The roadblock? A federal “maintenance of effort” (MOE) requirement in the Individuals With Disabilities Act (IDEA, the federal special-education law) that handcuffs states and districts by requiring that special-ed spending never decline from one year to the next. In times of plenty, this mandate discourages efforts to make productivity gains; when revenues shrink, it means that special-education spending will consume an ever-growing slice of school budgets.

For one brief shining moment, Secretary Duncan appeared ready to end the MOE silliness. Then he caved to the powerful special-education lobby, which refused to accept anything other than expenditures escalating into perpetuity.

While economic realities alone should be reason enough to jettison requirements that dictate a spend-spend-spend approach to special ed, a new Fordham study by Nathan Levenson provides an even more compelling reason for doing away with MOE: Spending more on special ed simply may not do much for kids.

How is this possible? While public education is never very hospitable to innovation, efficiency, or productivity boosters, special education has generally been downright hostile. Despite statutory and regulatory tweaks from time to time, our approach hasn’t really changed since the federal law was passed more than thirty-five years ago, even as so much else in K–12 education has changed in important ways. That does not, regrettably, mean our traditional approach has worked well. Indeed, change is desperately needed in this corner of the K–12 world, as any look at the (woeful) achievement data or (skyrocketing) spending data for special-needs students demonstrates. To oversimplify just a bit, general (i.e., “regular”) education is now focused on academic outcomes, but special education remains fixated on inputs, ratios, and services.

That’s a shame, since the same basic dysfunctions that ail general education afflict special education too: middling (or worse) teacher quality; an inclination to throw “more people” at any problem; a reluctance to look at cost-effectiveness; a crazy quilt of governance and decision-making authorities; a tendency to add rather than replace or redirect; and a full-on fear of results-based accountability. Yet the fates (as well as the budgets) of general and special education are joined. In many schools, the latter is the place to stick the kids who have been failed by the former—a major cause of the sky-high special-education-identification rates in many states and districts. Further, there exists in many locales the unrealistic expectation that every neighborhood (and charter) school should be able to serve every youngster with special needs at a high level.

Enter Levenson, former superintendent of the Arlington (MA) Public Schools. In his new study, Boosting the Quality and Efficiency of Special Education, he and his team identified school districts that get similar (or superior) results for special-education students as their peer districts, yet do so at significantly lower cost. They are doing right by kids and right by the bottom line. Both at once. And their practices are eminently imitate-able.

Levenson & co. also developed a national database on special-ed spending—the largest and most detailed ever built. It contains information from almost 1,500 districts, representing 30 percent of U.S. schoolchildren. The database shows that special-education spending and staffing vary wildly—much more so than it does for regular education. Principally driving this variation are huge district-to-district differences in staffing levels.

Some districts hire almost three times more special-ed teachers (per thousand students) than do others. The difference for paraprofessionals (teachers’ aides) is greater than four times. Levenson calculates that, if the high-spending districts adjusted their staffing levels in line with national norms, the country could save (or redirect) $10 billion annually. That’s not chump change! For example, it’s more than twice the total sums invested (over multiple years) in Race to the Top.

The potential for additional savings—and better services for kids—is greater still. To its discredit, longstanding federal law bars the teams that develop Individualized Education Programs for disabled pupils from considering the cost of the interventions and services that they are recommending. Untangling federal barriers to efficiency and effectiveness in special education is the job of Congress—yet no one in Washington seems the least bit interested in tackling an IDEA reauthorization anytime soon. That’s a huge mistake.

Levenson draws on his research to offer a few simple, but assuredly not simplistic, solutions. Make general education better, he says, so that fewer kids get directed into special education. Once youngsters are in special education, design interventions for them that take cost-effectiveness into account—a benefit both for the kids and for the taxpayer. Focus on recruiting better teachers, not more teachers (and aides, specialists, etc.)—for general and special education alike. And scrupulously manage their caseloads.

Districts and states should take these lessons to heart, but the simplest fix supported by Levenson’s findings must occur at the federal level: End maintenance-of-effort requirements that are both inefficient and ineffective. As special-education costs eat into general-education coffers—a trend that is almost certain to continue in the lean years ahead—we suspect that education leaders, policymakers, and taxpayers alike (maybe even the parents and teachers of children with disabilities), will feel impelled to make our perplexing and inefficient special-education system a little less so.

-Chester E. Finn, Jr.

This blog entry originally appeared on the Fordham Institute’s Flypaper blog.

Critics of voucher programs often argue that private schools do exclude most disabled students, and the matter occasionally has been the subject of litigation. Yet accurate information on students with disabilities served by private schools is notable for its absence.

The main reason for the lack of accurate information is that private schools do not operate under the provisions of the federal law that furnishes aid to the states for students identified as needing special education. Public schools expend considerable resources identifying children eligible for special services, both because they are under an obligation to provide those services and because they receive additional funds from federal and state governments if a child is identified as having a disability that affects their learning. Those obligations, rights, and funding support do not apply if parents choose to place their children in private schools with the help of a voucher. By and large, private schools have not developed the capacity to identify children with disabilities, and many of them are reluctant to do so, as they believe it leads to stigmatization of the children.

In other words, a child who may be classified as in need of special education in a public school may not be classified as such if his or her family chooses a private school, using a voucher to defray the cost. As a result, any official statistics on the prevalence of students with disabilities in public and private schools can be highly misleading.

We have not been able to surmount all of the obstacles to identifying the percentage of students in private schools who would have been identified as in need of special education in public schools, but we believe we have fairly accurate information on this question for the country’s largest and longest-running school-voucher program. The Milwaukee Parental Choice Program (MPCP), first established in 1990 and steadily expanded to include more private schools and more students in subsequent years, now serves more than 23,000 students who attend 107 different private schools. The annual voucher a school receives for each MPCP student is approximately $6,000. MPCP thus provides an excellent context for detecting the admission policies of private schools when a modest-value voucher program for low-income students is operating at scale.

In 2006, the State of Wisconsin authorized our research team to conduct a five-year evaluation of MPCP. Through the course of that study, we collected a wealth of data about the students in the voucher program and in the Milwaukee Public Schools (MPS) that permit us to estimate what proportion of the voucher student population would qualify for special education if the students were enrolled in public schools instead.

Drawing on different sources of data and various analytic methods, we estimate that anywhere between 7.5 and 14.6 percent of voucher students have disabilities that would land reported by the Wisconsin State Department of Public Instruction (DPI), a figure that gave rise to a lawsuit alleging discrimination by the MPCP program.

Following is a discussion of the procedures we followed to obtain our estimates and an explanation for the disparity between our estimates and the ones DPI has provided.

Structure of Special Education

As mentioned previously, receiving a special education designation brings with it certain legal rights for services or accommodations in the public educational sphere, as provided by the federal law known as the Individuals with Disabilities Education Act (IDEA). Once so designated, public school students are entitled to receive a free and appropriate public education (FAPE), to include special education services in the least restrictive environment possible and according to an individualized education program (IEP). A student’s IEP is drawn up by a committee that includes the student’s parents or guardians, local public-school officials, and relevant medical or psychological diagnosticians and care providers. The resulting special services and accommodations are funded through a combination of federal, state, and local monies based on formulas established in law. In Wisconsin, the federal government pays about 11 percent of the extra cost of educating each special-education student, with the state paying 26 percent and the local public-school district covering the remaining 63 percent.

The legal and funding structure surrounding students with disabilities in the private sector differs greatly from the situation in the public sector. Unless a public school district itself places a special education student in a private school, the IEP and additional funding associated with a student with a disability in the public sector does not transfer with the student if the child enrolls in a private school. The point is made in an August 2011 DPI memo on the subject:

Students with disabilities attending voucher schools as part of the MPCP are considered parentally placed private school students and as such, DPI treats them in the same fashion as students attending private non-voucher schools. Under [state law] parentally placed private school students are…not entitled to a Free and Appropriate Public Education.

If a parent enrolls a student with special needs in a private school, that student must surrender her legal rights to special educational services. Private schools are not required by federal law to enroll students with special needs, and they are not entitled to any additional resources from the state if they do so. Private schools can either accommodate the student themselves, using whatever resources they have, or negotiate with public school officials regarding the provision of special services to the student by the public school system with additional public funds (a process called “equitable services”).

Maintaining a count of those thought to be in need of special services also varies by sector. In the public sector, careful record keeping is stressed because disability status has major implications for the kinds of instructional and other services students will receive. In the private sector, special education tends to be handled much less formally, inasmuch as schools are ordinarily not required to follow formal procedures in diagnosing or serving students with special educational needs.

