Name of File: SPECIAL EDUCATION: 03-The State of Special Education in MA.
This presentation will cover some of the more pragmatic aspects of our special education system.
We're going to talk about the state of special education in Massachusetts. I'd like to begin by
putting out discussion in context and talking about student population in general.
Figures for the school year 2010-2011, this is the Massachusetts student enrollment, all students
enrolled in Massachusetts public schools in grades preschool through grade 12.
During the school year 2010-2011, there were a little over 800,000 students enrolled in our
public schools who did not have disabilities; there were a little over 164,000 students enrolled in
our public schools who did have disabilities. This brings us to a total enrollment of 966,395
students in total, grades preschool through grade 12 enrolled in public schools in Massachusetts
for the school year 2010-2011. Eighty-three percent (83%) of these students did not have
disabilities; 17% did.
I'd like to talk about the cognitive ability of those 17% students with disabilities. Our state does
not keep track of cognitive ability; we don't gather data on the IQ's of our students. However, we
can infer that information by looking at the number of students with disabilities who participate
in the MCAS alternative assessment. The MCAS alternative assessment is one that has been
reserved for students with significant cognitive impairments. These are students who generally
are not able to demonstrate their knowledge and skills on paper and pencil tests; they're working
on learning standards that have been substantially modified; and they're receiving intensive
individualized instruction in order to acquire knowledge and skills.
So taking all of the students with disabilities who participated in the Spring, 2011 MCAS exams,
let's take a look at how many of those students participated in the MCAS alternative exam.
The English Language Arts MCAS exam, administered in the Spring of 2011: 83,566 students
with disabilities participated in that exam using the standard MCAS exam, the standard paper
and pencil exam that is used by all students. Only 8,656 students with disabilities participated in
this MCAS exam using the alternate exam that is reserved for students with significant cognitive
impairments.
The figures for mathematics are much the same: 83,518 students with disabilities in
Massachusetts took the standard mathematics MCAS exam, the same math exam that all students
took. Only 8,867 of these students took the math exam using the alternate exam format, because
of their significant cognitive impairments.
So when we look at this, what we can say in general is that 10% of Massachusetts students with
disabilities have the types of significant cognitive impairments that are going to put academic
achievement, at least at a level commensurate with non-disabled students, out of reach.
What that means, though, is that by definition, 90% of our students with disabilities do not have
significant cognitive impairments. They take the same MCAS exams as their non-disabled
peers; they're held to the very same academic standard as their non-disabled peers; they, just like
their non-disabled peers, are denied a high school diploma if they do not pass their grade 10
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MCAS; they are as cognitively capable as their non-disabled peers. This figure of 90% is
important to keep in mind. It will come up later in the presentation when we talk about how
students with disabilities are actually performing on our MCAS exams.
But let's move now to the laws that are in place to govern the provision of special education to
our students. We have a federal special education law, and it is The Individuals With Disabilities
Education Act. It was enacted in 1975. At that time, it was called The Education Of All
Handicapped Children's Act. It has been re-authorized a number of times, and was later
renamed The Individuals With Disabilities Education Act. This federal law is monitored and
enforced by the United States Department of Education, their Office of Special Education
Programs, which we refer to as OSEP for short.
There is also a state special education law. Here in Massachusetts, our special education law is
contained in Chapter 71B of our Mass General Laws. It was enacted in 1974, just a year prior to
the federal, and is still often called Chapter 766. The Massachusetts Department of Elementary
and Secondary Education, which we call ESE for short, monitors and enforces federal and state
laws in our public schools.
At this juncture, it's important to keep in mind that the strength of a law is really dependent upon
the government's will to enforce the law. The effectiveness of a law is only going to be as strong
as a state's willingness to comply with it. A law means nothing if it is not complied with and if it
is not enforced.
So let's take a look at some information about how well the country and our state is doing
complying with Massachusetts and federal special education law.
