Troubled schools on trial: Special education driving costs and controversies

Troubled schools on trial: Sixth of seven stories

Special education driving costs and controversies

by Jacqueline Rabe Thomas

A student in an East Hartford Public School reads a book
My opinion is the vast majority of kids are not disabled; they’re instructionally disabled.
— Ellen Cohn, deputy commissioner of the CT State Department of Education

There is a war in Connecticut over how to teach children to read.

On one side are those teachers, principals and other local educators who believe the so-called whole language method is best – an approach that subscribes to the philosophy that children will naturally learn to read if immersed in books, just as they learn to speak English. Advocates believe that by treating reading as a system of words in relationship to one another, unfamiliar words will be picked up from context.

A preschool classroom in West Hartford.

On the other side are other local educators and officials at the State Department of Education, who believe the phonics method is superior – an approach that teaches students to learn letter sounds and sound out words.

“I totally disavow that children will learn to read naturally,” Ellen Cohn, the state’s deputy commissioner of education, testified during a recent school-funding trial in Hartford. “I hope before my career is over the reading wars will end, and the adults’ obsession with philosophies will stop standing in the way of what kids need.”

It’s not a new debate.

Connecticut native Noah Webster believed in phonics while Dr. Suess’s books were filled with familiar words children could string together using a whole-language approach.

Though state officials who testified during the trial believe the phonics method is far superior, the state does not require that it be used in any of the districts where large numbers of students read far below grade level. Instead, the State Board of Education on several occasions has recommended the phonics method while continuing to provide state funding for teachers from low-performing districts to be trained in either approach.

While several districts use a mix of both approaches, state efforts to persuade local educators to roll out the phonics method in some schools in Danbury, New Haven, Meriden and Windham have been rejected, state officials report.

Cohn testified she has been told, “Over my dead body will we implement [that] in this district.” When the state began providing help to implement the phonics approach, some local educators “basically asked us to pack up and go,” she said.

Books at Windham High School

This stalemate over reading methods persists even though reading deficiencies are the top reason children without autism or biological disabilities are being referred to special education – and as special education costs skyrocket throughout Connecticut.

“My opinion is the vast majority of kids are not disabled; they’re instructionally disabled,” said Cohn. “The thinking is, ‘There must be something wrong with you,’ not ‘let’s change the system.'”

Local educators testified throughout the school funding trial that their fastest growing costs are for staffing and special education services, and that those costs crowd out resources for other supports in schools. Both topics drew sharp attention from presiding Judge Thomas Moukawsher, who was ordered by the state Supreme Court to determine whether the state is meeting its obligation under the state constitution to provide a “minimally adequate” education for Connecticut students.

After listening to five months of testimony, the judge found that decisions about both teacher pay and who is entitled to special education services are not based on rational criteria and are thus unconstitutional.

He blamed the state for sitting on the sidelines and providing no clear mandates on how to spend more effectively on behalf of failing schools while special education and staffing costs rise every year.

“Not every dollar the state spends on schools is fair game for constitutional scrutiny. But like teacher salaries, special education is so large that whatever happens to it has an outsized influence on the state’s chances of keeping its promise of adequate opportunities in our schools,” the judge wrote.

Moukawsher – a “slow reader” himself who struggled to overcome a learning disability growing up in Groton – ordered state lawmakers to devise a plan to set a standard for what services disabled students are entitled to and a plan to pay teachers based on more than just how many years they have taught and whether they have a master’s degree. Such changes would guarantee huge political battles at the state Capitol.

The state’s attorney general is appealing the judge’s order, saying it overreaches into policy areas that are the responsibility of the legislative and executive branches. With no powerful advocate at the state Capitol to push for the changes to special education or teacher pay, legislators and the governor are likely to wait to see if the Connecticut Supreme Court forces them to shake up the system.

Who gets what?

Throughout the trial, educators shared varying stories about how students are being either under- or over-identified for special education, which is designed to help students who have a biological or learning disability.

