By Mark Paige
The Florida legislature and governor surely meant well when they passed Senate Bill 1108 on June 28, 2013. But, setting aside the best intentions, the bill reflects an all-too pervasive poor policy judgment in special education law and policy (more on that below). Without diving too deep in the technicalities, the law requires districts to obtain parental consent before they give a student with disabilities an alternative assessment in lieu of the state’s standardized test. On its face, what could be wrong with this? Parents certainly would want more, rather than less, input on their child’s education.
But the law goes too far. Primarily, here’s why: If the school district wants to overrule the parents’ decision — say, because in their considered judgment, the alternative assessment makes the most sense — the district must sue the parents. You read that correctly — if the district wants to veto the parents’ call, they must, literally, make it a federal issue and take the parents to due process. Of course, that won’t happen (what school administrator is eager to jump into litigation?) and, thus, the parents effectively control the decision.
1. Educators’ expertise contributes marginally to sound special education planning. Certainly parents play an important role in educating their child. But such involvement should have limits. On decidedly educational issues, the presumption should be in favor of educators’ judgment, not parents. This particular law — tips the presumption in the wrong direction — and reflects an erroneous premise.
2. Cumbersome processes enhance special education. This seems to be a hallmark of special education — procedural hurdles (e.g., paperwork) improve outcomes. But more hurdles carry considerable costs. When teachers and administrators devote time to red tape, they have less time for substantive things (e.g., professional development, exploring the latest research in special education or particular disabilities).
3. A culture of fear, distrust, and litigiousness preserves a special education student’s rights. Apparently — whether based on fact or fiction — the Florida legislature decided school districts could not be trusted to act in the best interests of a student with respect to testing. To be sure, districts act mischievously. Yet, at least in my practice as a school law attorney, that would be the exception, not the rule. And, if anything, special education parents already have considerably more leverage over the district in the form of the “nuclear option” — taking the district to due process. And quite apart from that, there are plenty of “checks and balances” embedded in special education law to keep districts honest.
Let me be clear: I am not arguing that parents’ judgment should be excluded. Far from it. Their voice should carry considerable weight, and the law gives them substantial opportunities to make their opinions and disagreements known. But when special education laws start from the position that the professional judgment of trained special educators is suspect, the proverbial cart precedes the horse. At the very worst, it fosters and adversarial — rather than collaborative — culture.