Litigation And Legacy In Education And Medicine

The fields of education and medicine are distinct, yet bound by certain parallels. In particular, litigation has shaped present practices in each field. Case law has expanded the rights of students and parents while increasing protections for patients. Resulting improvements in the quality of education or health care vary depending on perspective. Of greater certainty is the comparable increase in procedures, protocols, and overall bureaucracy needed in each field as a result of litigation.

Throughout the 1980s and 1990s, a perceived rise in civil cases led some pundits to ascribe a compensation culture to certain segments of America. Sensationalistic stories about plaintiffs seeking outrageous damages generated concern that this compensation culture was real and threatening to business interests across the country. Media outlets frequently portrayed those behind the questionable suits as poor but entitled people looking to take advantage of tort law for personal gain. Pundits claimed these cases represented a decline in personal responsibility matched by an increase in shameless greed. At the same time, the notion of frivolous litigation creating unnecessary layers of bureaucracy took hold in the American conscious and remained there.

The actual incidence and impact of supposedly predatory litigation remains debatable. Some civil liberties advocates suggest American companies created smear campaigns in the media to make the issue appear more prevalent than it was while attempting to curtail future suits. Without question, some companies have had to pay significant damages, particularly in class action cases. However, the claims against these companies typically haven’t materialized without cause. Tort law always has existed as a protection. A few plaintiffs and attorneys may have exploited these laws and others may continue to do so. Such exploitative cases haven’t outnumbered cases built around legitimate claims.

Questions about the ethics and even the prevalence of civil suits are the stuff of legal philosophy. The more immediate question is whether or not such cases have impacted particular fields and if so, what has been the nature of the impact. Legal precedents often lead to regulation of industries. Some forms of regulation can alter business practices. This can be for the better of all involved. Even if regulation increases costs, it often improves safety or quality. In fields such as education and medicine, litigation has profoundly influenced practices. Influence on quality is another matter.

The impact of litigation on education has been most apparent in special education. Class action suits resulted in the foundational special education law in America. Case law continues to establish precedents and corresponding mandates that states and school districts must follow. Many of the cases parents bring against districts stem from these districts struggling to abide by demanding mandates. Large districts retain teams of attorneys who spend a disproportionate amount of their time handling special education cases. Special education bureaucracy requires many schools to employ administrators who deal solely with compliance and protocol. In special education, litigation has led to more litigation.

Special education litigation effects school practices in several additional ways. Compensatory education losses in special education pull from overall budgets. Teachers need to compile data on special education students not just for planning, but to protect themselves and their schools in disputes with parents. School members of IEP teams construct programs from the perspective of how readily they can defend themselves should a legal case develop. Decisions about goals for students are often based on the likelihood of students appearing to make progress in a way that prevents potential conflict. When lawsuits do emerge, school districts have demonstrated a historic willingness to settle and give parents what they want rather than getting involved in lengthy and costly legal battles.

In medicine, public perception of the effects of litigation are somewhat skewed. Malpractice cases make for attention-getting headlines. However, the number of malpractice suits has decreased in recent years. The average amount for damage claims has leveled off as well. These cases tend to be reserved for incidents involving serious injury and death. Although this might seem counter-intuitive, plaintiffs often lose malpractice cases. Preventable mistakes still account for a massive amount of loss in medicine, but the public perception of malpractice suits driving up insurance costs isn’t exactly accurate.

This isn’t to say litigation has had no effect. Some health care professionals have had their careers upended by ruinous malpractice suits. A few states have enacted damage caps to limit what plaintiffs can claim. Expensive malpractice insurance has become ubiquitous for health care professionals. Many physicians have been suspected of practicing defensive medicine, or over-diagnosing for their own protection from suits. Defensive medicine resembles the tendency of special education teachers to write IEPs that ensure student progress. Layers of bureaucracy weigh on health care systems. Much of this exists as liability protections. Again, this parallels how schools have to handle special education.

Has litigation improved either field? In education, programs for students with special needs have expanded opportunities for equitable education. The expansion stems directly from litigation. However, special education has not solved the dearth of opportunities waiting for students with special needs after high school. At the same time, the expense of special education—including the continuing need for defense against further litigation—mires the most vulnerable school districts.

Health care has improved in many ways in recent decades, but most of these improvements are tied to technological advancements rather than litigation. Technological innovations also have contributed to increases in costs. The surge in bureaucracy does more to protect health care systems than patients, but patients have indirectly benefitted somewhat from the precautions litigation has made necessary. Patient behavior continues to drive the incidence of illness, but widespread health education campaigns have made some impact in behaviors such as smoking. Litigation has aided the creation of such public campaigns through pressure on lawmakers.