Ruth Stewart-Curley, who teaches students who speak limited or no English at Bennie Dover Jackson Middle School in New London, suspects that several of her students have learning disabilities, but they have to wait months to be evaluated.

Ruth Stewart-Curley

“They haven’t got to them yet,” testified Stewart-Curley. “There just aren’t enough people to get to them.”

Her school already has 105 students who require special education, for which the school has one psychologist and three special education teachers. That has left her trying to figure out how to teach her children even though there may be a disability at play.

She calls it “Band-aid education.”

Meanwhile in Bridgeport, the district’s leader said some students are being classified for special education when they fall behind just to get them some sort of extra help.

“I think we are over-identifying children to make sure kids get services,” testified interim Superintendent Fran Rabinowitz. Bridgeport can’t reduce its special education services until other supports are in place, which the city can’t afford, she said. “So it’s the chicken and the egg.”

In a review of Connecticut, Daniel Reschly, a special education expert at Vanderbilt University, said that unresolved early reading problems inflate the number of students later referred for special education.

While 28 percent of the 70,000 students referred to special education each year are primarily there because of reading problems, according to Reschly, it’s unclear how many have legitimate learning disabilities such as dyslexia or visual motor deficit.

“Greater success in teaching reading in the early grades has an effect on the number of children referred to special education in later grades due to poor reading achievement,” his analysis concluded.

“Greater success in teaching reading in the early grades has an effect on the number of children referred to special education in later grades due to poor reading achievement”

— Daniel Reschly
special education expert at Vanderbilt University

All this happens, despite federal special education law mandating that “a child shall not be determined to be a child with a disability if the determinant factor for such determination is lack of appropriate instruction in reading.”

For about a third of special-education students the evidence of need is clear-cut biological disabilities such as deafness or blindness, or those with a severe intellectual disability or developmental delay.

In less clear-cut cases, federal law requires that a student be screened in a timely fashion when a disability is suspected. If one is identified, the student must “have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”

Connecticut’s overall rate of students identified for special education, about 13 percent each year, is in line with the U.S. average.

Reschly, who testified for the state, found in his review that overall district poverty was only “slightly related to district disability prevalence.” While the districts suing the state “generally had higher” disability rates, they ranged from 9.5 percent in Stamford to 19.4 percent in Winchester

“Approximately 16 percent of the variation in overall district identification can be accounted for by poverty,” he concluded.

The disparity has drawn national attention. The U.S. Department of Education released new rules Monday requiring states to examine the causes of “widespread disparities” between minorities and their peers in identifying students for special education and to direct more of the federal money the district receives to early interventions.

Educators and experts who testified on behalf of those suing the state – a coalition of parents, students, local educators and municipal leaders – said that identifying students for special education is often based on whether a district has the money to provide supports or whether the student is disrupting class or has a parent or attorney pushing for services.

“Schools are reluctant to provide what they don’t have,” Margaret McLaughlin, a special education expert from the University of Maryland’s College of Education, testified about districts nationwide. “The intent is to look at the child and to find what is appropriate for this child. If you don’t have enough people, or the type of person that might really be able to provide what’s appropriate, you don’t put it in” that child’s education plan.

“Schools are reluctant to provide what they don’t have… Districts will ration”

— Margaret McLaughlin
special education expert from the University of Maryland’s College of Education

Reschly found that the 22 districts that sued the state, spent $1,970 less per student, or 7 percent less than non-plaintiff districts on average, on special education, though that might be “attributable in large part to economies of scale.”

The 22 districts, he found, had fewer staff to help students identified for special education. For example, the plaintiff districts had one speech language therapist for every 80 students who required the service compared to a 1-to-60 ratio in the other districts. The plaintiff districts had one psychologist for every 91 students compared to one for every 67 students in the other districts. However, the disparities did not worry Reschly because, he said, even in the plaintiff districts the ratios compared favorably to national figures.

McLaughlin countered, however, that these disparities mean “districts will ration,” and provide services to those with parents or an attorney who are most in your face or students causing the most disruption in class.

