Special ed rights on steroids: Time to detox

07.15.13 | Learning on the EDge | 12 Comments

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.

Parent choice should not carry more weight than educator’s professional judgment.
I do not raise this particular law to criticize it per se. But it reflects special education policy’s slide down a slippery slope. Specifically, it reflects three trending — but erroneous — assumptions in special education.

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.



About Mark Paige

MARK PAIGE is an assistant professor in the School of Education, University of Massachusetts-Dartmouth, and also an adjunct faculty at the University of Massachusetts Law School. His last Kappan article was “Using VAM in high-stakes employment decisions,” Phi Delta Kappan, November 2012 (Vol. 94, No. 3), 29-32.

Comments on Special ed rights on steroids: Time to detox

  1. Paul L. says:

    This seems like a never ending battle and legislation that complicates the issue will only fuel the arguments (for both sides) rather than provide a viable solution. Will parents ever cease their demands for their child’s special education needs? Is it possible for school boards to find a balance between providing an “appropriate” education in the midst of financial restraints, policy, and legal issues? It is certainly difficult to find an answer and special education poses a unique problem.

    In respect to education as a whole, Senator Aaron Osmond of Utah provides an interesting perspective. He calls for a repeal of compulsory education in the state of Utah (SB 71) on the concept that parents are the ones primarily responsible for education their children. He further argues that the state has become a “surrogate parent” that has become responsible for the administrative responsibilities of children.

  2. Mark Paige says:


    Thanks for calling my attention to this proposal – I am not familiar with it. But, in a way and without having read it or understanding its intent, the bill in Utah sounds like it builds off the logic of this Florida legislation in terms of who should control/direct a child’s education.

  3. Katie Warren says:

    There are many parts of this that bother me, but two truly stand out. One: U.S. teachers are not viewed as professionals. This may be in part due to programs like TFA, but overall I think it has to do with the standardization of U.S. education. Can you imagine going to see a cardiologist and arguing about the type of instrument that (s)he should use during surgery? Two: I worry about parent education. Does the child suffer when the parent does not understand what (s)he is asking the school to do by removing accommodations? If finances re involved- especially in this cash strapped time- I do not see how a school leader would eve be able find the resources to sue the parent in a effort to help the child.

    • Irene says:

      I echo your sentiments. You have clearly “hit the nail on the head” with this one. It is hard to imagine any other profession letting the consumer, patient or client telling the professionals what to do. Unfortunately some parents rely on the educators to guide them through difficult process and others just don’t know any better or are reluctant to accept educators’ professional opinions and support. It is another sign of the times.

  4. Tiffany R. says:

    Unfortunately the good intent of Senate Bill 1108 just doesn’t cut it. As if special education law didn’t have enough problems this only seems to really complicate things for special education in Florida. As stated in the article, all parents of special education students play an important role in the education of their child. Whether a parent is under educated in the area of special education, competent, or a special education professional themselves, I believe that it is a disservice to these student to have their parents act as the ultimate arbitrators of their fate with in the special education system in Florida.
    The Florida legislature and governor are underestimating and undervaluing the importance of educators within the special education system in Florida.

    The reality is most school districts won’t take these challenges to court, giving the control almost exclusively to the parents and those schools that do take it too court will be using money they could be using for student services to fight an in court legal battle that shouldn’t even exist to begin with.

    • Mark Paige says:

      I agree, Tiffany. I think, as Katie points out, this reflects a larger trend toward de-professionalizing teachers and their expertise. Her cardiology analogy is on point, I think. Thanks for chiming in!

  5. Mark Paige says:


    Excellent points! Thanks for adding another layer to this discussion!


  6. Lisa Whelan says:

    This bill is outrageous! When will districts have the time and money to sue parents on account of this. In my experiences, when the alternative assessment route has been decided on a child, the parents are usually appreciative of the fact that we have taken the time to really look at thier child’s needs and what is best. This law will bring much uncertainty and lack of trust to the table. The teachers and Special Educators that I have worked with have been truly experts, and sometimes, after looking at outside evaluation opinions, I have sided more on the schools evals than the outside. We must put trust into our educators. They are the experts and work with children each and everyday. It’s certainly important to hear the side of parents, however, in this case, the legislature is in for some serious issues costing unneccessary amounts of money for both sides.

  7. Conor says:

    I echo much of what Katie has said above. Rather than allowing the professionals the power to choose the proper curricular and educational path, the power shifts to the parent.

    Parents absolutely should be involved with the education of their children, but to allow the parent to be the ultimate decision maker, especially in the context of special education, is lacking the professional approach and emotional detachment necessary to make these incredibly hard decisions.

    Not only does this bill give the parents the ultimate power, but it tells the educational professionals, from the aides and teachers to administrators, that the State of Florida does not trust them to make proper decisions.

  8. Peter Attwood says:

    In fact, school districts should not be presumed to know best, or to be primarily concerned with the welfare of students, because they prove every day that they are eye-serving bureaucracies. They need to be held accountable instead of deferred to for the same reason that Roman Catholic bishops need to be – because that’s how all such institutions act.

    This has nothing to do with regarding teachers as professionals, because teachers don’t make special education decisions. Teachers are told what the district administrators want them to say in the IEP meeting, and they understand what will happen to them if they act like professionals and tell the truth. Besides common experience in IEP meetings, I’ve advocated for several teachers, who described what the school administration expects of them. Ask a teacher what will happen if they actually obey the law and refer kids in their classes for assessment when they see the need for it.

    I know we’re supposed to look on all these institutions with shining eyes, all so dedicated to doing the best job for us that they can. Well, they’re not. They’re dedicated to pleasing their bosses, covering their butts and putting up with as little interference as possible from stupid parents.

    And the districts are reluctant to sue? Districts file for due process all the time, often to make examples of parents who assert their rights – as they say in France, “Pour encourager les autres.”

  9. Linda H says:

    If the schools were doing the job they are supposed to do then we wouldn’t have the battles that have led to this sort of legislation. Sadly, my daughter, and many other students I know in ours and surrounding districts under our local SELPA have chosen to say no to any recommendations of experts in their field. Additionally, I have seen the district hire the least of the professionals they can find, seemingly to keep parents from trying to get more services for their children. Then trying to find after school providers is near impossible given how many kids and how few after school hours there are. When we had good insurance and we took our daughter during school hours for extra speech and OT then we were treated as though we were breaking laws by taking her out of school to get her the help she needed. We have always sought expert advise and had to go to court to get the school to do the sorts of therapies our daughter needed. Once we won, we could see that indeed the experts were right. Frankly, I could care less about academics until my child can communicate with me, I could care less about PE classes when my daughter has extreme sensory issues that need to be remediated before she can effectively play any kind of leisure sport. Give these kids what they need and most of the parents will be happy with the job done. Continue to deny their utmost needs and parents will go after you like a dog on a bone, because these are our children, not some statistic to be tossed aside because you would rather pay lawyers to avoid providing services, than pay for the service itself. Backwards thinking brings nothing but backwards results.

  10. Audrey says:

    Very descriptive article, I enjoyed that bit. Willl there be a part 2?

    my weblog :: BeCM Diagnostics – Audrey

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