Posts Tagged ‘IDEA’

Race to the Top Jumpstarts Education Debate

August 12th, 2009

By Tanya Roscorla, originally posted at Converge Online

kids laptop learningThe green flag has dropped. The competition has begun. But it’s not just any jaunt around the track. States are vying for $4.35 billion in federal education grants, and many of them are serious about winning.

If they want to earn the prize, they have to transform education for the better, said Education Secretary Arne Duncan, who announced the start of the Race to the Top on July 24. States have to ratchet up student standards and assessments; find and reward quality educators; install student data systems; and turn around low-performing schools.

But the results may vary depending on how states change their school systems and how much they focus on these four specific areas. And that has educators and education activists questioning what impact the race will have.

“It’s really easy to sit up there at the top and really narrow the focus on what you want to try to accomplish with something like Race to the Top money,” said Pam Moran, the superintendent of Albemarle County Public Schools in Virginia, “and I’m not sure that you’re going to get the kind of entrepreneurial risk taking out there on the table if you get too narrow a definition of what you want to accomplish.”

Duncan has already told states that they will start the contest handicapped if they limit the number of charter schools within their borders. They also might not compete well if they don’t adapt national English and math curriculum standards or link student performance data to teachers.

Failing to address these areas could knock states out of the competition even if they are innovating in other areas.

“They might lose some opportunities for some states to compete that could potentially have the next best educational invention that’s out there,” Moran said, “and I would hate to see that happen.”

Duncan and President Barack Obama have set a sweeping agenda to transform public education, and that’s a good thing, said Jeanne Allen, the president of the Center for Education Reform. They’ve lifted up some states for their progress and have singled out states that show no signs of changing their old, comfortable ways.

“Education reform, however, is neither comfortable nor a race,” Allen said. “It must be achievement-focused and come from a true desire to see America’s children succeed on a global scale. Reform that is bought can easily be voted away once the federal coffers run dry.”

Teaching content through skills

Because states are racing to win the prize, they might cause the nation to move quickly toward national standards and tests without allowing enough room or time for debate, said Chad Sansing, who teaches humanities at a charter school in Virginia and blogs about transforming classroom practice at classroots.org. If the nation leaves out debate, education will be too much like the status quo, and teaching will emphasize learning content by rote.

Race to the Top has given the country an opportunity to change the way it assesses kids, he said, and that should involve providing authentic learning experiences and engagement that’s relevant in the real world.

“We don’t have to have a race for students to master content and leave out skills,” Sansing said. “We don’t have to have students master skills and forget about content. We can bring the two together, but we have to do it in a way that students are mastering content through the skills; that’s possible. It’s not going to be possible for students to master the skills just through the content.”

Several tests are mixing content with skills, including the National Assessment of Educational Progress and the College and Work Readiness Assessment. Schools are jumping on board in their classroom instruction as well, including those started by the nonprofit group Expeditionary Learning Schools Outward Bound and Quest High School in Humble, Texas.

Personalization, not standardization

In addition to assessing skills as well as content, tests should measure students differently based on their learning styles, said Deven Black, a middle school social studies teacher in New York City. Not all kids express themselves the same way, so the standard fill in the bubble or write an essay methods don’t accurately show how well they have mastered content.

Tailored tests can be more expensive, but they would allow students to demonstrate what they have learned through art, music or other means, he said.

The assessment system in this country is in place because it’s cheap, efficient and easy to score, and that limits how educators can measure complex thinking and application, said Superintendent Moran, who mentioned that author Tony Wagner captured this idea clearly in his latest book The Global Achievement Gap: Why Even Our Best Schools Don’t Teach the New Survival Skills Our Children Need –– And What We Can do About It.

States need to move away from standardized, narrowly-defined measures of student performance that are calculated almost everywhere by multiple choice testing. Moran said she hopes that someone will figure out an authentic and scalable way to assess students’ skills though technology instead of continuing the “drill and kill” teaching methods that educators use to prepare kids for tests.

Those tests are designed to evaluate whether students meet grade-level standards, but the standards don’t make sense to Rhonda Feder, an education activist in the nonprofit sector and a Pennsylvania mother of three grade-school children. Grade-level standards presume that a normal course of steps exists for a 10-year-old, and that every 10-year-old takes those same steps.

“It’s like saying, ‘Well, you’re 10, you should wear a size 3 shoe,’” Feder said.

