When a child qualifies for special education, a reevaluation must occur at least every three years.  Sometimes schools will attempt to convince parents to waive this evaluation.  Be careful before making this choice!

      The rule requiring re-evaluation of special education students under the Individuals with Disability Education Act (IDEA) requires that a re-evaluation “[s]hall occur at least once every 3 years, unless the parent and the LEA (Local Education Agency) agree that evaluation is unnecessary.”  (34 CFR §300.303).  Schools will sometimes try to convince a parent that a re-evaluation is unnecessary because there are few questions about the child’s current special education eligibility.  Sometimes, this is a legitimate recommendation, founded in a desire to spare the child from the drain of taking another test.  If the child is making progress, the parent(s) feels there are no issues and there is reliable information from other sources to guide the Individual Education Plan (IEP) team, maybe waiving the evaluation is okay.  But be aware and think this decision over carefully.  The evaluation’s purpose is much more than continued special education eligibility.  Waiving this evaluation will limit the information available to make smart decisions about what the child’s needs are and can also result in parents losing other important legal rights and safeguards.

      Why you should think twice about waiving a 3-year evaluation.  It is an excellent opportunity for the team to consider and review information that helps guide IEP decisions, tracks progress, provides baseline data which helps a team create appropriate educational goals and objectives.  It is also an important source of information about educational gains and losses, and a source of information about what has been tried that worked and didn’t work.  Most importantly, the triennial evaluation is an important safety check in our system of delivering special education services.  Moreover, it triggers important rights of parents to obtain an independent educational evaluation of their child.  Generally, a parent can only request an Independent Evaluation after they have disagreed with the school’s own evaluation.  The Vermont rule for Independent Educational Evaluations which comes from IDEA follows: 

2362.2.7 Independent Educational Evaluation (34 CFR §300.502)

An “independent educational evaluation” means an evaluation conducted by a qualified examiner who is not employed by the LEA responsible for the education of the child in question.

(a)          Upon completion of a LEA evaluation, a parent may request an independent educational evaluation at public expense if he or she disagrees with the evaluation obtained by the LEA. Except as provided in this rule, the LEA shall either pay the full cost of the requested evaluation, or ensure that the evaluation is otherwise provided at no cost to the parent.

             This Independent Educational Evaluation is especially important if there are any issues with the school regarding the IEP and the information the school has used to make its decisions.     In an ideal world, decisions about special education services would be based on the individual student’s needs.  However, economics, scarcity of resources, and other concerns often play a role in school decisions.  A school’s recommendation to evaluate can be influenced by budget constraints, policy decisions or just because the school does not want to highlight an expected lack of progress.     

     The U. S. Supreme Court in the case of Schaffer v. Weast 546 US 49 (2005), provides guidance on the importance of the Independent Education Evaluation,school districts have a “natural advantage” in information and expertise, but Congress addressed this when it obliged schools to safeguard procedural rights of parents and share information with them.  See School Comm. of Burlington v. Department of Ed. Of Mass., 471 U.S. 359, 368 (1985).  As noted above, parents have the right to review all records that the school possesses in relation to the child § 1415(b)(1).  They also have the right to an “independent educational evaluation of the[ir] child.” ibid.  The regulations clarify this entitlement by providing that a “parent has the right to an independent evaluation obtained by the public agency.” 34 CFR § 300.502(b)(1)(2005).  IDEA thus ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion.  They are not left to challenge the government, without realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.  (cited directly from Schaffer v. Weast 546 US 49 (2005)

             Be careful before waiving the triennial evaluation.   If you do disagree with the school’s educational evaluation, let the school know in a simple written letter.   You are not required to, nor would it be fair to expect you to detail every reason why you disagree with the school’s evaluation.  Ask if the school has a policy with regard to Independent Education Evaluations, but do not be surprised if the school does not have one.  Get a copy of the policy, if there is one.  Know that the policy cannot interfere with your right for an Independent Educational Evaluation under IDEA.  Choose someone qualified and independent of the school.  This means talking to them beforehand. You may consider asking parent support groups for names of good evaluators with experience in evaluating children similar to yours. 

