Legal Issues in Special Education
Reform
Prepared by Dr. Tom Green, Director of
School Transformation
Alum Rock Union Elementary School
District
Thomas.green@arusd.org;
trenwickgreen@gmail.com
CARS Plus
February, 2012
Key Issues
Changes in federal law pertaining
to both general and special
education strongly encourage
(rather than mandate) significant
reform in special education
practice, with an emphasis on
coordination and early
intervention.
Key Issues
• The current dominant model of such reform,
Response to Intervention (RtI), is legal and
strongly encouraged under federal and state
law. RtI is specifically designed to coordinate
general education with remedial education,
English Learner services, extended learning
programs, and special education, with an
emphasis on early intervention.
Key Issues
• This means that instructional groupings, BY
DESIGN, will include both special education
and non-special education students.
Key Issues
• Legal responsibility for implementation rests
with the local school district, with guidance
from the state. California state guidance is
extremely weak compared to other states,
resulting in significant variance in
interpretation, implementation, and practice
at the local school district and school site
levels, and places significant responsibility on
local educational staff to lead necessary
changes in practice.
Key Issues
• Federal and state education laws, California
Education Code, federal implementing
regulations, and CDE policy memos allow
special education staff to serve non-identified
students. However, much of the language is
vague, and interpretation and detail of
implementation are critical.
Key Issues
• It is in the best interest of our profession to
learn the rules and to actively participate in
the development and implementation of
reform models.
Workshop Purpose
• The intent of this workshop, then, is to
carefully examine the legal underpinnings of
coordinated early intervention, with the hope
that by enhancing understanding of what the
laws, codes, and regulations actually say,
critical consensus can be achieved at the local
level regarding effective implementation.
Laws, Codes and Policies
•
•
•
•
•
Federal Law
California State Law
California Education Code
Special Education Law
Contract Law/Collective Bargaining
Federal Law
• Elementary and Secondary Education Act of
2001 (No Child Left Behind):
– “A local education agency may consolidate and
use funds under this part, together with other
eligible Federal, State, and local funds, in order to
upgrade the entire educational program of a
school…”
Federal Law
• Individuals with Disabilities Education Act of
2004 (IDEA):
– “The education of children with disabilities can be
made more effective by coordinating this title with
other local, educational service agency, state, and
federal school improvement efforts, including
improvement efforts under the Elementary and
Secondary Education Act of 1965, in order to
ensure that such children benefit from such
efforts…”
Federal Law
• IDEA 2004:
– “In determining whether a child has a specific
learning disability, a local educational agency may
use a process that determines if the child
responds to a scientific, research-based
intervention as a part of the evaluation process.”
First Research Challenge
• These provisions in federal law are brief and
vague. They have, however, been used by the
federal government as the basis for extensive
development of Response to Intervention
guidelines to be used by state and local
educational agencies to comply with the
intent of the laws.
First Research Challenge
• The federal government has primarily used
two agencies, in partnership with many
universities and state education departments,
for this development. Their websites are
excellent resources:
– The United States Department of Education
– The National Association of State Directors of
Special Education
United States Department of
Education
www.rti4success.gov
• “(RtI) is the practice of providing high-quality
instruction and interventions matched to
student need, monitoring progress frequently
to make decisions about changes in
instruction or goals and applying child
response data to important educational
decisions.”
United States Department of
Education
www.rti4success.gov
• “RtI should be applied to decisions in general,
remedial, and special education, creating a
well-integrated system of
instruction/intervention guided by child
outcome date.”
National Association of State Directors
of Special Education (NASDSE)
www.nasdse.org
• There are critical components of RtI implementation
that if not attended to can render otherwise
acceptable implementations ineffective.
• • The school building is the unit of change in RtI.
Multiple buildings within a district can implement RtI,
but their implementations will likely be somewhat
different.
• • District-level supports must be systematically built in
to support building-level implementation.
• • State-level supports must be systematically built to
support district- and building-level implementation.
California State Policy
www.cde.ca.gov/ci/
cr/ri/rtiresources.asp
• The State of California has endorsed the
federal recommendations that RtI be used as
the model for the coordination of general
education with all support services to support
below grade level students. All pertinent state
documents can be retrieved from the url
above. The CDE website in general is very
difficult to use as a resource.
