Special education is a right, not a privilege

Do all of Iowa's disabled children have access to the special-education services guaranteed them by federal law?

If a ruling this past spring by an administrative law judge is any indication, they are not, and that finding could have major implications not just for the state’s public schools, but for families in every corner of Iowa.

As reported by the Register’s Mackenzie Ryan, Administrative Law Judge Christie J. Scase issued a ruling in March that requires the Iowa Department of Education to reimburse an Urbandale family for the cost of the private tutoring they commissioned when their child was denied special-education programming at school.

The ruling challenges state policies for determining whether a student has a disability and, separately, whether that student qualifies for special education. As things stand now, the state considers several factors in making those determinations, and one of them is that students must be far behind their peers academically before a disability is even recognized.

In other words, that particular standard is based not on the students’ diagnosed capacity to learn, but on their actual performance in the classroom.

"Our approach to special education in Iowa has been to not solely focus on labels or diagnoses, but rather on what kids need to succeed in school," explains department spokeswoman Staci Hupp.

The problem with this approach is that it equates achievement with ability — yet a child’s success in the classroom is influenced by many factors, including the teacher, the school, the subject matter and the parenting. Students who should qualify for special-education assistance based on their disability could be succeeding in class despite, rather than because of, actions taken by the schools.

Under the state’s policy, the academic success of disabled students can work against them, disqualifying them for the special assistance they might otherwise receive.

In the case at hand, an Urbandale couple fought for years to have their daughter, identified in state records only as “A.W.,” qualify for special-education services. Because she didn’t qualify, she was denied an individualized learning plan, or IEP, that could have helped her succeed at an even higher level. That’s despite a University of Iowa Hospitals and Clinics evaluation that strongly recommended an IEP be put in place.

Judge Scase’s ruling found that determining whether students have a specific learning disability by measuring the discrepancy in the child’s classroom performance against that of their peers “functionally imposes a severity test on the disability” and is inconsistent with the federal law known as the Individuals with Disabilities Education Act.

Unfortunately, the education department is appealing Scase’s ruling in federal court. There’s a chance the agency will prevail, too, since the outcome of the case will hinge not on what the best criteria are for deciding who’s disabled and is eligible for special education, but on whether current policies and procedures used by the state violate the precise requirements of the Individuals with Disabilities Education Act.

That law guarantees a “free and appropriate public education” to all children, regardless of any disability they might have. You’d think that concept, and the law that supports it, would be almost universally embraced, but it is not, and some advocates fear it may be weakened under U.S. Attorney General Jeff Sessions.

As a senator, Sessions once criticized the disabilities education act for triggering “lawsuit after lawsuit (demanding) special treatment for certain children.” He blamed the law for “accelerating the decline in civility and discipline in classrooms all over America” and implied students who “could not, or would not, behave” were gaming the system to take advantage of their legal status as disabled students. He then went on to suggest students with disabilities were behind gun violence on campus, saying, “I do not remember hearing of gun shootings prior to 1975 when Congress began telling 10 percent of our students, ‘You are not responsible.’ ”

The act isn’t even supported by some so-called education experts. In Texas last year, the Houston Chronicle reported that the state’s education department had arbitrarily decided in 2004 that only 8.5 percent of students in Texas should receive special-education services. The agency then began penalizing school districts for serving too many children and required some to file corrective action plans.

This reduced the percentage of Texas students in special education from the national average of 13 percent to the mandated 8.5 percent, which is far and away the lowest percentage of any state in the nation. It also left thousands of disabled children — including the blind, the deaf and the brain-injured — without the services they need to succeed in class.

Diagnosing disabilities and determining which children will benefit from special-education services is no easy task, but the federal government and the states have an obligation to ensure that every child who is entitled to those services receives them.