Given the contrasts between how special education is governed and managed in the public and private education sectors, we hypothesize the following:

1. The same student will have a higher likelihood of being identified as in need of special education if in a public school than if in a private school.

2. Given the funding available for extra services for disabled children attending public schools, a higher proportion of students with disabilities than those without disabilities will choose to remain in the public sector rather than use a voucher.

3. Any data that rely on official reports of disability will under-count the percentage of students in private schools who would have been identified as in need of special education had they attended public schools.

To test these hypotheses, we used two alternative methods to estimate the actual percentage of students in private schools who would have been identified as in need of special education in public school had they selected that sector.

Method I: Same Student, Different Sector

The better of our two methods relies on information from those students who attended schools in both the public and the private sectors during the course of our study. During the five years of our evaluation, 20.1 percent or 1,475 of the 7,338 students in our MPCP and MPS study panels switched from one school sector to the other, in some cases multiple times.

We received enrollment files from MPS each year that included information on the special education status of each MPS student. We also collected enrollment lists from every private school in MPCP and asked school officials to indicate if students had disabilities that qualified them for special education. For students who switched school sectors during the study period, we can determine whether those who were identified as needing special education in the public sector were similarly identified when they attended private schools, and vice versa. In other words, we can use each student in our study as his or her own control group to learn whether disability designations vary by sector.

Our analysis indicates that Milwaukee students who switched between the public and private school sectors were much more likely to be identified as in need of special education when they were in the public sector. On average, controlling for factors such as year and student grade, those who attended schools in both sectors were classified as in need of special education at the rate of 9.1 percent when attending private schools but at a rate of 14.6 percent when attending Milwaukee’s public schools. If we assume that a student’s need for special education did not change at the time the student switched sectors, this suggests that 5.5 percent of students attending private schools were not identified as in need of special education but would have been had they been attending public school. In other words, the identification rate in the public schools appears to be 60 percent higher (the 5.5 percent increment divided by 9.1 percent) than in the private schools. The identification rate was higher when students were in MPS both because many students who switched from MPCP to MPS received special education designations in MPS and because many students with special education designations in MPS shed them when they enrolled in MPCP schools.

The 14.6 percent MPCP disability rate is based only on students who switched sectors (35 percent of MPCP students). Those students appear to have higher rates of disability than those who did not switch. Based on principal surveys, for the 65 percent of MPCP students who did not switch, the disability rate was 3.75 percent. To get an overall rate for MPCP students, we compute a weighted average for the two groups of 7.5 percent. We suspect that this rate is conservative, since several voucher school principals told us they resist labeling students in such a way. Combining this conservative estimate with the estimate from our analysis of only students who switched sectors yields a range of 7.5 to 14.6 percent, which we think captures the likely student disability rate in MPCP.

Click to enlarge

Method II: Parental Estimates of Disability Rates

Our second estimate of the student disability rate in MPCP comes from interviews with parents. In 2007 we interviewed a random sample of parents of MPCP students in grades 3–8, all the parents of MPCP 9th graders, and a sample of parents of MPS students who were matched to the sample of MPCP students based on their grade in school, neighborhood of residence, ethnicity, test-score performance, and other characteristics. We expanded this sample with additional parents of 3rd-grade students similarly chosen in 2007 and 2008. Altogether, we interviewed a majority of the parents of 3,669 students in MPCP and 3,669 students in MPS.

The survey included the following questions:

• Does [child’s name] have any physical disabilities?

• Does [child’s name] have any learning disabilities?

If a parent answered yes to the learning disabilities question, we further asked,

• How well do the facilities at [child’s name] school attend to his/her particular needs?

According to parental responses to the first two of these questions, 2.5 percent of students in MPCP have a physical disability and 9.8 percent have a learning disability (see Figure 1). The corresponding rates reported by parents of MPS students were 4.1 percent and 18.5 percent for physical and learning disabilities, respectively. Combining the categories and eliminating overlapping cases, it is estimated that the disability rate in the MPCP sector is 11.4 percent, as compared to 20.4 percent for the MPS sector.

There is every reason to believe that these parental responses are consistent and fairly accurate indicators of what the parents are told by school officials and what they themselves know about their children. The official MPS rate for this time period is between 18 and 19 percent, just slightly less than the 20.4 percent reported by our MPS parents. The 11.4 percent disability rate for MPCP students based on our survey is midway between the 7.5 percent rate for all students in MPCP based on school staff designations and the 14.6 percent rate based on observing some of the students in both school sectors.

It is interesting that within a scaled-up, long-standing voucher program, parental satisfaction with services for students with disabilities achieves a balance across sectors. Similar levels of satisfaction with special education services are reported, regardless of whether the student was in MPCP or MPS (see Figure 2). Presumably, the choice of sectors and schools allowed parents to obtain an educational setting they view as appropriate for their child.

Discussion

Our estimates of the prevalence of MPCP students who have a disability range from 7.5 to 14.6 percent. The 14.6 percent estimate is based on the identification by public schools of the need for special services for those students who attended school in both sectors, while parental reports peg the rate at 11 percent, and the combination of MPCP and MPS school personnel suggest it is 7.5 percent.

All of these estimates are higher than the one provided, on March 29, 2011, by DPI, which said that “the private schools [participating in MPCP] reported about 1.6 percent of choice students have a disability.” That statement provoked a lawsuit by disability rights groups against DPI, which administers MPCP, based on the charge that the program discriminates in admissions against students with disabilities.

The estimate provided by DPI was based on the percentage of MPCP students who were given test accommodations on the 2010 state accountability exams. Only a fraction of students with disabilities receive accommodations on exams, and accommodations are only permitted if an IEP committee of school personnel requests them. Since few students with disabilities in private schools have IEP committees, the student-testing accommodation rate for MPCP may bear little relationship to the actual student-disability rate in the program. In fact, using administrative data we collected from the MPCP schools, we were able to determine that only one-quarter of the MPCP students judged by their school to have a disability were actually given any accommodation for last year’s test.

Using multiple measures of student disability, each of which is more valid and reliable than testing accommodation statistics, the estimates we produced indicate a 7.5 to 14.6 percent participation rate for students with disabilities in the voucher schools in comparison to the 17 to 19 percent participation rate reported for students with disabilities by the public schools. The difference could be due to discrimination against disabled students, as has been alleged, but the evidence is not sufficient to draw any such conclusions. Where disabilities are severe, private schools may not have the necessary facilities, and even in less severe instances, parents may prefer the legal entitlements and the greater range of funded services in the public sector.

What we do know, with considerable certainty, is that while the percentage of students in the voucher schools with disabilities is substantially lower than the disability rate in the public schools, it is at least four times higher than public officials have claimed. These statistical findings reinforce our views that the sectors cannot be easily compared to one another on this particular metric, because they operate under different legal obligations, financial incentives, and cultural norms. Special education is special in very different ways in public schools and in voucher programs.

Patrick J. Wolf is professor of education reform at the University of Arkansas. John F. Witte is professor of political science and public affairs at the University of Wisconsin-Madison. David J. Fleming is assistant professor of political science at Furman University.

Behind the Headline
The Case for Special EducationVouchers
Education Next | Winter 2010

Former State Assemblyman Michael Benjamin makes the case for special ed vouchers in New York City in an op-ed appearing in today’s Post. Jay Greene and Stuart Buck explained how special ed vouchers work and dispelled myths about the vouchers in an article appearing in the Winter 2010 issue of Ed Next.

Here’s the deal. Education Week‘s Nirvi Shah yesterday reported that, “Districts that want to reduce special education spending from one year to the next without restoring what was cut now have the blessing of the U.S. Department of Education.” In June, Melody Musgrove, ED’s director of the office of special education programs, sent a letter to the National Association of State Directors of Special Education declaring that a school district “is not obligated to expend at least the amount expended in the last fiscal year for which it met the maintenance-of-effort requirement.” This is a healthy and important development. (And kudos to Shah for the coverage–I, for one, had totally missed this).

You see, federal law has long been taken to mean that special ed spending cannot be adjusted downward except in tightly constrained circumstances (such as when an especially costly student leaves a district). Shah noted that, “Cutting the special education budget for other reasons meant a district was running the risk of losing its share of federal funds.”

Yep, you read that right. A district which provides special education services more cost-effectively has long been threatened with losing their federal aid unless they keep on spending at the same rate. In other words, special ed policy has made it essentially illegal to improve special ed productivity. This is problematic on principle, but especially at a time when districts are being asked to make tough choices about services for all other students. Of course, the special education advocates are never called out on the troubling implications of the push to protect children with special needs no matter the cost–and folks of all stripes are terrified to ever label such sympathetic efforts as “selfish.” But systematically privileging kids in special ed necessarily requires giving short shrift to all other students.

