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Hearing - President's Commission on Excellence
in Special Education

Brooklyn Borough Hall
Brooklyn, NY
April 16, 2002

Prepared by Dee Alpert, Esq.

The President's Commission on Excellence in Special Education held a hearing on April 16, 2002, at the Brooklyn (NY) Borough Hall.

The following Commissioners were present (please pardon my spelling): Katie Wright, Nancy Grasnick, Cherie Takemoto, Jack Fletcher, Floyd Flake (present 1/2 day), Michael Rivas, Adela Acosta. C. Todd Jones, staff director, was present but left at about 3 p.m.

Unfortunately, the temperature was over 90 degrees, and neither building air conditioning nor fans were operational. Most of the Commissioners managed to sit through all the testimony and pay close attention, irrespective of the obvious discomfort suffered by everyone.

Minority Over-identification and Misidentification

The first taskforce was on "Minority Over-identification and Misidentification," presented by NYC Bd. of Ed. Chancellor Harold Levy and assorted accompanying executives. Unfortunately, due to subway disruptions, I missed most of this testimony, in which Levy allegedly claimed that a 1998 Memorandum of Understanding signed between the NYC Bd. of Ed. and the USDOE Office for Civil Rights worked to "reduce over referrals of minorities and misidentification of minorities to special education." Happily, when I arrived, Levy and his staff were finishing. I noted that they looked extremely uncomfortable, as though they had been given a very, very hard time. There was heat from more than just the weather.

District 75

It would appear that Levy, et al., did their best to mis-communicate regarding the NYC Bd. of Education's "District 75," the centrally-operated special ed. district, allegedly for moderately to severely disabled students.

I was privileged at the end of the day, in my testimony, to provide the Commission with hard copy of the last "District 75 Profile" that appeared on the Board's web site before the District 75 Profile was permanently removed from that site. (District Profiles for all other districts remain available there.) The District 75 Profile gave information regarding the racial and ethnic composition of students in District 75, which, to be charitable, hardly suggested that the issue of over-identification and misidentification of minorities had gone away. Au contraire.

Additionally, I was able to point out that the Profile showed that District 75, which houses the Board's programs for children with autism, was not providing speech language services to District 75 kids as per their IEP's. The Profile showed that District 75 provided 8% of the s&l therapy on its students' IEP's for April 2000, while the rest of the City provided 87% of the s&l services on students' IEP's.

Additionally, the Board has just stopped providing individual School Report Cards for District 75's special education schools and programs on its web site, exactly at the time when the NYS Ed. Dept. started requiring racial, ethnic and gender information and score disaggregation to be provided as part of the standard New York State School Report Card format. These School Report Cards are required by State Ed. for every other single public school in the State of New York. Arguably, they would show that District 75's individual segregated special education schools tend to be virtually all black or Hispanic and produce high school dropouts at a rate of approximately 80% by age 21. In other words, disabled black and Hispanic kids in District 75 do not graduate high school with any credential whatsoever, and they do not age out. I call them "disposable" disabled kids.

Assistant Secretary Pasternack did not seem pleased when I asked him, point blank, to insure that the NYC Bd. of Ed. was required to post the same information for disabled kids as it did for non-disabled kids, including the District 75 Profile and District 75 individual School Report Cards, and he didn't reply when I said that if OSERS couldn't enforce the part of the IDEA that just required that parents be able to secure necessary information, there wasn't much hope that it could or would enforce the harder parts of the IDEA's requirements. However, the other Commissioners there appeared highly responsive to my claim that parents of disabled kids need this information as much as the parents of non-disabled kids do, esp. because of the District 75 s&l therapy issue for kids in District 75 autism programs and exceptionally high drop out rates.

Child classified as 'severely emotionally disturbed'

A number of Commissioners appeared appalled and disturbed when a single female minority parent, the last public speaker, discussed what had recently happened with her child - a delightful young 8-year old black male, who was with her - who had been, right off the bat, classified as severely emotionally disturbed and recommended for a District 75 placement in a segregated special education school.

She described the school - something like a prison, "gated," and noted that there were high school students in the same building. She asked for help and wondered why some intermediate placement/support was not recommended. The Commissioners looked as though they were wondering the exact same thing, especially when the woman noted that her son had never been violent.

I was privileged to answer a few Commissioners' private questions about District 75 and how a kid with, say, autism, could wind up in a District 75 program without inclusion or less restrictive placements being offered first. All in all, I would have to say that it does not appear that the NYC Bd. of Ed. fared well, which is . . . appropriate. Her testimony appears to have directly contradicted whatever the NYC Bd. of Ed. folk claimed in their early testimony about their "success" in ending over-identification of minority students through their agreement with OCR.

