The Approaching End of a Heartbreaking Era

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When the Education of All Handicapped Children’s Act (EAHCA) was enacted as PL94-142 in 1975, it was in the face of enormous opposition from school district administrators and their attorneys who were actively refusing to enroll children with disabilities in our nation’s public schools. Many have remained employed in public education, stewing in their own bile over their legal “loss” while begrudgingly enrolling students with special needs.

The EAHCA was reauthorized as the Individuals with Disabilities Education Act (IDEA) in 1990, which has, itself, been reauthorized twice since then, the last reauthorization being in 2004. Clearly, Congress has no intention of returning to a time when discriminating against those with disabilities was perfectly acceptable.

I don’t know how many of you have experienced an employment situation in which people have been required to do something that they opposed, but it’s been my experience that some people in this position are more likely to sabotage any attempts to do things differently to “prove” it was a bad idea than to willingly go with the program. Some people are just sore losers.

In short, you’re not likely to get buy-in from people who had to be Court-ordered or required by regulation to do the ethical and responsible thing. It says something, anyway, about a person’s character when he/she forgoes ethical solutions for whatever reasons and, therefore, requires enforceable regulations that dictate what his/her behavior should be. Some peoples’ characters create a situation in which the behaviors normally associated with common sense and ethics become subject to regulation.

This is not specific to special education or the legal practices that surround it. This is human nature. Somewhere out there in the world is the person who justified warning labels on suppositories that advise they are not meant for oral consumption. Some people’s functional skills in various aspects of life, for whatever reasons, are seriously limited.

People tend not to make improvements when forced to, particularly when they perceive the improvements as a threat to their familiar, comfortable, self-serving routines. This, too, is human nature.

The problem in special education is that, following the passage of the EAHCA, too many people with chips on their shoulders were left over the decades in positions of authority in public education, passing their “insight” onto the people they were responsible for training and stacking the deck against the success of special education. In other words, ever since the passage of the EAHCA in 1975, there have been career public education administrators undermining the effectiveness of special education in order to win an argument rather than educate children, the latter of which being what we actually pay them six-figure salaries at public expense to do.

Clearly, this is an issue of ethics, but ethics are not enforceable per se under the regulations. It would be a matter of law if the law had not been so undermined by the lawyers who accept money from these people. They have been successful over the years at taking the teeth out of the IDEA through litigation that established case law specifically for that purpose. Their biggest coup was the 1982 ruling in Board of Education of the Hendrick Hudson Central School District, Westchester County vs. Amy Rowley (Rowley), which established the “Rowley Standard” in special education.

The Rowley Standard states that special education is simply meant to offer a basic floor of opportunity to special education students, not maximize their potentials. Effectively, special education law only requires public schools to open their doors to students with disabilities and give them an Individualized Education Program (IEP) that describes how their educational experiences will be tailored to their needs such that they receive “some educational benefit” [emphasis added].

There is no promise of sufficient learning such that special education students will be left capable to compete in the open job market as adults and, in fact, special education failures to actually educate students is a huge source of youth who get funneled into the School-to-Prison Pipeline. This is in spite of Congress’ intent that the IDEA prepare students in special education for competent adult lives rather than lifelong dependence upon public resources, such as welfare, institutionalization, and/or incarceration. We pay far more for special education failures in the long run than we would pay for special education compliance.

This is now being recognized by Education Secretary Arne Duncan, who states: “It’s not enough for a state to be [procedurally] compliant if students can’t read or do math. We must have a system that will do more than just measure [procedural] compliance.” In other words, simply filling out the correct forms is not enough to say the job is getting done. I agree that special education metrics should account for actual student learning baselines and outcomes, not just demographic data and procedural compliance records.

One huge problem that has arisen from this toxic political climate is the profit-mongering of law firms looking to “help” school districts avoid the fiscal commitments of living up to the intent of the IDEA while still managing to technically comply with the law. Because they profit from things being as they have been, they have no incentive for things to change. If litigation were prevented, they’d have no billable hours.