     After the Independents Educational Evaluation is completed it must be considered by the school in formulating the IEP.  A school’s willingness to do this tends to be important and relevant information to a due process hearing where you are trying to enforce education rights.  To learn more about Independent Evaluations click here to read what happened when the North Hampton, NH school district failed to consider an Independent Evaluation. 

Bio:     Gary H. Schall is a lawyer who worked in special education in the public schools.  He is the co-founder with Tyler St. Cyr of the New England Education Law Center, an advocacy group with a mission to help individuals understand and enforce their educational rights.



Edlaw Soup is alive!  While Edlaw Soup may have become quiet over the past two months, it was for worthwhile reasons.  This past summer, a new special education advocacy group was started in Vermont, by attorney Gary H. Schall and Edlaw Soup’s creator, Tyler S St Cyr.    

While the New England Education Law Center intends to grow its web presence, our first and foremost goal is to assist families of northern New England with special education problems.  Keep checking back at Edlaw Soup for new and exclusive information in the coming weeks.  In the mean time, check out New England Education Law Center’s website.  If you like it, scroll to the bottom of the home page and show your support by clicking on the FaceBook “Like” icon.  More to come very soon!



This article will discuss the rare occasions where courts have awarded compensatory damages under the Individuals with Disabilities Education Act (IDEA).  In special education litigation, damages are typically limited to a parent’s out of pocket expenses spent so a child may receive a free and adequate public education (FAPE), not provided by the school.  While it is rare for courts to make non-remedial awards, every so often, a constellation of factors lines up and the rule earns its exception. 

The first route to non-remedial damages under special education litigation is for a parent to allege that a government actor violated Section 1983 of the Civil Rights Act of 1964 (Section 1983) by depriving a child of a FAPE.  This argument can be tricky to make for several reasons, but before I delve into them, it might be helpful to understand the interplay of both laws.  IDEA guarantees educationally impaired learners the right to a FAPE, while Section 1983 gives individuals the right to sue government actors who have violated one’s civil rights.  In special education cases, a school’s failure to provide a FAPE may be a civil rights violation, if it occurred through a discriminatory act by government employees, based on one’s disability.  In the most meritorious and ideal circumstances, not providing a FAPE may violate at least two laws: The enforcement provisions of IDEA and Section 1983 of the Civil Rights Act.  The pragmatic effect of coupling both claims is the award of extra damages.    

 Relationship between IDEA and 1983 Claims

The first step in successfully proving a 1983 claim is establishing that an individual right was violated.  For special education litigation, some courts are not receptive to the notion that IDEA created an enforceable right outside of educational due process hearings.  Analytically, courts must discern whether Congress meant to extend IDEA’s preclusion of extra money damages to 1983 claims involving special education.  How a court interprets this issue is partly predicated on the federal circuit in which the issue arises.  (footnote 2).  While courts are sometimes convinced that Congress only meant to preclude extra damages for strictly IDEA versus IDEA-1983 claims, IDEA tends to be interpreted as forbidding awards beyond the cost of remediation and out of pocket expenses.  (footnote 3).  Even after clearing this hurdle, the parent still needs to convince the court that when these claims are combined, they are not merely attempting to evade IDEA’s compensatory damage limitations, rather to redress a harm that can only be remedied by Section 1983.  One common route is to argue that while the civil rights claim occurred from an IDEA violation, damage provisions under Section 1983 are the only way to redress the harm.  Pursuing two separate causes of action may achieve this: One for remedial damages under IDEA through the state educational due process system and the other seeking only compensatory and punitive damages under a 1983 claim.  See Witte v. Clark County School District 197 F.3d 1271 (9^th Cir. 1999).  Strategically one must balance whether this can occur through two separate, but concurrent claims, one at the state due process level and the other in a judicial court.  Alternatively, one can exhaust the IDEA claim under state due process provisions, then initiate a1983 claim in federal court. 