Education and medicine aren’t perfectly analogous, so certain comparisons can’t be made fairly. Despite differences, each field has had to respond in similar ways to changes in society. Pressure from litigation is just one of these changes. Other changes have involved how each field interacts with the public it serves. Schools and hospitals have increasingly become de facto social service providers for needy communities. Educators and physicians have had to become wary of their reputations via online ratings sites and their presence in social media in general. Experts in both fields have their positions challenged by what information parents and patients find online. These similarities might be more analogous than similarities wrought by litigation.

Although the effects of litigation have been different in the two fields, the response in each field has been noteworthy. Litigation more or less created special education. The burgeoning field has improved equitable opportunities while creating logistical quagmires for schools. Outcomes for students have been limited by factors schools can’t control, thus derailing some of the idealistic aims of litigation. Poor outcomes haven’t lessened the burden special education law places on schools. Meanwhile, public perception of how malpractice has affected medicine differs from the actual effects. Litigation has affected physician practices more than it has affected costs. Patient care has improved through technology more than through legal mandates. Protections have improved vicariously through the threat of litigation, but this might be inadvertently affecting how physicians offer treatment.

Overall, litigation has complicated each field by adding layers of protective bureaucracy. Improvements in quality might not be commensurate with the effort expended. Often what the public gains in protection is loses in simplicity and effectiveness. These fields exemplify this maxim.

Litigation And Legacy In Education And Medicine

The Implications Of An Increase In 504 Plans

The number of students receiving services under the IDEA has increased at a rate outpacing the growth of the total school population. Simultaneously, the cost of providing special education services has outpaced per-student spending for all students. The logistical challenges presented by these increases have strained departments of education and school districts across the country. This is well documented. A less examined phenomenon is a possible increase in the number of 504 plans and what this increase might mean for schools.

Not all students with disabilities qualify for services under IDEA. A disabling condition must sufficiently interfere with access to the general education program for special education services to be necessary. It also must fall under one of the disability categories described in IDEA. Multidisciplinary teams make decisions about the needs of a student based on IDEA’s criteria. For students who don’t qualify but do have a condition that affects learning, a 504 plan might be appropriate.

Students get IEPs according to IDEA. Students get 504 plans according to Section 504 of the Rehabilitation Act of 1973. A student with a 504 plan alone does not receive special education services, but does receive individually tailored accommodations. Section 504 is more closely aligned with the ADA than with IDEA. Although it affects schools, it is a civil rights protection more than an education law (the Department of Justice oversees complaints). IEPs and 504 plans each grant access, but 504 plans have more to do with granting access to the educational environment than to the general education curriculum. The assumption is students with 504 plans follow the general education curriculum with presentation accommodations more than with the program modifications an IEP might allow.

Everything about 504 plans—from the qualifying criteria to the protections afforded—is less specific and less encompassing than IEPs. However, Section 504 covers a broader range of conditions than IDEA covers. Thus, a broader range of students is eligible for 504 plans than is eligible for IEPs. Revisions to Section 504 have expanded coverage to include a variety of mental health and attention-related conditions that generally aren’t addressed under special education law. Students with generalized anxiety, depression, or attention disorders can qualify for 504 plans. Students with physical disabilities also can qualify. Reportedly, health conditions such as food allergies have been enough to qualify some students. Whatever the condition may be, teams write the plans according to needs, just as IEPs teams do.

The scope of an IEP ends when a student exits high school or a team determines services are no longer needed. A student can present an IEP to a college’s disability office, but this office isn’t bound to offer any of the accommodations listed in the document. This is a key difference between IEPs and 504 plans. Any entity receiving federal funding must acknowledge and respond to what is in a 504 plan. The diagnosis is what is most important, but the plan carries significant weight. The plans follow students through college and even into the workplace in some cases (other parts of the Act along with ADA often takeover in the workplace). Because of this, 504 plans are attractive for parents looking to get extra support for their college-bound child. Students can have IEPs and 504 plans simultaneously. Many students with IEPs have 504 plans so accommodations can follow beyond graduation. Even those with just 504 plans might have these primarily for use after high school.

Statistics about 504 plans are not as readily available as statistics about IEPs. Anecdotal information coming from high schools suggests a trend of parents seeking 504 plans just prior to graduation. This would appear to be more about improving chances for success in college than for increasing access in high school. With so much on the line in college in terms of cost, this is understandable and probably wise. What looks somewhat suspicious is when these students hadn’t been experiencing difficulty with access. Parents present a physician or psychiatrist’s diagnosis and insist that services are needed suddenly—possibly with just a year or less of high school remaining. This doesn’t mean needs aren’t legitimate and shouldn’t be addressed per planning for college, but one has to wonder about the possibility of a few questionably necessary plans sneaking through.

Although impossible to prove, other aspects of the reported trend make intentions appear suspicious. Some parents are seeking 504 plans for high-achieving students whose progress suddenly slows. A plan might be legitimately necessary, as progress might slow because of encroaching anxiety or depression that has been latent, but has emerged as stakes increase in high school. Another obvious possibility is progress might slow when students reach work that is sufficiently challenging or even above their capabilities. Rather than accept this, some parents might prefer to seek a diagnosis and petition for the support of a 504 plan. Yes, a condition might be in place at the same time, which should be addressed via support. An ethical question arises here though: should every student who experiences academic difficulty be evaluated for a mental health condition? The various factors here would need their own article.

