FIXING special education—
Celebrating What is Right and Addressing What is
Wrong
Miriam Kurtzig Freedman, M.A., J.D.
Stoneman, Chandler & Miller LLP
99 High Street
Boston, MA 02110
www.schoollawpro.com
Miriam@schoollawpro.com
Miriamkfreedman@gmail.com
January 13, 2011
Every Child Counts Symposium, ACSA, Monterey CA
The opinions expressed herein are the presenter’s, and do not necessarily reflect the view of her law firm.
The information provided herein is intended to be used for general information only, and not as legal advice. In the event that
legal advice is required, the services of an attorney should be sought.
MIRIAM KURTZIG FREEDMAN, M.A., J.D.
Reformer, Lawyer, Speaker, Author
Goals:
 To promote systemic reform in special education, through innovation, climate change,
and‘Trust-based Special Education’™ nationwide.
 To build practical knowledge and understanding of special education and ‘504’ for
educators, administrators, parents, and policy makers.
 To encourage excellence in educating ALL students through books, speaking, and
consultations.
Experience:
 Respected authority with an outspoken perspective to change the climate in the special
education arena. Attorney at Boston law firm of Stoneman, Chandler & Miller LLP since
1988, representing school districts.
 Massachusetts Hearing Officer for eight years; public school teacher in California, New
Jersey, New York and Massachusetts.
 Visiting fellow at Stanford University for the past six years.
Reform achievements:
Co-founder Special Education Day and Special Education Day Committee (SPEDCO) to honor
special education’s achievement and spur reform. The Massachusetts Department of Elementary
and Secondary Education funds and administers one of SPEDCO’s reforms, SpedEx—a childcentered resolution model. The Procedures Lite reform is piloted by schools.
Pioneer Institute Runner Up in Better Government Competition (2004, 2007 (co-authored)).
Author and presenter Fixing Special Education—12 Steps to Transform a Broken System.
Authorships:
Special reports, six books in the education and law fields, and articles, including two Hoover
Institution publications (Education Next and Hoover Digest), several in Education Week and
Education News interviews. Please visit www.schoollawpro.com.
Professional memberships:
 Fordham Institute “brainstorming session” on new directions for special education
(2010); National Governors Assessment Board’s (NAGB) Advisory Panel on Uniform
National Rules for Testing Students with Disabilities for the NAEP, the ‘Nation’s Report
Card.’ (2009).
 MA Commissioner’s Advisory Panel on MCAS Accommodations (2008-9).
 National Speakers Association (former board member, New England chapter).
 Education Consumer Consultants Network.
 MA Bar Association.
 Founding member of SPEDCO.
Education:
LLB New York University School of Law
MA University of New York at Stony Brook
BA
Barnard College (Columbia University)
Early education in Israel (Palestine), Holland, and New Jersey
2
Thank you!
The fact that we are here—discussing this challenge—is awesome. Full of AWE! AMAZING!
35 years after the IDEA began, it is time for a tune up.
ABSTRACT: The need and push for a special education law began because many students with
disabilities (SWD) were denied access to public education and/or did not receive appropriate
services in the 1950’s, 60’s and 70’s. That was then. Now, almost 35 years since the law was
passed, special education is everywhere and affects all schools in our country. It has fostered
great progress and success, as well as many unintended consequences.
It is time for us to ask: Is the law still on the right track? What are the true costs of its many
regulations, procedures, and bureaucratic requirements? Is it effective and outcomes-driven?
Does it promote teaching and learning? Does it enhance trust? Do we know who is ‘special’?
Can special education balance the public good with individual rights? Is it working effectively
for ALL students, including SWD? Does it promote teaching and learning for ALL? Or, does it
need systematic reform? The answer to this last question is a resounding ‘YES.’ After 35
years, it’s time for a tune up of the IDEA!
Ask yourself: What option should we pursue when a law succeeds and achieves its mission?
Should we end it, change its mission, just ‘keep on keeping on?’ Unfortunately, we followed
the third option. We kept the law, adding more regulations, bureaucratic requirements, and legal
‘rights’ and entitlements—even as its mission of providing access to all SWD to appropriate
programs was accomplished long ago.
I believe the climate is right to change this path and tackle systemic reform of special education
at the national (and state) level. Events shift. Times change. Five years ago may have been too
soon. Many of us now see how dysfunctional the system has become in the context of school
reform for ALL children in our schools.
My book and efforts focus on the 70% of SWD generally considered to have milder disabilities,
not the 30% of SWD who have more profound and severe disabilities—and for whom this law
was written.
Let’s look at the challenge in three ways: success, realities, and forward looking, common sense
Solutions.
1.
Eleanor’s story.
Time to celebrate our success.
How did we get here? In 1975, President Gerald Ford signed the nation’s first special education
law because, at the time, some one million children were excluded from schools or received no
appropriate services. Then called the EHA, the law is now the IDEA (Individuals with
Disabilities Education Improvement Act). It was designed to ensure that all eligible SWD had
access to a free appropriate public education (called a FAPE) in the least restrictive environment
(LRE). A FAPE is an individualized program, set forth in a student’s IEP (Individualized
Education Program). An IEP is designed to provide an educational benefit for a child
through…“specialized instruction that is designed to meet the individual needs of the child in the
3
[LRE].” The law set up a complex system of parental rights, student entitlements, bureaucratic
requirements, and a due process system to resolve disputes about FAPE.
Today, some 14% of all students are educated under this law nationwide. In California that
percentage is closer to 10%. More than 6.5 million students receive special education
nationwide! As a result of years of focused attention and commitment by schools and families,
many SWD receive appropriate services, succeed in our public schools, graduate from high
school, move on to further education, enter the nation’s workforce, and become productive
citizens. For that progress we are grateful and honor the success achieved over the past almost
35 years in providing educational opportunities for SWD.
Since 1975, everything changed. Even our language changed; how distant are the labels
‘educable,’ ‘trainable,’ and ‘noneducable.’ That terminology is long gone, replaced by today’s
mantra: ‘All students can learn.’ Our language tracks the revolution. We now live in an
inclusive society.
All Eleanors are in school. We did it!—Teachers, parents,
administrators, legislators, taxpayers, etc. etc. etc.
2.
Unintended consequences
The law of unintended
consequences…
The law set up an adversarial system,
based on the premise that too often
Schools and parents are NOT on the
same page working on behalf of the
child in good faith. PARENTS are
called upon to ADVOCATE FOR their
child—alas, AGAINST their school.
reserved. Copies to be made only upon written permission of author
The law’s adversarial due process system contradicts the basic need for TRUST and the
overall need to promote teaching and learning in our schools.
This law of good intentions and great efforts by schools, students, families, and the entire
nation, has spawned a host of unintended consequences that challenge schools nationwide.
Consider—
4