“Those will move to the top of the queue, if you will, for more of something,” she testified.

But the state Department of Education’s 2012 review of the delivery of special education concluded, “Low-cost legal services for low-income families was scarce to nonexistent in Connecticut.”

When the the group of parents, students, local educators and municipal leaders formed the Connecticut Coalition of Justice in Education Funding to file this lawsuit 11 years ago, they aimed their criticism at the education that students from low-income families were being provided.

The state’s oversight

The state education department’s role in overseeing special education is largely to review special education plans that districts and parents have agreed to. The department looks at about 600 individual plans each year, about 1 percent of all cases, to determine whether what is included in them is appropriate.

In any given year, the state department finds plans that are not satisfactory in 10 to 25 percent of the districts. However, issues linger into a second year in only about 3 percent of the districts.

A picture of a meeting where educators and a parent discuss whether a student should be identified for special education and, if so, what services will be available.

The state relies on lawyers and parents who file complaints with the department to know whether children are being evaluated for special education in a timely manner. It also counts on complaints to know whether services promised in special education plans are actually provided.

Complaints in recent years have led the state or federal government to find systemic violations in Bridgeport, Hartford, Darien and Stamford.

Earlier this year, a state education department investigation concluded that Bridgeport educators were moving at a snail’s pace to assess some children suspected of being disabled or were not providing appropriate services when they were found disabled – the second time the city was found to be in non-compliance since 2014.

In Hartford, the state has concluded twice since 2011 that special education laws were being violated. One of the students involved in one of those complaints had been waiting 17 months for a reading evaluation after his mother suspected he had a learning disability.

In October, a state watchdog, the Office of the Child Advocate, released an investigation of New Britain public schools that it said “identified an alarming number of children with significant developmental delays who received services inconsistent with best practices or state guidelines.”

The federal government labeled Connecticut as needing to improve special education identification and delivery three times between 2007 and 2015.

Judge finds system unacceptable

Judge Moukawsher found Connecticut’s system for identifying students for special education unreasonable.

“Getting picked for special education in this state is mostly arbitrary and depends not on rational criteria but on where children live and what pressures the system faces in their name,” he concluded, ruling the system unconstitutional. “This unstable reality is because Connecticut hardly has any state standards for identifying special disabilities and a method of dealing with them.”

“Getting picked for special education in this state is mostly arbitrary and depends not on rational criteria but on where children live and what pressures the system faces in their name”

— Thomas Moukawsher
Hartford Superior Court judge

“… Special education identification and intervention is unquestionably individualized, but that doesn’t mean it has to be chaotic,” he ruled.

The fiscal implications of identifying students for special education are huge. Educators and experts testified that research and experience show that it costs, on average, twice as much to provide services for students with disabilities. However, students with significant and undisputed needs can easily cost a district six figures. Statewide, about 300 students cost more than $150,000 to educate each year.

The state allocates about $135 million each year to help districts with the costs of these high-need students. The supplemental aid from the state begins when the cost for a disabled student’s education exceeds 4.5 times the average per-student cost in that district.

Unlike the $2 billion districts receive under the state’s primary education funding mechanism, the Education Cost Sharing grant, reimbursements for these high-cost students are not based on a town’s wealth and the municipality’s ability to cover some of the costs locally. These grants have been capped for the majority of the last decade so the state is not picking up all of the costs that exceed 4.5 times the average per student.

proposal under consideration by Gov. Dannel P. Malloy’s education funding task force in 2012 would have required wealthy communities to pay a larger share of their special education costs so more state funding could be directed to low-income districts, but that proposal, facing pushback, never became reality.

The number of high-need cases isn’t the only cost driver. State mandates go beyond what the federal law requires for disabled students, the State Department of Education informed the General Assembly in 2012.

What do the feds require?

Federal law requires providing an “appropriate education” to disabled students – but what exactly that means is unclear. Federal courts are divided on the issue.