Exhaustion

A court must still consider exhaustion requirements, even if it is open to the notion that IDEA allows compensatory and punitive damages under Section 1983.  A little bit about the concept of exhaustion:  When Congress passed IDEA, parents gained substantial enforcement rights against public schools.  A limitation to these rights included not being able to go directly to a judicial court, instead exhausting the claim under the educational due process system first.  Only after a parent has done this, will a court hear a claim involving IDEA.  20 U.S.C.A. § 1415 (f). See J.S. v. Attica Central Schools, 386 F.3d 107, 112 (2d Cir.2004).  As with any rule, exceptions exist.  The first is the “futility doctrine.”  If a person can convince a court that using the educational due process system would be futile, then exhaustion is not required.  The second exception is predicated on the type of harm that occurred in conjunction with the remedy sought.  If the nature of the harm can only be remedied under Section 1983, the state due process system can be bypassed.  Kutasi v. Las Virgenes Unified School District, 494 F.3d 1162 (9th Cir. 2007).  But see Blanchard v. Morton School Dist 420 F.3d 918, holding that IDEA remedies cannot be used to compensate damages that are primarily unrelated to education. 

Merits of the Claim

Even when a parent clears the hurdles of statutory interpretation and exhaustion, the next step is to prove the merits of a 1983 claim.  While there isn’t any uniform method of analysis among the courts, the United States Supreme Court set out a guidepost in Monel v. Department of Social Services of City of New York 436 U.S. 658 (1978).  A special education specific application of this holding is set out in B.R. ex rel. Rempson v. District of Columbia 524 F.Supp.2d 35,40  (D.D.C.,2007).  A parent must prove beyond a preponderance that

(1) [the school] violated “one or more specific provisions of the IDEA”; (2) “exceptional circumstances exist, such that the conduct of [the school] was persistently egregious and prevented or frustrated ... equitable relief under the IDEA”; (3) [the school] has a custom or practice that is the “moving force behind the IDEA violations”; and (4) the normal IDEA remedies will not adequately compensate the plaintiff.   

IDEA and Section 504 of the Rehabilitation Act

Section 504 of the Rehabilitation Act of 1973 (Section 504) is the other common route to recoup extended damages.  It is easiest to understand the function of this law by contrasting it to Section 1983 of the Civil Rights Act.  As discussed above, Section 1983 does not create an individual right; rather it is a vehicle to obtain damages for the violation of one’s civil rights, found in other laws that create individual rights.  In comparison, Section 504 creates an individual right, prohibiting government institutions from discriminating against people because of their disabilities and also allowing them to bring suit upon such violations.  In many cases, IDEA and 504 claims overlap.  Like 1983-IDEA litigation, exhausting the state due process system is often necessary.  DePaul University Law Professor Mark Weber points out the difficulty in trying to find the dividing line between IDEA and Section 504, for purposes of an exhaustion analysis.  16 TXJCLCR 1,24 (2010) (footnote 4).  Weber discusses the phenomena of courts requiring cases to first be heard in state educational due process systems, even when a school has found a child ineligible for special education services.  When a school denies a student of these services, one may argue that such a denial would be clear proof that IDEA exhaustion and damages’ limitations are inapplicable.  The 11^th Circuit rejected this argument in Babicz v. Sch. Bd., 135 F.3d 1420, 1422 (11th Cir. 1998), holding that because the damages sought were available under IDEA, exhaustion principles do apply, even though the school found the child ineligible for special education services.  The underlying logic is that IDEA broadly encompasses all claims where a child is eligible for special education services.  A school’s failure to offer a child these services does not automatically remove IDEA litigation strictures, if the damages sought under Section 504 are tied to the schools IDEA non-compliance.  The take away point: While it may appear to serve a litigation strategy by eclipsing the state education hearing system, proceed with caution. Congress had strong reasons to empower states to create administrative law systems, which most courts have internalized.  These reasons include a general reluctance for courts to make decisions about the nuances of special education.  The belief is that state/local education hearing officers are more apt to understand the technical aspects of public education.  Secondly, the state due process system is designed to be easier and less expensive for a parent to access, as opposed to a judicial court.  Thirdly, public education is an inherently state/local issue.  Arguably, state administrative hearing officers are more familiar with issues of policy and practice in local school districts.  Most importantly, one of the purposes of IDEA was to create an enforcement system that could allow a family to quickly and practically address school conditions which deprive a learner of a free and appropriate education.  State education hearing systems tend to allow claimants to speedily have complaints heard, often with remedies that direct schools to take specific actions regarding their day-to-day operations. 