Categorization: Relationship Between Referrals, Categories, and Special Education Programs

Three speakers discussed "Categorization: The Relationship Between Referrals, Categories, and Special Education Programs." They were: Dr. Frank Gresham, UCal at Riverside; Dr. James Ysseldyke, U.Minn. And Dr. Gwen Cartledge, Ohio State U.

Commissioner Fletcher seemed interested in, and perhaps to be pushing, a model of special education that had less to do with formal evaluation and classification and more to do with pragmatics like levels of support and remediation: i.e., a kid gets one; that doesn't work; the kid gets the next level up.

The experts' testimony generally was negative about the utility of special education evaluations and classifications. Nobody came out and said plainly that school psychologists, for example, at the MA level, were not really qualified to do thorough evaluations and make useful classifications or diagnoses; however, that appeared inherent in their positions.

They were also rather negative about the use of IQ tests and the disparity criteria, noting that the congruence between the bottom 20% of students (in reading scores, I think) and kids classified as "learning disabled" was extremely high, indicating that the classification of "learning disabled" was invalid for most purposes relating to special education.

Dr. Ysseldyke discussed how teachers should be required to prove that they had taught students using research-validated methodologies before being permitted to refer kids for special education evaluation!

Dr. Cartledge discussed how the typical behavior measures used for kids (she was testifying about minority kids), i.e., suspension, expulsion, etc., made the situation worse and just about guaranteed that kids with emotional problems would also become academically delayed due to a lack of any instruction whatsoever whilst being disciplined.

During the course of the day (although I ran out to cool off occasionally), I did not hear one formal "methodology," i.e., Orton Gillingham or Lindamood Bell, mentioned, much less analyzed, dissected, defended or attacked. Dr. Rosa Hagen, a truly famous psychologist, appeared as a public speaker. Dr. Hagen testified in the Bartlett case.

ADD and ADHD Identification Panel

The "ADD and ADHD Identification Panel" had Dr. Howard Abikoff, of the NYU Child Study Institute speak.

He, and other speakers later, noted that many "assessments" used by school evaluators were inappropriate for diagnosing ADD/ADHD (such as the Connors check list) because there could be so many other causes for the same behaviors, including child abuse, family turmoil, etc. Generally, he was clear that to adequately diagnose ADD/ADHD, you needed a Ph.D. in psychology, a lot of specific relevant professional-level training, and a physician nearby to rule out certain medical conditions.

Should psychologists prescribe?

I believe it was Commissioner Fletcher who asked Dr. Abikoff if he felt that psychologists should be able to prescribe.

Dr. Abikoff was very careful in answering: basically, it sounded like he was saying that they shouldn't unless they'd gone back to school for a lot of specialized training, and again, would need a physician handy to rule out physical issues. This bore directly, but implicitly, on the issue of school special education folk trying to prescribe meds. For disabled kids, or force their families to have them medicated.

This is a hot button issue because Dr. Abikoff was very firm in describing the research to date, which indicated that kids who were treated with prescriptions by experts (and who were given higher doses of meds. such as Ritalin than those treated by non-experts) and who also received other supportive treatments did a lot better than those who did not receive both. However, the research is ongoing and they are trying to "tease out" variables, he said.

Assistant Secretary Pasternack asked a few questions over the course of the day about research showing whether spending more money on special education got results in terms of outcomes. There were no definitive answers to this question, meaning that nobody could flatly say that the more you spend on special education, the better the kids do.

Inclusion v. Specialized Programs

An extra, added speaker, during lunch, was Dr. Dorothy Lipsky of the City University Graduate Center. Dr. Lipsky is a foremost researcher and trainer on inclusion for kids w/severe disabilities such as spina bifida, and is extremely pro-inclusion. She cited her own experience with her son, and noted that he had turned out - just great - while they had been told when he was born to not bother bringing him home from the hospital.

Commissioner Fletcher asked several speakers whether what they were saying was that there should only be inclusion, and noted that many Florida parents wanted specialized special education programs. He was picking up on the tension between the issues.

I spoke w/him later regarding a self-contained sped. program I had secured over a decade ago, pursuant to a consent decree, for kids with severe Tourette Syndrome+ and who were intellectually gifted, noting that one main reason we had gone for the self-contained program was because the kids were becoming suicidal in mainstream and non-specialized special education placements. He was happy to hear that this program actually turns out kids with full college prep. diplomas, and that none have committed suicide in the decade since the program began, although this group of kids typically has a very high suicide attempt rate because of the awful experiences they have in school. I also mentioned ABA/Lovass. He indicated that he was sympathetic to what parents wanted in/from/for these specialized programs.

Identification Practices and Education Teacher Training of Students with Severe Behavior Disorders

Dr. Joseph Wehby of Vanderbilt University spoke on "Identification Practices and Education Teacher Training of Students with Severe Behavior Disorders."

He noted - and various Commissioners indicated in their comments or body language - that the IDEA places FBA's just before discipline or during discipline procedures, and that FBA's should come much sooner in the IEP process. He was also rather clear on the fact that most FBA's are done poorly, don't look at the right variables, and are often just plain wrong.

