Tag Archives: Chapter 766

The Yin and Yang of Inclusion

mt-p-textInclusion is a special education term that parents hear a lot, and one that they need to understand. As we look back over the 41 years of the Individuals with Disabilities Education Act (IDEA), we have come to realize that the word inclusion has had many meanings and interpretations over the decades. These interpretations have shifted the intent of inclusion from one that favored an appropriate education for students with disabilities to one that for all intents and purposes seeks to deny them the education that is their right. This is what we call the yin and yang of inclusion.

First, a brief history. The federal special education law, originally called the Education for All Handicapped Children Act, was passed in 1975. Prior to that monumental event, the general assumption was that children with disabilities could not learn. Expectations were low for these children. Public schools had the right to exclude them, so millions of children languished at home or in institutions.

As Special Education Attorney Robert Crabtree wrote in the foreword to our book:

The movement in the early 1970s to expand and deepen the legal rights of children with disabilities had its roots in the eloquent language of the U.S. Supreme Court written on behalf of another disenfranchised school population, children of color. In Brown v. Board of Education (1954) the Court declared: “…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 …is a right which must be made available to all on equal terms.”

It was in the 1970s that parents, advocates, and lawmakers began to work together to include children with disabilities in the public schools. Attorney Crabtree, with his law partner Lawrence Kotin, wrote the Massachusetts special education laws, Chapter 766, which later became the model for IDEA.

With the passage of the federal special education law in 1975, inclusion had begun for children with disabilities. Over the decades, it became a standard practice to include all children in the general education classroom, no matter how severe their needs were. Many children with special needs could be in a full inclusion setting all day or most of the day with little or no specialized instruction. Schools began to see the cost benefit of keeping these children in a general education classroom for most of the day compared to expensive individualized services.

With time, schools began to insist that “inclusion” always meant the general education classroom, leading University of Texas professor of special education, Jessica R. Toste, to write recently that: [I]nclusion is often falsely translated to mean the “place” where teaching and learning occurs.* This was the attitude we experienced when our son was in the public schools.

If inclusion is not executed carefully, however, many teachers without training in special education can find themselves teaching both mainstream children and children with disabilities at the same time. Without the proper training or without the right kind of support, the results are often dismal. In her article, Professor Toste cites a high dropout rate, criminal activity, behavior problems, underemployment and even unemployment for students with learning disabilities who do not receive an appropriate education.

The problem is that IDEA does not adequately define the term “inclusion,” it just says that students must be educated in the “least restrictive environment.” This lack of rigorous definition allows schools to interpret inclusion in a manner that is most favorable to their budgets, regardless of what effect it might have on the students in their charge. They can save money by insisting on including students with disabilities in the general education classroom as a substitute for providing individualized education with highly qualified teachers to meet the unique needs of each child in special education as required by IDEA.

The circular irony of the history of inclusion can be summed up as:

  • In the early years of IDEA, the law forced schools to include students with disabilities in the general education classroom.
  • Now, many schools use the law to force students with disabilities to remain in the general education classroom even when it does not allow them to receive an appropriate education.

Special education is supposed to consider appropriate services and placement for each child at no cost to the parents. Schools are expected to define the “least restrictive environment” for each child according to individual needs and not assume that full inclusion is always the answer. They are required to offer their students a “continuum of alternative placements,” not just assume that the general education classroom is always the least restrictive environment. Parents need to know, and more importantly expect, that full inclusion in the general education classroom is not the only option. In the law, “inclusion” does not always mean “place.”

Parents, be vigilant and ask questions to determine if your child will receive the proper specialized instruction by a qualified professional. That is what the law says your child should have. That is the fair and true meaning of inclusion.

Judith Canty Graves and Carson Graves

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* Toste, Jessica R., “The Illusion of Inclusion: How We Are Failing Students with Learning Disabilities,” The Huffington Post, 11/13/2015. Accessed on December 12, 2015 at http://www.huffingtonpost.com/jessica-r-toste/the-illusion-of-inclusion_1_b_8530372.html

Thoughts on the 40th Anniversary of IDEA

Lincoln WinterLast month the Individuals with Disabilities Act (IDEA) reached an anniversary milestone of 40 years. We have been reflecting on this law, the enormous impact it has had on education, and the daunting task of fulfilling its promise for all students with disabilities.

The civil rights movement of the 1950s and 1960s inspired parents and advocacy groups to believe that students with disabilities had a right to the same educational opportunities as their non-disabled peers. As a result, the level of school participation for the disabled increased at both the state and local levels. Despite this progress, by 1970 only 20 percent of students with identified disabilities were being educated in public schools. Many state laws specifically excluded students who were deaf, blind, “mentally retarded,” or “emotionally disturbed” (to use the terms of that era as they were written into the laws) from getting any public education at all. Many students who were turned away languished at home or in institutions.

Massachusetts was the first state in the country to pass a comprehensive special education law, known as Chapter 766. At the federal level, the legal recognition of the rights of students with disabilities occurred in 1975 when Congress passed the Education for All Handicapped Children Act. This law was modeled after Massachusetts’ Chapter 766.