The law’s ‘systemic design flaw’ that requires parents to be its enforcers. This flaw has
turned out to be unfair, inequitable (as only savvy parents can work the system), and
dysfunctional, creating an adversarial climate, instead of cooperation and collaboration
between home and school.
The law’s systemic design
flaw…
….is that parents are its
enforcers.
Not sustainable!
The law created a bureaucracy that is NOT
sustainable. It impedes the mission to
educate all students, including SWD.
Litigation and the fear of litigation continue
to be a growth industry. The bureaucratic
environment crushes the mission of
teaching and learning. We all know that.
r

Tyranny of paperwork and regulations often overshadows education.
o 814 federal requirements (back in 2002!)
o Two types of school districts

Education by dogma and a rights-based system, not research. E.g.
o Input over outcomes
o Process over teaching and learning
o No research that audits and paperwork improve learning
o No research that inclusion meets student needs
o No research that process (including due process) improves learning
o No research about effective labeling
o No research on time left for the task of teaching and learning
In sum…..
5
It is…….
It is not….
• Rights- based
• Learning-based
• Belief/dogmabased
• Input-driven
• Adversarial
• So 20th century!
• Research-based
• Output-resultsdriven
• Trust-based
• 21st century!
uthor

The cost for these programs are twice to four times the cost of educating other students.
Accurate figures are hard to come by, as funds come from various state, local, and federal
programs and cover regular and special education services for SWD.

The special education entitlement can upend school policies and budgets, as costs are
driven by individual, not broad programmatic needs.

Special education and NCLB is a bad marriage of contradictions and confusion. Yet,
schools have to implement both. In many ways, NCLB is 21st century; IDEA is so 20th
century.

And?____________________________________________________________
I believe that we are on the wrong path.
More of the same won’t get us where we need to be.
The law should have had a sunset provision. Alas, it did not.

We need to have our March of Dimes moment. Change the mission to meet 21st
century realities and needs!
6
3.
Systemic reform,
Education.’™
climate change, and ‘Trust-based Special
Trust-based Special Education
IMAGINE TBSE, based on the premise
that educators, parents, and students
are on the same page and the
assumption that they are working
together in GOOD FAITH to improve
learning for all students.
mission of author
Possible solutions include—

Change the role of parents from law enforcers to parenting. To do so, see some of
Secretary of Education Arne Duncan’s recent speeches!

