cheating”? What does that word mean? As I see it, it’s a way of pretending that a reported test score is valid and that the score actually tells us how the student performed and what that student actually knows on that test. Apparently, these cheating scandals show that scores had been tampered with in various ways and were not valid. Reported scores were too high – and did not actually show what students know and can do. Tragic.

And to this mess, I would add my concerns about state and federal testing policies that allow students, especially students with disabilities and English language learners, to take tests that may not be valid from the get go. These invalid tests include those that have been modified in significant ways and no longer measure what they purport to measure: providing a calculator for a student on a math computation test; having an instructor read a reading test to a student; giving extended time on a test that measures results under time pressure. Yet, score reports on these modified tests are issued and claim to show valid results. In these situations, we can’t blame teachers or students or any of the players on the ground. These are policies set at the top – by companies or states or other test makers. Examples?

How about the fact that the SAT and ACT now allow extended time on those critical tests for some students, without letting anyone know that the tests were modified?

How about reading a reading test to a student who can’t read or giving a calculator to a student who can’t add and subtract – and then reporting the tests as if they are valid. See, for example, Massachusetts policy.

How about the current California situation, where the use of the California Modified Assessment (CMA)  has inflated the state’s accountability measures (API).  The facts are:  the CMA is easier than the regular test, more students with disabilities are using it, and their scores are added to the state measure.  These issues have been discussed in prior TOP-Ed blogs.

Isn’t this, too, a form of  “cheating”? Certainly it cheats students out of knowing what they can and cannot do. Also it cheats schools, taxpayers, and parents from getting a valid measure of student achievement.What do we actually mean by “cheating”? Who is cheating whom?

Miriam Kurtzig Freedman, author of Fixing Special Education, is an attorney, writer, consultant, and authority on special education. She is of counsel to Stoneman, Chandler & Miller LLP in Boston. She divides her year between Boston and Palo Alto, where she is a Visiting Fellow at the Hoover InstitutionFor more information and her blog, visit

CST results need an *

Since 2008, increasing numbers of low-performing special education students have been taking a new and easier standardized test rather than the California Standardized Tests. While it’s appropriate for many of them to take the California Modified Assessment, the exclusion of 185,000 special education students this year had the effect of appreciably boosting the statewide CST scores.

That’s been the contention of Doug McRae, a retired executive who oversaw the design of standardized tests nationwide and has raised the issue with the State Board of Education. On Monday, he once again did the calculations to show the impact.

Factoring in the CMA effect, the statewide increase in proficiency on the CSTs in 2011 would have been 1.6 percent, not 2.05 percent, as the state Department of Education has stated. And the four-year effect of diverting special education students to CMA had an inflationary effect of 26 percent, according to McRae. The cumulative increase in proficiency would have been 8.95 percent instead of 11.25 percent, had the students taken the CST instead of the CMA.

California is one of two dozen states to create a modified assessment for special education students, as permitted by the federal Department of Education. Only those students who do poorly on the CST the previous year, with a below basic or far below basic score in math or English Language Arts, are eligible to take the CMA in that subject area. The state introduced the CMA for grades 3-5 in 2008, grades 6-8 in 2009, and for grades 9-11 over the past two years. The number of students taking the CMA increased from 39,000 to 184,000 in four years (see chart).

(source: Doug McRae)
(source: Doug McRae)

The federal Dept. of Education expected that no more than 2 percent of a state’s student body would take the modified exam. This year, 4.4 percent of students took the CMA, more  than 40 percent of special education students. According to McRae, “the number of students taking the CMA far exceeds initial plans for this test, and are likely to increase to an alarming percentage of the entire group of Special Education students in California.”

(The CMA data are part of McRae’s analysis of the latest CST scores. Readers interested in reading more can find the full text here.)