A special thanks to attorney and former public educator Gary H. Schall of the newly formed New England Education Law Center in Quechee, Vermont, for providing feedback and support, as I wrote this article. 

Footnote 1- An amendment, saying that IDEA should not be interpreted to limit any rights or remedies available under other laws.  20 U.S.C.A. § 1415(l). 

Footnote 2 Courts in the 1st, 3rd, 4th, 9th, and 10^th Circuits have held that damages under § 1983 are impermissible.  The 2^nd and 7^th Circuits allow damages under 1983 claims, while a split exists in the Eighth Circuit.  37 COA2d 447  

Footnote 3- This question has experienced legal ping-pong for almost 30 years.  In 1984, the United States Supreme Court held in Smith v. Robinson that the precursor to IDEA precluded damages from being recovered from a 1983 claim. 468 U.S. 992, 1013 (1984).  Congress responded with an amendment, saying that the Act should not be interpreted to limit any rights or remedies available under other laws.  20 U.S.C.A. § 1415(l).  This has not ended the controversy though. A split among the circuits remained, on the basis that ambiguity about damages persisted.  In 1998, the Supreme Court  refused to hear a case embodying this issue, out of the fourth circuit, denying cert. in Sellers by Sellers v. School Bd. of City of Mannassas, Va., 141 F.3d 524 (4th Cir. 1998), cert. denied, 525 U.S. 871 (1998). 

Footnote 4- Weber, M, A NEW LOOK AT SECTION 504 AND THE ADA IN SPECIAL EDUCATION CASES, Texas Journal on Civil Liberties & Civil Rights Fall 2010

 1. Procedural Violations-To consider whether a student is receiving a FAPE it might be helpful to understand the seminal special education case that went to the United States Supreme Court, Bd. of Educ. v. Rowley, 458 U.S. 176 (1982).  The bare bones take away is that to argue that a school deprived a student of a FAPE, one must first prove that a parent’s procedural protections were violated.  These protections originate from 1.  IDEA.  This is the main federal law that deals with special education, binding states that receive federal education funds to IDEA.  2.  State laws.  Most states have crafted local laws that comply with IDEA, but incorporate their own variations or extra protections.  3.  State education regulations.  These are not laws in the sense that a legislature passed them, rather statewide directives on how to deliver education services. 

There are nearly hundreds of procedures under IDEA alone.  Rather than discuss each one, I will discuss the four broad categories that most rules fall into:   The first category is timeliness:  Whenever a school is making a special education decision (evaluation, placement, IEP changes, etc), it must occur within a specified time frame.  The reason that Congress, through IDEA, put so much emphasis on timeliness is because, historically, schools tended to severely prolong decision-making.  This deprived special education students of precious instructional time.  The second category is parent participation.  Special education rules heavily emphasize a parent’s right to meaningfully participate in the decision making process.  In the pre-regulated era many school districts discounted parental insight and knowledge. Congress recognized that this is critical to understanding a student’s learning needs.  The third category is notice.  Congress recognized that a parent has an inherent right to make decisions about their child’s best interests.  The purpose of notice procedures are to ensure that a parent is the ultimate decider of important educational decisions and that they understand what they are agreeing to.  The fourth category pertains to rules that prohibit arbitrary decisions when considering a student’s special education needs.  In the pre regulation era schools tended to make important special education decisions which weren’t based on data, facts, or “good reasons.” 

 2. Substantive Violations-The second take-away from Rowley is that a mere procedural violation, in itself, does not mean a student was deprived of a FAPE.  Rowley held that special education procedures were merely mechanisms to protect one’s substantive rights: an education.  This means that one must tie the procedural violation to an educational impact (substantive right).  When a court or hearing officer is trying to determine whether a substantive educational violation occurred, they look at whether the current educational services were “reasonably calculated to provide an educational benefit.”  Bd. of Educ. v. Rowley, 458 U.S. 176, 203 (1982).  The analysis tends to be qualitative, but often considers whether the education was likely to produce progression versus regression.  Other questions include whether the student made meaningful progress and whether the current services provided only a minimal benefit to the learner.  The take away is that while the strictly academic impact is telling, the overall analysis varies from student to student.  The bottom line is that there is no typical depiction of a learner whose educational needs aren’t being met.  The following is a non-exhaustive list of substantive educational deficits. 

