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

Apr 17
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by Jess

Special education is a highly regulated process with some stringent requirements of which most parents are not aware. Sadly, many educators are not aware of these requirements, either, and our institutions of higher learning don’t do the best job of communicating these requirements to credential program students, whether they are future teachers, administrators, or specialists.

Tying the science of educational psychology and related disciplines to the legal requirements of special education is a delicate art. There are plenty of people trained in the science of educating people with handicapping conditions and there are a fair number of attorneys who understand special education and related civil rights law, but there is little expertise in tying these two domains together.

The implementing regulations of the Individuals with Disabilities Education Act (IDEA) require that, “to the degree practicable,” special education is to be delivered according to scientifically research-based methodologies. It defines “scientifically based research” by borrowing its definition from No Child Left Behind (NCLB), otherwise known as the Elementary and Secondary Education Act (ESEA).

The intent of the federal regulations is that methods that have been proven to work are used with our students and the only real way to prove something works is to subject it to scientific scrutiny. This sounds cold and clinical, but what it really means is keeping good data on what is being done to determine if it is working or not and staying abreast of the research being done in educational psychology and its related fields. A good special educator is going to measure whether something is working or not and stay abreast of the research simply as a matter of course.

The beauty of scientific rigor is that, like the law, it is fact-based. Personal opinions and preferences are not intended to color people’s perspectives in either science or law, though, in real life, all too often opinion and preference interfere with fact-based decision-making. Opinion and emotional appeals are the reasons lobbyists are successful in swaying our legislators’ votes on key policy topics regardless of the actual facts.

Nonetheless, in order for parents to successfully advocate for appropriate programming for their children with disabilities, backing up their arguments with both science and the law without becoming overly emotional or asserting opinion as fact is the most credible way to affect public policy and achieve appropriate IEPs for their children. If all parents of children who are eligible for IEPs were to consistently advocate for their children in this manner, school districts would not be able to make “blame the parent” arguments against parent requests in which the districts assert that the parents have unrealistic expectations of what can be achieved with their children and are just a bunch of hysterical nuts.

The challenge in tying the science to the law is that parents, generally speaking, are unfamiliar with both. This often means involving experts and attorneys, the costs of which are not fully recoverable from their school districts even if they prevail in due process. Attorney’s fees and costs are recoverable but expert witness fees are not, thanks to a terrible Supreme Court decision that deprives parents of that remedy – something that is understandably achievable in every other form of civil rights-related litigation but which has been eliminated from special education proceedings even when the parents prevail.

Researching the science of special education can become costly if a parent does not have access to the scientific literature, found generally in the form of published research in professional journals. While some articles can be found online for free, many publishers charge excessive fees for non-experts to purchase and download articles. Parents are left to rely on each article’s abstract to give them an overview of the research being reported and the outcomes measured, though for parents’ purposes, this may be enough information. Generally speaking, reading about a project’s analysis of variance and viewing the charts and graphs of how the statistics were calculated doesn’t tell a parent anything he or she can really understand, unless he or she happens to be a statistician or research scientist. It’s the bottom line of what the research proved or disproved that is important; how the research was conducted is more important to other researchers, though it is relevant to the matter of whether the research is valid or not.

My point here is not to burden parents with learning how to translate scientific “mumbo-jumbo.” Researchers replicate the work done by others to determine if original research is valid or not. My recommendation to parents is to find solutions that are backed up by multiple studies. Hanging their hats on one piece of research that has not been corroborated by other research is risky at best.

As an example, in the October-December 2011 issue of Educational Psychologist, there is an article reporting on research done that compares human tutors to computer-based tutoring programs. The upshot of the whole thing is that the research conducted failed to find that one method of tutoring was better than the other. This is relatively new research and one would have to dig deeper to see if any other research backs it up, but for the purpose of this example, let’s just presume the findings in this research are accurate and that human tutors and computer-based tutoring programs are generally equally effective.

The implication for special education here, then, is that, hypothetically speaking, if a parent is advocating for tutoring assistance for his or her child with an IEP as a necessary component of a Free and Appropriate Public Education (FAPE) and the school district agrees that tutoring is necessary to a legitimate offer of FAPE, whether the tutoring comes in the form of a properly qualified human being or an appropriately formatted computer-based tutoring program, tutoring is tutoring and the school district has the leeway to choose whichever methodology is the least expensive so long as it is effective. The science informs the decision, but the law dictates what the district can and cannot do.

Of course, a lot of things have to be considered when making such a determination. A vision-impaired child being given a computer-based solution that is highly visual in nature would not be appropriately served by the use of such technology. As with any part of a child’s special education program, everything has to be individualized. This example is merely illustrative, not authoritative.

The legal considerations in this example include the fact that, per the case law, special education students are not entitled to the “Cadillac” of special education; they are entitled to “a serviceable Chevy.” In other words, special education students aren’t entitled to the best education possible; they are entitled to just enough to get them by. And, in the famous words of every slacker educator I’ve ever encountered in an IEP meeting, “A ‘D’ is passing.”

The legal side of special education is certainly not without its short-comings. The biggest challenge with marrying the science with the law is that the science pursues optimal outcomes while the law still accepts less than the best for our students with disabilities.

As aggressive as the language of NCLB can be, this is not an enforceable body of law. You can’t sue your school district for failing to perform under NCLB. The IDEA borrows definitions of key terms from NCLB to inform its own enforceable regulations, but not policies and procedures. It is the procedures of the implementing regulations of the IDEA and related case law that drives what constitutes a FAPE for special education students and that is not a terribly high standard.

When it comes to supporting legal arguments in special education cases using the science of education, knowing the limits of the law in light of its requirement that scientifically research-based methodologies nonetheless be used is just as important as knowing the latest science. In most cases, this requires an expert in educational psychology and an attorney, which is usually not free and, as such, is very often a barrier to access for many families and our children with disabilities that our public policymakers need to seriously take into consideration.

BIOGRAPHY

Anne M. Zachry is the CEO of KPS4Parents, Inc., a non-profit child and parent advocacy organization. KPS4Parents provides information to the public on issues related to special education in addition to providing lay advocacy services to families, paralegal support to attorneys representing students in special education and related civil rights matters, and consultation to public agencies regarding policy issues, program design and implementation, and legal compliance. Find out more at http://kps4parents.org.

 

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Tying the Science of Special Education to the Law

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