Not all 10-year-olds wear size 3 shoes, and not all 10-year-olds learn the same way, which means that policy-makers need to look at real life kids in the classroom when they’re deciding what they should learn.

They should respect the individuality of children and shouldn’t be afraid to offer different options to different kids, Feder said, adding that if they try to make every class of fifth-graders look the same and write standards from far away, they’re bound to cause some children to fail.

Tests increase pressure on teachers

They’re also bound to cause some children to become bored. In Pennsylvania, children take tests that are tied to state standards about every other month so that teachers can adjust their instruction depending on what concepts students aren’t grasping.

kid children teaching teacherWith talk swirling about Duncan giving preference to states that link student assessment data to teacher performance, the teachers are probably going to focus on making sure that everybody passes the tests and spend less time on those who have already met the standards, Feder said. That’s what happened to one of her children.

He tested proficient after the first few weeks of school, yet had to keep doing worksheets on content he had already mastered, which meant that he spent a lot of time sitting and waiting for everyone else to finish.

Rather than asking whether all sixth-graders meet the standard, educators should look at where they started the year and where they ended. If they focus on the bar, they tend to focus only on students who fall below it. The quality of instruction doesn’t necessarily go down, but it drops to a different level for the students who need it, which doesn’t reach those who have already passed the bar.

A great education depends on great teachers, but any system that places a high percentage of weight on one element of the system is not realistic, Feder said. Teachers, parents and students all have to work together to succeed.

“My child can’t fail without my consent,” she said. “If my kid is failing repeatedly year after year, and I’m just going along for the ride, I’m just as responsible as that school district or that school system or those teachers.”

If the only measure that the government uses to assess teachers is standardized test data, it’s missing the point, Feder said. Race to the Top puts much of the burden on teachers, but it’s not the teachers alone who will help children succeed.

What happens in individual classrooms may be problematic, but teachers as a group are not the problem; they’re just the easy part, said Black, the New York City teacher. High-stakes assessments aren’t scored fast enough for teachers to adjust their teaching, and the scores don’t tell them a heck of a lot.

“The whole way that these major assessments are done just seems to be finding fault with somebody rather than trying to improve anything,” Black said, “and teachers more and more are feeling that they’re the ones that people want to find fault with, as if we were the root of the problem.”

Transforming education

One of the best things that the country can do is to encourage educators from the bottom up to take entrepreneurial risks that will help them re-imagine and reinvent themselves, Superintendent Moran said. And that extends to the kids in the classroom as well. When she walks through the halls of schools, she wants to see kids who are engaged in challenging work that pushes them to become more analytical and creative.

Teachers also need more freedom to be creative and experiment with different ways to engage students, Black said. Any one model is not going to serve the vast majority of people in it, so teachers and schools should have to differentiate instruction.

Coming up with different ways to teach students plays to teachers’ strengths, which policy-makers should take advantage of, Feder said. Figuring out how to fix problems is much harder than identifying them, but it has to be done.

“I don’t think there is one solution. I think the solution is you have to be open to doing what works, and that’s not going to look the same,” she said. “That’s messy, and from year to year you’re going to get it wrong.”

Postscript: States can start applying for Race to the Top funds in the fall, and the first round of prizes will go out in early 2010. Duncan has posted the proposed requirements and selection criteria online so that the public can comment on them before Aug. 28, which means that the race has started, but the rules could change.



Photo credits: woodleywonderworks’ flickr photostream, One Laptop per Child’s flickr photostream / CC BY 2.0

Take the Sotomayor Quiz!