If districts reduce their special education spending, ED says it’s now permissible to at least consider leaving it at the new level. This makes good sense. Shah quotes AASA legislative specialist Sasha Pudelski offering probably the most sensible take on the issue. Pudelski said, “School administrators have been forced to cut to the bone when it comes to general education costs, but current IDEA [maintenance-of-effort] requirements prohibit them from making the same difficult cuts to special education. Our members think this is inherently unfair…Fairness dictates that all programs and populations share in the burden of cuts, rather than holding a single program exempt.”

Predictably, the special education lobby has denounced the shift. Kathleen Boundy, co-director of the Center for Law and Education, has sent ED a letter demanding that the guidance be rescinded and arguing that districts should be required to “to maintain the level of special education expenditures from year to year based on a notion that costs rarely decrease.”

Monday, ED officials sensibly responded to such complaints by noting that IDEA’s strictures will keep districts from misbehaving. Good for ED. This was a smart, sensible call–even if it’s likely to generate more than a little undeserved grief.

- Frederick Hess

(This post also appeared on Rick Hess Straight Up.)

Still, I couldn’t help but wonder if school spending (adjusted for cost of living) was driving the differences. After all, you don’t have to be a rocket scientist to notice that Massachusetts and New York spend a ton of money on their schools and California—similar to them in so many other ways—spends a fraction as much.* Perhaps a sense of scarcity in resource-starved states like California encourages school districts to avoid identifying lots of kids for pricey special education services.

So I asked our new research intern (and Koch Fellow) Josh Pierson to run a regression and here’s what he found:

I then asked my friend Marty West, assistant professor at the Harvard Graduate School of Education, to interpret the findings. He wrote:

The correlation between adjusted per pupil spending and ID rates is 0.37 (and highly statistically significant), which means that the relationship can account for 13 percent of the total variation in ID rates. If you look at it in a regression framework, you learn that a one thousand dollar increase in spending is associated with a 0.36 percentage point increase in ID rates. The relationship appears to be fairly linear and does not appear to be driven by outliers (i.e., one or two states with odd data). And weighting the states by their enrollment (so that California contributes more to the estimation than Wyoming) makes the relationship a bit stronger. Finally, controlling for your adjusted household-income variable strengthens the relationship (so that a one thousand dollar increase in ID rates gives you a 0.77 percentage point increase in ID rates). You also see that, controlling for spending, incomes are negatively related to ID rates.

He continues with a warning:

There’s clearly a statistical relationship here, but it is hard to know what to make of it in terms of substance. It could be that better-resourced systems identify more kids because they have the capacity to serve them separately, but even if that were the case there is a lot of variation that it can’t explain (look at Rhode Island and Texas, for example). I think you need to be very careful in how you interpret these data.

I agree; it’s hard to know what to make of these data. But it’s certainly possible that “better-resourced” systems are more willing to identify more students for special-education services. Whether that means that high-spending states are over-identifying kids—or that low-spending states are under-identifying them—is impossible to know, at least from these data. But at least we now have a plausible explanation for the big state-by-state variation. And I can’t help but wonder whether the “New Normal” (most states finding resources much more limited) will drive down identification rates at a fast pace.

Other interpretations?

* I was surprised to learn from the chart above that, after adjusting for cost of living, Massachusetts and New York don’t actually spend all that much money, and Texas is far from stingy. But look at California. Yikes.

-Mike Petrilli

Indeed, districts are prohibited from even considering costs when designing student education plans. The result has been a steady increase in spending accompanied by remarkably little attention to efficiency. That’s a losing strategy, given that special education spending has grown from 4 percent to 21 percent of total school spending between 1970 and 2005. Stretching the school dollar requires taking a tough look at the efficacy of special ed service delivery alongside other district operations.

State and local officials generally accept this diagnosis in principle. But, when I talk with them, they often want to know where to get started, and how to move forward without asking for legal headaches. Happily, Nate Levenson, the managing director of the District Management Council, has stepped into the breach to offer some guidance. Levenson, a former Massachusetts superintendent and an MBA, penned the new white paper, “Something Has Got to Change: Rethinking Special Education” (Full disclosure: the paper was published by my shop at AEI).

Levenson’s charge: “Districts must tackle the twin challenges of controlling special education costs and improving student achievement. In short, we are asking districts to do more with less.” He draws on long experience as a superintendent and special education consultant to offer a number of field-tested practices for taming out-of-control special education spending while serving students better. Specifically, Levenson offers four pieces of advice to schools and districts: focus on reading and integration with general education, rethink deployment of support staff, design more sophisticated metrics to gauge teacher effectiveness, and employ more strategic management structures.

Levenson shares experiences to illustrate the challenges and explain how superintendents and school boards can confront them. In his own tenure as supe, for instance, he oversaw a program that reduced special ed costs even as the share of special ed students achieving proficiency in a three-year trial program increased by 26 percent in English and 22 percent in math. A few of his recommended solutions:

• a relentless focus on reading, including clear and rigorous grade-level expectations for reading proficiency, frequent measurement, and early identification of struggling readers with immediate and intensive additional instruction, up to 30 extra minutes per day;
• rethinking what special ed students are taught in general education classes to avoid overplacement of special ed students in special classes and keep them in front of the best teachers;
• maximizing class time with content expert teachers.

Nate is also as quick to dismiss widely-held but misguided beliefs surrounding instruction for special ed. For example, he writes, “The largest portion of special education spending goes to special education teachers, who are trained in the law, know how to identify disabilities, and are steeped in theories of learning. They are not, however, trained in math, English, or reading, even though most of a special education teacher’s day…is spent providing academic instruction.” He flags one district where special ed teachers provided 100 percent of extra reading help even though only five percent of the teachers had been trained to teach reading.

Also in for some tough medicine is the practice of co-teaching, where a special ed teacher is paired with a general ed teacher in a regular classroom for students with and without disabilities. Levenson writes, “Co-teaching is like dieting. Lots of people want to lose weight and look good in a bathing suit, but actually doing so is hard.”

Levenson concludes with a handful of policy recs. These include focusing regulatory oversight on outcomes rather than inputs, collecting different and smarter types of data, and creating unambiguous standards for student eligibility and services. Anyway, check it out, if you’re so inclined. I’d say it’s interesting reading for most, but essential reading for school board members, supes, and school leaders trying to close budget shortfalls without compromising educational quality.

-Frederick Hess

(This post also appears on Rick Hess Straight Up.)

We contend that sound prevention programs can significantly reduce the number of older children who are identified as LD and who typically require intensive, long-term special education programs. Moreover, prevention programs will prove more effective than remedial programs.

In short, they argued, most children with learning disabilities suffered from poor reading instruction, not an underlying neurological problem.

This thinking found its way into the No Child Left Behind act via the Reading First program, and into the Individuals with Disabilities Education Act via “Response to Intervention” strategies.  In both cases, the focus was on identifying children at risk for reading problems early, and intervening quickly with research-based, rigorous, direct instruction.

So what happened? I can’t claim a causal relationship, of course, but look at the trend in the number of students with learning disabilities in recent years. (And consider that before this time period, the percentage of kids with LD was going up, up, up.)

This is an 11 percent drop in  just five years. We might be witnessing one of the great untold success stories of recent educational history. So why isn’t anyone talking about this? And remind me again why Congress and the Administration decided to kill Reading First?

The big battles over school vouchers in American education have focused on programs serving low-income children who live in urban areas. Milwaukee’s program, begun in 1990, is the biggest and oldest in the country, and the District of Columbia effort, funded by the federal government, has been the most carefully studied. Both have been focal points of intense, partisan disputes, and both have been threatened by legislative actions in the past several months. But, even when they are considered together, those two programs are not as large as a hardly known, originally noncontroversial voucher innovation, the special education voucher. Four states—Florida (1999), Georgia (2007), Ohio (2003), and Utah (2005)—have special education voucher programs that together serve more than 22,000 students.

Special education voucher laws are very simple. The parents of any child found in need of a special education (in Ohio, only students with autism) can ask the school district to pay for their child’s education at a school the parent has identified as appropriate.

