February 28, 2010

The Special Education Mafia

They control special education everywhere. On the outside they look like the good guys- well dressed, helping the poor, sponsoring major events and making public appearances to support their causes. They keep the same positions regardless of who the political party is in power. And they all look alike, with the same kind of clothes, facial expressions, even hand gestures and voice inflections. On the inside, however, they are the brotherhood. They are clandestine, shadowy, sanctimonious groups whose only goal is personal gain and the spreading of one brand of philosophy. They are not bright. But they have a political antenna and street smarts that knows when the wind is blowing in their direction. They are the federally funded parent information and training centers and the protection and advocacy groups and subcontractors in each of the 50 states. And there is no place they are more onerous than in New Jersey. But, of course, why not? What is good for one mafia must be good for the other.

New Jersey Protection and Advocacy (NJP&A), The Statewide Parent Advocacy Network (SPAN), the Education Law Center (ELC), and the ARC of New Jersey filed a lawsuit in 2007 against the New Jersey Department of Education and all members of the New Jersey State Board of Education. This is an “Inclusion” lawsuit, alleging that New Jersey has too many special education students in segregated classrooms. It is not the first time these folks have filed such an action. But now there is a Supreme Court that may be sympathetic and an economy that wants to do away with anything that costs money. The federal court gave them standing recently to proceed with this case, which is a chilling commentary on the further demise of both the courts and of special education. What is not known is that this group shares a federal grant under the Developmental Disabilities Act that pushes Inclusion and that this lawsuit has more to do with them keeping their funding than in helping children and families. Of course, they do not take individual cases and of course, they do not examine IEPs to see if they are more than computer generated skeletons. With the exception of ARC, these people are blood suckers and this lawsuit a sickening indictment of how federally funded programs spend their money- our money. ARC has a specific constituency of retarded people and an obligation to serve them. However, the others are legally required to serve all students with disabilities and cannot pick and choose which category of disabled children they are going to represent. They have made that choice in this lawsuit.

The preliminary statement in this action seeks to enjoin the State from violating the rights of children with disabilities to placement in the “least restrictive environment”. They seek to compel the Defendants to “include” children with disabilities in general education classrooms to the maximum extent appropriate. Now wouldn’t you think all of these attorneys would know that the law already says this? Let’s see how this hook is later developed in the complaint.

Case studies are presented that were never the subject of a completed due process hearing. (What happened to the requirement for exhaustion of remedies? Oh! That’s right. These people don’t like to do hearings.) N.B. was a preschooler who, it is alleged, was “benefiting from his inclusive education”. The school only offered a self-contained placement so the parents took partial payment for a private placement. (I hope somebody is going to have to prove this preschooler actually benefited from that inclusive setting.) F.P. is a kindergartner with a profound hearing impairment. Her school tells parents that they will not offer inclusion unless ordered by the courts. (Are you seeing a pattern here? Nobody filed for due process, but you’ll see how that was handled by the judge.) K.A. was “communication impaired”. They had to move to another town to get an inclusive program. F.V. has high functioning PDD. The services promised were not provided. (Hearing, anyone?) T.G. had to retain an attorney to get an aide to support her in integrated classes. These four case studies, on their face, should never have been enough to permit this case to proceed. But it has. A contract has been taken out to kill the continuum of placement options for children in special education at a time that every school district is forcing kids to return to local programs because private schools are no longer affordable. This is a conspiracy on its face. The plaintiff and the defendants are really all the same people in that the State must sign off on the grant that funds plaintiffs’ salaries and programs. Rather than have the State be the bad guy and shut down the private school option, this mafia is trying to get a court order to hide behind in order to give it an excuse and legal justification to do what is has wanted to do for decades.

The suit points to the percentage of New Jersey students in “segregated classrooms” as the highest in the country, though failing to point out that New Jersey also has the highest rate of autism in the country. No effort is made to connect the contents of the IEP with the placements selected by the districts. Rather, placement is the sole focus of this action. It says:

Inclusion places children with disabilities in age-appropriate general education classes that offer a richer educational environment than do segregated special education settings. These general education classes offer activities that are more challenging and engaging, stimulate creativity, and place higher expectations for achievement. Benefits to children with disabilities include improved language development, improved reading skills, higher grades, higher scores on standardized tests, role modeling, larger friendship networks, improved attendance, and higher self-esteem. On the other hand, many segregated special education settings include rote and mechanical instruction and set low expectations for children with disabilities. In these settings, teachers are often overwhelmed by the presence of many children with disparate challenging needs, forcing the teachers to teach to the lowest common denominator or to only a limited number of children in the classroom as a result of the clustering of children with extremely diverse needs.

You can’t make this stuff up. The description of the self-contained setting is, of course, the experience of the general education teacher to an even greater degree than the one teaching self-contained. There is a religious zealotry to this action, a belief system masquerading as a legal dispute. That is what scares me the most. The religious right has every right to foster its beliefs as long as it lets me have my own. But don’t force me to participate in your religion when I don’t believe in it. Law, however, is supposed to have certain elements- the first being the presentation of facts. Where are the facts supporting the attributes of general education for classified kids? A careful reading of the complaint reveals the real agenda, one that has been at the heart of Inclusion cases since the late 1980s. That is a neutral cost sharing and reimbursement program that encourages students to remain in district for the same amount of money that sending them out costs. Nothing about it recognizes the individual needs of children.

The District Court judge is Mary L. Cooper. She reasoned that because of the high percentage of children in segregated classrooms, the plaintiff organizations had members with standing, and that the concerns raised were central to the plaintiff’ organizational purpose. She did not require the exhaustion of administrative remedies because individual due process hearings would be futile when broad systemic relief is sought. I can see Justices Scalia, Roberts, and Alito now, licking their chops as this tasty morsel inches up the path to the U.S. Supreme Court. Make no mistake. This is a very serious case with ramifications everywhere. The brotherhood has called in chits from the rank and file, with Don Corlione watching and waiting for the next contract to go out.