May 28th, 2009
By Brian Jason Ford, Esq., Legal Editor
This post origionally appeard as the May, 2009 issue of the DBYD Education Law Newsletter.
Obama Nominates Sotomayor to U.S. Supreme Court
How well do you know the nominee?
Take our quiz and find out!
WARNING – This edition of the newsletter a bit heavy with acronyms and legalese but, every now and then, those of you down in the weeds deserve a little “inside baseball.”
This week, President Obama nominated Federal appeals court judge Sonia Sotomayor to the United States Supreme Court. Writing for Education Week’s School Law Blog, Erik W. Robelen noted that Judge Sotomayor sat on appellate panels in Second Circuit education law decisions including Garcia v. Yonkers School District (awarding legal fees to students in a student protest case) and Somoza v. New York City Department of Education (regarding the interplay between the IDEA’s two-year statute of limitations and New York state law). You can read Mr. Robelen’s post at this link.
A cursory glance will reveal almost 60 education and disability law cases that Judge Sotomayor has either participated in or decided throughout her career. I will not attempt to use these cases to pigeonhole Judge Sotomayor. But, if prior decisions forecast future holdings, consider these additional highlights as we play…
Better Know A SCOTUS Nominee!
Olson v. State of New York
U.S. Court of Appeals, Second Circuit
Written by Sotomayor
A New York State Police investigator who was also a union official was hospitalized for depression. After getting out of the hospital, he returned to work but started fighting with and cursing at his supervisors and stopped following orders. Later when the investigator was fired, he brought an ADA action against the state police but lost in front of a jury. The investigator appealed to Judge Sotomayor, who affirmed because…
A) The trial judge properly placed the burden of proof on the investigator; OR
B) The trial judge properly placed the burden of proof on the state; OR
C) The trial judge’s jury instructions, although far from ideal in that they did not properly explain “mixed-motive” burden shifting, were harmless.
ANSWER: C – This is Judge Sotomayor saying, “no harm no foul.”
Cortese v. New Fairfield Board of Education
U.S. Court of Appeals, Second Circuit
Acting without a lawyer, Mother brought an IDEA action (denial of FAPE) against her school district. She brought the lawsuit on her own behalf and on behalf Son, a student with disabilities. Son was 17 years old when Mother filed the lawsuit, but turned 18 – the age of majority – eight days later. The trial judge dismissed Mother’s clams, reasoning that students have rights under the IDEA, not their parents. At this point, Mother asked the trial judge to let the case go forward under Son’s name (i.e. treat Son as a separate plaintiff pursuing his own case). The trial judge refused, dismissing the case in its entirety, because Son was an unrepresented minor when the claim was filed. Mom and Son appealed to a panel of judges including Judge Sotomayor. The panel concluded…
A) The trial judge got it wrong. Parents have rights under the IDEA so Mother’s claims should not have been dismissed. Also, no matter how old the student was when the case was filed, he is now 18 and can speak for himself in court; OR
B) The trial judge got it wrong. Parents are entitled to FAPE so Mother’s claims should have continued no matter what Son’s status was; OR
C) The trial judge got it right. Students, not parents, are entitled to FAPE and minors are not allowed to represent themselves.
ANSWER: A – This is Judge Sotomayor showing deference to a pro se litigant.
Bonus fact! After this case was decided, the Supreme Court ruled that lawyer-less parents can represent their minor children in court! See Winkelman ex rel. Winkelman v. Parma City School Dist., 550 U.S. 516 (2007).
Mr. and Mrs. B. ex rel. M.B. v. East Granby Board of Education
U.S. Court of Appeals, Second Circuit
Mr. B. sued his school district alleging a denial of FAPE and seeking tuition reimbursement. Mr. B. lost both at the Due Process Hearing and Federal District Court level. He could not obtain reimbursement because, according to both the Hearing Officer and the trial judge, M.B.’s evaluations and IEPs were appropriate. Nevertheless, the trial judge upheld the Hearing Officer’s award of 10% of Mr. B.’s attorney’s fees. When the case reached Judge Sotomayor’s panel, on the issue of fees…
A) Parents were awarded 100% of their attorney’s fees. Parents are entitled to “fee shifting” if they prevail in even the slightest part of their case; OR
B) Judge Sotomayor’s panel ordered the trial judge to reconsider his opinion because (1) the Hearing Officer did not actually award attorney’s fees, (2) the Hearing Officer would not be allowed to order attorney’s fees even if she did and (3) the trial judge has to determine how successful – or not – the parents are before he can determine if they are entitled to anything; OR
C) Lets keep this simple. In the words of Willie Wonka, the panel said to Mr. B., “You lose! You get nothing!”
ANSWER: B – it’s messy, but legally correct.
State of Connecticut Office for Protection and Advocacy for Persons with Disabilities v. Hartford Board of Education
U.S. Court of Appeals, Second Circuit
Written by Sotomayor
The Connecticut Office for Protection and Advocacy (OPA) is a state-created agency authorized to investigate suspected abuse or neglect of individuals with disabilities or mental illness in Connecticut and to advocate on their behalf. OPA wanted to (1) observe and interview students a district-operated therapeutic school for students who are seriously emotionally disturbed, in order to investigate complaints of abuse and neglect at the school, and (2) obtain a directory of students with contact information for their parents or guardians. The Hartford Board of Education refused. Judge Sotomayor ruled…
A) OPA gets in because the Protection and Advocacy for Individuals with Mental Illness Act (“PAIMI”), the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (“DD Act”), and the Protection and Advocacy of Individual Rights Act (“PAIR”) say they can; OR
B) Despite all of those laws, OPA stays out because students have privacy rights under both FERPA and the IDEA; OR
C) OPA gets in under all the laws listed in (A) and because neither FERPA nor the IDEA keeps them out.
ANSWER: C – Hartford was all by itself on this one.
Bonus fact! The U.S. Departments of Education and Health and Human Services filed amicus briefs in this case to say that the access that OPA sought was okay under both FERPA and the IDEA.
As the confirmation process moves forward (or drags on – depending on your point of view), we will let you know if Judge Sotomayor faces any education law question on her way to the bench.
This post is subject to a disclaimer.