They argue against change, including improvements in educational quality. They accept money from school district administrators and their governing board members, none of whom want things to change, either. These administrators and board members include individuals who have opposed the federal special education laws from the beginning and those who have followed in their footsteps. These individuals have turned public education into a political minefield that sucks resources out of their agencies’ classrooms to fund unnecessary litigation fueled by their personal feelings about special education.

They litigate against students and parents as well as lobby Washington, DC and state legislators around the country in an effort to undermine the rights of students with disabilities. Most importantly, in my opinion, they appear to object most adamantly to the application of legitimate measurement in special education to record student progress or lack thereof, as well as track the implementation fidelity of students’ individual programs.

These are the people who will fight Secretary Duncan the most savagely, I suspect. If he’s calling for improved performance measures in special education that are based on actual student outcomes, and the American public supports him on it, their reign of terror is over. Improved metrics will reveal the shadows they’ve been hiding in all these decades and they will be cast out.

Where best practices in education calls for valid data collection, special education law evidently does not; at least that is not the standard of fidelity typically enforced by the Courts. Schools are not held to the standard of best practices; only to the standard of effective practices. But, even one can’t know if one’s practices are effective without valid data collection, so, at times, the minimally effective practices and best practices are the same thing. This is rarely something of which you can convince a judge, even if you are right.

As science becomes a more integral part of everyday life, it is inevitable that its principles of logic and fact-based decision-making will prevail over hysterical, emotional, self-serving decision-making. As more and more of our administrative functions in all types of work environments become automated by ever-advancing, scalable business computing technologies, it is inevitable that public education will migrate to a supply-chain model of operation that includes the flow of data from classrooms all the way to the National Center for Educational Statistics and back.

The ability to accurately inform public policy, maintain transparency in government, and eliminate opportunities for misappropriation of funds and other scandalous misconduct lies in the application of modern business computing technologies to public education administration. This would inadvertently create a system of accountability that no one within such an automated organization could avoid, and herein lies the political rub.

Those who argue against improvements in public education argue that raising the standards to that which is educationally effective in all areas of student need, at minimum, is too high of a standard to impose on teaching, specialist, and support staff given the burdens they must already bear, but this is a ruse. These are the same people who created the working conditions that make it impossible for their staff to take on the responsibilities of accurate and valid data collection. These are the same people who use their lawyers to bully their staff and harass parents seeking services for their children with threats of litigation if they don’t shut up and go away. They proactively fight to preserve their dark shadows.

I’m going to make a comparison, here, based purely on the marketing efforts of two specific law firms, as evidenced by their websites, in order to sketch the political landscape a bit. I half expect to get a cease and desist letter from one of these two firms, but, with all due respect (which, in this case, is none), it can suck it. I am protected by the U.S. Constitution, including the 1st Amendment, to freedom of speech as an individual and freedom of the press as a journalist. I’m entitled to my informed opinion and the right to express it, as well as empowered to report on current events, which is what I am doing here. One of these law firms has put its marketing message out there to cater to a specific audience with utter disregard for how members of the public, which include me, may take what it has to say, which is on the firm.

I want to make clear here, as well, that neither I nor KPS4Parents are endorsing any law firm that represents school districts in any kind of way. This is purely a comparison of marketing messages as they relate to my experiences with both of these firms for the purpose of discussing the degree to which the end of a terrible era of discrimination appears to be finally approaching.

The two firms I am contrasting here both represent school districts. Their approaches in actual practice differ greatly, however, which is made even more curious by the fact that one firm was started by former employees of the other firm. That’s an interesting story in itself.

The first firm is Lozano Smith. It prides itself on helping school districts develop legally defensible IEPs, which rather presumes a frequent need to defend them. Note, this is not an offer to help school districts develop IEPs that actually result in student learning or are in any way educationally appropriate, nor is it an offer to help prevent litigation. You will find nothing on the Lozano Smith web site that states they will help school districts promote excellence in education. To quote, Lozano Smith “… is dedicated to protecting districts’ interests when litigation arises. We understand the challenges faced by school districts in these times of increasing obligations and shrinking resources.”

So, basically, what I take this to mean is that Lozano Smith anticipates disputes that escalate into due process complaints and stands ready to defend its clients in litigation at public expense, thereby seeking to exploit “these times of increasing obligations” and sucking up even more of its clients’ “shrinking resources” in otherwise avoidable litigation costs. This does not seem like a public service so much as it seems like parasitism, to me.