Special education vouchers have a political advantage that vouchers for low-income students lack: they can benefit not only the poverty-stricken disadvantaged, almost never a politically potent interest group, but also anyone who has a child with disabilities, a population that crosses all social and economic boundaries. The concept also stands on particularly strong constitutional grounds, inasmuch as special education vouchers add nothing in principle to the rights established by federal law in 1974. Part of the historic extension of equal educational opportunity rights to the disabled, Public Law 94-142, the Education of All-Handicapped Children Act, now known as the Individuals with Disabilities Education Act (IDEA), was one of the most popular pieces of federal education legislation ever enacted.

That law has four key provisions: 1) every child, no matter how disabled, has a right to a free and appropriate education, which can take place in either a public or private setting; 2) an Individualized Education Plan (IEP) must be designed for each child in consultation with his or her parents; 3) the child should be educated in the “least restrictive environment”; and 4) parents can object to the educational provisions for their child by requesting a “due process” hearing with an independent hearing officer, whose decisions can be appealed to the courts (see sidebar). But schools tend to win most legal challenges brought by parents. Given the long odds and financial and psychological toll of suing the same people who take care of their child each day, most parents tend to accept whatever services are offered, even if the services fall well short of those required by law.

As special education has evolved over the decades since IDEA was enacted, public school districts have provided most of the special education services students have required. But a small percentage of students are educated at private schools, most often because the district has deemed that facility to be the most appropriate and to provide the least restrictive environment, given the nature and severity of the child’s disability. Many of the private schools serving the disabled have a religious affiliation, but that has not proven to be a barrier to government funding of student placements under IDEA.

As of 2007, there were 5,978,081 students in special education nationwide, with fewer than 100,000 in private placements. Only 67,729 were being served by private schools at parental initiative, a mere 1.1 percent of disabled students, and a trivial 0.14 percent of the 49.6 million students in public education. Students placed in private schools are more likely to be autistic, have multiple disabilities, or suffer from emotional disturbances than those students who receive services in the public schools (see “Debunking a Special Education Myth,” check the facts).

Although few and far between, private placements nonetheless are an important constitutional precedent for special education vouchers, as the latter constitute only an extension of a long-standing practice that dates back to the civil-rights revolution. But unlike the procedures established under IDEA, school-voucher laws give parents the right to select a private placement without having to convince public school officials of the need for such services, to say nothing of the legal costs of proving to a hearing officer, or a state court judge, that the decision of the school district was in error. The rights of parents are seemingly identical under IDEA and under special education voucher laws, but the ease with which parents can exercise those rights is profoundly different.

The Debate

Almost 15 percent of students in the United States are said to have a disability under the procedures established by IDEA, so in states with special education vouchers, the potential for program growth is considerable. As the opportunity for private placement with a special education voucher becomes better known to parents, and as private providers become aware of the possibility of a larger clientele, one can anticipate an inexorable growth in the size and popularity of these programs.

Further expansion is likely to face some obstacles, however, as the programs become large enough to threaten vested interests. Arizona’s special education voucher law was struck down by the state courts after a challenge from the teachers union and civil liberties groups, which claimed that the law violated a state constitutional provision barring any public funds from flowing to religious institutions. Whether these state “Blaine Amendments,” named after the 19th-century presidential candidate who promoted anti-Catholic bigotry nationwide, will survive federal constitutional muster is not yet known. And whether other states of the 37 that have Blaine Amendments will interpret them as restrictively as Arizona or will follow Wisconsin’s example and still permit vouchers to be used at religiously affiliated schools is also not yet known.

In addition to legal challenges, opponents of special education vouchers are beginning to advance political and educational arguments against the idea as new programs are being considered in states such as Texas, Pennsylvania, North Carolina, and South Carolina, and the existing Ohio program is poised to expand.

Opponents raise several arguments to which answers can be given from recent studies of existing special education voucher programs. A number of the studies were carried out by research teams in which Jay Greene participated; in the remainder of this essay we will refer to those studies as “our” research.

1. Is Current Law Adequate?

One of the most frequently heard claims is that such vouchers are unnecessary, as disabled students already have the right, under IDEA, to private placement, if that is the appropriate setting for their education. Andrew Rotherham, the well-known blogger for Education Sector, dismisses the need for such vouchers on the grounds that “many (in real numbers not percentage terms) special education students attend private schools at public expense as a result” of a provision in the “Individuals With Disabilities Education Act…for students with exceptional needs that the public schools cannot meet,” and this existing provision is “adequate to the task.”

But this claim ignores the complex procedures that must be followed in order to arrange for a private placement, a primary reason such placement is quite rare. As the United States Supreme Court noted in its recent Forest Grove School District decision, pursuing private placement through the legal system is “‘ponderous’ and therefore inadequate to ensure that a school’s failure to provide a [free and appropriate public education] is remedied with the speed necessary to avoid detriment to the child’s education.” And school districts win most legal struggles with parents over private placement. According to Thomas Mayes and Perry Zirkel’s empirical analysis of this type of case, “school districts won the clear majority (62.5%) of the decisions.”

Given the low probability of victory as well as the considerable time, expense, and psychological discomfort involved in waging a legal battle, it isn’t surprising that private placements are rare, especially among families who lack the wealth and sophistication required to navigate the legal system successfully.

Special education vouchers essentially use public funds to democratize access to private placement by reducing legal and financial barriers. In Florida, where the McKay Scholarship for Students with Disabilities program has offered vouchers to disabled students since 1999, vouchers allow 6.7 percent of special education students to be educated in private schools at public expense. That is six times the nationwide average for private placement. Current practices for securing private placement elsewhere are hardly “adequate to the task,” that is, if the task is helping disabled students find an appropriate alternative to their assigned public school.

2. Will Costs Rise?

Won’t expanding access to private schools for disabled students impose significantly greater costs on the public? The People for the American Way and the Disability Rights Education and Defense Fund (PFAW/DREDF) expressed this fear as fact in their joint 2003 report on Florida’s McKay Scholarship program: “The costs of the McKay voucher program have escalated rapidly and have financially punished public schools around the Sunshine State.”

Fortunately, the facts don’t support the PFAW/DREDF claim. It is true that the overall cost of special education has become a significant financial issue for school districts nationwide as enrollments have steadily grown over the years, although our previous research found that the cost has been widely exaggerated in the media. However, vouchers are unlikely to increase the burden on districts: Special education voucher laws stipulate that the voucher amount should reflect the severity of the disability, that is, students who have more severe disabilities receive more generous vouchers, and that the cost to the district may not exceed the average cost the state pays for the education of children with similar conditions.

In Florida, eligible students are provided with a voucher equivalent to the lesser of the amount the assigned public school would have spent on the child and the tuition at the accepting private school. According to the Florida Department of Education, the value of McKay scholarships in 2006–07 ranged from $5,039 to $21,907, with an average of $7,206. Given that Florida public schools spend close to $17,000 per disabled student and that the McKay program contains a roughly representative distribution of disability types, taxpayers are actually saving quite a bit of money with special education vouchers, and public school districts are certainly not being “financially punished.”

3. Will Enrollments Rise?

Former Florida senator John McKay, for whom the McKay Scholarship is named, speaks at the Save Our Students rally.

Even if special education vouchers lower the public expenditure for each disabled student who receives a voucher, the vouchers might contribute to higher total costs if they increase the likelihood that students would be classified as disabled. Andrew Rotherham and Sara Mead expressed this concern in a paper for the Progressive Policy Institute in 2003: “Special education vouchers may actually exacerbate the over-identification problem by creating a new incentive for parents to have children diagnosed with a disability in order to obtain a voucher.”

Again, the facts do not support the fear. Though no one disputes that disabilities are real and that disabled students are more expensive to educate, it is not true that vouchers will necessarily increase the identification of disabilities, thereby raising overall education costs. It is current government funding policies that generate incentives for over-identification of disabilities. A number of studies have found a higher incidence of identified disabilities in those states that provide districts with additional dollars for each student diagnosed as disabled. Other states award a special education grant to each district, based on past numbers of disabled students, thereby reducing any incentive to over-identify students with disabilities. Our research has shown that when a state shifts away from paying for each incidence of disability to a “census” approach, the growth in special education enrollments slows. Other research confirms the pattern: Using district-level data, Julie Cullen finds that financial incentives explained 40 percent of the growth in special education in Texas during the early 1990s, and Sally Kwak finds a similar result in California.

Special education vouchers provide a different incentive. They discourage school districts from over-identifying disabled students, because any student identified as disabled becomes a potential choice student who might leave the district for a private school, reducing district revenue received from the state.

