From a decision of the U.S. Supreme Court: “Illiteracy is an enduring disability. The inability to read and write will handicap the individual deprived of a basic education each and every day of his life. [Its denial violates] the framework of equality embodied in the Equal Protection Clause [of the U.S. Constitution].”1
A student we’ll identify as “B” is in the fourth grade and reading between a first and second grade level. B did not receive adequate RTI interventions in general education and was found eligible for special education services in the first grade as a student with a Specific Learning Disability and ADHD. But, despite a succession of Individual Education Programs (IEPs), he failed to improve in reading. At the same time, his behavior deteriorated, owing in part to academic frustration.
So what’s special about B? He doesn’t appear that much different from other struggling learners described throughout this book who have been educationally abused. And he’s not, except in one crucial respect. B, alone among the students whose stories are sketched in the book, is not a student I represented. Rather, B is one of the plaintiffs in a class action lawsuit filed in May 2017 in a U.S. district court claiming a constitutional right to be taught to read.
The lawsuit alleges that the Berkeley, California school district had systematically failed to educate students suspected of having reading disorders.2 As the lead attorney for the plaintiffs stated, “Students with reading disorders in [the Berkeley schools] and every public school in this country have the fundamental right to learn to read and participate fully with their peers.”3
B’s illiteracy is a terrible cross for him to bear, but he may help save millions of struggling learners from similar fates. The Berkeley lawsuit is one of the strategies—legislative as well as judicial—that could lead to federal action that ends the educational abuse of struggling learners. The strategies are not pie in the sky. The key to them all is the establishment of a federal right to read.
To backtrack a bit, we have learned that state and local school governments aren’t up to the job of providing RTI interventions so that B and other struggling learners can learn to read and succeed in higher education and in the workforce. And it is wishful thinking that the education establishment—within state and local school systems and professional organizations including teachers unions—will ever police and reform itself. But in fairness, educators couldn’t reform the system by themselves if they wanted to. They don’t have the political authority to transform laws governing school policy and funding.
But who does? Responsibility for education policy is dispersed and disguised by a crazy quilt of overlapping policymakers. They include, from the top down, the president, Congress and U.S. Department of Education; 50 state governors, legislatures and departments of education; and at the local level, countless mayors, county commissioners, elected or appointed school boards, and school administrators.
The previous chapter pointed out the need to sort out this hodgepodge. Federal policymakers must play a lead role but how can we—parents, educators (not shackled by the education establishment) and other citizens—take political action to pressure them to act?
The struggle must be waged first and foremost in the halls of Congress and in federal courtrooms. Amendments to the Every Student Succeeds Act (ESSA) and/or the Individual with Disabilities Act (IDEA) could bring about change. At the same time, judicial rulings in the Berkeley case or others could mandate or spur legislative action. We now examine these strategies in more depth.
ESSA is probably the best place to start. It could be amended to explicitly require that struggling learners receive adequate opportunity to succeed in school. States would be required, as a condition of receiving federal aid, to provide instruction that is reasonably calculated to enable all students (except students with the most severe disabilities) to meet the same state standards as their non-disabled peers. Such a mandate, let’s recall, was intended under the No Child Left Behind Act. NCLB’s Statement of Purpose was “to ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education and reach, at a minimum, proficiency on challenging State academic achievement standards and tests. . . .”4 (Italics added.)
ESSA, which replaced NCLB, waters this down. Its Statement of Purpose says only that the purpose “is to provide all children significant opportunity to receive a fair, equitable, and high-quality education, and to close educational achievement gaps.” “Close educational gaps” is a lower standard than “reach, at a minimum, proficiency.” It significantly reduces the likelihood that struggling learners will receive sufficient RTI interventions and meet state standards.
ESSA doesn’t come right out and admit the retreat. Under ESSA, states still have a responsibility to enable students to achieve “challenging State academic standards” through the “[e]stablishment of long-term goals.” The goals are to be “ambitious.” But these requirements are largely window dressing. Other ESSA provisions allow states to dumb down the standards and tests and drag out the timetable for meeting the goals.
It is noteworthy that in the bill passed by the Senate that preceded the final version of ESSA, there was bi-partisan support to include language to ensure that students who did not meet state standards for two years or more would be provided targeted intervention along the lines of RTI requirements. This requirement didn’t make its way into ESSA, and it fell short anyway: for example, RTI would not be triggered until a student has fallen behind for two years, which is much too long to wait.5
But it shows bipartisan awareness that ESSA might have gone farther. If we politically demand it, ESSA could be amended to unequivocally compel states to provide struggling learners with RTI-like interventions that are reasonably calculated to enable them to learn to read and to meet state standards.