Oral Argument Recap – Forrest Grove v. T.A.

April 28th, 2009

by Brian Jason Ford, Esq.

I am digesting the argument transcript from today’s oral argument before the Supreme Court in Forrest Grove v. T.A., a special education case about private school tuition reimbursement. I will provide a thorough overview of the Court’s decision when it is released, but the argument itself is noteworthy (and not because it is good for a laugh). I encourage anybody who has even the slightest interest in special education law to read the argument, which you can download here. In this post, I will examine the argument and give background that may help you better understand the decision when it comes out.

I am going to assume that readers of this blog have a general understanding of how special education law works and that you know acronyms like IDEA, IEP and FAPE. If I’m wrong, that’s what comments are for. Also, I am simplifying the facts of the case to focus on substantive issues, not procedural details.

In this case, Forrest Grove evaluated one of its students, T.A., and found him ineligible for special education. When this happened, T.A.’s parents decided unilaterally (i.e. without consulting Forrest Grove) to place him in a private school – to the tune of $5,200 per month. The parents also initiated a special education due process hearing. The hearing officer considered Forrest Grove’s evaluation and other evaluations obtained by the parents, and determined that Forrest Grove got it wrong. T.A. had been eligible for special education all along. Forrest Grove appealed that decision, but developed and offered an IEP while the appeal was pending. In other words, Forrest Grove honored the hearing officer’s order even while fighting in court to have it overturned. The parents rejected the Forrest Grove’s IEP and, instead, pursued claims for tuition reimbursement

On the topic of tuition reimbursement, the IDEA says, in part, “If the parents of a child with a disability, who previously received special education and related services… enroll the child in a private elementary school or secondary school without the consent of… the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if… the agency had not [offered FAPE to the student]… in a timely manner prior to that enrollment.” To get the full text, click here and scroll down to (10)(C).

Forrest Grove keyed in on the language, “who previously received special education and related services.” They argued that language means students are entitled to private school tuition reimbursement if their school district fails to offer FAPE and they had previously received special education. In this case, T.A. had not previously received special education because, at first, Forrest Grove said he did not qualify and later, because his parents rejected services. Thus, Forrest Grove argued that T.A. was not entitled to tuition reimbursement as a matter of law.

T.A. (in conjunction with the Obama administration) argued that the Court must not allow school districts to circumvent their obligations to students with disabilities simply by refusing to find such students eligible for special education. In essence, T.A. focused on the consequences of the rule proposed by Forrest Grove: that school districts could avoid all potential liability for tuition reimbursement by simply refusing to find students eligible for special education. This, according to T.A., would set up a perverse incentive for school districts to deny services. Moreover, according to T.A., when the IDEA is read as a whole, Congress wanted school districts to pay tuition reimbursement if they deny FAPE and parents have to find services on their own. In T.A.’s point of view, Forrest Grove is arguing for a loophole that would thwart the intent of Congress.

