Unfunded education mandates: a history lesson

By Susan Gibbs

 Over the course of the last several years, as the Greene County School Board has requested more and more funding from the local government, some residents, particularly those of us who came of age in the late 1960s and the early 1970s, have asked why?  Why do the schools need so many high-level administrators; why do they need so many special education teachers, and so many teacher assistants? We didn’t need all that, why do they? We ask these questions over and over again even though we have heard the words “mandate” and “unfunded” over and over again. The following is an attempt at clarification. The information has been compiled from several sources found, for the most part, online.

Reports indicate that since the recession struck five years ago close to 75 percent of schools have reduced instruction in classes that are not part of federal or state mandates and some have cut or eliminated classes altogether.

In fact, according to the Center on Budget and Policy Priorities – an organization that conducts research and analysis into government policies that affect low- and moderate-income families – state cuts to education have deepened, across the nation, over the last year. Elementary and high schools are receiving less state funding in the 2012-2013 school year than they did the year before in 26 states, and in 35 states school funding now stands below the 2008 levels – often far below.

Further, while emergency aid from the federal government reduced the severity of cuts to school funding in the years immediately following the onset of the recession, Congress allowed that aid largely to expire at the end of the 2011 fiscal year, before state revenues had recovered from the recession.

The Greene County Public School District has made cuts over the course of the last several years, but School Board Chair Michelle Flynn has said that to date, those cuts have not affected the classrooms.

Unfortunately, that may not be the case this year, with the county facing lower real estate assessments, slow business growth, and mounting debt. And with the school having to maintain mandated programs that are either unfunded, or underfunded.

The only thing that is for certain this year is that the time has come for school supporters to start talking more to federal and state legislators than they do to local legislators because, as the saying goes, “You can’t get blood out of a stone.”

Mandates did not happen overnight.

According to information garnered from a course taught at Trinity College in Hartford, Connecticut, many would result from the movement for better education for disabled children.

While the civil rights movements of the 1960s and 70s are largely remembered as bringing rights to African Americans and women, they also advanced the rights of almost all oppressed minority groups, including the disabled.

In the 1960s many states had laws that explicitly excluded children with certain types of disabilities – such as those who were blind, deaf or labeled “emotionally disturbed” or “mentally retarded” — from attending public school. About a half million of these children lived at state institutions where they received limited or no educational or rehabilitation services. Millions more were schooled in facilities that separated them from the general student body.

Groups that included a variety of groups, such as the American Association on Mental Deficiency, The Association for Retarded Citizens and the Association for Children with Learning Disabilities, often led by parents of children with disabilities, led a strong push for equal education.

In 1963 President John F. Kennedy, who had a mentally-disabled sister, established the Division of Handicapped Children and Youth and revitalized the Bureau of Education for the Handicapped. He sent missions to study international programs for disabled children and pushed for grater rights for the disabled, especially those with mental disabilities.

An estimated one-third of all of Kennedy’s New Frontier programs made some form of education a vital element. Funds were provided to teach exceptional, deaf, handicapped, and retarded children. Literacy training was authorized and presidential funds were allocated to fight delinquency and dropouts, and to quadruple vocational training. Free lunches were provided in schools in poverty-stricken areas.

And the federal government began to encourage, but not require, the inclusion of children with disabilities in the public school setting.

Following Kennedy’s assassination in November 1963, President Lyndon B. Johnson continued his efforts. Task forces composed of scholars and experts worked in secret for White House staff, outside the existing governmental bureaucracy, to craft legislation that would enable him to create a “Great Society.”

The task-force approach, combined with Johnson’s electoral victory in 1964 and his talents in obtaining congressional approval, were widely credited with the success of legislation that included the Elementary & Secondary Education Act of 1965 (ESEA).

ESEA, which emphasized equal access to education and established high standards and accountability, initially allotted more than $1 billion to help schools with a high concentration of low-income children purchase materials and start special education programs.