I further take this to mean that Lozano Smith isn’t interested in protecting the public’s investment in proper educational outcomes or students’ and parents’ rights. This perception hardly makes me unique. Combined with my experiences with this firm and the kind of trouble it’s gotten itself into in the past, it’s my perception that Lozano Smith has consistently sought financial profit by fanning the flames of the controversy that have been raging since the 1975 passage of the EAHCA rather than actually trying to resolve disputes in a way that pursues educational outcomes for the involved students that will adequately prepare them for adult life.

Lozano Smith appears to seek out school districts run by administrators and school boards that are opposed to special education and cater to their uniformed, fiscally driven agendas without regard for – if not in open defiance of – their clients’ mandated duties to educate children, including those with disabilities. In other words, it appears to be catering to the hardcore diehards who have been opposing special education since 1975 and their like-minded successors.

The firm also helps its clients adamantly fight inclusion of special education students in general education settings, despite the evidence that properly staffed and operated inclusion programs work and achieve superior results. Because the law does not require superior results, only “some educational benefit,” Lozano Smith will argue for whatever program costs its client the least to operate while billing its client through the nose for its own time, in my experience. For the cost (or more) of a behavior program staffed by behavior specialists in the general education setting, the firm will fight a parent’s request for such a program and seek to enforce placement in a more restrictive setting by suing the parent.

By having their clients deliberately understaff their general education settings to support their special education students’ inclusion, they create general education environments in which students with various kinds of learning problems are guaranteed to fail and then use this as an excuse to place said students in more restrictive settings. This sets the stage for a lovely chunk of billable hours for the firm and violates at least some of these students’ rights to placement in the least restrictive environment in the process.

While special education is a service, not a place, it is cheaper for school districts to warehouse their special education students in segregated settings. Rather than figure out creative ways to generate the revenue necessary to cover the costs of serving these students above and beyond the underfunding they receive from state and federal sources, some school districts choose to invest public education dollars in legal fees to fight their obligations to educate students with special needs. This is not responsible stewardship.

Lozano Smith’s attorneys readily cite to Rowley’s minimal standards every chance they get. They appear to represent a cadre of individuals of a particular self-serving ilk who have built their careers by stepping on the backs of children with disabilities since the firm’s inception in 1988, exploiting the anti-student, pro-big-fat-paycheck mentality of far too many people who remain employed in public education administration.

The other firm in this comparison is Fagen Friedman and Fulfrost, LLP. This firm has created a charitable foundation that promotes excellence in education. In fact, they claim to be advocates for excellent education. That’s quite a statement for a firm that represents public education agencies that are held to a standard that falls far short of excellence under the law. This firm’s website seems to suggest that the firm sees the inevitable coming, as well.

In recent years, it has been my experience that this firm has been amicable and usually reasonable to deal with. I have a case in one local school district in which a senior partner from the firm participated in the student’s IEP meetings and graciously helped craft a legitimate offer of FAPE that has resulted in the most successful full inclusion program that I’ve seen in my 23+ year career for a student with autism; his BCBA stated it was the most successful full inclusion program she’d seen in 15 years after one of his IEP meetings, last year.

This student was non-verbal at the time he was fully included in a general education setting with a behaviorist working under BCBA supervision as his 1:1 aide according to his IEP, but his spontaneous speech has since begun to emerge and he has just blossomed. His general education teacher showed up at a local conference at which Dr. Temple Grandin spoke recently and openly advocated to the rest of the audience for full inclusion programs. I was there. I caught up with her and gave her the biggest hug; we both got teary-eyed. We were entirely sappy.

I had another case in which a student had immigrated to the United States from Thailand and lived in another community before relocating to his current school district’s community. When he came into the district, he already had an IEP from his former school district, but it was poorly crafted and based on shoddy assessments. The family spoke no English and had no idea what they had agreed to when they had originally signed his IEPs.

The receiving district stumbled along with the inadequate IEP that had come with the kid and made annual revisions. It even conducted its own shoddy triennial reassessment that failed to identify his needs and led his IEP team in a totally inappropriate direction before I became involved.