Teacher Training: Woefully Inadequate

All speakers who mentioned teacher and school psychologist training made it clear, pretty much flat out, that the graduate school of education training being done at this time is woefully inadequate and far removed from research and research-validated methodologies of . . . anything.

Funding Formulas and Identification Patterns

Dr. Julie B. Cullen, U.Mich., discussed economic research and how funding formulas effect identification patterns. She suggested that the research, which is sparse and preliminary, indicated that when funding increased, it was used to increase the numbers of students with, essentially, mild disabilities (ld, for example).

She discussed funding and analysis based on two groups of students: those with severe "obvious" disabilities (severe mental retardation; spina bifida) and those with disabilities that would not be subject to the same criteria in any two districts. (NB - my sense was that she was referring to rather obvious physical disabilities and disabilities which have an objective, physical appearance-type manifestation, such as Down's Syndrome. I'm not sure what this would do or how it would play out for kids with moderate to severe psychiatric disabilities, such as manic depression/bipolar . . . and readers should be sensitive to this distinction/disparity when this issue is addressed in the future).

Connecticut Alternative: ADD & ADHD

I missed Connecticut State Representative Lenny T. Winkler's testimony on "The Connecticut Alternative to addressing issues about ADD and ADHD." The handout noted that she is also an emergency room nurse and would discuss Conn.'s recent statute which "clarifies that parents, not school districts, will have the final say on whether their children take Ritalin and other related medications to control behavior."

It was so hot, I had sweat in my eyes and actually couldn't see her! So I fled to cool off. Mea culpa.

Personal Observations

1. Rev. Floyd Flake (ex-Congressman Floyd Flake, now w/Edison Schools) didn't ask a lot of questions while he was there. Privately, because all the testimony was so professional and nicey-nicey, I asked him if he had/would tell the rest of the Commission privately how poorly concerned, involved, informed parents - like many of his black parishoners in minority neighborhoods in Queens - were treated by NYC Bd. of Ed. special education bureaucrats and staff. He indicated that he had in the past, and would continue to do so in the future. Good! Great!!!

2. Commissioner Adela Acosta went to school for some period of time in New York City. She asked a pointed question or two about how many Hispanic kids were in District 75, and was not happy with the answers she was getting. Good!

3. Generally, many of the Commissioners seemed extremely sympathetic, in private if not necessarily while on the podium, to parents and disabled kids, and were not impressed in any way by what the public schools were doing for disabled kids. All in all, I would say they were pro-parent as a group. I was pleasantly surprised. They also asked rather intelligent, pointed questions of the experts.

4. Commissioner Fletcher was Chair. He had obviously done a tremendous amount of outside reading (as had other Commissioners there) and asked extremely pointed, high level questions to dissect the academic fug and nonsense that professors sometimes exude. Worth hearing!

5. There were sporadic mentions of the fact that school psychologists and people who did special education evaluations within public school systems were not connected to what actually went on in classes in terms of their knowledge or evaluation product. I would hazard a guess that one or two speakers (Ysseldyke, for example) would be just as happy doing away with school psychologists' evaluations in the special education process entirely.

6. All in all, the more qualified the expert speaker, the more likely was s/he to say or do something that indicated that public school special education folk, overall, were not trained and qualified to do what they were expected, minimally, to do. Nobody came out and said it outright, but believe me, it was there, on the table, all the time.

7. Assistant Secretary Pasternack did not seem happy when I suggested that the Commission make sure to call the Office of the Special Prosecutor for the NYC Bd. of Ed., because staff mentioned things like routine falsification of special education documentation.

However, I would not be surprised if other Commissioners actually picked up a phone at some time and called that Office to get a read on what staff thought about NYC's special education documentation and records.

He also didn't seem happy when I noted that although the District 75 profile indicated that only 8% of the S & L therapy services on District 75's kids' IEPs was actually provided, there was reason to believe that the NYC Bd. of Ed. billed Medicaid as though all services on IEPs had been delivered.

About Dee Alpert, Esq.

Dee Estelle Alpert, Esq., is a retired New York City-based attorney who handled cases throughout New York State for over a decade, and acted as consulting counsel in special education cases nationally. She is on the Professional Advisory Board of the Long Island Chapter of the Tourette Syndrome Association.

Dee's first special education due process hearing on behalf of a child lasted twelve days. She quickly realized that these cases require special attorneys with litigation skills. Litigation was sometimes necessary to protect parents and children from a system that seemed designed to deprive them of their most basic rights and dignity.

Currently, Dee is focusing on systemic special education and education issues and tactics, including various inquiries into special education and public school district financial and related corruption. She collaborates with a retired Professor of Education Finance, and has provided consultation to various New York prosecutors and politicians.

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