The U.S. 1st Circuit Court of Appeals in Boston ruled in a landmark 1989 case that, “Public education is to be provided to all handicapped children, unconditionally and without exception. It encompasses a universal right, and is not predicated upon any type of guarantees that the child will benefit. . .” The decision ensured that Timothy W., a child with complex developmental disabilities who showed limited response to light and other stimuli, would continue receiving services.

Last year, a separate circuit court ruled that, because a Colorado school district provided a boy with autism with “some educational benefit,” the district had met the requirements of federal law and was not bound to pay to send him to private school.

The uncertainty may soon be cleared up since the U.S. Supreme Court has agreed to hear that case, and arguments are slated for January. The high court’s current standard is that schools have to provide “some educational benefit,” but its 1982 decision didn’t offer a test courts could use to determine if that were being met. Instead, it left the determination to state and local officials.

For Connecticut, the current standard stems from a 2008 Newington case in which the 2nd U.S. Circuit Court of Appeals ruled ruled that, “A state need not maximize the potential of handicapped children, but the door of public education must be opened in a meaningful way” to provide “the opportunity for more than only trivial advancement.”

Judge Moukawsher ruled in the school-funding trial, however, that districts are far exceeding what federal precedent requires of them for students who are significantly disabled.

“Urban legends about [federal law] seem to have grown, and they have led many to think the law requires unthinking, expensive, and futile efforts in the name of education,” Moukawsher wrote. “The reason so much is spent is because someone has to take responsibility for saying that it shouldn’t be, and no one is willing to do it. … Neither federal law nor educational logic says that schools have to spend fruitlessly on some at the expense of others in need.”

Moukawsher ordered the state to set standards to determine which students can benefit from special education and what level of services students are entitled to.

This part of the judge’s 95-page ruling drew the most criticism, with opponents arguing that denying or limiting services to the most disabled creates a slippery slope. No prominent advocate or legislator has yet publicly backed his position.

“This ruling demonstrates we have a long way to go to ensure discrimination in our education system is a distant memory. The language used by Judge Moukawsher, turns back the clock on how society places value on the lives of people with disabilities”

— Leslie Simoes and Peter Berns
joint statement from leaders of organizations that advocate for those with disabilities

“This ruling demonstrates we have a long way to go to ensure discrimination in our education system is a distant memory. The language used by Judge Moukawsher, turns back the clock on how society places value on the lives of people with disabilities,” said a joint statement from Leslie Simoes, executive director of The Arc Connecticut and Peter Berns, CEO of The Arc USA, organizations that advocate for those with disabilities. “It denies children with disabilities their basic human right to live as full members of their community… His remarks questioning whether or not children with disabilities are worthy of an education, show a prejudice against people with disabilities.”

In reaction to the judge’s decision, several legislators pledged to The Arc that they would protect education services for the severely disabled.

The judge’s prescription to control special education costs probably is a nonstarter at the state Capitol unless the Supreme Court agrees with him and orders a shakeup. Such a change, several legislators worry, would strip opportunity from the most vulnerable.

“That’s not who we are. That’s not our moral values,” said Sen. Beth Bye, D-West Hartford, the outgoing co-chair of the legislature’s powerful budget writing committee.

Instead, the state’s strategy to help control costs has been to urge local districts to create or send their high-need students to regional hubs that provide specialized programming instead of paying tuition for these students to attend expensive, private schools. Each year, on average, 6 percent the budget in the state’s lowest-performing districts goes to pay for tuition for special education programs.

Connecticut’s rules do exceed federal requirements in several ways.

For example, federal law only requires providing special education for school-aged students ages 6 to 17, but Connecticut requires services for students age 3 through 21. In a survey administered by the education department, 85 of 89 districts reported they would save $640,000 annually, on average, if this requirement were eliminated.

Even more could be saved if the state eliminated its requirements that districts pay for special education services for children who are first identified as having a disability when they are incarcerated for breaking the law. Eliminating added supports for gifted or pregnant students would save districts, on average, $94,000 each year. Eliminating strict requirements for transportation – including a one-hour travel time limitation – would save districts on average $202,000 each year.