The family came to me because their son was trying to jump out of the moving car while they were driving him to school in an effort to kill himself. He hated it that much. Something had to be done.

I had reviewed his records and met with him and his father. Right away, I could see that this student perseverated on specific topics and presented as developmentally delayed. Some of his communication issues were the complications of bilingualism between a tonal and non-tonal language, but he was also definitely impacted in the area of pragmatic language. He didn’t seem very competent at analytical reasoning, which suggested that he was still stuck at the stage of Concrete Operations as a 9th grader. He presented like a younger child.

I called it suspected autism. Turns out I was right. He had not been identified as having autism in his past special education assessments, but it was as plain on the nose on his face. The attorney from Fagen, Friedman & Fulfrost was gracious throughout the IEP meetings in which we both participated and we facilitated an outcome that turned the situation around entirely within a day, starting with an immediate transfer to another school.

There had been things going on at his original school, the aversive affects of which he had come to generalize to the entire campus. He had been bullied by peers, and felt like everyone hated him and was trying to hurt him. The whole school had become an environmental antecedent that triggered hysterical, self-injurious avoidance behaviors. He lacked the coping skills to handle the situation. By changing schools, the triggers for the behaviors were immediately eliminated and, therefore, the behaviors ceased to occur. That made him available for learning new coping skills that would prevent the same situation from developing again in the future.

It was night and day between how I found him and how he ended up. The district’s attorney was instrumental in making sure that the right things happened according to schedule. We were able to identify a bilingual speech-language pathologist within reasonable driving distance who was also fluent in Thai and employed by a non-public agency who was able to parse out the effects of bilingualism from autism-related language delays. I think Lozano Smith would probably burn one of its own in a ritual sacrifice before it would go to such lengths to serve a student.

I’m not saying that I’ve never seen an attorney from Fagen Friedman and Fulfrost do something inappropriate. One of their attorneys I’ve worked with will occasionally turn on a dime from charming and cooperative to snarky and hostile. By and large, however, it has been my experience, particularly of late, that the firm seems just as invested in the quality of the education a student receives as in the IEP team’s procedural compliance with special education law.

There is no way for public education to continue hiding from fact-based, evidence-driven education policy and instructional planning or modern business automation. It is inevitable. Everything else is moving in that direction because it has been proven effective in business and industry for decades.

It is a known fact that the most valid and reliable methods of data collection used in public education today are those used in behavior programs based on Applied Behavioral Analysis (ABA). These programs are most often operated for students with autism, but are actually effective with all students. ABA applies to all living things. It also relies upon the basic tenets of science, which include empiricism.

IEP goals are required by federal law to be measurable and measurability is only possible if empiricism is used, but good luck getting a hearing officer or judge to enforce real empiricism as the actual standard for IEP goals in litigation. Attorneys for school districts will assert that this is best practices and best practices are not merely “some educational benefit,” therefore, the use of empiricism exceeds the standards of the IDEA and is not enforceable. Judges seem to fall for this argument more often than not, especially if there is a chorus of teachers testifying to how impossible it is to actually measure student performance in their classrooms.

Here’s the real issue, though. The thing about using the same data-collection methods as ABA with all measurable aspects of an IEP is that it inadvertently creates a system of accountability that sheds light into the same dark corners where the lazy, incompetent, and unscrupulous hide. Any valid system of data-collection will shed light in these dark corners. ABA particularly relies on taking data not just on the student’s performance towards his/her behavior plan but also the degree to which staff stick to the plan during implementation. The data collected on staff performance is part of a system of fidelity checking. The data is analyzed to inform staff training to ensure that the plan is consistently implemented as designed.

Behavior plans fail for one of two reasons: design failures or implementation failures. If a plan isn’t working, the IEP team needs to know if the plan needs to be modified or if further improvements in implementation are needed. Maybe the tools staff have been given are too cumbersome. Maybe a smartphone or mini tablet with an app for data collection would make more sense than a clipboard or big ol’ 3-ring binder. Maybe staff needs more training. Maybe the language of the plan needs to be clarified so that everyone understands it to mean the same thing. Maybe it’s starting to look like there were other ecological factors not previously considered that need to be accounted for by additional assessment and a revision to the plan.