Another well-marked path to reform can be found in the history of IDEA. IDEA could be amended to make clear, once and for all, that most struggling learners should no longer be misidentified, mislabeled and mis-served as students with disabilities. That, as this book has revealed, is already the intent of the current law. But the law has been ignored or circumvented nationwide, inflicting grave harm on millions of students who are disproportionately poor and minority.
However, let’s suppose there was the political will for reform. Suppose the Congress wanted to make certain that students would not be found eligible for special education unless they received adequate instruction in general education. Two prime avenues are open.
One is for the Congress and the U.S. Department of Education to put some sharper teeth into the current statute, regulations and monitoring. The law and regulations could make crystal clear that most students now found eligible under the Specific Learning Disability, Other Health Impaired (attention deficit disorders), Emotional Disability, and Speech and Language classifications, and sometimes Autism, should not be found eligible for special education without compelling proof that they had been afforded RTI interventions in general education. Federal funds could be withheld for non-compliance, same as with ESSA.
With these amendments in place, federal, state and local education administrators would have much less room to bury their bureaucratic heads in the sand. The burden would fall on federal officials to monitor compliance by state and local school districts. Of note, if this occurred, special education monitoring could redeem itself from the disrepute it deserves because of its almost exclusive focus on procedural compliance, rather than on student academic achievement.
Compliance monitoring could be re-engineered to emphasize scrutiny of student goals, outcomes and the sufficiency of instructional services. In its waning days, the Obama administration took steps in this direction. A shift in emphasis was to focus monitoring on “results driven accountability,” that is, academic performance.6 But the initiative never got going and is already in the Trump and DeVos educational dustbin.
There is, however, hope for the future. The political winds will change course sooner or later, and if they blow with zeal for reform of special education, there is an even bolder political pathway to reform. That would be to reinvent special education altogether, with IDEA being restructured to serve only students with severe cognitive and other limitations.
Reinvention of special education so that it serves only students with the most severe disabilities might seem a big policy leap over the deep-rooted practices of the past 40 years. Most students in special education, those mislabeled as disabled, would be gone. Yet, actually, it would be less reinvention and more restoration of what IDEA was supposed to be in the first place.
Recall, as discussed in Chapter 2, the fear of mission creep at the time of passage of the original version of IDEA in 1975. Congress tried to put in safeguards to prevent special education from being overwhelmed by students without legitimate disabilities. However, the safeguards were feeble and ineffective.
Thus, special education was inundated with students who were illegally mislabeled as disabled. As struggling learners fell farther and farther behind in general education and overwhelmed general education teachers, they were labeled with pseudo disabilities and dumped into special education. Little thought was given to RTI in general education as an appropriate and cost-effective alternative.
But we now know better, and it’s not too late. Amendments to IDEA and ESSA could mandate the reinvention. The Truly Disabled should be substantially separated from the Mainly Mislabeled. And the case for it is as compelling as it is urgent. Margaret J. McLaughlin, a professor of special education at the University of Maryland, has perhaps said it best. There is an acute need to
alter the current construct of “disability” under the IDEA and take special education policy back to its roots as an educational law that pertains only to students with clear and evident disabilities. . . . This could focus the resources on those students most in need of specialized long term education and related services as opposed to having special education programs provide compensatory services for students whose only “disability” has been poor or insufficient general education.7
Law professor Robert Garda seconds the motion. He writes that the next reauthorization of IDEA “should reclaim special education from overrepresented African-Americans and instructional casualties and place it back in the hands of the genuinely disabled by having ‘special education’ relinquish its exclusive grip on individualized instruction. . . .”8
What would such a back-to-the-future reinvention look like? First, general education would be expected to provide timely and effective assistance for all struggling learners. The idea of such a unified system has been evolving since the early 1980s. The groundbreaking article on the subject was titled, “Beyond Special Education: Toward a Quality System for All Students,” and extolled the concept of “Rights without Labels.”9 The vehicle to accomplish it, though not identified as such, would be RTI with its early and intensive interventions. Struggling learners would no longer be arbitrarily and illegally deposited into special education. They would be spared the stigma, segregation and negative self-fulfilling prophecies of special education.