                1.  The student had an educational impairment that the school failed to identify.

2.  Grade retention.

3.  Using the regular school discipline system to punish behavior that is attributed to an educational impairment, which excludes the student from special education services. 

      4. Failure to evaluate a high incidence of behavior problems that may be attributed to an             already identified educational impairment. 

   5.  Below level performance in an academic area (reading, reading fluency, math, writing, etc).

6.  Failure to make progress on an Individualized Education Plan (IEP).

7.  Student drop out. 

8.  Education occurs outside of the Least Restrictive Environment (LRE).

9.  Failure to perform in the proficient range on high stakes tests (NAEP/NECAP).

10. Poor grades.

11.  Child is so discouraged with school that s/he skips classes frequently. 

3. The Invisible 3^rd Rail-When determining if a child was deprived of a FAPE under IDEA, sometimes the “tone” of the case speaks volumes.  Rowley didn’t address this, and one might be correct in thinking that this consideration should have no formal place within this analysis, but it stands to reason that a disagreement’s “tone” may carry some informal weight.  Features that tend to tip the scales when everything else is equal:

       1. Does the school or the parent seem like they kept “changing the playing field?”

2.  Does the school or the parent seem “difficult to deal with?”

3.  In the past, is there a record of the school or the parent either doing or not doing what they committed to do? 

4.  An overall depiction of David v. Goliath.

5.  The school or the parent having a history of expecting the “long shot.”

6.  The school or the parent refusing to meet special requests which are not required but easy to fulfill.

   Oftentimes people become terse when they feel mistreated: Natural.  But when a case moves to a Due Process Hearing, it goes without saying that a hearing officer’s 6^th sense perceptions sometimes come into play.  Bottom line: Play nice even when it is really hard.  Reasonable people usually prevail over those who seem unreasonable. 

4. Remedies-The most important part of a FAPE claim is the remedy sought.  Claims under IDEA differ from other types of litigation in the sense that enforcement provisions under IDEA are to ensure that a child’s educational needs are met, rather than to punish a school.  This means even when a school has not provided a FAPE to a child, a court will not assign money damages to punish a school under IDEA. (footnote 2)  What is available though:  1. An order for the school to take some sort of specific action that the parent requests for their student.  2.  Reimbursement to parents for out of pocket expenses paid for educational services that the school didn’t provide.  3.  Attorney’s fees. 

 Footnote 1.  Newark Parent’s Association v. Newark Public Schools 547 F.3d 199 (3^rd  Cir. 2008) affirms that while the No Child Left Behind Act (NCLBA) heavily regulates the quality of a school’s education, a district’s failure to comply with its parental notice provisions does not create  an enforceable right to a private citizen. 

Footnote 2.  In rare cases parents have been able to collect monetary damages under the Civil Rights Act, 42 U.S.C. Section 1983 for IDEA violations.  A majority of federal courts have held that such damages are inconsistent with IDEA’s goals.  Even when a court is willing to award damages under a 1983 claim, the plaintiff must prove that the circumstances were exceptional and the school acted in bad faith.  See  Rempson v. District of Columbia 524 F.Supp.2d 35 (2007).  Also see Witte v. Clark County School District 197 F.3d 1271 (9^th Cir. 1999) holding that when seeking damages under a 1983 claim, for violating Section 504 of the Rehabilitative Act, exhaustion is not required if only money damages are sought.  This is because money damages are inconsistent with IDEA, but not the Rehabilitative Act.  Seeking only money damages brings the claim outside of the confines of IDEA. 