Still other curious uses of 504 plans are reported. Anecdotes from the frontlines of the opt-out movement describe parents lobbying for 504 plans with hopes of getting testing accommodations on state assessments. Some parents have claimed the tests themselves create anxiety and 504 plans are needed to address this. The original intent of Section 504 wasn’t to remedy such specific and limited instances. Nonetheless, the ongoing controversy over testing is connected with reports of 504 plans being sought more as a test fix than as a global support.

As mentioned, the expansion of Section 504 to include various mental health conditions is relatively recent. A 2009 revision brought the law into closer alignment with the ADA. The inclusion of mental health conditions allows parents to pursue 504 plans for post-secondary leverage and for clemency on tests. Again, statistics are sparse and conflicting, but the expanded coverage combined with the pressures associated with standardized testing would make an increase in 504 plans likely. Other factors could contribute to an increase. School districts looking to limit the number of students receiving special education services might see a corresponding increase in 504 plans (this might be a way for schools to avoid over-identification of students per IDEA Indicators). A naturally occurring increase in the number of school-aged children diagnosed with mental health conditions should be reflected in an increase in 504 plans. Considering all of this, an increase shouldn’t be surprising.

The implications of an increase are multifaceted. Section 504 is not a funded mandate like the IDEA. States and school districts receive additional funding per the number students who receive special education services. Comparable funding doesn’t exist for students with 504 plans, but the accommodations required could be every bit as expensive as special education services, leaving gaps in how to provide these. Section 504 might not be funded, but parents can still sue a school district if a 504 plan isn’t properly implemented. Special education teachers don’t oversee 504 plans, so general education teachers must follow the plans without their assistance. Getting general education teachers to follow IEPs is difficult enough in some schools. Expecting them to follow somewhat more arcane plans could be perilous. A surge of 504 plans could find some schools wholly unprepared to deal with them. This is a fault of schools, but a troubling reality nonetheless.

At the collegiate level, an increase in 504 plans could create policy changes. Generally, an office of disability reviews a student’s condition and determines what accommodations will be needed, sometimes based on a 504 plan. Should these plans demand more complicated accommodations, schools might need to adjust policies to avoid discrimination suits (actually, schools are already taking a beating in this area). Universities could have to adjust course offerings and grading procedures for some students as more complex needs are seen on campuses. Failure to comply could lead to students hitting colleges with suits similar to those seen in special education. Now, this could be seen as progress, as college becomes more accessible to qualified students with disabilities. Another ethical debate is possible here concerning what happens if some students with disabilities complete programs and enter the workforce after experiencing less academic rigor than the peers might have experienced. Once again, this would be a fault of the schools, not the law. A more likely negative fallout could involve colleges becoming as reactionary and covert as K-12 schools in trying to bypass legal entanglements.

The long-term implications of the expansion Section 504 coverage remain to be seen. The expansion of eligible conditions should be a civil rights victory, but it also appears to allow 504 plans to be created for questionable purposes. Obtaining a diagnosis for a condition such as depression or anxiety isn’t difficult. Getting a 504 plan is much easier than getting an IEP. Parents are catching on to this. They’re also realizing the advantages of these plans for after high school. Much like in special education, provisions aligned with Section 504 have great potential to help people while also having great potential for abuse. What needs to be remembered is the former is much more common.

The Implications Of An Increase In 504 Plans

From Inclusion to Opting Out: Parents Getting Their Way

The current standardized testing opt-out movement is a departure from what some parents of special needs students have lobbied for in the past. Examining case law in special education reveals a trend towards increasing inclusion in every area of student life. The opt-out movement follows the opposite trajectory, but it remains part of a larger trend that includes general education. Parents want control over their children’s education to an unprecedented degree.

Recently, parents of students with and without IEPs have been petitioning for their children to be exempted from taking tests aligned with the Common Core State Standards. The tests of concern are the Smarter Balanced Assessments (SBA) and the Partnership for Assessment of Readiness for College and Careers (PARCC). Despite differing origins, each test is part of an initiative supported by the U.S. Department of Education to gauge student preparedness according to the Common Core. States have their own agendas for the tests, mostly involving increased school accountability. Reception by parents has been icy.

Most education professionals agree these tests are inappropriate for many students with IEPs. The tests would be unduly difficult for them and wouldn’t yield useful information. Parents of students in general education are adopting parts of this reasoning. They’ve been standing united with parents of students with IEPs in demanding exemption for their children. The given reasons vary. Popular claims include lost instructional time, stress caused by tests, and irrelevancy for students. Movement supporters have many strong points. They’re having profound influence, as opt-out rates across the nation have been soaring. Parents don’t like these tests and they’re letting states know it.

