November 2, 2008

The Liberal Heart of Special Education

It is the Saturday before the Tuesday of the presidential election. We have listened for 22 months to Republicans and Democrats state positions about what they will do to make changes to improve our lives as Americans. In the end it seems to boil down to what both candidates call conservative and liberal views and philosophies. Because this may be the most important election in our history, those of us who live and work in the world of special education need to consider how it is we got here and what it is we do in the context of this national discussion.

As commonly used, conservative means cut taxes, have smaller government, let individuals decide and determine how their money is spent, have fewer regulations, and let individual ingenuity and creativity take flight in a free market. It is generally accepted that big business is protected because it is that business that provides jobs and a stable economy. Liberal connotes bigger government, more regulations and government control, emphasis on the consumer and middle class, and equal rights for all. It is commonly accepted that a liberal party increases taxes to provide more programs for the poor and middle class. These are stereotyped definitions honed for decades across several federal and state elections. But they provide a tidy way to approach what special education was in 1975 and how it became what it is now in 2008.

Throughout the 1960s and 70s, America saw the most active series of civil rights legislation than at any time in its entire history. The goal of Congress then was to provide ways for specific minorities to gain access to the 14th Amendment. Public schools were integrated with black children for the first time. The Elementary and Secondary School Education Act (ESEA) provided financial support for children’s services in order to equalize opportunity between rich and poor. Women were given specific rights in order to prevent gender bias. In 1973 the Vocational Rehabilitation Act was passed in order to provide both employment and educational access to disabled adults and children through specific physical and systemic changes designed to promote equal opportunity. The educational portion of that statute spoke in generalities, so that there was no guidance as to exactly how special education would be funded and designed in our nation’s schools. So in 1975, P.L. 94-142 was passed, The Education for All Handicapped Children’s Act (EHA). It was one of the most prescriptive pieces of legislation ever crafted and served as the capstone of civil rights protections for one of the most fragile minority groups in the country. It explained what states and local districts were required to do if they wanted to receive any form of federal funding. The original federal commitment was to provide 40% of the funding to states for implementation of a free and appropriate public education for each eligible child who qualified for special education.

Just before Congress passed P.L. 94-142, frantic lobbying took place by several learning disability organizations. They wanted their constituents to be recognized in this dramatic new education law. Categories and definitions for the visibly impaired were already agreed upon. They were straightforward from the perspective of Congress because you could see deafness, blindness, cerebral palsy, and forms of retardation. Then came the unexpected demand to recognize something a person could not see and recognize- an invisible disability. These were disabilities in reading, writing, math, etc. Through a fluke and the arm twisting of LD groups, a final category was put in the statutory list of recognized special education handicaps- specific learning disabilities. Once the law was enacted, the next requirement was the development of its implementing regulations. However, between 1975 and 1977, a critical event took place. Jimmy Carter became president in 1976.

Under the Carter presidency, exacting EHA regulations were passed on all aspects of special education, far beyond anything we have today. From that point, public schools began to howl with dissent because of these regulations and because they did not receive the 40% funding promised by Washington. Disabled kids came out of the woodwork, literally. They came out of closets, basements, everywhere. Simultaneously, modern medicine was saving preemies that never survived before. They aged out and into the public school systems. Then there was the birth of the drug culture. Heroine was popular and pot was everywhere. So by 1980, just 5 years after its birth, special education had become a burdensome, misunderstood, unfunded mandate. It inherited the disabled babies who were handicapped students, as well as the effects of drug use within the student population. The liberal philosophy of providing equal opportunity cost too much money. The learning disabled kids weren’t really handicapped because they could learn if they tried hard enough. There were just too many of them to handle. In addition, parents and lawyers discovered how to use the due process system, winning cases often just on the basis of schools never complying with the procedural requirements of EHA. Enter Ronald Reagan.

Reagan was elected in 1980 and served until 1986. More than any other president, he took on the goal of dismantling special education. Within the first year of his presidency, he announced that the goals of special education had been achieved. He attempted quietly to do away with IEP requirements, in-service and staff development requirements in the first reauthorization, as well as many monitoring requirements. He wrote a private letter to a constituent, making fun of special education with the stated intention of destroying it. There was as furor by parents that resulted in 8 public hearings on Reagan’s proposals. His administration was so upset with me that they sent a delegate to my house for an afternoon interview. Most of his proposals were defeated but the agenda was very clear. The liberal heart of special education was no longer welcome. It would require increased taxes and impose federal requirements on what was believed to be the right of states to decide education policies. In 1982 the first U.S. Supreme Court decision was issued, Rowley v. Hendrick Hudson Regional School District. The parents lost because they wanted to maximize their daughter’s potential. A careful reading of that decision continues to foreshadow all that came after. And what came after were the appointments of George W. Bush in the form of Roberts and Alito, judges who politically are conservative and do not interpret special education laws to require more than minimum access to education for children and parents.

The net result of 33 years of special education has been to destroy it soon after birth. The add-on of learning disabilities was tackled by Reagan and everybody coming after him as an unnecessary and overly expensive area of eligibility. Decades of political finesse have tried to lump the mildly retarded with the learning disabled in classrooms that go at a “slower” pace. In the early 90s, both Bill Frist and Newt Gingrich convened a national caucus on unfunded mandates that included special education. It became the third rail of education politics. They did not want to say it should not be a federal program, but neither could explain how it would be funded. With the immense growth of special education and the specific category of learning disabilities, something was needed to limit expenditures for special education while making believe the conservative agenda supported special education.

It is no accident that the Inclusion movement was born about 1990. It allowed politicians the luxury of supporting disabled children and their families, with emphasis on their right to be included in the general education mainstream. From the outset, this was a political decision, having little to do with the individual needs of children. And so it remains today. Children in special education have not been provided with legitimate IEPs since the mid-80s when companies began to sell computerized software to help schools meet the requirements of the law. Everybody knows it and nobody will admit it. Testing requirements have become less and less when children’s educational problems become more and more complex. Eligibility for special education is increasingly difficult because general education has developed the “capacity” to handle “diverse learners”.

How about parent training and support? All federally funded programs must lie to parents about the actual system they must face, because the truth would scare them. The conservative agenda requires we do more with less. Nationally, the infighting of these funded parent groups has grown ferocious due to the growing parent demands for answers and the groups’ inability to provide them. Anybody paid by a federal grant becomes part of the problem. The granting system is big business run amok at the expense of individual families. It is inefficient, loaded with political cronies having “Yes” stamped on their foreheads. The biggest business is the lawyer lobby. And we know how well it has handled the need for legal representation by the poor and middle class.

So what about what will happen on Tuesday? We can wring our hands and bemoan the agony of a corrupt federal and state system of special education and the current state of the U.S. Supreme Court. But without enforcement, oversight, stricter laws, and full funding our children, all of them, will never have the even playing floor of opportunity. That was the original liberal heart beat of special education. I want that back in my lifetime.