To explore the problem a little bit, in 2008, 9.9% of African American learners dropped out from America’s public education system.  In comparison, only 4.8% of Caucasian learners suffered this same fate.  This disparity should be of little surprise when one considers that 16% of African American students have been retained in grades k-8, compared to 7.8% of white students.  (National Center For Education Statistics: The Condition of Education 2009).  One cannot consider the issue of race in the context of public education without understanding that nationally, 18.2% of all Hispanic learners dropout.  This information, compiled by the National Center for Education Statistics (link to study) illustrates an inherent inequality in the way our public education system delivers services to non-white students. 

If Biddle’s view were to be accepted as true, one of two assumptions are necessary:  The NAACP’s position is that the American public education system does indeed offer equal access to non-white and white students alike despite the startling disparity between minority and non-minority dropouts.  Alternatively, one would have to assume that while the NAACP holds the position that there is a disparity in educational access between white and non-white students, the NAACP has failed to use the full depth of its resources to advocate for educational reform.  A little digging disproves the first assumption.  From a legislative policy perspective, the NAACP’s Legal Defense Fund (LDF) is on the right side of “good education” policy, espousing five key points of advocacy in terms of reauthorization of the Elementary Secondary Education Act (ESEA).  (see link)

Regarding the assumption that the NAACP failed to litigate cases involving disparities of educational opportunities between white and non-white students, one must explore the law available to litigants in civil rights cases.  The two most likely civil rights arguments are either the Civil Rights Act, 42 U.S.C. section 1983 or 14^th amendment jurisprudence.  The gist of a 1983 claim is that a government actor is forbidden from depriving a person of a constitutional or federal statutory right.  In the context of disparate academic success of white and non-white students, this is a difficult argument from a race based 1983 perspective, unless attached to a claim of segregation.  Historically, courts have set the bar fairly low in terms of how deficient a public education must be so that it is considered a deprivation, for a regular education student.  In regards to a 14^th amendment constitutional argument, it is equally unlikely that contemporary Supreme Court jurisprudence would support such a claim.  The key challenge would likely be proving governmental discriminatory intent based on race.  Considering these two most commonly relied on arguments, it would be an uphill battle for the NAACP to make a traditional racial discrimination claim, stemming from the disparity of educational outcomes between white and non-white learners, absent a school segregation claim. 

While I disagree with Biddle’s direct message that the NAACP has become irrelevant, I appreciate his point.  Presumably, Biddle is frustrated that groups are not using the courts for education reform, as in the era of Brown v. Board of Education and its progeny.  Relating to this frustration, the fair question remains: What else could the NAACP do to address the systematic inadequacy of educational services, delivered to non-white students?  A good start would be for the NAACP to rededicate itself to community organizing by developing a parent training campaign based on the rights available under the Individuals with Disability Act (IDEA), Rehabilitative Act of 1973, and the Americans with Disability Act (ADA).  In school communities that have a high population of students who are retained or don’t make it to graduation, every educational decision that was made about each non-graduating student needs to be scrutinized to determine whether there was an educational decision making process that deprived the student of a Free and Adequate Public Education (FAPE).   

A little bit about available laws: IDEA creates an affirmative duty requiring schools to look for learning problems and offer specialized services.  This means by virtue of a school existing, it must actively look for student learning problems.  With that, IDEA is rich with procedures, giving parents robust enforcement rights when a learner’s school failure is attributed to not identifying and servicing learning problems.  Section 504 of the Rehabilitative Act in combination with the American w/ Disabilities Act creates an enforcement right against schools, with punitive and compensatory damages not found within IDEA, for discriminating against students with disabilities.  In terms of IDEA and 504 claims, their initial enforcement begins with an administrative hearing.  It is often easier for non-lawyers to initiate and navigate educational administrative hearings, which offer relaxed procedural rules and a hearing format that is not as concerned with precedent, rather finding solutions, in comparison to courts.  From the ground level, the most adept and natural group to advocate for these rights are parents.   While the cost of an attorney litigating an educational due process case is not inexpensive, the cost of training parents in the administrative law matrix is likely nominal, factoring in the high degree of accountability that it brings to school districts. 

