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The people who write the special education laws on the state level are, unfortunately, people like this guy? Am I right to be worried?
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The enthusiasm for charter schools, which was also high during the administrations of Bill Clinton and George W. Bush, reflects the desire of many parents to have choice within the public system. This desire has only been heightened by research showing superior results obtained by charters.
In a performance comparison of Boston charter school students with those not admitted, for example, Harvard University professor Thomas J. Kane found that the students attending charters outperformed their peers at traditional public schools. His research, however, was designed with the recognition that charter students are different along some critical, perhaps immeasurable, dimensions from students attending traditional schools. This is especially true in relation to students with disabilities: Traditional public schools are serving far greater numbers of them than charter schools, particularly those whose disabilities require significant special education services."
The article then goes on to cite a number of studies that show that students with disabilities are under-represented in charter schools. This is disturbing and brings to mind the recent post on these pages about the law review by Professor Mark Weber regarding some issues with charter schools and kids with disabilities. As the political support for charters increases, we need to keep a vigilant eye on how charters are welcoming and educating kids with disabilities.
What has your experience with charters been like?
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JG: Okay. That's interesting. Yeah, I didn't see the connection there to that before, but I think that's very interesting. Another thing they (the principals association) proposed was that for students with disabilities, for purposes of the AYP and NCLB-type data, that they be assessed at their instructional level rather than their grade level. How do you react to that?
AP: Well, okay, that would be all well and good, if the kids have really been taught at their instructional level to the best of their ability. The fear of some is that we're going to not expect as much from them again, if we don't do that. I think the idea is - - you know, I understand exactly what they're talking about because I'm the one who is the big proponent behind the 2%. Okay? What I refer to is the 2% assessment because I do think that they're a number of our kids who aren't at grade level, they're not. I mean, it's in the light of their disability. The issue and what the concern of the field is right now is, if we go back and open the Pandora's box again, are we going to have too many that aren't going to be pushed, you know, not to that level? And that's why I'm saying, if we can come up with a way of doing the growth model and being able to establish the potential growth for every child, really and truly do that, then I think we've go a model that would work and then, I agree with them. But we've gotta come up with that model.
JG: You're not satisfied with what's been proposed under the growth model so far is what I'm hearing.
AP: Well, no. I'm not disagreeing. It's the state of art and the research we have, it's so limited. That's all I'm saying. And I look at what the Fuchs have done out of Vanderbilt and I think that there's great merit in what they've got, but we need to expand this and just have more information. But I am all for student growth model, absolutely, as long as we know that it is honing kids to their highest potential possible and that's the key. How do we establish that trajectory and how do we know that it really is challenging for every student and that we're not low-balling it?
JG: And you mentioned the 2% and again, do you think that those exceptions for children with cognitive disabilities are big enough to cover the numbers - -
AP: Yes.
JG: Yes.
AP: Oh, absolutely.
JG: Okay.
AP: Oh, yes. And then that's because we put it in place in Kansas in 1998. So - - and I know people are saying, well, where'd that number come from? I mean, for us, that number has been more than sufficient.
JG: Okay.
AP: I do. But do we have enough research on it? Absolutely not.
JG: Okay.
AP: Yeah.
JG: Yeah. I have wondered where the number came from and I've heard parents of children with severe disabilities sort of claim that no child left behind has not been so good and I hear parents of children with relatively mild disabilities claiming it's the best thing they've ever seen.
AP: Yes.
JG: Do you think that's fairly true? Has it been better for kids with mild disabilities - -
AP: Well, I do because so many states did not develop the 2%. You know, they automatically have to be in general ed and they're putting a lot of time, effort and energy into making sure that happens. I think what we're hearing - - first of all, I think there's confusion in terms of the 1%, long before the 2%. I think there are a number of kids who are not significantly cognitively disabled who may have been put into the 1% or on the other hand, they were put into general and that's not appropriate and my typical example is a child who we have referred to as mentally retarded, in the past, who chronologically is a fifth grader but is really operating at a first grade level. That child does not belong in the 1%, not at all. That's the child I was trying to get at in terms of the 2%.
JG: Okay.
AP: Okay? But still, we need to push them. So, they'd be in grade level content. Yes, but it's going to look different. Okay? It's going to be at the lower end of the continuum when you think about the sequence of learning.
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The Nature of Compensatory Education
Compensatory education is a form of relief that may be awarded by a hearing officer or court after finding a violation of IDEA. It constitutes an award of services to be provided prospectively in order to compensate for a deficient educational program provided in the past. G ex rel RG v. Fort Bragg Dependent Schools 40 IDELR 4, (4th Cir 8/6/03).
Although the U. S. Supreme Court has not specifically recognized the availability of compensatory education, it has declared that courts, and presumably hearing officers, have broad equitable powers to fashion appropriate relief where there has been a violation of IDEA. Burlington Sch. Comm. v. Dept. of Educ., et. al. 105 S.Ct. 1996, 556 IDELR 389 (1985). In the same decision, the high court recognized that reimbursement for a unilateral placement was among the appropriate relief that could be granted for such a violation. Burlington, supra.
Since Burlington courts and hearing officers have reasoned that because reimbursement is a viable remedy for an IDEA violation, compensatory education must also be among the relief that may be granted for such a violation. The logic is that if reimbursement for obtaining compensatory services may be granted, failure to recognize the ability to award compensatory services themselves would make the child’s ability to obtain relief dependent upon the resources of his parents to effectuate a unilateral placement. Such a result would not be consistent with IDEA’s purpose of ensuring that every child with a disability have available to him a free and appropriate public education. See, Reid ex rel Reid v. District of Columbia 43 IDELR 32 (D.C. Cir. 3/25/05).
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