Funds were authorized for professional development, instructional materials, for resources to support educational programs, and for the promotion of parental involvement – but because many of the initiatives did not originate from outside lobbying, some programs had no political constituencies that would support their continued funding.

Nevertheless, the following year ESEA was amended to include aid to handicapped children, and in 1967 it was amended to include bilingual education programs. And, the Bilingual Education Act of 1968 offered federal aid to local school districts to address the needs of children with limited English-speaking ability.

In the early 1970s a series of court opinions forced Congress to take further legislative action, and in 1975 Congress authorized the Education for All Handicapped Children Act (EHA).  All public schools accepting federal funds were now required to provide equal access to education and one free meal a day for children with physical or mental disabilities.

Public schools were now required to evaluate handicapped children and create personalized educational plans that emulated as closely as possible the educational experience of non-disabled students. Disabled students were to be placed in “least restrictive environments” which allowed the maximum possible opportunity to interact with non-impaired students.

It also required school districts to provide administrative procedures so that parents of disabled children could dispute decisions made about their children’s education. Once administrative efforts were exhausted, parents could seek judicial review of the administration’s decision. Separate schooling could only occur when the nature or severity of the disability is such that instructional goals could not be achieved in the regular classroom.

It was an ambitious act that many doubted could deliver what it promised.

In a 1977 New York Times column paid for by the United Federation of Teachers the president of the group gave general support for the principle that all students should receive an education but anticipated real challenges lay ahead by highlighting extreme examples, such as: “Hydrocephalic children who were born with holes in their hearts, who turn blue periodically and have water on the brain and tubes in their heads which drain off the excess water” and “Children who still need to be taught toilet training, self-feeding and so forth.”

The writer then questioned the wisdom behind the requirement that disabled students be integrated to the greatest degree possible and that parents should be able to challenge their children’s placements.

“Should the decision of the parent prevail over that of psychologists, the school principle, or previous teachers?” he asked.

When it passed the EHA in 1975, Congress established a maximum funding level for the Act of 40 percent of the average per pupil expenditure of American students. That, according to reports, did not happen.

In 1981, four years after implementation of the Act began, the United States Department of Education conducted a study of its implementation and impact at the state level. The study found that many states were struggling.

Nine years later, in 1990, EHA was revised as the Education for All Handicapped Children Act (IDEA).

It now placed more focus on the individual, as opposed to a condition that individual might have.

IDEA defines a “child with a disability” as a “child… with an intellectual disability, hearing impairments, including deafness;  speech or language impairments, visual impairments, including blindness;  serious emotional disturbance;  orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; AND, who… [because of the condition] needs special education and related services.”

There are no exceptions to IDEA: no child is so severely disabled as to not qualify for educational services under IDEA. Even children who are in a permanent vegetative state or suffering from similarly severe brain damage still qualify for a Free Appropriate Public Education (FAPE).

FAPE is defined by IDEA as an educational program that is individualized to a specific child, designed to meet that child’s unique needs, provides access to the general curriculum, meets the grade-level standards established by the state, and from which the child receives educational benefit.

This means that schools can be required to provide “educational” services to children who have no capacity for voluntary movement, no ability to communicate, and no indication that they recognize their own names or their parents’ faces.

Under the “related services” clause, schools are specifically required to pay for many kinds of medical treatments, including speech therapy, audiology, physical therapy and nursing, if the medical treatment is expected to help the student’s education. There is no requirement that private health insurance be used when available. (A subsequent statutory exception relieved schools of the duty to pay for certain kinds of surgery, such as cochlear implants, referred to as bionic ears).

In 2001 ESEA was reauthorized as the No Child Left Behind Act (NCLB), which supports standards-based education reform focused on skills in reading, writing and mathematics. NCLB requires states to develop assessments in these basic skills and to assess all students at select grade levels in order to receive federal school funding. It also requires states to provide “highly qualified” teachers to all students.

Congress mandated that states fund the improvements and provide appropriate training for teachers.