Our research has shown that vouchers have in fact slowed growth in special education enrollments in Florida. In a new study, we examined the impact of vouchers on the likelihood that Florida students would be placed in special education. We looked at whether the probability that a student would be identified as having a specific learning disability in Florida changed as more private schools that accepted McKay scholarships opened near the student’s public school. With more such schools nearby, students would have greater opportunities to leave if they were classified as disabled and therefore became eligible for a voucher. The willingness of public schools to put students into special education might be constrained if those schools feared that students would walk out the door with a voucher and all of their funding.

In fact, that is exactly what we found. The addition of 7.6 private schools that accept McKay funding within five miles of a public school, which is the average, reduces the probability that a student will be identified as having a specific learning disability by 15 percent. The evidence suggests that, rather than expanding special education, as Rotherham and Mead feared, introducing special education vouchers places some constraint on the rapid growth in students placed in special education.

4. Will Sufficient Services Be Provided?

If special education vouchers don’t increase costs, critics allege, then providers must skimp on services. Emory University professor Ann Abramowitz warned Georgians against adopting a special education voucher program that ultimately was enacted in that state, arguing that it “risks depriving many special needs students of services that they vitally need. Federal law requires public schools to provide appropriate services to children with special needs…. Parents would surrender these rights when they opt for a voucher under the proposed legislation.”

This is inaccurate. Parents don’t lose rights with special education vouchers; they only gain an additional mechanism for making the rights of their disabled children a reality. Even where special education vouchers are adopted, families can always choose to pursue their right to appropriate services in public schools through the legal system. Vouchers simply offer those families an alternative to engaging in a legal struggle or accepting subpar services. Instead, they can use their voucher-derived market power to purchase the services their disabled children need. If the market doesn’t provide satisfactory outcomes, parents can always return to the public schools with their relatively impotent legal rights.

The empirical research shows that when parents are empowered with vouchers, they are actually more likely to obtain necessary services. In another study, we surveyed participants in Florida’s McKay voucher program to see how likely they were to get services in their private school relative to their previous public school. Only 30.2 percent of voucher participants said they received all services required under federal law from their public school, while 86 percent reported their McKay school provided all the services they promised to provide. In addition, Virginia Weidner and Carolyn Herrington found through a large survey that “almost 90% of McKay respondents…were satisfied or very satisfied with the school their child attends, whereas only 71.4% of public school respondents were satisfied or very satisfied with the school their child attends.”

These families were more likely to get what they needed from private schools, even though they had no legal rights to specific services from those schools; they were less likely to get what they needed from the public schools, where they were legally entitled to those services. Market power can sometimes deliver better results than procedural rights. With special education vouchers, families get both: the right to an appropriate education from public schools and the option to purchase that appropriate education from private schools.

5. Will Some Students Be Left Behind?

Former Florida governor Jeb Bush presents findings of a review of the state’s education reform efforts.

But might the departure from public schools of some special education students and the revenue they generate undermine the ability of the remaining disabled students to get an appropriate education? Vouchers could drain resources and talent from the public schools, making it harder for them to serve their special education students. On the other hand, options for disabled students to leave and take resources with them might motivate public schools to attend to the needs of their students more closely and serve them better.

The latter seems to be the case. In a 2008 study, we examined whether the academic achievement of special education students was affected by the number of options they had to leave their public school with a voucher. In Florida, as more private schools that accept McKay funding opened near each public school, the standardized test scores of disabled students who remained in public schools significantly increased. The addition of about seven public schools with McKay funding within five miles of a public school improved the academic achievement of special education students by about .05 of a standard deviation. Contrary to common misconceptions, virtually all disabled students in public schools take the state-mandated test in Florida, so improvement in test results suggests that schools were serving those students better when they faced more competition from the McKay program. Vouchers do not drain public schools of their ability to serve disabled students; instead, schools are pushed to serve those students better.

6. Are Private Schools Accountable?

Former Utah governor Jon Huntsman, Jr., who signed the nation’s first-ever universal school voucher program into law, speaks to a 4th-grade class.

Special education vouchers appear to improve access to desired services for the students who use them, while also improving outcomes for the disabled students who remain in public schools. But the country’s largest teachers union, the National Education Association, still frets that the program lacks sufficient accountability for results: “Voucher students are not included in state assessments, so taxpayers have no way of knowing how the voucher funds have been spent, and how students have fared.”

The simplest solution is to add a testing requirement to special education voucher programs similar to the testing requirements found in a number of other voucher programs. It might be best, however, not to require state accountability testing in a special education voucher program. With the difficulties disabled students face and the highly varied goals and criteria for success that may be appropriate for each student, state accountability testing is not always helpful in assessing the academic progress of individual special education students. Educational goals and assessments often need to be customized to individual circumstances.

Even when disabled students are in public schools with Individual Education Plans, accountability for progress on the goals contained in those IEPs rests primarily with the parents. If schools fall short, the public and policymakers would never know. Parents would have to detect the shortcomings and do something about it. The situation is no different in private schools that accept a special education voucher. If the private schools fall short, parents would have to detect it and do something about it. The only difference is that without vouchers the only thing that could be done is to pursue an expensive and time-consuming legal process; with vouchers, the parents would have the option of finding better services somewhere else.

It’s also important to note that we do not always require accountability by measuring outcomes whenever public funds are distributed, even in education. For example, large public sums are devoted to higher education in both public and private universities and yet no one is required to take accountability tests. Preschool is increasingly subsidized directly and indirectly by the government and still we do not make preschoolers take accountability tests.

Despite the frequency with which public programs rely on beneficiaries to hold the quality of services accountable, Sara Mead asserts in an Education Sector report that, “accountability to parents alone is insufficient to protect the public interest or ensure taxpayer money is used well.” It is unclear why these critics find parents of disabled 5th graders unreliable for accountability purposes, but find parents of students in preschool or university sufficiently competent.

Trista Kutcher shows her little sister, Samantha, her Special Olympics gold medals.

Besides, the research evidence suggests that special education vouchers are benefiting both students and taxpayers. They improve the ability of disabled students to find appropriate services. They save taxpayers money, because the average voucher ends up costing less than educating the same student in public school and because the voucher curbs public-school financial incentives to inflate the special education rolls. And special education vouchers even improve the quality of services for the disabled students who remain in public schools because those schools risk losing students to the voucher program if they do not serve the students well. This all sounds like real accountability for results.

Most important, special education vouchers change the mechanism by which we ensure services for disabled students. Rather than forcing dissatisfied families to accept subpar services or to pursue legal action for relief, vouchers permit a lower-conflict, lower-cost method for resolving disagreements about the adequacy of public school efforts.

Jay Greene is professor of education reform at the University of Arkansas and senior fellow at the Manhattan Institute. Stuart Buck is a doctoral student in education reform at the University of Arkansas and author of Acting White: An Ironic Effect of Desegregation (forthcoming, Yale University Press).

D.C. is a remarkably abnormal place.  Because of the giant distortions of the presence and subsidies from the federal government as well as the atypical set of people who live in that area, policy experiences in DC are very often quite different from the experiences in the rest of the country.

The problem is that people tend to generalize from their immediate experiences.  If something happens to you, you hear about it from people you know, or you read about it in your local paper, you tend to think that’s the way it is for everyone.  So, DC education analysts are always at-risk of drawing policy conclusions based on incredibly atypical experiences.

For a prime example see Andy Rotherham and Sara Mead’s thoughts on special education vouchers:

In fact, if special education identification led to funding for private school attendance, it would be unusual if this did not create an incentive to participate in special education in many communities, particularly those with low-performing public schools. For example, Washington, D.C., and New York City currently contend with substantial abuse of special education by affluent parents. In addition, there are reports of parents seeking to have their students diagnosed with learning disabilities in order to gain accommodations on the SAT or for other reasons. [fn 27]

For another example, listen to Amber Winkler, Mike Petrilli, and Rick Hess discuss our most recent study on special education vouchers (it starts around minute 11:00).  They generally do a good job of describing the study but they express doubts about our findings because they believe that parents, especially affluent parents, have considerable influence over special education placements.

On what basis do these D.C. education analysts believe that a significant number of parents, especially affluent parents, are gaming the special education diagnostic system to get access to advantageous accommodations or expensive private placements?  The evidence Andy and Sara provide in footnote 27 consists largely of newspaper accounts from Washington, D.C..  Mike and Rick provide no source and we can only assume that they are drawing upon their immediate experiences.

Of course, the antidote to mistaken generalizations from our limited and potentially distorted set of immediate experiences is the reliance on systematic data.  If we step back and look at the broad evidence, we can avoid some of the easy mistakes that result from assuming that everyone’s experience is like ours.  As it turns out, DC is a gigantic outlier.