Some proponents of separation have even gone so far as to call for special education to be abolished in its entirety. As conceptualized in the “Beyond Special Education” article:
The assumptions underlying separate programs have produced a system that is both segregated and second class. . . .
In a merged or unitary system, effective practices in classrooms and schools would characterize education for all students. . . . Nor would blame be placed on students or on family characteristics. Rather, the focus would be on effective instruction for all students. . . .10
The unitarians are spot-on in their diagnosis. Yet, their prescription is an overdose of idealism. Special education should be preserved for students with the most severe disabilities. If so, special education would be truly specialized for truly special populations. Still, it is fair to ask: is it feasible to draw a line along the continuum between students with severe and profound learning problems and struggling learners?
The difference between the two populations has life-shaping consequences. Remember, struggling learners can be expected to meet regular academic standards if they receive adequate instruction in general education. Students with severe disabilities can’t; they are only expected to meet alternative (lesser) standards at the highest level possible based on their individual needs and abilities.
Yet, the distinction is sometimes difficult to pinpoint. Disability classifications in IDEA are not educationally and medically precise. For example, there are heated debates about the validity of definitions and diagnoses of Specific Learning Disability and Other Health Impairment (attention deficit disorders). And within some classifications, there are students with and without severe cognitive limitations. That is generally understood for students on the autism spectrum. But it less understood for students with intellectual limitations including those with Down syndrome; some of these students—if they receive the best evidence-based instruction—are able to achieve at or near regular state standards and earn regular high school graduation diplomas.
Unfortunately, school systems are tempted to erroneously label students as severely disabled because schools are held to lesser accountability standards for their performance. ESSA and IDEA allow school systems too much leeway in the development of less-demanding alternate academic achievement standards for students “with the most significant cognitive disabilities.”11
Nonetheless, despite all the difficulties in separating struggling learners from severely disabled students, a practical demarcation is do-able. In fact, current practice under NCLB, ESSA, and IDEA has paved the way. Most severe disabilities emerge at a young age and are medically well recognized. As two authorities have put it, “For these children, there is no need for an elaborate identification process within the schools. Long before they enter kindergarten, we know who they are, and to a large extent, we know their medical, rehabilitation, and educational needs.”12
Parents still have to be on alert. Sometimes the decision is made prematurely, before developmental conditions are sufficiently known. Sometimes the decision is made before appropriate instructional interventions have been provided. Sometimes, as noted above, schools err on the side of determining students to be severely disabled in order to invoke lower standards and inflate test scores.
Still, the potential gains far outweigh the possible dangers. Most important would be the prospective benefits to classroom instruction. Special education teachers would be more specialized and better trained to meet the academic and life-skills challenges of truly disabled students. Another big benefit would be simplification of the eligibility determination process, allowing for reduction of the procedural paperwork that drives teachers nuts and out of special education. And management competence all-around would be strengthened by the tighter mission.
Yes, separation is a daunting challenge. But it’s worth the struggle, which can be won with smart and dedicated political action as proposed in Chapter 10.
Class action lawsuits, particularly on behalf of struggling learners—inside and outside of special education—could speed up the reform process. We earlier met student “B,” a plaintiff in the class action lawsuit pending in federal court in Berkeley. The Berkeley case is based on violations of IDEA, many of which were exposed in Chapter 2. A key one is that the Berkeley school system failed to provide B with “appropriate RTI,” defined as “intensive early and research-based intervention.”13
B, in effect, represents literally millions of struggling learners across the U.S. Among them are Jesse, Christopher, Isaias, Esmeralda, Paul, Gary and Jamie. They are students in the Detroit public schools who are in general education. not in special education. And, as alleged in a class action lawsuit filed in U.S. district court in 2016, “have been denied access to literacy by being deprived of evidence-based literacy instruction and by being subject to school conditions that prevent them from learning.”14 The denial, according to the class action complaint, violates the Due Process and Equal Protection clauses of the 14th amendment of the U.S. Constitution.