One topic that kept creeping into the arguments is truly fascinating: If students must receive special education from their school districts before they are entitled to reimbursement, how much time must they spend in public school before switching to private education? Can a student spend one day in public school and then seek reimbursement? Forrest Grove told the Court that ten days in public school would suffice, and that timeline is supported by the IDEA. T.A. argued that the IDEA does not say how much time students must spend in public school because spending time in public school is not a prerequisite to a tuition reimbursement claim. I hope the Court will discuss this distinction in detail, as it may have an unexpected impact on school personnel decisions (e.g. how can schools make staffing decisions when some students will be in school for only 10 days as a means of securing a tuition reimbursement claim).

Forrest Grove is asking the Court to literally apply what the law actually says. T.A. is asking the Court to give deference to what, in their point of view, the law was intended to do. Of course, the arguments on both sides are much more complex than what I’ve laid out here. If you are interested in special education law, you should read the transcript.

Disclaimer

New Case About Special Education Appeals Timelines

April 14th, 2009

On April 14, the United States Court of Appeals for the Third Circuit decided Jonathan H. v. Souderton Area School District. This case sets the standard for special education appeals procedures in Pennsylvania, New Jersey, Delaware and the U.S. Virgin Islands. I’ll dissect what happened and what it means. For purposes of this blog, I’m going to ignore the fact that Pennsylvania used a “two tier” hearing system at the time of this case. PA’s shift to a “one tier” system makes no difference.

What Happened?

Feeling that his needs were not being met, Jonathan’s parents placed him in a private school. Jonathan then sued his school district, Souderton, alleging that Souderton failed to offer him an appropriate special education as required by the IDEA (the primary, federal special education law). Jonathan demanded both compensatory education (i.e. hours of services to remedy educational failures) and tuition reimbursement.

Although there is significant variation from state to state, the first step of a special education lawsuit is called a Due Process Hearing. In Pennsylvania, where this case arose, Due Process Hearings are conducted by Hearing Officers. In this case, the Hearing Officer gave Jonathan half of what he demanded. Jonathan won compensatory education but lost tuition reimbursement.

Under the IDEA, if you go through a state’s entire administrative system and lose, you have 90 days to bring your case to state or federal court. Although the court case looks like an appeal of the Hearing Officer’s decision, technically, the court case is a brand new lawsuit. This case hinges on that distinction.

On the 90th day, right at the deadline, Jonathan started a lawsuit in federal court against Souderton in an attempt to get the tuition reimbursement that the Hearing Officer would not give him. Jonathan officially initiated this lawsuit by filing a document called a Complaint. 70 days after Jonathan filed his Complaint – 160 days after the Hearing Officer’s decision – Souderton responded by way of a document called (uncreatively) an Answer. Souderton’s Answer stated its defenses, but it also included something called a Counterclaim. Without dicussing the finer points of the federal rules of civil procedure, Souderton’s Counterclaim attacked the Hearing Officer’s prior compensatory education award.

Jonathan had no problem with the District’s Answer, but took issue with its Counterclaim. Jonathan argued that the Counterclaim was – in reality – an appeal of the Hearing Officer’s award. As such, Souderton was over the 90 day deadline. The counterclaim, according to Jonathan, was made on the 160th day and must be dismissed. In short, Jonathan argued that Souderton should not be allowed to challenge the compensatory education award because it waited longer than 90 days to do so.

After some initial success, the Third Circuit ultimately disagreed with Jonathan. Technically, Jonathan’s attempt to get tuition reimbursement through the federal courts was a new case. Therefore, Souderton’s timeline to respond and to file counterclaims runs from the day that Jonathan moved the lawsuit into federal court.

What It Means.

This case does not establish a national precedent. I would not be surprised, however, if other courts look to this decision when deciding similar cases.

Under the standard set by this case, school districts and parents must proceed with caution when bringing special education matters before federal judges. Here, Jonathan thought he had compensatory education all locked up. He had the Hearing Officer’s award, which was affirmed by the appeals panel. Moreover, 90 days had gone by and Souderton had not challenged the compensatory education award. Jonathan must have been shocked when the court decided that Souderton was allowed to challenge that award on the 160th day.

The shoe could easily be on the other foot. The precedent set by this case may prove to be just as harmful to schools as it is to students and parents. Unfortunately, I fear that this case will be used as a vehicle for both sides to punish each other for moving cases into the courts after the conclusion of administrative proceedings. So much for finality.

The Bottom Line

Parents who win only part of a special education due process hearing jeopardize all that they achieved when they go to court to get the rest.

This post is subject to a disclaimer.

Switch to our mobile site