Regarding students with IEPs, the noisy refusal seems somewhat arbitrary. Alternate assessment has been part of the IDEA since its inception. Such testing has been reserved for students who can’t meaningfully participate in statewide assessments. Mandated testing of these students supposedly will ensure school accountability by forcing schools to provide instruction in tested skills. This is somewhat redundant. Progress monitoring according to the IEP already does this in alignment with the specific domains IEP teams have agreed are most relevant. A well-written and faithfully followed IEP almost negates the need for additional assessment. Although the IDEA has never stated how states should provide alternate assessments, it has stated that alternate assessments must be available.

Different alternate assessments are used from state to state. All are invasive to administer and few provide data that stringent progress monitoring wouldn’t provide. Alternate assessment results never exactly fit with general education results. Advocates for inclusion should be happy that all students have the opportunity to be assessed, even if the assessments are questionably relevant.

Students don’t all have to be assessed, though. The law might state this, but practice states otherwise. Students with IEPs always have had the potential to be exempted, at least through educational blackmailing. States insist on assessment for all students, but federal law trumps this by defending whatever a team puts in an IEP. Beyond exemption for religious reasons, parents have been able to successfully (if not completely legally) request exemption for various issues, such as anxiety or behavior. A letter from a psychiatrist is often enough to convince an IEP team to exempt a student. The IDEA doesn’t expressly state parents can do this. It expresses the contrary, actually. However, if a parent manages to convince an IEP team to include an exemption, overriding this can create a legal fight a district might choose not to engage. The legality becomes grey when the statement is in the IEP. This can upset administrators and confuse state testing monitors, but if the IEP states an exemption, not granting this is denying a mandated entitlement. Parents across several states have made this work.

A small minority of students qualifies to take alternate assessments. Per the push for inclusion, most students with IEPs are expected to take statewide tests. IEP teams (including parents) have the flexibility to greatly influence the testing experience. Schools officials are likely to indulge parent requests to add multiple accommodations to testing conditions. Accommodations might be intrusive, but they give students with IEPs the best chance of scoring on par with their non-disabled peers. Administrators want this for the sake of preserving averages. Sometimes it works. The degree of allowable accommodations (especially in math) for some tests can allow special education students to perform suspiciously well. The tests might remain inappropriate, but the accommodations can make even inappropriate tests much less stressful for students.

For general educations students, the path to opting out hasn’t been as clear. Aside from school-aged convicts serving adult sentences and those claiming religious exemption, nearly all students have had to take whatever tests states have used to determine progress. Parents have been seeking loopholes in recent initiatives. Some have been seeking special education services for their children, hoping to invoke advantages allowed by special education law. Other parents have been pursuing Section 504 Service Agreements to get accommodations for issues such as depression, anxiety, or attention disorders. These are invasive measures to take just to avoid a test.

As parents of both special education and general education students have pointed out, the SBAs and PARCC assessments have faults. True as this may be, in the short term, opting out won’t solve all the problems the tests cause. States and districts will lose money by purchasing tests parents refuse to let students take. Unless the tests are eradicated, the same amount of instructional time is going to be lost whether or not a particular student is exempted. For the immediate future, the majority will still prepare for and take the tests. Many states tie teacher and administrator evaluations to test results. The opt-out movement hurts this, so states and districts are going to fight it. Huge obstacles remain for the movement, assuming the cohesive goal is the elimination of the tests. Is it?

For some, the push to opt-out might be more near-sighted than this. Outspoken movement leaders want the tests stopped. Others merely want choice. Anecdotes from parents on the forefront do reveal politically charged motivations, such as opposition to commercial interests involved in testing and criticisms about unfairness to recent immigrants. These anecdotes also include more personal and familiar sentiments. Parents of special education students want their children to be included until they don’t want them to be included. When it suits their purposes, parents of general education students want their children recognized as having exceptionalities, using sudden health issues as leverage. Criticisms of transparency and flexibility fall under the same category. Many parents seem to want something simpler than a nationwide policy change. They want control.

Control over testing is a subset of parents desiring control over their children’s schooling. Many parents want increased control over content and methodology. Some want this to the point of seeking homeschooling. They want control over safety and logistics. Increasing numbers of parents drive their kids to school, have them carry mobile devices at all times, and enroll them in constant supervised activities. Motivations vary from parent to parent and assumptions about motivations are unfair. Actions indicate the current cohort of parents want schools to be a customizable service.

Now, is this bad? Some would argue that per the tax dollars spent and per the stakes involved for their children, parents should have great say in what schools do. Others would counter argue that the purpose of elected government and school boards is to sort out matters for the less-informed public. The difficulty is determining how much choice and sway parents should have. Control over test participation might make some sense, but what about control over curricula and delivery? Individualization is ideal, but delivering this on a large scale creates its own problems. One could imagine scenarios in which parents select from menus of what they want their children to experience. Should they be trusted to make good choices? How will schools program for this or have feasible ways of measuring progress and demonstrating accountability?