When the Act was passed the United States Department of Education assured states that federal funding would cover a significant portion of the costs associated with the law’s requirements. These new costs – for test administration, data collection, and school improvement reforms – have been significant and states have often claimed that NCLB is under-funded due to evidence that the federal government has not adequately supported these implementation costs.

Instead, NCLB allows financial incentives to states who improve their general and special education services.  States that do not improve services, or fail to dramatically raise the achievements of students with below-average capabilities, must refund these incentives to the federal government, allow parents’ choice of schools for their children, and abide by other provisions.

While some refer to NCLB as an unfunded mandate, that is not technically the case because the federal government does not mandate that states participate in the program. While a state might struggle financially without federal education funding, it can choose to opt out of NCLB and the requirements the program includes.

In 2004 IDEA was amended by the Individuals with Disabilities Education Improvement Act (IDEIA).

The law increases educational requirements for teachers and revises the requirements for evaluating children with learning disabilities.

Now, an Individualized Education Program (IEP) must be designed for each eligible student, preschool through age 21. The IEP is designed by a team consisting of: the child’s parents; at least one of the child’s regular education teachers, if applicable; a special education teacher; someone who can interpret the educational implications of the child’s evaluation such as a school psychologist; any related service personnel deemed appropriate or necessary; and an administrator or Committee of Special Education representative with adequate knowledge of the availability of services in the district and the authority to commit those services on behalf of the child.

In addition, IDEIA requires each be provided with supplementary aids and services necessary to achieve the educational goals of their IEPs. These supplementary aids and services include, but are not limited to: speech-language pathology and audiology services, psychological services, physical and occupational therapy, music therapy, recreation, including therapeutic recreation, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services for diagnostic or evaluation purposes. Also required for each special education student who may have need are transportation, health and social work services in school, and parent counseling and training.

But should the nature of the severity of the student’s disability prevent him from achieving the set goals in a regular education setting, then he or she will be placed in a more restrictive environment, such as a special classroom within the current school, or a different program.

The zero reject rule requires that even if the student is completely incapable of benefiting from educational services and all efforts are futile—even if the child is unconscious or in a coma—the school is still required to provide educational services to the child. If it does not, parents can bring suit against the school once administrative remedies had been exhausted, and collect attorney’s fees upon winning a case.

In addition, more concrete provisions relating to discipline of special education students were added.

IDEIA states that when a child with a disability is disciplined, the disability must be taken into consideration. If it is determined that a student’s behavior is a manifestation of his or her disability, then he or she may not be suspended or expelled.

However, if a student “brings a weapon to school or a school function; or knowingly possesses, uses, or sells illegal drugs or controlled substances at school or a school function”; or causes “serious bodily injury upon another person,” he or she may be placed in an interim alternate educational setting (IAES) for up to 45 school days. This allows the student to continue receiving educational services while the IEP team has time to determine the appropriate placement and the appropriate course of action.

Moreover, even if the student is expelled, the public school district must continue providing educational services to him or her at no cost to the student or the parent.

Some reported criticisms of these mandated programs are that excessive procedures and paperwork require teacher time that would be better spent teaching; that children and parents are protected but school districts are not; and that the provision for educational and related services is expensive and reduces schools’ ability to educate regular education students.

Indeed, reports also indicate that since 2007 some instruction time in subjects such as history, arts, language and music has been reduced in order to give more time to mathematics and English in keeping with the requirements of NCLB, and some classes have been cut or eliminated altogether.

Seventy-two percent of our public school district’s FY 2012-2013 $32.5 million budget goes for instruction. Of that 72 percent, 26 percent goes to special education.

This year, the Greene County Public School District is faced with making cuts to programs that are not mandated by federal and state laws, and the county cannot afford to pick up the slack. The time has come to insist that our elected officials at the state and federal levels take action.

Editor’s note: This editorial has highlighted the negative aspects of special education. To read about the positive aspects, and positive parental involvement, read Superintendent of Schools Dave Jeck’s editorial at http://eyeongreene.com/m-o-t-h-e-r/.

Posted in: Editorials

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