The complaint quotes a 1982 decision of the U.S. Supreme Court:
The inability to read and write will handicap the individual deprived of a basic education each and every day of his life. The inestimable toll of the deprivation on the social, economic, intellectual, and psychological well-being of the individual, and the obstacle it poses to individual achievement, make it most difficult to reconcile the cost or the principle of a status-based denial of basic education with the framework of equality embodied in the Equal Protection Clause.15
The complaint contends that those who fail to learn are doomed to constitute “a discrete underclass in our society.”16 The “appalling outcomes in Plaintiffs’ schools . . . would be unthinkable in schools serving predominantly white, affluent student populations.”17
Both the Berkeley and Detroit lawsuits plant the seeds of a constitutionally mandated right to be taught to read. The Detroit case covers broader ground as it would protect all struggling learners, while the Berkeley case covers only students who have been illegally treated under IDEA.
Regardless of the distinction between them, both lawsuits face long and uncertain futures. The suits may or may not succeed. In 2013 a class action case was filed in Michigan, claiming that the state was legally obligated to ensure that all students learn to read. Plaintiffs lost that case but it was decided in a state, not a federal, court.18
The prospects in federal courts are a whole new and more promising ballgame. Lawsuits that copycat the Berkeley and Detroit causes of action are sure to follow in other states and cities. It will take many years for the cases to be decided, and then an even longer time to weigh the impact of the decisions. Still, the movement towards a federal constitutional right to literacy seems inevitable.
It is in the federal courts that other longstanding, basic denials of equal educational opportunity were eventually recognized. Brown v. Board of Education, the landmark Supreme Court decision that outlawed racial segregation in public schools, was a forerunner. The Detroit suit, in particular, follows closely in its hallowed footsteps.
Lawrence Tribe, an eminent constitutional law scholar at Harvard University, expects the Detroit case to make history “much as Brown v. Board of Education did.” “If you think of Brown v. Board as one shoe that dropped, this is the other shoe . . . because though it eliminated, technically, inferior schools for blacks, and eliminated de jure segregation, it didn’t achieve one of its basic goals. And that is a decent educational opportunity for all kids, regardless of race, regardless of class, regardless of geography. That’s become a more elusive goal.” “The legal theory, behind the suit,” he says, is “creative and rock-solid.”19
Another legal channel that could lead to a right to learn to read and meet state academic standards is laid out in an illuminating 2010 paper, “New Life for Educational Malpractice: Decades of Policy Revisited.”20 Do educators—unlike doctors, lawyers and accountants—have civil immunity from malpractice? Are school systems not liable civilly for harm to students when they act negligently and fail to follow evidence-based instructional practices?
For many years, it was dogma that educators were a privileged class and immune from malpractice standards. “Long ago,” the paper recounts, “legal scholars held a funeral service for the tort of educational malpractice.”21 The nails in the coffin included “the inability of the courts to identify an educational professional standard of care, and an underlying belief that courts should not intrude on the ‘educational expertise’ of educational institutions.”22
In a famous 1976 case, a California high school graduate—with normal intelligence and average grades—had achieved only a fifth grade reading level. Nonetheless, the California Supreme Court rejected the claim of malpractice, emphasizing the lack of a workable standard of care and the fear of burden on public schools.23
But over the years, workable standards of care have been solidly crafted. Federal and state laws since the early 1980’s—including ESSA and IDEA—have mandated state academic standards. In an article titled, “A Crack in the Educational Malpractice Wall,” the authors asked whether “With performance standards in place, will courts soon recognize an individual’s right to competent instruction in the classroom?”24 The standards have been part of an overall accountability movement, and we now have extensive data showing how struggling learners—whether in special or general education—are far below meeting the standards.
Another old justification for immunity from liability for malpractice is also long gone. There is now a growing body of evidence-based instructional best practices that school systems should prescribe for academically-ailing students, a point emphasized in the Detroit class action case. RTI can work if given the chance and done right. School systems that don’t use it should be sued for malpractice.
It also bears notice that the students who have not mastered basic reading skills because of lack of evidence-based instruction are, more than ever, disproportionately from poor and minority families. Thus, the pressure continues to build for a constitutional right to read that would force schools to come out from under the old, tattered cloak of malpractice immunity.
This Chapter has tried to post starters in the race to end the educational abuse of struggling learners. Most likely to get to the finish line is federal action in the Congress and in the courts. But how much money are you willing to bet on the race?
In the next chapter we survey the political odds. U.S. history makes reform a longshot. Yet, to switch metaphors, the worm (in the apple on the teacher’s desk) will turn. Sooner or later, we the people will take political action to end the abuse of struggling learners in general education and special education. And it will happen sooner than later if the political will to make it happen is matched with political muscle. That’s the book’s last lesson, and the next and final chapter is a campaign blueprint.