The law required schools to provide a “free appropriate public education” to students with a wide range of disabilities. It also required that districts provide this education in the “least restrictive environment,” a mandate that opened the doors of mainstream classrooms to the 80 percent of students with special needs who had up to then been excluded. Later this law was given the name we know it by today, the Individuals with Disabilities Education Act.

We are grateful that public education became available to all students 40 years ago, but we also recognize that much more work needs to be done. Because IDEA does not give specific definitions to terms like “appropriate education” and “least restrictive environment,” school districts and parents frequently disagree about the meaning of these concepts. The main reason for this conflict is that funding for special education is so inadequate.

In 1975, Congress authorized the Federal government to pay for 40 percent of all special education costs. Since that time, the government has funded less than 20 percent of these costs. The rest of the money to pay for special education comes from either individual states or local communities.

The intent of IDEA is for schools to provide special education services to students with identified disabilities at no cost to the parents. But this takes money and IDEA has never been fully funded. Thus school districts and parents clash when a child’s needs require expensive services.

For the parents, the stakes are incredibly high, as their child’s future depends on an appropriate education. For school districts with constrained budgets, there is pressure to serve students in the most cost-effective way.

In addition, political groups, at both the state and local level, can apply great pressure to school districts. Some residents in towns complain that their tax dollars are used to pay for the educations of less-deserving children in special education. Funds to train teachers for educating special needs students or to hire highly qualified staff are often limited. As a result, the public school budget sometimes limits special education services to a “one size fits all” approach that ultimately fits no one.

All these factors can influence the education that individual students receive. Parents are frequently unaware of these political pressures and wind up feeling confused and frustrated by the special education experience. The result is that many children with disabilities do not receive an education that is appropriate to their needs.

Ultimately, while the implementation of IDEA is far from ideal, we want to acknowledge the anniversary of the law that opened the doors of public education for the many deserving children who might otherwise have been excluded from the classroom. We also want to reaffirm our goal of educating parents about their children’s rights so that their children might realize the education promised to them 40 years ago. We should remember that everyone benefits when all members of our society receive an appropriate education.

Judith Canty Graves and Carson Graves

Question: Has your family benefited from IDEA? In what ways could your experience have been better? You can tell us through our Contact page. Let us know if we can share your story with our blog readers.

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Gatekeeping 101: Withholding Needed Services

mountain sky 4 textSchools sometimes rely on a parent being unaware of their child’s rights to deny services that might cost money or be inconvenient to provide, as illustrated by a case that occurred in 2013 in the city of Somerville, Massachusetts. A local newspaper article provided the details along with a number of compelling (and revealing) quotations from the parties involved.1 The issue was that a high school student in special education was denied the opportunity to participate in a summer soccer camp attended annually by members of his high school soccer team. The school district had decided that the student, who was an active member of the team, must have an aide accompany him to the camp to act as a chaperone. Every year, the school didn’t seem to be able to locate a suitable one.

Though the parents (and grandparents) had offered to accompany their son and act as a chaperone, the school refused to consider their offer, telling them that they were not qualified. The parents then offered to pay for an aide that the school approved, but the school would not discuss their offer with them. The result was that their son was not allowed to attend the camp with his teammates. Each year was the same story. The parents would call school officials, including the district’s director of special education, asking to arrange for their son to attend soccer camp, and each year no one from the school would return their calls.

Finally, the summer before their son’s senior year, not knowing what else to do, the parents contacted the city’s disability coordinator, a person who worked for the city and not for the school system. Within days of this contact, and to the complete surprise of the family, the school managed to find a suitable aide. The article quotes the district’s assistant superintendent as saying: “I think the school department has gone above and beyond, we’re really pleased to be able to send [the student to camp],” while adding that the school was not legally required to provide access to an extracurricular program.

The Legal Reality

Fortunately for all children in special education, the assistant superintendent does not get to decide what the law requires. Section 504 of the Rehabilitation Act of 1973 was explicitly written to protect individuals with disabilities from this sort of discrimination. One of the regulations authorized by this statute, 34 C.F.R. § 104.37, specifically refers to this situation: “No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receives Federal financial assistance.”

All students in special education who receive services under IDEA are automatically protected by Section 504. Had the parents known their rights about this basic protection, they would not have had to put up with years of frustration and gatekeeping by their school district. It is always possible that the assistant superintendent was speaking out of a combination of ignorance and hubris, but it is not possible to believe that the special education department was unaware of the school’s obligation to this student. In fact, the school has the responsibility to inform all parents with children in special education of their rights, including this one, in writing.2

A Final Thought

In addition to prohibiting discrimination against people with disabilities, Section 504 also contains a provision that permits the “prevailing party” in a lawsuit over a violation of the statute “to collect reasonable attorney’s fees as part of the cost of remediation.”3 We are sure that this possibility is one that the school district in question should devoutly hope the parents of the child described in the article do not pursue.