School officials, not parents, make the determination of whether a student has a particular disability and what accommodations are necessary.  Parents are entitled to challenge the decisions of school officials, but they rarely do and even more rarely win those challenges.

In the fall of 2007 there were 6,718,203 students receiving special education services between the ages of 3 and 21.  And that year there was a grand total of 14,834 disputes from parents resolved by a hearing or agreement prior to completion of a hearing (see Table 7-3).  That’s about .2% of special education cases that are disputed by parents or 1 in 500.

And as Marcus Winters and I described in our new study, schools prevail in most of these disputes:

According to Mayes and Zirkel’s (2001) review of the literature, “schools prevailed in 63% of the due process hearings in which placement was the predominant issue.” In cases where the matter went beyond an administrative hearing and was actually brought to court, one study cited in Mayes and Zirkel’s review found that “schools prevailed in 54.3% of special education court cases,” which the authors say is in line with the findings of other studies. In suits seeking reimbursement for private school expenses (because a special-education voucher program is unavailable), Mayes and Zirkel found that “school districts won the clear majority (62.5%) of the decisions.

In addition, as Marcus Winters and I documented in a 2007 Education Next article, private placement is amazingly rare.  Using updated national numbers from the federal government, as of fall 2007 there were 67,729 disabled students ages 6 through 21 who were being educated in private schools at parental request and public expense.  That’s only 1.13% of the 6,007,832 disabled students ages 6 through 21 and barely one tenth of one percent of all public school students.  If private placement supports Andy and Sara’s claim of “substantial abuse of special education” we’d have to redefine “substantial” to include minuscule proportions of students.

The systematic evidence clearly shows that school officials dominate special education, parents rarely challenge school officials’ decisions, schools win most of those challenges from parents, and parents very rarely get their children placed in private schools at public expense.

So, why do Andy, Sara, Rick, and Mike ( as well as all of those DC reporters who Andy and Sara cite) believe that parents, especially affluent parents, control special education decisions?  Well, perhaps it is because in D.C. parents do have much more control than in the rest of the country.

Remember how there were 14,384 students nationwide who resolved a dispute with their school over special education in a hearing or by agreement prior to the completion of a hearing?  DC contained 2,689 of those 14,384, or about 18% (see Table 7-3).  But DC represents only .15% of total student enrollment nationwide.  That means parents in DC are about 120 times more likely to lodge these challenges than the typical parent nationwide.

And while private placement is very rare, it is somewhat less rare in DC.  Out of 67,729 students privately placed at parental request, 1,864 of them were in DC, or about 2.75% of the total.  Again, given that DC student enrollment represents only .15% of national enrollment, DC students are about 18 times more likely to receive a private placement than students nationwide.

It’s clear that DC is just different — very different.  Making generalizations from DC experiences or newspaper articles is like saying that Seattle is a sunny place if you happen to arrive there on a day when the sun was shining.

D.C. isn’t the only outlier.  New York is also pretty atypical when it comes to special education.  Dispute resolution hearings in New York state are about 7 times more common than in the rest of the country.  And private placements are almost 3 times more common in the state of New York than they are nationwide.

It’s too bad that so many of our media and policy elites live in these two atypical places because they are giving us a very distorted picture of special education.  They need to get outside of their bubbles and rely on systematic data rather than immediate experiences.

A mother in Albuquerque, New Mexico, Jennifer Couture, sued school officials, claiming that their use of a timeout room for her son (“M.C.”) violated his Fourth Amendment right against unreasonable seizures and Fourteenth Amendment right to due process. The defendants claimed qualified immunity, which requires courts to rule in favor of a government employee unless the conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.” A district court found for the plaintiff but was reversed by the Tenth Circuit Court of Appeals in August 2008.

M.C. in 2002 was six years old, profane, and violent. He hit furniture and threatened to kill students and teachers with hot oil. Having judged him “emotionally disturbed,” school officials had placed him in a special education program and prepared an Individualized Education Plan in consultation with his mother, who signed it. Teachers were obliged to follow the plan and report to his mother daily. Among the techniques of “behavioral intervention” prescribed were supervised timeouts in a timeout room.

After a visit, Ms. Couture objected to the characteristics of the room: “very small” with “carpeting, but no padding on the walls. Nothing in it…. It had a very dim light.” In an administrative appeal to a hearing officer, she also complained of “inappropriate reliance upon timeouts and physical restraints.” Defeated there, she complained to the district court under section 1983 of the U.S. Code, which individual litigants often use in an effort to show that state or local officials have deprived them of constitutional or federal statutory rights. The district court was troubled by the length of some of the timeouts and what seemed on occasion to be insufficient provocation on M.C.’s part, such as refusing to take his spelling test.

The circuit court, questioning the district court’s mode of analysis, found that the defendants were entitled to qualified immunity. Even if putting M.C. in the timeout room were considered a seizure—a question that the court declined to decide—it was not unreasonable. The court expressed sympathy both for Ms. Couture and the teachers, but ruled that “The Fourth Amendment…does not empower federal courts to displace educational authorities regarding the formulation and enforcement of pedagogical norms…. If we do not allow teachers to rely on a plan specifically approved by the student’s parents and which they are statutorily required to follow, we will put teachers in an impossible position—exposed to litigation no matter what they do.”

The court acknowledged that M.C.’s behavior did not improve with the timeouts. “But whether the timeouts were a good or effective teaching method is not the relevant question…. This was primarily a pedagogical judgment for the educators on the spot to make.”

In response to the Fourteenth Amendment claim, the court said that at some point, removing M.C. from the classroom and putting him in timeout might have gone so far as to deprive him of a protected interest in a public education, but the circuit judges, unlike the district court, concluded that 21 timeouts totaling approximately 12 hours over two and a half months did not go that far. Besides, they said, timeouts were not an interruption of his education, they were part of it.

For schools, the decision signaled that courts would prefer leaving management of troubled students to educational professionals as long as they abide by the law. For state governments wishing to avoid lawsuits, the lesson may be that laws should be crafted to give parents ample choice. For example, Florida law gives all parents with a child in special education the option of finding a private school with support to the same level as the average spent statewide on students with that disability.

Joshua Dunn is assistant professor of political science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.

Under the Individuals with Disabilities Education Act (IDEA), originally passed in 1975 as Education for All Handicapped Children, children with disabilities are entitled to a free appropriate public education based on an individualized education program (IEP). If the public school says it cannot provide an appropriate education or if an appeals board after a hearing determines that the public program is inadequate, parents are entitled to reimbursement for a suitable private program.

Just nine days after hearing oral arguments, the Court produced a two-sentence per curiam decision based on a 4–4, but unidentified, split. The decision upheld the Second Circuit, but lacks precedential value. The tie occurred because Justice Anthony Kennedy had recused himself. While the even split might point to a typical liberal/conservative divide in need of brokering by the unpredictable Kennedy, the facts of the case suggest that the split may not be ideological.

In particular, the parent behind the case muddied it. Tom Freston, the Tom F. of the title, seemed an unlikely person to be leading a challenge against the school board. As a co-founder of MTV (Music Television Network), former Viacom executive, and recipient of an $85 million golden parachute, Freston could afford to pay for the best education for his son, Gilbert, who was diagnosed in the mid-1990s with attention deficit hyperactivity disorder. However, in both 1997 and 1998 Freston sought a special education evaluation from the district.

The district created an IEP that called for placing Gilbert in a public school. Freston objected, enrolled his son in Manhattan’s exclusive Stephen Gaynor School, with tuition of more than $20,000 per year, and threatened to sue. The district agreed to pay tuition for those two years, but created a new plan for Gilbert in 1999 that would have placed him in a public school. Freston sued. An appeals board sided with him, only to be overturned by a federal district court, but the Second Circuit ruled in Freston’s favor. While the school district contended that the language of IDEA demanded attendance at a public school first, the Second Circuit had already ruled in a prior case that this was an incorrect reading of the law, and could unreasonably require parents either to place children in an inadequate program or shoulder the financial burden of a private education, a result it called “absurd.”

Freston says that he pursued the case out of principle and has promised to give any reimbursement he receives to charity. However, his wealth seemed to trouble the Court at oral argument. Justice Antonin Scalia was particularly vexed by the idea that well-heeled families might game the system to get reimbursed for private school tuition when they never had any intention of using a public school regardless of the quality of the program.

Both the Right and the Left may have difficulty reaching a position on this issue. Conservatives could see a victory for Freston as highlighting the failures of public education and providing a back door to school choice. Or they could view it as one more entitlement that unjustifiably burdens local school systems. Liberals could be torn between their support for public education and that for disabled students and expansive entitlements. The specter of well-to-do parents working the system would give them pause as well, but to impose means testing would undermine popular support for IDEA.