 To be clear, I am not espousing that the special education process be used to misidentify regular education learners to receive a better education.  Rather advocacy groups should use a synergistic approach which includes using the enforcement provisions of IDEA and Section 504:  Firstly and most importantly, low performing schools tend to screen for and service special education problems poorly.  If a child is attending a low-performing school and also experiencing school failure, it is reasonable to suspect that there may be an underlying learning problem that the school has failed to identify.  Secondly, there are certain factors which often serve as a proxy for race in the special education decision-making process, that if a special education team finds present, automatically exclude kids from special education eligibility.  These factors include determining whether a learning problem is the result of social or cultural conditions.  If a special education team agrees that this is the case, a potential learning impairment is discounted.

 Ultimately, schools, parents, advocates, and communities need to scrutinize each situation where a child experiences school failure.  As a former school psychologist, my training and clinical judgment tell me that a majority of students who were either retained or dropped out had significant learning needs that were not adequately addressed.  This approach would formally illuminate educational practices which fail learners, giving typically underserved populations an additional opportunity for self-advocacy.  Additionally, an increase in meritorious claims at even the lowest level of administrative law hearings would cause poorly performing districts to consider the economic impact of defending poor educational practices.





            In working at our schools, I was surprised by the math wars.  It goes like this ---- there is the perception, probably real, that our students are not competing well on the world stage in mathematics.  We look with concern about how well our students measure up to learners in places like China, India, and Japan.  Moreover, the high stakes of No Child Left Behind increase the emphasis that we place on our students to perform well on tests.

            The competition is stiff among marketers of academic curriculums.  Math programs with catchy names and slick materials compete for the lucrative school market.  Committees are formed and the merits of the different programs debated.   Eventually, one is chosen and inevitably some teachers are opposed to that choice.  Other teachers see it as the cure-all panacea much like the latest and greatest diet touted for weight loss.   And some of the older teachers see it as just another passing trend in education. 

            The benefit of these programs is that they are fairly well thought out, comprehensive and often make math more understandable on a conceptual level.  This is especially advantageous to the not so rare educator who is more apt to think in terms of words versus numbers.  I remember my own elementary schooling in the 1970’s at P.S. 27 in Yonkers, New York where I learned the rote steps of multiplication and division but had very little conceptual understanding of what I was doing.  These math programs enable a teacher to follow cookbook like instructions and deliver prepared curriculum to students.  For some, this step-by-step procedural framework takes the sting out of numeracy instruction. 

            A couple of observations:  First, no matter how flashy, slick and well researched a curriculum may be, it doesn’t work if the teachers and students don’t buy into it.  Secondly, exciting and meaningful learning often occurs when the lessons are real and relevant, based on the interests of the students and teacher.  Whenever possible it is important for teachers and students to personalize learning.   Third, do we really think that a prepared curriculum will lead to excellence and thinking outside the box?

            The real question is not what curriculum is best.  It is how do we attract intelligent people to teaching and then offer them the best training and tools to practice their profession.       

The bill (Okla. SB 346) gave me pause for a series of reasons.  Firstly, it guarantees a dramatic increase in grade retention.  As a school psychologist my professional training, experiences and empathy for learners usually causes me to be skeptical of any position that advocates for retention.  The National Association of School Psychologists (NASP), a professional association which provides a unified voice for school psychologists nationwide, also reproaches this practice.  (see official position statement).  Secondly, my own experiences as a learner compel me to speak out on policy discussions relating to this practice.  I was retained in kindergarten, and also have several close family members who were retained.   

To avoid boring EdLaw Soup readers, I won’t write a scholarly treatise about the ineffectiveness of grade retention.  I will, however, hit on a few broader research points to obviate the faux-argument generated by retention supporters.  Research is pretty clear that almost always retention fails to close achievement gaps, may be harmful to learners, and does not foster cognitive development.  Specifically, retention deprives that child of educational opportunities that foster cognitive development and dropping out is directly linked to low cognitive development.  (p. 1122, Reynolds, Ou, & Topitzes, 2004).  Proponents of the social promotion ban in Oklahoma will respond that during the retained year, the child will receive a variety of intensive high quality services to close the achievement gap.  With that, I can only ask why they don’t give the child those services without using retention.  The National Education Longitudinal Study (NELS) cohort found that “students who had been retained between kindergarten and 4th grade were about three times as likely as other students to later drop out” and students “retained between 5^th and 8th grade were about seven times as likely to drop out.”  Cited in Dropout Risk Factors and Exemplary Programs: A Technical Report, by the National Dropout Prevention Network, p. 125.  Proponents of the ban often respond that retention is only correlative to a student dropping out, not causative.  That assumption is incorrect.  Research indicates that retained children are much more likely to experience feelings of social isolation and disconnection from their school environments.  Studies suggest that these feelings are key factors that influence one’s decision to dropout. Id.