Keeping in mind that when Congress put these laws in place at the federal level, they set forth
the statement of purpose. This is Congress telling us what they intend The Individuals With
Disabilities Education Act to achieve:
The Act is meant to ensure that all children with disabilities receive
a free, appropriate public education that emphasizes special
education and related services designed to meet student's unique
needs and prepare them for further education, employment and
independent living. It is also meant to ensure that the rights of
those children with disabilities and their parents are protected.
There's a corollary on the Massachusetts side. The Massachusetts statement of purpose for its
special education laws is:
To ensure that eligible Massachusetts students who receive special
education services designed to develop their individual educational
potential in the least restrictive environment, in accordance with
applicable state and federal law.
So these are very strong laws, and Congress and the Mass Legislature has been very clear as to
the purpose of these laws.
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Let us now move on to see how well we're doing complying with these laws:
Between July, 2002 and June, 2009, the Massachusetts Department of Elementary and
Secondary Education documented 7,161 violations of special education law in our Massachusetts
public schools. That means that there have been over 1,000 violations of student's special
education rights every school year for the past seven school years in Massachusetts.
The federal government, OSEP, in its compliance monitoring activities has cited
Massachusetts for failing to fully meet its obligations to its students with special needs in the
following years: 1991, 1995, 1997, 2000, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010,
2011. It's very likely that OSEP would cite Massachusetts again in 2012; however, OSEP has
decided to suspend monitoring altogether, at least for the year 2012. So the federal oversight of
special education law is not occurring at all in the year 2012, and perhaps beyond that.
It is simply a fact that our federal government has failed to enforce special education laws. I
want to share with you a very important report that was written by the National Council on
Disability in the year 2000. The report is called, Back To School On Civil Rights. Congress
charged the National Council on Disability with a task, which was to go out and recognizing in
the year 2000 that special education laws at the federal level had been on the books for 25 years,
Congress wanted to know how well has the federal government done in enforcing special
education laws over their first 25 years.
I'm going to share with you excerpts from this report, these are direct quotes from the report:
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The National Council on Disability found that federal efforts to enforce the law
over several administrations have been inconsistent, ineffective, and lacking any
realty.
*
Pervasive non-compliance is a complex problem with dramatic implications for
students with disabilities and their families.
*
Parents and students across the country expressed a high degree of frustration
with the continued barriers that they face to participation and effective instruction.
*
Too many parents continue to expend endless resources confronting obstacles to
their child's most basic right to an appropriate education; often at the expense of
their personal lives, their financial livelihoods and their careers.
*
Enforcement of the law is the burden of parents, who have to invoke formal
complaint procedures and due process hearings, including expensive and timeconsuming litigation to obtain the appropriate services and supports that their
children are already entitled to under law.
*
Finally, lack of accountability for enforcement and systemic barriers have robbed
too many students of their educational opportunities, and have produced a
separate system for students with disabilities, rather than one unified educational
system that ensures full and equal access for all.
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It is simply a fact that government at the state and federal level is really indifferent to the rights
of students with special education needs. This can be illustrated by looking at OSEP's
Compliance and Monitoring Protocol. OSEP has built within its monitoring and enforcement
protocol an absolute allowance for non-compliance with the law.
First of all, OSEP only requires that non-compliance, once identified, be corrected within one
year. Sustained compliance with the law is not required. In other words, a state can be out of
compliance with a given portion of the law in months 1 through 11; as long as the state comes
into compliance with that specific law in month number 12, OSEP is satisfied and will mark the
state compliant. It is perfectly fine with OSEP if the state then goes right back out of compliance
with that very same law for months 13 through 24, as long as the state is in compliance during
month 24.
It is also a fact that OSEP does not require actual compliance with the law when they are
awarding federal funding to states for special education. OSEP only requires that a state indicate
in writing that they intend to comply with the law. Actual compliance is not required as a
condition of federal funding.
This indifference is reflected clearly in the following quote from an official at OSEP: The
Massachusetts special education watch dog group, SPED Watch, confronted OSEP with these
facts, and the response that was given was this. This is a response from Dr. Ken Kienas. Dr.