Judith Canty Graves and Carson Graves

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Notes:
1.
Family: Special Ed `Run-Around’ Nearly Kept Somerville Senior From Soccer Trip” By Dan Atkinson, Somerville Journal, August 22, 2013. (accessed 5 September 2013)
2. 20 U.S.C. § 1415 (d). The statute says, in part, that a copy of the procedural safeguards available to the parents of a child with a disability shall be given to the parents at least once a year. What is more, the notification should be written in the native language of the parents if necessary. In all cases the notification should be written in an easily understood manner. Model procedural safeguards form. (accessed 6 September 2013)
3. 29 U.S.C. § 794a (a)(1)

“The Darker Voices of Humanity…” Thoughts on the 40th Anniversary of the Implementation of Chapter 766

In his foreword to our book, Parents Have the Power to Make Special Education Work, Robert Crabtree wrote about the problems created for special education by budget conscious school administrators allied with political forces whose ideology includes reducing the tax burden of educating children at any cost. In his words, “seeking to interpret the words of state and federal special education law at the lowest possible level,” these forces are always trying to minimize the cost of special education. Among other techniques, he wrote, they do this by promoting prejudice against persons with disabilities. He concludes that “[t]hese forces tap into and speak, however subtly, for the darker voices of humanity.” Attorney Crabtree is one of the truly seminal figures in special education. He, along with his later law partner Lawrence Kotin, was largely responsible for writing the first comprehensive special education law, the Massachusetts Special Education Reform Act of 1972, known as Chapter 766. This statute was the model for the federal special education law that we now know as the Individuals With Disabilities Education Act (IDEA). As this September marks the 40th anniversary of the implementation of Chapter 766, it is clear that Attorney Crabtree knows what he is talking about.

A recent example of these darker voices appeared as an opinion piece in the August 5, 2013, edition of The Wall Street Journal. Authored by school attorney Miriam Kurtzig Freedman, and titled “‘Mainstreaming’ Special-Ed Students Needs Debate,” the article describes how the 14% of students in special education (based on national averages) consume a disproportionate amount of educational resources, both in terms of money and teacher services. This she blames, in part, on “an industry of parent attorneys and advocates,” and writes that when it comes to accessing a free appropriate public education, “no other group of students or parents enjoys such rights.”

By framing her argument in this manner, Attorney Freedman apparently wants readers to believe that education is a zero sum game in which IDEA and the other laws providing due process (and civil) rights for students in special education take resources away from students in regular education. She asks parents of the 86% to “understand” that “their kids may be shortchanged,” and wonders why these parents “opt out of any discussion and don’t complain.” In short, Ms. Freedman is not so subtly appealing to the fears of the majority and is essentially asking them to encourage their local school administrators and political representatives to “interpret the words of state and federal special education law at the lowest possible level.” If this seems like an unfair interpretation, at least one of the letter writers responding four days later received this message loud and clear. One Bob Foys of Chicago complained in his letter that anyone who questioned the effect of “this `entrenched and politically correct’ system [of special education]… will be shouted down by the `industry of parent attorneys and advocates’ as an uncaring heartless, bigoted elitist.” For him, and doubtless many more, Ms. Freedman has cleverly turned the real victims of educational discrimination into imaginary victimizers, a feat of true darkness.

Although Attorney Freedman does not say it explicitly, if “mainstreaming” is the problem that “merits discussion,” what is her solution, if not the removal of students with disabilities from the daily public school environment? Is she suggesting a return to the status quo prior to 1974 in which 80% of students with identified disabilities were excluded from education in public schools? In the early 1970s, many state laws still specifically excluded students who were deaf, blind, “mentally retarded,” or “emotionally disturbed” (to use the terms of the day) from getting any public education at all. Is that the standard we should return to? Certainly, educating children with special needs is expensive, however, it’s much cheaper than ignoring these children and allowing them to later become wards of the state.

Attorney Freedman has made other, more explicit, attempts to limit the rights of parents and students in the special education system. In 2011, Ms. Freedman persuaded several school districts in Massachusetts to ask parents to agree to a document called “Procedures Lite,” that she promoted as a way to “simplify” special education. By signing this document, parents waived their right to IEPs, IEP meetings, progress reports, and even worse, the right to a due process hearing, a “simplification” that benefited only the school districts. Happily, when the Massachusetts Department of Elementary and Secondary Education found out about Procedures Lite, it “directed districts that have implemented the practice to discontinue it.”*

Special education and the rights of students with disabilities have come a long way in the last four decades, but the “darker voices of humanity” are always lurking in the shadows seeking to undo this progress. The best line of defense is for parents of children with disabilities to educate themselves about their child’s right to an appropriate public education and be prepared to ask questions and seek remedies whenever these rights are abridged.

Carson Graves and Judith Canty Graves

* Marcia Mittnacht, “Memorandum on Procedures Lite” Massachusetts Department of Elementary and Secondary Education, December 16, 2011. http://www.doe.mass.edu/news/news.aspx?id=6585.