Soon after the Court failed to resolve the case of Tom F., it denied certiorari in the earlier case from the Second Circuit, with Kennedy again recusing himself without explanation. This could mean that the Court as presently composed will never decide the issue, even though a conflicting decision exists in the First Circuit, which read the law differently.

-Joshua Dunn is assistant professor of political science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.

He does not notice as classmates step around or over him as he plays on the hard floor. If other children move into his space, he pushes them away. One or two children greet him, but he does not answer. Daniel keeps up a running dialogue as he plays, in jargon rarely understandable to anyone but himself.

Daniel’s educational aide approaches him and, using a handmade schedule book with symbolic pictures, shows Daniel that this is not the time for playing. The first picture on the schedule is a locker, indicating that Daniel is to hang up his coat and backpack. Transitions to new activities are very difficult for Daniel, and he begins to scream and kick. Other children watch quietly or walk away.

Daniel is autistic. He is charming, intelligent, creative, and full of energy, just like his 18 classmates. However, he is unable to use language to interact with others. His rare attempts at communication are through imitation and usually in only one or two words. Teachers and aides communicate with Daniel using a combination of picture symbols and words, since children with autism learn best visually. Like other children with autism, Daniel would not understand the activities of the day without his schedule book. When events change and the day does not correspond to his schedule, Daniel may lose control and throw a tantrum. He requires the support of an educational assistant every minute of the school day.

In the past–indeed, less than ten years ago–children like Daniel were rarely placed in mainstream classrooms to learn alongside their nondisabled peers. Children with autism and other severe disabilities were more likely to be found in separate classrooms with other children with disabilities, if not in a different school altogether. Daniel’s presence in a regular classroom, with the help of an educational aide, is the result of the “inclusion” movement among advocates for the disabled. The idea behind inclusion is that every child should be an equally valued member of the school culture. Children with disabilities benefit from learning in a regular classroom, while their peers benefit from being exposed to children with a diversity of talents and temperaments.

As a result of evolving legislation and educational initiatives, today more than 95 percent of students with physical, emotional, learning, cognitive, visual, and hearing disabilities receive some or all of their education in regular classrooms. As of 2000-01, the most recent year for which data are available, 47 percent of students with disabilities spent at least 80 percent of their school day in the general-education classroom, up from 31 percent in 1988-89.

These numbers have even greater significance for students with autism. Autism is the fastest-growing disability in the country. U.S. Department of Education statistics show the number of children diagnosed with autism being served under the Individuals with Disabilities Education Act growing more than fivefold during the 1990s (see Figure 1). The California Department of Developmental Services estimates that the number of diagnosed cases in that state grew 273 percent during the 1990s.

What accounts for the increase in autism? No one knows. In the past, autism was considered an extremely rare condition. Children and adults who demonstrated characteristics similar to what we now call autism were often labeled as emotionally or behaviorally disturbed, or cognitively disabled. Most lived in institutions when they became too difficult to manage at home. Many factors are cited for the increase in autism, including better diagnostic procedures; heightened awareness of the syndrome, leading to more accurate assessments; exposure to environmental toxins; reactions to childhood vaccinations; and a genuine increase in the condition’s prevalence.

As statistics on autism continue to rise, so does its impact on public schools (see Figure 2). Inclusion forces regular-classroom teachers to face challenges for which they were never properly trained. It demands a higher degree of coordination and planning among regular and special-education teachers, yet few school systems allot the time and resources to promote these exchanges. Many teachers worry that they are shortchanging their other students when they must cope with the meltdowns of a student like Daniel or must modify a lesson to reach students with learning disabilities. Disagreement remains over whether disabled students actually benefit from inclusive classrooms. The increase in the number of students with disabilities being schooled in mainstream classrooms has happened almost imperceptibly; teachers whisper their concerns for fear of seeming coldhearted. How did this quiet revolution come about, and what must be done to make it work?

The Press for Civil Rights

After a dark history of excluding students with disabilities from regular public schools, Congress in 1975 passed the Education for All Handicapped Children Act, guaranteeing all children, regardless of disability, the right to a “free and appropriate public education” in the “least restrictive environment.” The “special education” law, as it came to be known, is a civil-rights statute. As such, it enables students with disabilities and their parents or guardians to be deeply involved in the design of their educational program. Parents who disagree with school officials over how their children’s needs will be met can take their grievances through a process of mediation and, if necessary, to the courts. Over time, key court decisions, as well as later revisions to the federal law and regulations issued by federal agencies, have spelled out the rights of students and the obligations of school districts.

For most of the short history of special education, the common practice was to pull children with disabilities out of regular classrooms for some or even all of the school day. In what is called a “resource room,” they would receive instruction from teachers trained to modify their instructional techniques depending on the nature of the child’s disability. It seemed more efficient to provide specialized instruction in separate classrooms, where children with disabilities could receive individualized attention without having to alter the mainstream curriculum that their peers received.

However, the pull-out approach met with increasing criticism over the years. In 1986, Madeleine Will, then the assistant secretary of the U.S. Office of Special Education and Rehabilitation Services, proposed that greater efforts be made to educate children with mild or moderate disabilities in regular classrooms. Will felt that regular classroom teachers would not need to change their teaching methods drastically; accommodations or adaptations to the regular curriculum could reasonably be made. This concept, which provided a foundation for the inclusive classroom, was termed the Regular Education Initiative. During the past decade or so, students with mild disabilities have largely been included in the regular classroom, with their assignments modified to ensure their participation at some level. However, children with severe disabilities, like autism, continued to receive the major part of their education in separate classrooms, sometimes joining their classmates for art, music, or physical education, depending on the attitudes of the teachers and the severity of the child’s disability.

In 1997, the reauthorization of the federal special-education law, now renamed the Individuals with Disabilities Education Act, or IDEA, affirmed the federal commitment to inclusion. IDEA required that children with disabilities be educated “to the maximum extent possible” in the “least restrictive environment.” While the word “inclusion” cannot be found in the text of IDEA, the law reflected a set of beliefs and aspirations signaling that the “least restrictive environment” is the general-education classroom–for all children, regardless of disability. The individual needs of each child with a disability must be considered when the individual education plan (IEP) is written, and the IEP team needs to consider the general classroom as the starting point. If the child’s needs cannot be met there, a full explanation must be provided in the IEP, a legal document. Proponents of “full inclusion,” a stronger view of the law, consider placement in the general-education classroom as the only point. Advocates of full inclusion believe that all services needed by children should be provided in the general-education classroom. Congress is currently debating another reauthorization of IDEA, but no major changes to the inclusion mandates are being considered.

Of all the public education initiatives over the past decade, inclusion may be the most value-laden and belief-driven. It has challenged and changed basic assumptions and practice. Regular-classroom teachers are now being asked to plan for a wider range of needs and abilities among their students. Responsibility for the education of children with disabilities is supposed to be shared between regular and special-education teachers, and teachers are increasingly working in teams rather than running their own classrooms. Many more specialists are working with children–in classrooms that once were the almost private domains of individual teachers. The reality is that teachers who were never trained to deal with children like Daniel are being told that they must comply or leave. Overwhelming? To many teachers it is.

Classroom Challenges

In many ways, inclusion is a noble endeavor. Proponents of inclusion rightly stress the importance of all children, their value as members of the human community, and their right to belong and to be included, no matter what their individual differences and abilities may be. Inclusion’s supporters believe that the values taught to students in an inclusive classroom are of vital importance in the education of all students. They insist that the acceptance and understanding of one another as diverse individuals with differing abilities is one of the primary goals of education. “Inclusion is consistent with multicultural educations, and [with] a world in which many more people have opportunities to know, play, and work with one another,” writes Mara Sapon-Shevin, a professor of education at the University of Rochester and an advocate for inclusive education.

At the same time, parents long for their disabled children to have friendships with classmates and to participate in all the normal social activities of childhood: playing together, talking and joking, dreaming of the future, and developing lasting relationships.

The fiercely emotional nature of these arguments renders it difficult to criticize the practice of inclusion. Those who make the attempt often find their fundamental beliefs regarding tolerance and diversity coming under fire. But those harboring doubts about inclusion do not generally question the values behind it, only whether the practice is effective. Special education came about for a reason, they claim. Some children cannot learn by traditional teaching methods or through a standard curriculum. They need individualized instruction designed for their specific learning styles. Certified special-education teachers receive their professional training in methods designed to meet these unique needs. Since the regular classroom is geared toward the norm, they argue, it is not the appropriate place for children with special learning needs.