Such musings might seem facetious, but the opt-out movement could eventually affect policy making and implementation. It could alter school autonomy. Parents have the power to get their way. Special education law is historic proof of this. Special education is also proof of how a microcosmic direct democracy can lead to immense complexity from which schools can’t opt-out.

From Inclusion to Opting Out: Parents Getting Their Way

A Former Teacher Engages Reality: Getting Health Care

In late 2014, I did something many teachers never have to consider doing. I sought my own health insurance. After leaving my teaching career, I opted to work for myself. My plan was to live off my savings while getting started. This meant I was going to have to buy insurance rather than rely on a school to provide it. The misadventure that unfolded provided unsurprising but unsettling insights.

I lived in a bubble during my teaching career. The comforts my job afforded me affected my perspective. How did people in other fields work so late each day? Why did anyone agree to work during the summer? I had a salary that kept me more than comfortable and health insurance that most people would have envied. Although I frequently reminded myself how fortunate I was, I still took too much of my situation for granted. When I decided to up and leave, reality poured into my bubble.

Health insurance had never concerned me. Working in schools my entire adult life, I didn’t fret over having coverage. It was a given; an amount taken out of each check. If anything, I felt guilty for having such great coverage. I rarely used it. I happened to be a healthy person and I infrequently visited my doctor. Being so cavalier about my coverage while other people suffered without it made me feel like some kind of heel. My wife used it occasionally, so it wasn’t completely wasted.

By abandoning my career, I forced myself to face a sudden and real need for coverage. I’ll admit resenting the need to have something I wasn’t likely to use, but I accepted the situation and proceeded. I had left other teaching jobs. After each departure, I replaced the job quickly, moving to a better job each time. This was another example of my chosen field distorting reality. Not many people enjoy that kind of mobility. Benefits had come along with each new job. With no intention of taking a new job last fall and no immediate income from working for myself, I was on deck to try

Prior to any of this, most of my experience in dealing with health insurance involved my mother. I helped her get Supplemental Security Income and Medical Assistance. The process was arduous, but after an appeal, she got what she needed. More recently, I assisted my grandmother in connecting with a home health care aide through her insurance. This was tricky as well, but perseverance paid off. Having to deal with these systems gave me a notion of what to expect when navigating a massive health insurance bureaucracy.

Experienced as I was, working through tested my patience. The site achieved infamy in early 2014 following its beleaguered launch. I expected the site administrators to have fixed most of the bugs for the second year. Perhaps they had. What I found was convoluted, nonetheless. I managed, but not without incident.

The first hiccup came during registration. I followed the directions on the screen and provided the requested information, but the site couldn’t verify my identification. I’d never had a problem like this registering for anything else. It prompted me to upload registration documents, but I found no way to do this. I called customer service and a helpful but disaffected person verified my identification simply by asking for my address and Social Security number.

I completed the application and was eager to see my results. Before I registered, I had investigated what coverage might be available. I expected to be eligible for one of several seemingly suitable plans. Upon seeing my results, I was shocked to find my wife and I only qualified for Medicaid. Nothing else was available. I knew Medicaid had a resource limit in my state. I also knew my savings were approximately thirty times that limit. The site never asked about resources. It only asked for income, which was zero at the time. My wife’s income didn’t put us over the Medicaid income limit, but this was irrelevant.

I realized my situation was an anomaly. Most people don’t go from my former income to nothing by choice while not having any solid replacement. At the time, I was paying a high premium for continuing coverage from my former employer. I was determined to get something less costly through the Marketplace for the start of 2015. My state was going to deny me Medicaid. I had to appeal.

I couldn’t find a way to appeal online, at least not in my state. I had to mail the completed appeal form. After several weeks, I got no response. The deadline approached for having coverage by the first of the year. I called customer service. The representative told me I’d have to apply for Medicaid and get rejected before appealing. This was going to take too long. I called my state Department of Health and Welfare. A representative confirmed I’d be denied. He urged me to call again and simply state I’d been denied instead of going through the process. I did. I handled the appeal over the phone. An hour later, I had new insurance. I had even paid my first premium, which definitely stung.

Over the next month, sent me three letters and called me twice to remind me my identification had yet to be verified and my appeal had been denied. I politely informed them I had handled each issue. No one I spoke with could tell that I had, nor could they tell I’d selected and paid for coverage, even though I had.

Dealing with the new coverage was almost comical. I’d selected the same provider I had while teaching, but a different plan. My wife and I selected the same physicians we had seen for years. Despite our history with each, making appointments or filling prescriptions required us to provide detailed proof of our existence and needs through phone calls, faxes, and emails. This was necessary for the first several interactions. Inquiries and referrals were much more tedious than what we had known. Over four months, the provider sent us a total of ten new insurance cards. All the inefficiency with both systems prompted some reflection.

