Special Education v. Democracy
Last week, I promised to say a little more about why it is controversial to suggest that school systems make public and commit to educational plans for groups of students with special needs. For those of you who have taken administrative law and who don’t spend time in the special education system, it must seem heretical to suggest that public agencies like school systems might not have a duty to reveal policies that affect a member of the public and to commit to following the same policies when similar cases arise. Indeed, both of those principles are enshrined in, respectively, the Freedom of Information Act and the Administrative Procedure Act at the federal level and in similar statutes in most states. The principles make great sense in terms of democratic ideals which demand that unelected administrators must be accountable and that accountability requires both transparency and a commitment to equal treatment.
In the arena of special education, however, there are a couple of countervailing principles. The first is the idea that every child is different from every other child. So every child in need of special education should have a unique plan developed specifically for that child. The second is privacy. Since the need for special education can be stigmatizing, each child’s plan should be developed in a way that does not expose the child and the child’s condition to public view.
Preferring privacy and individualized treatment to the exclusion of certain democratic values may have made more sense when special education was first being addressed in federal law in the 1970s. Today, however, I think it’s time to try to balance the priorities differently. Schools have learned a lot about special education, and most no longer formulate a unique plan for each student. Pretty much every 12-year-old with ADHD will be offered the same services as every other 12-year-old with ADHD, as I learned when my son had problems in middle school.
As it turned out, the school system’s usual plan probably would have worked well enough for him, and probably would have worked for most kids in a similar situation. But I had no way of knowing what the usual plan was, so I had no way to evaluate it. Neither did any other parent, expert or others interested in education. Further, the school system didn’t have to commit to treating my son the same as other similar kids. As a result, schools systems can — and do — adjust their usual plans for reasons that have nothing to do with the child. For example, if I had threatened to litigate, studies demonstrate, my son probably would have been offered more services. If the school system didn’t see me as a litigation threat, he may have gotten fewer.
My proposal is that school systems identify publicly whatever special education plans they think are appropriate for the kinds of situations that arise most of the time, just as they do when they address aspects of the general education curriculum. For example, when middle-school students with ADHD experience problems doing their homework, the plan will include a method for giving parents information about homework assignments other than looking at the child’s own notes. When a 4-year-old on the autism spectrum has communication problems, the plan will include 20 hours a week of ABA therapy. Once the plans have been identified and the public has had a chance to persuade the school system to do things differently, the school system would be required to provide the approved plan to every child that fits the description – no more and no less.
My proposal supports maintaining important privacy values of the special education system in the sense that no individual child’s situation is revealed in the process that I’ve proposed. Further, the values of individualization are preserved in the sense that a child who does not meet the description should not be served by a plan designed for children with other problems. At the same time, my proposal also advances democratic values that are disserved in the current system, including, most importantly, transparency and equal treatment.