Learn Your Special Education Laws, Special Education Rights, and Share IEP Goal Ideas

Jan 06
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by Doug Goldberg

The Government:  The foundation of today’s special education law was passed in 1975 and enacted in 1977.  This was Public Law 94-142, The Education for All Handicapped Children Act of 1975 (EHA).  This law eventually became the Individual’s with Disabilities Education Act (IDEA) we know today.  While the Federal Government has required School’s to provide a Free Appropriate Public Education (FAPE) to children with disabilities for over 35 years they have never provided schools the funding they need to accomplish this.  Congress had originally promised to fund 40 percent of the National Average per Pupil Expenditure for every child in special education.  In reality, Congress has never funded even close to 40% and has averaged in the 17% range.  Without this funding the Schools have limited resources available to them to educate all children.

The State: Without access to the necessary funding from the Federal Government the States and School Districts are left to make up the difference.  The States receive the limited funding from the Federal Government and then distribute that money to the local school districts.  The States are also responsible for oversight and implementation of Special Education laws at the local school district level.  Parents are allowed to submit complaints about their local school districts to the State Department of Education.  These complaints, which are different than due process complaints, are to be investigated by the State and then if fault is found must provide a way for the school district to remedy this complaint.  According to the Office of Special Education Programs (OSEP) for the United States, “Some state compliance monitoring systems are inadequate because of a lack of staff, of resources, and of a systematic, coordinated approach statewide.”  I continually hear from Parents that their State complaints were never taken seriously and that sometimes they were never even contacted but rather the State investigator only interviewed the School before rendering a decision.

The School District: A local school district is eligible for assistance under IDEA for a fiscal year if such agency submits a plan that provides assurances to the State educational agency that the local school district meets certain conditions.  The amount they receive is inadequate to cover the costs associated with educating children with disabilities so they are left to make very hard decisions, 1) figure out other areas to make cuts, or 2) creatively skirt their responsibility under IDEA.  In my opinion, based on my experience in Southern California acting as an Advocate in more than 20 different School Districts is that most School Districts are choosing the latter.   They are creatively and in some cases blatantly skirting their responsibility and daring Parents to challenge their offers of FAPE.  The law is not set up to 1) adequately discipline, yes discipline, School Districts that blatantly disregard IDEA, and 2) Parents are at a disadvantage when trying to go to due process and challenge the Schools.

If a School District loses at Due Process the most they are required to do is make up for the lost education they should have been paying for all along (compensatory education).  There is no requirement to pay punitive damages for the loss and suffering of the child and their parents.  Parents are also on the hook to pay for long legal battles that might occur if they file for Due Process especially since 1) the party that files has the burden of proof, and 2) the Parents cannot be reimbursed for expert witnesses even if they win.

The School Personnel: School Personnel who entered into their Professions to help children are being asked to provide FAPE without the necessary resources to accomplish this task.  In many cases they are being blamed for the lack of progress when in fact it would be impossible for anyone to take on the task that they are required to do with increasing case loads and shrinking budgets.  Our Teachers are becoming the scapegoats for School Districts that are at best asking them to turn a blind eye to what’s going on and at worst asking them to lie in order to keep their jobs.

The Parents of Children with a Disability: Parents are becoming increasingly discouraged and wary of anyone having to do with the School District.  There is a line in the sand being drawn between us and them and the very people we entrust our children with are becoming our enemies.  Should they be, absolutely not?  Is this always the case, absolutely not?  Can we just ignore the fact that this is happening more and more, absolutely not?  I am one of the fortunate ones that know the law and the system and have been able to get my child what he needs while continuing to have a positive relationship with my child’s Teachers BUT it took a lot of finesse and legal maneuvering to do this.   It also required his Teachers to be open to it as well and to not hold it against my family when we pushed for more. 

The Student with a Disability:  The buck stops here!!!!  Our children are increasingly being ostracized, bullied and provided sub-par services to address their needs.  The Children being the most ignored are the ones that need the most help.  Children with mental health needs are either being ignored due to the cost of treatment or worse yet the Schools are trying to remove them from the campus so that it’s someone else’s problem.  Students with disabilities are often disproportionately disciplined in comparison to their peers without disabilities. For example, the students served by IDEA are twice as likely to be suspended out of school as their peers without disabilities.  These are numbers that vividly display that something is wrong and it starts with lack of funding for proper services.

Image: Trickle Down Economics from THE IRRAWADDY

The Bottom Line:  There are plenty of great Teachers out there and this is in no way to be considered an indictment against them but rather was meant to illustrate how creating a law without funding causes massive failures all the way down the pyramid.  The problem is the bottom of the pyramid is the child who so desperately needs our help but isn’t receiving it.  We need to do better as a Country and if that means the citizens need to be vocal about our needs it’s time for that to start happening.


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2 Responses to “The Trickle Down Economics of Never Fully Funding Special Education”

  1. Excellent article! Let’s round out the picture for those who don’t know….this lack of funding/denial of FAPE is only part of the whole. Add in lack of appropriate child care. This means at least 1 parent is unemployed or underemployed, affecting the long-term financial future for children and parents. Add in divorced or single parents. Their current finances are affected too because they do not, as a rule, get any compensation in child support rulings due to the disability of the child and the concomitant lack of appropriate child care. In other words, a single parent of a child with a disability is more likely than not to be poor now AND in the future and so will the child. I hope other readers will comment and add their experiences and thoughts.

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  2. i had no idea i could file a complaint with the state without going the due process route. is this the case in all states?

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