California State Policy
www.cde.ca.gov/ci/
cr/ri/rtiresources.asp
• Two state documents in particular clearly
delineate the state position:
– Response to Instruction and Intervention
11/13/2008
– Determining Specific Learning Disability Eligibility
Using Response to Instruction and Intervention
RtI2 2009
California State Policy
www.cde.ca.gov/ci/
cr/ri/rtiresources.asp
• “Analyzing how students respond to
instruction and interventions is an
organization principle for structures and
programs that already exist in our schools.
These existing programs utilize personnel in
specialized ways; allocating these highly
trained personnel into other areas maximizes
resources effectively.”
California Education Code
• Response to Intervention is not specifically
addressed in California Education Code (Ed
Code). However, key components of an
effective Response to Intervention program,
such as teacher assignments, instructional
groupings, and caseloads are defined by Ed
Code.
California Education Code
• Ed Code Section 44258 states that “A teacher
authorized as a specialist teacher may be
assigned, with his consent, to teach in his area
of specialization at any grade level…”,
California Education Code
• “The holder of a credential authorizing
instruction in a self-contained classroom may
provide instruction in a team teaching setting
or may regroup pupils across classrooms in
subjects authorized by the governing board of
the school district.” Ed Code Section 44258.15
California Education Code
• Ed Code 44258.3 (a) states that “The governing
board of a school district may assign the holder of
a credential, other than an emergency permit, to
teach any subjects in departmentalized classes in
kindergarten or any of grades 1 to 12, inclusive,
providing that the governing board verifies, prior
to making the assignment, that the teacher has
adequate knowledge of each subject to be taught
and the teacher consents to that assignment.
California Education Code
• The governing board shall adopt policies and
procedures for the purpose of verifying the
adequacy of subject knowledge on the part of
each of those teachers. The governing board
shall involve subject matter specialists in the
subjects commonly taught in the district in the
development and implementation of the
policies and procedures … “
California Education Code
The Role of the Resource Specialist
• Another key component of an effective Response
to Intervention model is the role of the Resource
Specialist. Ed Code Section 56362 addresses this
position. Although Ed Code Section 56362 9(c)
states that “No resource specialist shall have a
caseload which exceeds 28 pupils,” a close
reading of the entire section, plus CDE bulletin
“Service Delivery for Students with Disabilities
3/27/2009” clarifies that this caseload is 28
students who have IEP’s.
California Education Code
The Role of the Resource Specialist
• It is permissible under Ed Code Section 44258
(previously cited) for a Resource Specialist, which
his consent, to serve non-identified students as
well. Ed Code Section 56362 (d) states that,
“Resource specialists shall not simultaneously be
assigned to serve as resource specialists and to
teach regular classes.” This section has often
been misinterpreted to mean that a resource
specialist may not serve non-identified students
or students in excess of a caseload of 28.
California Education Code
The Role of the Resource Specialist
• Again, an accurate reading of all of Ed Code
Section 56362 and Ed Code Section 44258
establishes that a resource specialist must first
meet the legal obligation to provide services
specified under IEP’s to his/her caseload, but
may, with his consent, provide services to
non-identified students consistent with his
credential and “his area of specialization.”
California Education Code
The Role of the Resource Specialist
• Both the resource specialist and the school
system providing the Response to Intervention
model of service delivery must be able to
demonstrate that all IEP-specified services are
being provided as specified by the IEP. As long
as this condition is met, the resource specialist
may provide services for which he is qualified
to teach to non-identified students, and may
do so in excess of 28 identified students.
California Education Code
The Role of the Resource Specialist
• Reason must prevail, however,
and any such assignment must
be with the consent of the
specialist and to the
educational benefit of the
students served.
Special Education Legal Requirements
• Because an effective Response to Intervention
model involves flexible instructional grouping
supporting all students below grade level, the
model includes by definition both general
education and special education students and
staff. It is critical to inform students, staff, and
parents regarding the model.
Special Education Legal Requirements
• As established earlier, a special education
teacher may provide services to a nonidentified student. As long as the service is a
general education service, it is not necessary
to obtain informed, written consent as
required by special education law. However, it
must be very clear to all concerned parties
that the service is a general education service
and is part of a systemic Response to
Intervention model.