Another state regulation makes Connecticut one of six states to place the burden of proof on a district to show that the education it is providing is appropriate when a parent takes issue with the level of services offered. In 44 states, the parent must prove the education is inadequate.

Many district leaders point to the burden of proof as one of their largest cost drivers. Regular efforts at the state Capitol to shift this requirement have fallen short, as advocates for those with disabilities have pushed back.

The State Department of Education reported that in the 2013 fiscal year 203 cases were challenged and brought before an independent hearing officer. Most were settled and an actual decision was made in only 10.

In the education department’s survey, 68 percent of districts said shifting the burden of proof in cases that came before the hearing officer would have saved them an average of $74,000 a year. Two-thirds of the districts that responded said they would have tried to negotiate a different, and possibly less costly, decision, about which special services to provide if parents had the burden of proof and had to pay to prove that their child’s education services were not adequate.

That’s the problem, Andrew Feinstein, a special education attorney, told a state panel debating whether to recommend changing the regulation in 2014.

“Let’s call this proposal for what it is: It is a proposal to erode the responsibility of school districts to provide a free appropriate public education for children with disabilities in Connecticut. It is based on a belief that it is a waste of money to educate children with disabilities.”

— Andrew Feinstein
special education attorney

“When parents do decide to devote the emotional energy and substantial financial resources necessary to challenge inadequate programming by filing for due process, it should be up to the school district, with its paid staff, paid lawyers and monopoly on information, to prove that its program is appropriate,”  Feinstein said.

“Let’s call this proposal for what it is: It is a proposal to erode the responsibility of school districts to provide a free appropriate public education for children with disabilities in Connecticut. It is based on a belief that it is a waste of money to educate children with disabilities.”

Teacher pay

How teachers are paid – and evaluated – frustrated the trial judge.

Throughout the trial “no one said long years on the job and advanced degrees always meant good teaching. Yet in Connecticut these two factors, which may have almost no role in good teaching, play virtually the entire role in deciding how much a teacher makes,” Moukawsher ruled when determining that system is not rational, and therefore unconstitutional.

With salaries and benefits accounting for three-quarters of districts’ spending, the judge ruled the state has a constitutional obligation to ensure it is being spent rationally.

It’s not a new debate.

Most recently, when Gov. Dannel P. Malloy in 2012 proposed tying annual teacher evaluations that rely heavily on student test scores to tenure, pay and dismissal decisions, hundreds of angry teachers rallied outside the state Capitol.

Teachers rally outside the state Capitol in 2012 against the governor’s proposals for education.

In the end, legislators didn’t back the governor’s reforms and instead passed compromise legislation. Malloy’s proposal to have teachers earn and keep tenure by receiving numerous “exemplary” or “proficient” evaluations was scaled back to require that they be graded as “effective” to earn tenure, and they will have to be graded as “ineffective” to lose tenure. Legislators chose not to link certification or pay to evaluations.

Since then, efforts to link evaluations to test scores have stalled. Data released at trial show that last school year 546 teachers (1 percent of the state’s nearly 50,000 teachers) were evaluated as either “below standard” or “developing,” the two lowest ratings. Results were nearly identical in the 2013-14 school year.

While several of the state’s expert witnesses pointed to teacher pay criteria as one of the problems with education, others disagreed.

Quesnel, the East Hartford superintendent, explained that he does not believe in performance bonuses and has not given serious consideration to negotiating for a different pay system with the unions. “I think you start to get into some odd inquities when a physics teacher is making more than a social studies teacher,” he testified.

When pressed by the judge about whether he hadn’t considered a shakeup because the system is so deeply entrenced – or because it is what is best for kids, Quesnell responded: “A little bit of both.”

But Rabinowitz, the leader of schools in Bridgeport, testified that the current setup is forcing her to give raises to people who she might otherwise fire.

“If I need to move out a tenured person, it’s incredibly difficult,” she testified. “It takes a great deal of time, effort, and money in legal fees to make that happen.”


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