End due process about programming—FAPE in the LRE.
o Lawyers or judges should not choose reading programs or how to teach a child
with autism.
o Doctors? Architects? Do they undergo pre-services litigation? Teachers do. It
demeans their professionalism and, I believe, is bad for students.

End the labeling—the medical model as gatekeeper.
o Teach ALL—where they are.
o Students should go to school for an education, not a diagnosis (to quote Don
Asbridge, California school psychologist).
o What about students who are WBFWR (to quote attorney Jim Walsh of Austin,
Texas).

Allow only procedures and regulations that promote learning and have research support.
For example:
o 30 page IEPs—Why?
o Paperwork audits—Who benefits?
o Time for teaching and learning—How do we expand that?
o Inclusion—When is it appropriate and when is it not? Inclusion should be a
means, not an end.
o Student strengths—We need to focus on this!
o Overuse of accommodations—A way to bypass education…
o Treat teachers with respect—where will that lead us?

Create a positive role for parent and student accountability.
7

Fairness Issues for ALL students—We should not continue to ignore these.

Costs—effective, fair, reasonable?
CALL TO ACTION
I don’t have a dog in this fight. I am passionate to end the unintended consequences of this
law and bring us back to where we need to be: focusing on teaching and learning. I believe
in the power of small acts that can change the climate. Check out Malcolm Caldwell’s The
Tipping Point.
We can’t wait for Congress, Beacon Hill, or Sacramento legislators to act. So what to do?
Change the climate one step at a time. We are powerful to change the path.


No intent to delete rights. Let’s start with efforts that are voluntary, effective, and
promote teaching and learning!
Let us make the current rights-based, bureaucracy-burdened, input-driven system
into an ‘uncool’ dinosaur! Past its prime. So yesterday!
Examples of small steps that have big effects underway and where to find more
information:
1. Procedures Lite
www.specialeducationday.com
2. SpedEx. www.doe.mass.edu/sped/spedx
3. ‘Teachers and Lawyers’ group in Arlington, MA
4. ‘Interventionist’ model, Adams County, Colorado www.sbsadams50.org
5. ‘Plain English’ approach www.plainlanguage.gov
6. Hire an ombudsman, public advocate, a ‘hand holder.’
7. Special Education Day (December 2) to celebrate success and spur reform
www.specialeducationday.com. Mark your calendars!
8. Establish an innovation prize. “You get what you celebrate,” Dean Kamen, Segway
inventor. Stay tuned for this effort.
9. And?___________________________________________________________________
________________________________________________________
What is the reaction to my book? Amazing. People often say, “Thank you for putting into
words what we all know.” I hoped to open a national conversation. We’re doing that!
8





Education News interview had more comments than other interviews, leading to two
interviews.
Bought in bulk by several states and districts; e.g., Colorado, Montana, Texas,
Massachusetts, among others.
Fordham Institute “brainstorming” session.
Public Good book party.
And we’re here today! The book has been a conversation starter!
Summary
The IDEA achieved great success. We live in an inclusive world now. There is no going
back. All SWD have access to a FAPE in the LRE. It’s time to focus on
 student achievement, not acrimony
 parents as education supporters and partners for students
 building trust, not an adversarial system
 teaching and learning, not winning and losing
 the needs of all students, not just one student
 our country’s need for excellent results, not compliance
The current mission creep (tinkering around the law’s edges and adding bits here and
there…. every few years during ‘reauthorization’) is bad public policy. We need mission
change—our March of Dimes moment. We need to balance scarce resources and create a
system to meet 21st century needs for ALL students.
It’s time to roll up our sleeves and get going! The fact that we are here discussing fixing
special education—is awesome! Full of AWE!
Thank you for your participation!
9
Appendix
1. Procedures Lite
2. SpedEx
3. Song, sung to the tune of Clementine
For these attachments or to continue the discussion, please contact Miriam
at miriamkfreedman@gmail.com.
I will be visiting Stanford Law School in the spring of 2011 and happy to
speak to groups and schools that are interested in considering out-of-thebox common sense solutions that bring us back to teaching and learning!
Miriam Kurtzig Freedman, M.A., J.D., author of
Fixing Special Education—12 Steps to Transform a Broken System
School Law Pro.com
10