Special Education Legal Requirements
• Federal and state law cited earlier clearly
establish that Response to Intervention is
intended to coordinate general education,
remedial education, special education, English
language development, and extended learning
instruction. Under this model it is a given that
instructional groupings will mix identified and
non-identified students.
Special Education Legal Requirements
• Instruction provided to a non-identified student
by special education staff must clearly and
defensibly be specialized general education
services provided to other general education
students as well. The instructional groupings
must be flexible and students must regularly
move in and out of groupings based upon
changes in instructional needs. Parents, students,
and staff must be informed at all times of the
rationale for the groupings and the progress of
the students
Special Education Legal Requirements
• Students who do not respond adequately to
the intervention must be referred for Student
Study Team services and changes in duration,
frequency, and intensity must be made in an
attempt to accelerate the student’s progress
towards meeting or exceeding grade level
standards.
California Credential Requirements
• Conflicts with all other legal references in this
document arise in credential requirement
language. Prior to 1997 all applicable special
education credentials required general
education authorization. Consequently any
credentials issued prior to 1997 clearly allow
the holder to serve both special education and
general education students.
California Credential Requirements
• Subsequent to 1997 this requirement was
removed, and “The Education Specialist
Instruction Credential: Mild/Moderate
Disabilities authorizes the holder to provide
instruction, and Special Education Support to
individuals with a primary disability of specific
learning disabilities” (retrieved from CTC
website 3/3/2011).
California Credential Requirements
• Although I do not interpret this language as
restricting service to general education students,
CTC currently does. Further, CTC credential
language pertaining to Resource Specialists states
“Holders of a Resource Specialist Certificate or an
Education Specialist Credential may NOT provide
services to general education students unless the
individual also holds an authorization for general
education in the subject area and grade level of
the assignment. (Administrator’s Assignment
Manual, CCTC September 2007, p. F-11).
California Credential Requirements
• I have had direct conversation with the CTC, on this
issue on February 18, 2011. They acknowledge that this
language was in conflict with the other legal sources
cited in this document, and deferred to the CDE to
address this conflict. In reality, districts across the state
are reconciling this conflict by adhering to Ed Code,
CDE policy, and federal law and policy, and addressing
the credential limitations through mutual agreement
between district administration and teaching staff. I
know of no initiative at the CDE as of this writing to
address this issue.
Contract Law/Collective Bargaining
• The collective bargaining agreement will often
need to be addressed in any implementation
of a Response to Intervention system. Any
contract language regarding assignments,
credentials, caseloads or student contact
limits often require negotiated changes.
Contract Law/Collective Bargaining
• Provisions in Ed Code such as Ed Code Section 44258.3
(a) stating “The governing board shall involve subject
matter specialists in the subjects commonly taught in
the district in the development and implementation of
the policies and procedures …” suggest at a minimum
that instructional staff be fully involved in the
development and implementation of the Response to
Intervention model and give consent to
implementation and any resultant changes in teaching
assignments, and that a decision be made regarding
whether or not to include that involvement in the
collective bargaining process.
Contract Law/Collective Bargaining
• Realistically, it can be a significant challenge
for staff concerned about the implementation
of a Response to Intervention model to work
with negotiation teams on both sides of the
table to understand the issues and priorities
involved.
Conclusions and Final Thoughts
• Regardless of whether or not the district
chooses to address RtI through collective
bargaining, RtI can be successfully and legally
implemented under existing federal and state
law.
Conclusions and Final Thoughts
• The key is the use of best educational
practices that truly benefit accelerated
achievement by low achieving students. If
data can be produced demonstrating
significant growth by students participating in
an RtI program, most sound educational
practices will be legally defensible under
federal and state laws authorizing RtI.
Conclusions and Final Thoughts
• RtI is specifically designed to coordinate
general education, special education, remedial
education, English language development
instruction, and extended learning instruction.
This applies to instructional strategies,
materials, staffing, resource allocation,
assessment practices, and instructional
groupings, and requires changes to traditional
practice in all of these areas.
Conclusions and Final Thoughts
• These changes are based on tremendous
improvements in our knowledge of teaching
and learning, are research-based, are proven
to improve student achievement and warrant
the considerable time and effort necessary to
change our practices.