One could expect such confusion within large systems. However, I’ve thought of what difficulty others users might face. I’d like to think I’m relatively literate, tech-savvy, and patient. I have family members who would have been stumped after the first few screens of The parents of some of the students I taught would have had similar difficulty. People in such situations might have the greatest need for coverage. The complicated and buggy nature of requires a small army of customer service operators to help befuddled applicants through problems. I shiver thinking about the resources spent maintaining this backup system in lieu of having a more functional interface, but I guess this creates jobs. Similarly, my actual provider requires a maddening degree of redundancy that might strain the coping skills of needy clients. I wonder how many people just give up when pursing complicated but necessary claims.

Perhaps by 2016 will be streamlined and smart enough to not confound its users. My provider might be as streamlined and smart as it’s going to get. I’ve rarely seen such bloated systems. Maybe I’ve been ignorant to what other people endure. Having outstanding coverage handed to me while teaching and being healthy my whole life kept me out of touch. My new experiences were mild inconveniences, but I fear how similar complications could stifle those really needing help. I suppose I’ve emerged from my bubble.

A Former Teacher Engages Reality: Getting Health Care

Common Complaints, Common Sense, and the Common Core

Few topics in education are as hotly debated as the adoption of the Common Core State Standards and corresponding assessments. Educators and parents have formed alliances over their opposition to this latest iteration of a decades-old standards movement. Popular resistance to the Common Core is grounded in familiar thinking. Although some of this thinking might be near-sighted, criticism of the Common Core and related tests is too widespread to ignore.

Throughout my career, resentment for educational initiatives felt ubiquitous among teachers. Whenever policy makers enacted a plan, educators tended to ridicule and dismiss it. Distrust and doubt were typical responses as teachers lamented the failures of previous programs. The prevailing sentiment was policy makers couldn’t create anything worthwhile because they weren’t educators. I felt this was unfair to policy makers and overemphasized the status of teachers.

To me, uniform resistance often seemed unnecessary and poorly reasoned. Too many of the teachers who complained about policies simply borrowed snippets from popular critiques rather than forming their own positions. This was rampant among special education teachers, many of whom balked at initiatives involving standards. I sensed that many teachers opposed for the sake of opposing and subscribed to whatever contrarian rhetoric was popular.

Even if a herd mentality still influences criticism, much of the perennial and current anti-standards rhetoric makes sense. The most popular arguments might not be the most sensible ones. The problem with the Common Core as with previous standards isn’t the standards themselves, but how states use these standards. Before addressing this, I’ll address some of the decoys.

A popular criticism of the Common Core is the lack of educator input in their origin. No career educators were involved. Critics assume educators have superior insight regarding what students should know and be able to do. Actually, this should be determined through the cooperation of industry leaders who understand needed marketplace competencies and developmental psychologists who understand how abilities correspond with age. Educators should design programs for conveying the standards, not the standards themselves.

Another common criticism concerns the vagueness of the standards. Stories circulate about parents who can’t understand their children’s Core-based homework. Such complaints are misplaced. They’re about curricular design, not standards. The standards aren’t curricula. They’re guides for curricular development. Standards used prior to the Common Core were purposely vague. No set of standards can be too specific or encompassing. Only so much can be covered and assessed. Clarity of language and pedagogical sense are other issues, but standards alone can’t be blamed for bad curricular design.

Special education teachers who attack the inappropriateness of standards overlook the necessity of standards in their work. Students qualify for special education services based on discrepancies between expected and actual performance. The expected performance comes from existing age-based norms. Maintaining services requires  proof that discrepancies still exist. Performance according to standards is thus invaluable. Most students who receive services follow the general education curriculum with accommodations. If this curriculum is written to help students reach standards, than those competencies become the aim of special education for most qualifying students. Even if the standards seem unreachable, seeking approximations should be imperative. IEP teams should design goals aligned with standards. Special education teachers have to be the standards experts on these teams.

The growing opt-out movement led by parents is extraordinarily vocal. Its ranks claim standards-based curricula confuse their children. They claim standardized tests create undue stress. All of this might be true. Although the movement has well-informed allies and borrows sound criticisms, it also dilutes itself somewhat by using emotional appeals. It has the trappings of a bandwagon. To outsiders, it appears to be an extension of parents seeking ever-increasing control over their children’s education despite a lack of expertise in pedagogy or child development. This is less a refutation of the movement’s aims and more a critique of its motivations. Whether or not it has legitimacy, the movement is loud and effective. Families are opting-out, even if not all of them know why.

Opponents attack the Common Core from other angles. Conservative critics view the initiative as a coup to impose federal control over states. Liberal critics fear an ill-conceived attempt to homogenize a diverse nation of learners. Cynics (or clear-thinking pragmatists) wonder what difference the Common Core will make. Many students have excelled without them while others have faced issues too profound for updated standards to fix. These opponents should redirect their focus. Again, the problem isn’t the standards, or even the tests aligned to them. The problem is how the standards are used.