Any approach to measuring individual student performance in an educational context that emulates the data-collection methods of ABA, including fidelity checking, is likely to collect reliable and valid data. These data-collection approaches can be applied to measuring progress towards IEP goals, as a matter of fact. The problem is that fidelity checking can also reveal personnel failures for which the public agency could be held legally accountable.

This is where it seems a distinctly different approach is taken by firms like Lozano Smith compared to firms like Fagen Friedman and Fulfrost. It’s been my experience that Lozano Smith will fight against technically valid and reliable data collection where Fagen Friedman and Fulfrost will not. It’s been my experience that clients of Lozano Smith will refuse to commit the resources necessary to make a placement successful in the least restrictive environment where clients of Fagen Friedman and Fulfrost will not.

It seems to me that the end of a terrible era of discrimination against students with disabilities will come to an end when educators who promote excellence in education greatly outnumber and outrank the parasites that suck money out of public education for their own selfish purposes at the expense of our children, and high quality teachers, specialists, and administrators are supported by law firms who believe in the pursuit of educational excellence. By freeing up fiscal resources through increased efficiencies achieved through business automation technologies over the next 10 to 15 years, and recommitting those dollars to instructional costs, public education agencies will be in a position to achieve a higher standard of educational quality.

One of the bases for the decision in Rowley was the belief that it was impossible to expect more than “some educational benefit” for special education students because humanity lacked the tools to pull off anything more than that. That is no longer the case. Rowley no longer applies to the current context in that way.

We’ve now had the information technologies that can handle the data collection and analyses, mandated reporting requirements, mandated notice requirements, mandated timeline management, and all the other data-drive aspects of public education. The regulations provide many of the workflow rules. An ABA-style system of data-collection would integrate seamlessly into an automated business management system. All of these things, however, will shed light into dark corners.

The public is going to increasingly expect that its investment in public education is being spent on making things better, not lining the pockets of smarmy lawyers while students fail to learn. Those who fight improvements in education that are based on evidence and research are going to be increasingly challenged by everyday citizens with common sense who know a load of bull when they hear it. Increasingly, people are going to demand greater accountability through evidence-based practices, including fidelity checking, in public education. Public education will not have a legitimate reason to refuse the peoples’ demands.

Secretary Duncan’s assertion that procedural compliance is not enough hails the end of “legally defensible” IEPs that nonetheless fail to deliver the kinds of education that help special education students become taxpayers rather than tax-dependents in adulthood. Bear in mind that most special education students have normal to above-average IQs and are compromised by learning disabilities, ADHD, Autism Spectrum Disorders, and other “hidden” impairments that do not affect intelligence. These are the kids who, with a little extra help, can contribute rather than live on the contributions of others.

California, where the two law firms whose websites were contrasted above are located, has been targeted by Secretary Duncan and his team due to its particularly poor outcomes for its students with special education needs. I suggest he start with the school districts represented by Lozano Smith. For that matter, he should examine every district that has governing board members who are also members of the California School Boards Association and/or the National School Boards Association. Lozano Smith is collaborating with both associations of paid elected officials to undermine the legal protections afforded to students with disabilities.

Another awesome thing that has happened recently, again in California, is that the tenure system used by teachers in the State was declared unconstitutional by a State Superior Court. Tenure systems promote last in/first out hiring practices in which new teachers, many fresh from advanced degree programs where they have been educated in effective practices according to evidence and research, are the first to get laid off when money gets tight while tenured teachers who have no or inadequate performance standards with which they must comply are kept on. Guaranteed job security regardless of performance at public expense is basically what the Court eliminated, stating it violated students’ rights to a decent education.

This is monumental change in the right direction and, to me, is a further sign that the end of a era of heartbreak is just around the corner. There is going to be a period of upheaval as more and more average people become educated enough to understand the nuances of what has been going on and what the consequences to children, families, and communities of special education failures have actually been. The Old Guard is on its way out. It’s kicking and screaming as it goes, but I’m choosing to look at this behavior as an extinction burst.


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