Kienas is the Massachusetts liaison in OSEP, he is our Massachusetts contact at the U.S.
Department of Ed.
He stated that, "It's always been his Department's position that the law requires 100%
compliance." It's a standard they expect states to maintain. However, they also recognize, and
they tell us we have to recognize, that when implementing these laws, districts will make
mistakes, oversights are going to occur, imperfect humans are going to make errors, people won't
always act in the best interest of the students they serve.
In effect, what Dr. Kenus is telling us as a representative of the federal Department of Education
is that we need to expect and understand that school districts won't always act in the best interest
of our children.
Now, there are very real human consequences for this government indifference and inaction. I
believe one of the clearest ways to see the human consequences is to look at how well students
with disabilities are, in fact, performing on our MCAS exams. This is where we need to recall
that 90% of Massachusetts students with disabilities are as cognitively capable as their nondisabled peers. That means that the MCAS scores achieved by students with disabilities and
students without disabilities ought to be substantially similar.
Let's take a look at the English Language Arts MCAS exams over time:
In the 2011 administration of the English Language Arts exams across all grades, 78% of
students without disabilities performed proficient or better on that exam; only 30% of students
with disabilities did so. If you look through the years, you see that not only does this
disproportionate achievement gap remain in place, it actually gets worse over time. In 2003, on
this English Language Arts MCAS, there was a 42.6 percentage point gap between students with
disabilities and those without. Now in 2011, it is grown to 48 points.
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The figures for math are much the same. In 2011, 67% of our students without disabilities
scored proficient or better on the math MCAS; students with disabilities, only 21% of them were
proficient or better on math, a 46 percentage point gap -- again, this remains the case over time.
Again, the gap worsens over time -- in 2003, the achievement gap on the mathematics MCAS
between students with disabilities and those without was 35.8 percentage points. Currently, that
gap stands at 46 percentage points.
Another marker that we can look at is the Adams scholarship. Now the Adams scholarship is a
state scholarship that is given to students who perform in the top 25% of their graduating class,
and who achieve at a very high rate on MCAS. Again, students with disabilities, 90% are as
cognitively capable as their non-disabled peers. Within the entire student population, 17% of the
students will be students with disabilities. There ought to, therefore, be close to 17% of students
with disabilities represented among Adams scholarship recipients.
So let us take a look at who has received these scholarships. Most recent awarding was to the
class of 2012: 18,261 students received an Adams scholarship in the class of 2012; only 228
were students with disabilities. Again, through the years, we see that students with disabilities
are significantly underrepresented among Adams scholarship recipients.
The reason for this, and the reason for their poor performance on MCAS exams, despite having a
cognitive ability equal to their non-disabled peers, is that these students do not receive the special
education services and supports that they need in order to learn. These services and supports are
withheld from these students on a regular basis, in violation of special education law, and our
government is unwilling to do anything about it.
So the reality, if you're a student with special needs is that your special education rights will
likely be violated on a regular basis. You really have only one hope, and that's that your parents
will have the intellectual, emotional and physical stamina -- and the money -- to fight for your
rights. You are not likely to realize your full potential, and that will be through no fault of your
own, and your government will not protect you.
It is for that reason that many students and their families turn to attorneys and special education
advocates to help them deal with our special education system in this state and country.
I would like to remind listeners that Margolis & Bloom concentrates its work in several areas of
practice. Those are:
Probate Administration
Guardianship and Conservatorship
Long-Term Care and Mass Health Planning
Special Needs Planning
Estate Planning
Special Education
Trust Administration
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You can learn more about any of these areas of practice on our website: www.Margolis.com.
Should have any questions about this webinar, or about special education rights or process in
general, please contact me. My name is: Ellen Chambers. I'm a special education advocate at
Margolis & Bloom. I can be contacted by telephone at (617) 267-9700, ext. 520; or you can
email me at: EC@Margolis.com.
Thank you.
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