I’ll defend the idea of standards. They aren’t inherently negative. Using benchmarks to gauge instructional effectiveness is crucial. A set of realistic and reliable age and grade-based competencies is helpful for designing instructional goals. A problem with anything norm-referenced is the norm can change with time. What happens to a 10th grade reading level when most 10th graders can’t read at that level? Standards, however, can be absolutes. They are what cohorts of students need to know and be able to do. They can be altered over time, but based on changing needs in society rather than on changing student abilities.

General education is supposed to transfer requisite skills and knowledge to the greatest number of students. The point is to have a functional citizenry. Critics claim the standards that define what is requisite devalue teacher creativity and flexibility. The resulting dry instruction stifles the joy of learning for students. Phrases such as “teaching to the test” describe this atmosphere. Having generations of inspired young people who love learning would be ideal. Having citizens with basic literacy and numeracy is more pressing. Some careers do require lateral thinking and intuition. Far more require basic skills. Adherence to standards provides a threshold of competency for which to aim.

Much of the criticism of standards is thin. The standards do have merit. The problem remains their use, which begins at the state level. States adopt standards as part of nationwide initiatives, but generally school districts develop (or borrow, or purchase) curricula that incorporate them. Curriculum specialists and teachers then design the proper instruction. Standards-based instruction need not be narrow or dull. This doesn’t have to be an issue. The real problem emerges when states use the standards and corresponding assessments as gauges of program or instructor value.

Suddenly, assessment results become vital. Administrative obsession develops and incites performance pressure among teachers and students. Instruction under these circumstances does reduce focus on critical thinking, but emphasis gets distorted in other ways. Assessment results are misguidedly used to evaluate teachers without regard for outside factors affecting student performance. Instead of using assessments solely to guide future programming or verify student achievement, results continue to be tied to funding or school management. The Common Core still aren’t the cause of any of this.

Looking past applications, possible motivations for adopting the Common Core almost feel like conspiracies. Curricula written according to new standards demand updated text materials. Publishers and investors profit from this. The standard-aligned tests states adopt aren’t free. The test makers stand to profit. The focus on test preparation continues the marginalization of vocational education rampant under NCLB, thus forcing students to pay tuition for it after graduation. More profit. Using test performance to determine school effectiveness is likely to convert more poor-performing schools to privately managed and publically traded charter schools. Insert cash-register sound effect. Finally, using scores to evaluate and possibly remove teachers can undermine union power, especially where unions are weak and remain a barrier to privatization. Such speculation might not be paranoia.

Complaints abound regarding the Common Core and related tests. National dialogue is filled with distractions but peppered with good sense. Too many critics focus on emotional issues (my son doesn’t have time to make dream catchers in art class) rather than anything practical (how valuable are assessment results for disenfranchised students in states that put no student stake on assessments?). Standards—even if strangely authored—are not the enemies of education. Misinterpreting their application or using standards-aligned assessments to forward political and financial agendas ranges from negligent to nefarious. The coming years will be intriguing for those with any stake in the field. Questions about the legality of the standards and the funding of standards-aligned tests have already surfaced. The Common Core could become another forgotten initiative veteran teachers reference when complaining about whatever comes along to replace them.

Common Complaints, Common Sense, and the Common Core

The Irresponsible Statements Special Education Teachers Make (And How To Minimize Damages)

Special education teachers are a caring lot. They come to the field aiming to improve the lives of exceptional students. Early in this endeavor, many realize what an arduous task they’ve undertaken. Their students face a multitude of limitations. These teachers want to motivate their students. They want to help them overcome. In the process, they make encouraging comments and employ impelling rhetoric. While of noble intent, some of what they say and suggest might be harmful.

All teachers should have a desire to help their students experience success. This desire touches the essence of the profession. Effective teaching is integral to student success, but so is proper motivation. Some learning activities are their own intrinsic motivation, while others require something extrinsic. Many students need more than engaging lessons or tangible rewards to elicit their involvement. Teachers address this by urging students to try and continue trying after setbacks. They attempt to instill confidence. They offer frequent praise, even if the praise is questionably deserved.

Education is rife with rhetoric about students believing in themselves and following their dreams. Teachers routinely tell students anything is possible with enough effort. Statements made in the classroom, posters hanging in hallways, and mantras chanted at school functions all suggest if students have confidence, no obstacle will stop them. If only life worked that way.

The rhetoric has merit, but is often empty. Of course teachers have to encourage students. They have to praise students and stoke their confidence. Not doing so would undermine their mission. Students hear positive messages from childhood and they internalize these. The benefit might vary per student. Fostering overconfidence in special needs students could be problematic.

