Routinely changing federal guidance, spotty oversight and tight budgets can leave education leaders feeling stuck between a rock and a hard place when it comes to serving students with disabilities.
While administrators think their schools could be doing more to support special education, they report not having sufficient leadership support, materials and tools, staff with specific expertise, and training and information to make that happen, according to a recent study.
Disputes over Individuals with Disabilities Education Act (IDEA) violations are not uncommon. In Texas, for example, the U.S. Department of Education confirmed after media reports that the state violated the law by placing a cap on the number of students with disabilities it served. And in a 2004 investigation, Maryland found Baltimore misused $90,000 worth of special education funding.
Even the U.S. Department of Education has run afoul of IDEA's regulations. A federal judge found Education Secretary Betsy DeVos delayed enforcement of rules requiring states to oversee and address any racial disparities in special education.
While there is always the possibility of running into a special ed lawsuit, there are some steps administrators can take to ensure they stay in compliance with the law.
Track and use the numbers
Meghan Whittaker, director of policy and advocacy for the National Center for Learning Disabilities, told Education Dive that a good starting point for any district leader is the data.
“It’s really important that district leaders are focused on tracking academic achievement for all subgroups under ESSA,” Whittaker said. Allocating resources based on the numbers ensures you’re spending dollars where they're needed most.
Using data to track patterns of identification and discipline also is helpful, and can help districts reexamine which policies need to be adjusted or enforced.
Data helped Monica McHale-Small, former superintendent of Pennsylvania's Saucon Valley School District and incoming president of Learning Disabilities Association of America, come to a compromise between her school board and teachers.
“I wanted to make sure that my interventionists, reading specialists and special ed teachers were trained in some of the methodologies that were most effective for students with dyslexia and reading deficits,” McHale-Small said. But that would mean letting go of other programs to rework the district budget in a way that allowed for professional development around instructional literacy and the science of reading.
So she used data to broker a deal. “I showed the evidence that this was an effective technique for our teachers and interventionists to have,” McHale-Small said, “but also showed the evidence in terms of need.”
Train to identify and intervene early
Under tight budgets, using Title II or IDEA funds to prioritize professional development on disabilities for general education teachers and putting in place early screenings for identification of risk will get leaders the “biggest bang for the buck,” according to McHale-Small. “The more we do when kids are little, the less they’re going to need when they go through the system, and the more success they’ll have in the regular ed program.”
General education teachers interact with students with disabilities at a very high rate, according to Whittaker, but those students are “not being pulled out as much as they used to.” Only a small percentage of teachers feel well-prepared to educate students with mild to moderate learning disabilities, according to studies.
Teachers need to enter the classroom with different knowledge and skills than in the past, Whittaker pointed out.
Outside the classroom, all school staff need to have basic training on the law to ensure they don’t violate privacy laws by sharing which students have Individualized Education Programs (IEPs), according to special education lawyer Linda M. Gorczynski from the Special Needs Alliance.
De-escalate before problems snowball
District leaders should stay aware of the ins and outs of their special education departments to prevent what could be an issue from turning into a lawsuit. “Leaders will be put on notice, but there’s so much that happens before it gets to the point of due process,” Gorczynski said.
Lawyers and advocates said setting a positive environment during IEP and multi-factored evaluation (MFE) meetings with parents can nip the problem in the bud. This means listening to and validating their concerns, ensuring body language and tone show empathy, and sharing mutual goals around the student’s wellbeing and success.
During IEP meetings, make sure everyone considers all reports, including those brought in by the parents, and make team decisions instead of coming in with predetermined judgments about a student’s disability or needs. While the law does not require everyone to agree on all the reports, it does require that everyone considers them.
“That means reading and discussing the suggestions and findings that are in those independent reports,” said Gorczynski.
Many cases that reach the due process stage are those questioning whether the school district can provide a free and adequate public education. Routinely tracking achievement can answer that question.
"Sometimes things can fall through the cracks," especially as students get older, Gorczynski said, and tracking progress can also identify and help seal those cracks.
According to Gorczynski, law requires districts to track achievement several times throughout the year. Typically that number is every 9 weeks. While districts "tend to focus on compliance" when monitoring IEPs, the focus should be on student growth and achievement instead, McHale-Small said, noting schools should monitor and report to parents at least as frequently as students without disabilities — but preferably more so to make room for instructional adjustments.
And, based on the 2017 Supreme Court case Endrew F. v. Douglas County School District, the bar for "progress" districts must meet in order to provide a "free and appropriate public education" has been raised from "some progress" to "meaningful progress." What is "meaningful", however, is left up to districts to determine.
While goals must be set yearly at a minimum, they can be amended in less than that amount of time if needed.
"You can’t just say, 'Wow, this student has a really low IQ or [displays] extreme behavior, so therefore it's OK to have the same goal on their IEP for four years,'" Gorczynski said. "You have to say, 'Let's make a goal that’s appropriate for this student.'"