I don’t want to convey that Oklahoma is the only state missing the boat.  Others have enacted similar legislation.  So why discuss Oklahoma?  Firstly, OK Senate Bill 346 is still on the chopping block and hasn’t been passed yet, so maybe some outside attention may help sway opinions.  Secondly, the state has actually made some drastic changes that take a lot of gumption and outside of the box thinking.  This legislation exemplifies the double-edged sword that comes with major systemic change.  In a valiant effort to improve things, good ideas are sometimes enmeshed with bad ones.  Thirdly, and most ironically, Oklahoma is following, to a tee, a policy guide published in 1999 by Richard Riley, then US Secretary of Education, titled Taking Responsibility for Ending Social Promotion: A Guide for Educators and State and Local Leaders.  This publication recommended the following steps when crafting policies that end social promotion:  1. Identify and intervene early with students at risk of falling behind 2.  Ensure that there is a well-prepared teacher in every classroom 3. Use research-based practices 4. Reduce class size.  (Quoted from DOE guide).  Commendably, Oklahoma is reforming its practices within the four domains listed in the 1999 publication.  Here is the hitch and also where Oklahoma misses the boat.  The mere pursuit of these four endeavors does not cure the problems that lead to social promotion; rather the means of these policies are to eventually yield a learning environment that will terminate the need for social promotion and retention.  What Dr. Baressi and the Oklahoma legislature are missing is that the practices of social promotion and retention are not educational problems within themselves, rather the result of decades of social and racial inequities as well as the de-professionalization of teaching.  Prospectively, the best indicator of whether these changes are working is to passively watch for a statewide reduction of social promotion and grade retention. 

So…what’s wrong with those who suggest that retention is a viable practice to reform an education system? 

While working as a school psychologist, it was rare to encounter educators who supported retention, but those who did seemed to embody a philosophy of education from a bygone era, manifested by the carrot and stick rationale.  Unnoticed by advocates of retention is the fact that the child who is experiencing school failure to the degree that retention is suggested is already living at the end of the “stick.”  Firstly, these educators embodied this by missing the fact that a student’s failure originated from a system based problem; the community and the school system.  In fact, most of them tended to view the child’s learning style as the source of the problem, rather than the current educational structure being the cause.  Secondly, most of these educators tended to unduly weight the child’s motivation and desire to learn as the true cause of the child’s lack of progress.  Encompassed within that belief was the bizarre thought that retention would enrich the child’s desire to learn. Thirdly, they tended to think that retention was the most effective tool to meet the psycho educational needs of a failing child.  And now the seminal question:  Why would Oklahoma State Superintendent for Public Instruction Janet Barresi support this legislation?  The optimist in me would like to think that she simply doesn’t know any better, but that would be wrong.  Dr. Barresi is an experienced educator and a very intelligent person, having worked in schools as a speech pathologist and also trained as a dentist.  I only suspect that despite this, State Superintendent Dr. Baressi thinks that children who are experiencing total academic failure should be further subject to the “stick” and not the “carrot.”  When Dr. Barresi practiced dentistry, I wonder whether she believed that only some patients deserved anesthetics to alleviate the miserable pain of major dental work or if she believed that every patient had a right to have their pain managed with compassion.  Just as Dr. Barresi had a medical obligation to manage her patients pain during a procedure, educators are similarly obliged to avoid education practices that don’t work, which also have a tendency to cause lifelong harm.  

Citation

Reynolds, A, Ou, S.R, & Topitzes, J. (2004).  Paths of effects of early childhood intervention on educational.  Child Development, 75(5), 1299 – 1328.