Indeed, the regular classroom is becoming even more standardized as schools adjust to meet the testing and accountability mandates of the federal No Child Left Behind Act. Yet the inclusion movement has placed children with wide-ranging abilities and needs in the same classroom. This leads many teachers and educators to ask how a standardized curriculum can be adapted to meet every child’s needs–without harming their school’s all-important test scores. They also wonder whether the educational needs of many students are taking a back seat to the broader social goals of inclusion.

To see how these challenges and tensions are playing out in classrooms across the nation, let’s take another look at Daniel. By following Daniel through his day, we can map his program against the best practices for inclusion and see how his small Wisconsin school district measures up.

Daniel has a full-time educational aide, known as a “paraprofessional,” to support him during the school day. He also receives help from a speech and language therapist, an occupational therapist, and an adaptive physical education teacher. Daniel’s kindergarten teacher, who is in her second year of teaching, has a class of 19 students. Two of her students have significant special needs, while one other is learning English as a second language. She holds a bachelor’s degree in education and is certified to teach kindergarten through 5th grade. During her training, she took one class on teaching students with disabilities. Her district has provided nothing more. Daniel’s teacher is enthusiastic and creative in her teaching, but she knows nothing about how to adapt a curriculum to the learning style of a child with disabilities.

Daniel’s regular classroom teacher is supposed to collaborate with the school’s special-education teacher to design an appropriate program. Yet the special-education teacher herself has had no extra training in autism or in curriculum adaptation. Furthermore, she does not work with Daniel, but merely assigns the paraprofessional, named Jon, to carry out his program. She has four years until retirement and does not intend to invest any more time or money in learning how to work with autistic children. She states this openly. The school district’s director of special education knows this but does nothing.

How much training has Daniel’s paraprofessional had? Again, none. Jon is a former art major, now working as a special-education aide in the public schools. He too is willing, creative, and caring. But he knows little about how to handle a child with autism. He deals with Daniel’s tantrums as he would those of his own son. He does not understand the characteristics of autism or know which teaching methods would be effective. Even so, he is in charge of Daniel’s entire educational program. Jon decides when Daniel stays in the regular classroom and how discipline is administered. Jon tries to get Daniel to comply in a classroom that is not designed for a child with Daniel’s needs. As any teacher trained in autism knows, children with autism need structure. But Daniel’s teacher is not trained in autism and does not have the collaboration and support of the special-education teacher. She does not understand how important consistency and structure are to his overall learning needs. So Jon does what he can. He has a large responsibility and a paraprofessional’s paycheck.

Daniel’s team of teachers meets once every two weeks for half an hour. During this time they discuss not only Daniel but also the 18 other children they are responsible for. Teachers are given no extra planning time during the day, so this half hour is all the time together most of them can manage. In fact, the district has cut back on the amount of time allowed for school aides to work. Thus the people who work most closely with the children are not able to attend collaboration meetings unless they do so on their own time.

Daniel’s teachers were not asked or permitted to participate in shared planning before the implementation of inclusion. It came as a directive from the administration, a top-down model that many feel was driven by budget constraints rather than altruistic or visionary motives. A one-page position paper on inclusion was written and distributed by the district’s director of special education two years ago. It remains buried on most educators’ desks.

The problem is, while many administrators feel that inclusion will save money, in reality the opposite is true. Well-implemented inclusion usually costs more than separate special-education classrooms. Why? When children with special educational needs are included in the regular classroom, they need extra support. Paraprofessionals and teachers must provide this support across many classrooms. Administrators may need to reduce the number of children in a class to adjust for the added physical and instructional accommodations needed for a child with a disability. The cost of personnel rises, along with the costs of materials, adaptive equipment and technology, and training for staff.

Inclusion is supposed to promote socialization and acceptance. This presents a great challenge for Daniel. Daniel has autism, a disorder of social communication. As a result, he does not play with his classmates, eat with them at lunch, or go to their homes after school. He may want friends, but his disorder prevents him from knowing what to say or do with them. The other children accept Daniel in their class, but on a different level. They jump in and help Daniel with his work. So, instead of learning independence and group skills from his peers, Daniel learns dependence. The other children have also witnessed Daniel’s screaming and tantrums and kicking. They are not entirely sure why he acts this way, so they often keep their distance. Do they understand Daniel or call him at home to play? No. Time will tell if this will change.

Making Inclusion Work

Daniel’s program is clearly an example of inclusion implemented badly. It demonstrates what Diane Twachtman-Cullen, a speech pathologist at the Autism and Developmental Disabilities Consultation Center in Cromwell, Connecticut, calls the “worst practices in inclusion.” These include:

• Insisting on inclusion at all costs.

• Settling for a mere physical presence in the classroom.

• Giving priority to the inclusive education model over the individual needs of children.

• Providing little or no training to staff.

• Keeping the paraprofessional out of the loop.

• Teaching rote information so that the student can pass mandated tests instead of teaching needed skills.

• Watering down curriculum.

• Failing to teach peers about the nature of disabilities and how to interact with peers who have a disability.

These ineffective implementation practices, writes Greg Conderman, associate professor of special education at the University of Wisconsin, “contaminate a potentially powerful tool” for educating a child with special needs. Conderman argues that supporters of inclusion have pursued “equal treatment instead of equal opportunity,” resulting in a lack of access to a continuum of services based on disabled students’ individual needs. Conderman believes that parents must pay greater attention to the implementation of inclusion policies. Since inclusion means different things to different people, there are few if any mandated guidelines for what inclusion should look like. He argues that by pushing for equal treatment, advocates may have successfully obtained placement in general-education classrooms for children with disabilities, but at the same time have unintentionally denied them the right to individualized education programs. The concept of “place” has taken priority over “how” children are taught. A “one option” approach cannot work for children with diverse needs; a variety of service delivery options must exist so that programs can be written to meet the needs of each child. If inclusion becomes a program unto itself, then that is just as coercive as trying to place all children with disabilities in separate schools or classrooms.

Perhaps shoddy implementation is the reason why the evidence on inclusion’s effectiveness is so mixed. James Kauffman, a professor of special education at the University of Virginia, argued in a 1995 interview that “there is no credible research showing that the regular education classroom can actually provide superior services for kids with disabilities.” He added, “There are children who are dumped into classrooms in the name of inclusion, when in fact nothing is in place to make that an inclusive classroom except that they put a child with significant disabilities in it.”

The first step toward implementing inclusion properly is to improve the training of teachers. Teacher-training programs for regular and special-education teachers often coexist within colleges of education, but rarely are classes jointly taught by regular and special-education professors. These programs must begin to cross boundaries and integrate instruction, just as the public schools are being asked to do. Classes need to focus on a variety of teaching strategies designed to address the range and abilities of the students with whom these future teachers will work. In other words, the university setting must mirror the classrooms the teachers will eventually lead.

Moreover, the goals–and effectiveness–of inclusion must be determined by each child’s individual education plan, or IEP, the outline of their educational program that schools are mandated to create. Children who qualify for special education are evaluated by a team of highly trained professionals. This team discusses its results in collaboration with the parents and identifies the strengths and areas of need for that particular child. They then develop goals, which are written and reviewed annually.

The program developed for each student depends on his or her unique needs. Every program should look different. A goal for Daniel may be to increase his functional communication skills so that he can participate in social activities with his peers. He may learn to ask a friend to play, or to request help from a teacher, or to tell the class what he did over the weekend. By contrast, a goal for children with cerebral palsy, a brain disorder that typically manifests itself in difficulty with speech and physical coordination, may be to work on correct hand, arm, or seating positions that will allow them to use an augmentative communication system. A child with a learning disability may have goals in the areas of improving reading and math skills. The problem with trying to measure the effectiveness of inclusion lies with the diversity of our children. What needs to be determined is whether inclusion helps each individual child reach the goals outlined in the IEP.

It is crucial to recognize that inclusion means different things to different people. To the parents of a child with a cognitive disability, it may mean learning to say “hello” or “Can I play with you?” to nondisabled peers. To the parents of a child with a learning disability, it may mean that their child will receive accommodations to the general curriculum and will have an opportunity to go to college. And to parents of a child like Daniel, inclusion may simply mean that he learns to adjust to the many daily changes of a busy classroom and develops the ability to play with his classmates.

Ann Christy Dybvik is a speech and language pathologist and autism resource consultant in western Wisconsin. She has been working on behalf of students with disabilities and their families for 20 years.