Fix or buy new?
How should US educators respond to problems with special education?
Editor’s note: I welcome this essay from James M. Kauffman, Professor Emeritus at the University of Virginia. Jim sent it to me in the spring or 2024 and, after multiple interruptions, we agreed that I should publish this version. In his essay, Jim argued that the rationale for and the proposal to roll special education into general education laws are mistaken.—JohnL
For decades, some people (e.g., Burrello et al., 2013) have said that special education law is broken and we should replace it with a new one that will work better. I and others have argued that if it is broken, it can be fixed and revitalized (e.g., Kauffman, 2022). In two articles (Taylor & Sailor, 2024; Taylor et al., 2024), Juli Taylor, Wayne Sailor, William Proffitt, and Jake Cornett recommend discarding the current law and buying into a new one. Although they discuss other matters, too, I address just their conclusion that the current special education law should be cast aside and replaced by a new one.
Current federal law began in 1975 as the Education for All Handicapped Children Act (EAHCA or Public Law 94-142, now the Individuals with Disabilities Education Improvement Act—IDEA 2004). Taylor and colleagues argued that IDEA should not be reauthorized because special education is broken beyond repair. It should be replaced, they contend, by a federal title program.
“Title program” is hard to define (try searching the Web for what it means). In legislation, laws have subsections that are sometimes called “titles.” “Title IX,” for example, refers to a subpart of the US Education Amendments that prohibited discrimination in education on the basis of sex. “Title I” refers to a section of US education law (especially the Elementary and Secondary Education Act) that provides for improvement of the academic achievement of disadvantaged students. Taylor and colleagues suggested replacing special education law with a section of law under ESEA—a “title”—that would provide for students with disabilities.
The most important thing to consider is the features a new title program would have—just how it would differ from the current law (IDEA 2004). Taylor et al.’s proposed title program would have just 3 main features, the first of which they describe as a “whole school/whole child” approach. They say that “... specialized supports and services can be utilized when warranted for students in a variety of school settings, including the general education classroom ... and are no longer a justifiable basis for segregating students.” (p. 131). Except for “justifiable basis for segregating students,” that is precisely what current law calls for in its requirements of a continuum of alternative placements (CAP) and least restrictive environment (LRE). So, at least in part, Taylor and colleagues dress up the old law as something new. However, the proposed title has no CAP or LRE mandate, nor does it include the requirement of an individual education program (IEP).
Not segregating students implies full inclusion
If “segregating students” means educating them anywhere outside the general education classroom, then it contradicts the statement “in a variety of school settings.” And calling instruction outside the general education classroom “segregated” hints at an analogy between color or heritage and disability for purposes of education. This is a misleading comparison (see Harden, 2021). Taylor and colleagues have made a veiled call for full inclusion, the elimination of all options to general education. Moreover, their proposed title program weakens the legal mandates for the education of students with special educational needs and disabilities.
Part of the reason one can conclude they are calling for full inclusion is found in the nature of their argument. In the course of their argument, Taylor et al. cited Cornett and Knackstedt (2020), who called the EAHCA of 1975 an “original sin” of public education policy regarding students with disabilities. Chief among these sins, Cornett and Knackstet say, is segregation of individuals with disabilities, not demanding full inclusion.
But we must consider carefully the other features of the proposed revision of laws. The first feature of the proposed title program is followed by two additional features of dubious meaning and quality for special education. The second feature is multi-tiered systems of support (MTSS), and the third is universal design for learning (UDL).
Implications of MTSS and UDL for special education
MTSS is designed primarily for the improvement of general education, and its relationship to special education has never been fully explained, although some researchers and writers seem to suggest that it can make general education responsible for all students. Usually, MTSS has 3 or 4 tiers. In a 3-tiered system, Tier 1 is good, evidence-based instruction; Tier 2 is more intensive instruction designed for those who are not succeeding in Tier 1; Tier 3 is even more intensive instruction for those who are unsuccessful in Tier 2. Adding a fourth tier is optional and follows the same basic logic. Students may move up or down the tiers at any time, depending on their success or failure in a given tier. How this is coordinated with the requirements and legal protections of IDEA has not, to my knowledge, been explained.