Praise and positive rhetoric usually isn’t tailored to individuals. More often, teachers use blanket statements. Even statements about specific accomplishments tend to be canned. Teachers automatically give generic praise to reinforce effort and positive behavior. For classroom management, this is understandable and beneficial. However, even when teachers have time to consider their words, they’re usually blindly supportive.

When applied to students with significant limitations, issues might emerge. Immediately, that generous praise can become a crutch. Students might begin to expect rewards for even the most minimal efforts. Greater consequences lurk in the encouragement of students who harbor unrealistic notions about their potential. Consider an 8th grader with a 1st grade reading level who wants to become an attorney. The ambition is admirable, but overcoming the literacy barrier is unlikely. Similarly, consider an 11th grader who can’t write but intends to become teacher, or a 12th grader who is unable to add or subtract but expects to become a game designer. Their aspirations fall outside their probable range. The injustice occurs when teachers allow or even incite these precarious aspirations to develop.

What follows is a common scenario. A student with an IEP goes through middle and high school with a 3rd grade reading level. Throughout school, adults around her have urged her to listen to her heart and not let anyone deny her. She decides she wants to become a cardiologist. Reading assessments put her in the lowest quartile for her age and she has been stagnant since middle school. Psychological tests show her intelligence is well below average. Oddly, she has high grades and makes constant progress according to her IEP. She displays positive student behaviors and her teachers like her. Having always heard college is the answer, she eagerly anticipates enrollment. Crucially, her parents believe she can do this.

Discussion about college begins in middle school. For several consecutive years, her special education teachers smile and nod at this idea during IEP meetings. Transition planning ends up being about keeping the parents happy and putting off tough conversations until later. Planning remains trite and vague. Goals include exploring college programs and researching careers.

Sometime in her junior or senior year, some special education teacher looks at her competencies versus her ambitions and decides to have a frank but responsible discussion about realistic post-secondary options. At the mere suggestion that college might not be the best route, the student is crushed and the parents lose their composure. A lengthy battle with the teacher begins over transition programming. The teacher is cast as a cynic bent on blockading students. The parents become crusaders. The student becomes a victim. Advocates are called, administrators get involved, and in the end the IEP reflects what the parents want to see: their daughter will prepare for college instead of more realistic outcomes.

Schools shouldn’t set limitations on students based on a few numbers. Reading levels and IQ scores might not reflect all a student can do. Teachers can never know how praise might inspire a student to do something unexpected. Likewise, they can’t know how discouraging words might stifle a student. The problem is the lack of specificity and sincerity. Praise and especially encouragement should be grounded in reality. Honest conversations individually tailored to students should start early.

An analogy I used at IEP meetings was to liken a student’s ambitions to me wanting to play in the NBA. I’m 5’5”. No matter how much I train, my prospects are limited. Even if playing on an NBA team is unlikely, I might be able to have some involvement. I could be a sports writer. I could work for a team’s office. I could become a physical trainer. Some parallel and more accessible occupation is out there. Compromise doesn’t mean defeat.

This type of discourse could help students whose sights extend beyond their grasps. It might help their parents as well. Teachers back away from doing this because they don’t want to be naysayers. Discouraging students runs counter to their programming. Fear of parental response to discouragement is also a factor. Teachers must remember that transition is the most important aspect of special education for high school students. It is a time for earnest and possibly difficult conversations with students and parents, especially those with distorted perceptions. Everyone in the field can lessen the potential for conflict by being more responsible with how potential is groomed in students with disabilities.

Conversations about realistic outcomes for students with disabilities can happen without teachers foreclosing on possibilities or deciding themselves what likely outcomes will be. Early and often, all students should know what degree of literacy or numeracy is required in college programs and various vocations. Comparisons should be made using results from student level testing. These results should be transparent for students and their parents. Teachers should obtain and share many scores to provide a composite of abilities within and across school years. Those wishing to go to college should take the PSAT or a similar test and practice reading from sample college texts to gauge readiness. Data should inform clear, ongoing dialogue about options.

Simultaneously, occupations that don’t require college degrees should be presented with dignity. Schools should give less emphasis to the uncommon accomplishments of athletes and performers. Students should be encouraged to learn what people in their communities actually do for a living. They should connect with community services for people with disabilities. Of drastic importance, they should have maximum exposure to financial literacy. Specific student abilities should be celebrated and relevant, appropriate training and vocations should be suggested. All of this should supplant general, recycled rhetoric about reaching for the stars.

Teachers need to praise and encourage. Certainly, students with special needs require ample support. Dedicated teachers want even their most limited students to succeed in school and beyond. With special education students, teachers must encourage judiciously and with customized rhetoric. Honest dialogue regarding post-secondary outcomes should begin early to help develop practical and actionable plans, thus preventing conflict and disappointment later. This truly epitomizes that caring and sensitive nature teachers want to bring to their interactions with students.

The Irresponsible Statements Special Education Teachers Make (And How To Minimize Damages)