UDL began as an architectural-design feature in which the design of buildings and gadgets would make them useable by the greatest possible number of people, including those with disabilities. Then, others extended the idea of universal design to teaching and learning (hence, universal design for learning or UDL). Carefully evaluating how each feature is related to special education is critical.
Wiley and David (2024) have explained the serious limitations of MTSS for children with special educational needs and disabilities. UDL has critical weakness in its conceptual foundations. It is an extension of the concept of universal design in buildings and gadgets that has weak support from research. UDL is “not ready for prime time,” not a reliable tool for educators, particularly not for the education of all children with special educational needs or disabilities.
What is broken about special education?
Special education can be called “broken,” in that some practitioners, leaders, and policy interpreters have lost sight of the importance of science, sound logical thinking, and the creation and consistent use of specialized instruction for students with special educational needs and disabilities. These problems can and should be repaired.
I believe the conceptualizers or architects of EAHCA got things essentially right, that the law is neither an original sin nor deeply flawed. We know little about how the proposed policy would work. It has not been tested as a replacement for special education’s current policy (IDEA, 2004), and such tryout would have tragic consequences for millions of students whose needs would have but little legal protection. The fact that other federal title policies have not solved special education’s problems does not inspire confidence in making special education a title program.
Hornby and his colleagues (e.g., Hornby, 2014; Hornby & Kauffman, 2023; Gordon-Gould & Hornby, 2023) have been pointing out for more than a decade that full inclusion is supported by neither careful thinking nor research, although its proponents often make the claim that it is. Furthermore, Hornby has explained his concept of “inclusive special education.” He has carefully articulated how we do not have to choose between full inclusion and the continuation of special education. The proponents of full inclusion set up a false dichotomy by insisting that “all means all,” which is unnecessarily restrictive of choices that must be made for ensuring the best or most appropriate education of all children, including all of those with special educational needs or disabilities.
Others may disagree, but I think that both the weight of the evidence and the best of our critical thinking lead to the conclusion that we should revitalize the old law, not buy a new one. Furthermore, Taylor colleague’s suggestion that “Educational reform will need to seriously consider the free market side of the equation” (2024, p. 131) is chilling in its implication that we should try to have special education on the cheap rather than make it better with what we have. We should strive to do the best we can for young people with special educational needs and disabilities by repairing what we have had since 1975.
References
Burrello, L. C., Sailor, W., & Kleinhammer-Tramill,, J. (Eds.). (2013). Unifying educational systems: Leadership and policy perspectives. Routledge.
Cornett, J., & Knackstedt, K. M. (2020. Original sin(s): Lessons from the US model of special education and opportunity for leaders. Journal of Educational Administration, 58(5), 507-530. https://dx.doi.org/10.1108/JEA-10-2019-0175
Gordon-Gould, P., & Hornby, G. (2023). Inclusion at the crossroads: Exploring effective special needs provision in global contexts. Routledge.
Harden, K P. (2021). The genetic lottery: Why DNA matters for social equality. Princeton University Press.
Hornby, G. (2014). Inclusive special education: Evidence-based practices for children with special needs and disabilities. Springer.
Hornby, G., & Kauffman, J. M. (2023). Special education's zombies and their consequences. Support for Learning, 38(3), 135-145. https://doi.org/10.1111/1467-9604.12451
Kauffman, J. M. (Ed). (2022). Revitalizing special education: Revolution, devolution, and evolution. Emerald.
Taylor, J. L., Proffitt, W. A., Cornett, J., & Sailor, W. (2024). Unintended Consequences of special education and consideration of change. The Journal of Special Education, https://doi.org/10.1177/00224669241256959
Taylor, J. L., & Sailor, W. (2024). A case for systems change in special education. Remedial and Special Education, 45(2), 125-135. https://doi.org/10.1177/07419325231181385
Wiley, A. L., & David, D. (2024). Multi-tiered systems of support in special education reform: A critical appraisal. In J. M. Kauffman, D. P. Hallahan, & P. C. Pullen (Eds.), Handbook of special education (3rd ed., pp. 23-38). Routledge.