Jan / 02

How Our Education Laws are Formed and Enforced [IEP 009]

IEPcontent Podcast 2 Comments

In order to understand why our education systems and laws are the way they are, it’s important to explore how they were formed and how they are currently enforced. In this episode, Vickie and I chat about the basics of our federal and state education laws and how the two work together to create your student’s education system.

For full transcript of episode, visit our site at bottom of page.

What You’ll Learn in this Episode:

  • How the US is unique with its federal education system
  • The interaction and connection between State laws and Federal laws
  • The structure of enforcement of Federal laws in the various states
  • How the federal education system protects the right to education for every student
  • What agency is responsible for enforcing education laws in each state
  • Discrimination against students living with disabilities is prohibited in public schools, but what about private schools?
  • What is a SELPA and does your student’s school district have one?
  • How schools are funded, specifically for programs geared towards students with disabilities, and how the monies are spent
  • Are funding laws outdated?
  • The conflicts between State and Federal laws, specifically as they relate to state teacher tenure laws

Resources Mentioned:

US DOE website ? mission statement

Office for Civil Rights website

Department of Justice website

California Department of Education website

Special Education Local Plan Areas (SELPAs)

Legislative Analyst’s Office website

AB 602

Voice of San Diego article ? Maria Srikrishnan, “When it comes to special education in Ca schools, funding is very unequal”

California Brown Act

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IEP website

 Full Show Transcript

Vickie Brett:                      Welcome to the Inclusive Education Project, I’m [Vickie Brett 00:00:09].

Amanda Selogie:              I’m [Amanda Selogie 00:00:10], we’re two civil rights lawyers on a mission to change the conversation about education, civil rights, and modern activism.

Vickie Brett:                      Each week, we’re going to explore new topics which are going to educate and empower others.

Amanda Selogie:              And give them a platform to enact change in education and level the playing field. Hey guys, welcome back, thank you for joining us again, this is Amanda Selogie.

Vickie Brett:                      This is Vickie Brett.

Amanda Selogie:              We hope that you’ve been enjoying the episodes, I hope it’s been some good information that you can learn or share with a friend. If you have been enjoying and you want to make sure to tune in each week and know when the new episode is up, please just make sure to hit the subscribe button, rate us, review us, give us some feedback. We really appreciate the feedback, and really want to be able to make this a beneficial podcast and really educational for all you listeners out there. Today, we’re going to kind of go back to basics a little bit and talk about how our federalized education system essentially works. We’re going to try not to get into too much of the legalese, but essentially talk about, first, how the education laws are formed through the federal and state legislature, second, how the federal and state department of education enforces those laws, and then issues that we see both with the enforcement, funding, and you know just kind of how there’s some conflict sometimes with federal and state laws.

Vickie Brett:                      We are lawyers, but we’re not your lawyers, so that is our little disclaimer at the beginning of this episode. Everything that we are discussing is either part of the federal law, the individuals with disability education act, or within the California department of education created state laws.

Amanda Selogie:              Yeah, we’re going to talk about a lot today, about like what the law says and what should be done, but of course like Vickie said, it’s not legal advice. We in the United States have a federalized education system, which not a lot of countries have. It’s actually really interesting, when I was in law school, I wrote a paper that was published that was on No Child Left Behind, and I essentially analogized how No Child Left Behind, with the practical implications of it, really there’s a lot of unconstitutionality about it, there’s a lot of difficulties, but what was interesting was I presented it at an international education conference, and I had so many people coming up to me from other countries that were just so fascinated by the idea of a federalized education system, because that’s just not something that’s done in a lot of other countries.

We are a little unique to other countries with that respect. The way our federalized system works is we have both the federal and state legislatures that come up with our education laws, of kind of the basics of what the structure of the system is. Under the federal system, like I mentioned, we have the No Child Left Behind Act, and we have the federal education codes. In the states’ levels, like in California, we have the California education code and other various laws that generally tell schools not only how they are to operate, but they are funding statutes. That means that essentially the states and the school districts are agreeing to abide by these laws in exchange for the funding that they receive.

That’s how they receive both the federal and state funded, from taxpayer dollars of course. The state laws a lot of times mirror what the federal laws say, but sometimes they can go, like give even more protections, they can go a little bit further. They can’t go less, but they can go further than that.

Vickie Brett:                      Yeah, so I mean in Arizona, they’re going to have different laws pertaining to certain timelines than California, because the states are their own little laboratories, so we have the federal law that is the guideline, and then the states can kind of do different things, as long as it doesn’t necessarily impede on what the minimum that the federal has imposed. In California, we have mandated timelines for requesting assessments, for when the assessments should be done. An example off the top of my head is the parent asking for an IEP meeting in writing usually, and then that is another timeline. Well, the district should try to coordinate within 30 days from the date of receipt of that request to try to have the IEP.

Different states across the nation don’t have something like that, they might have it less time, they might have it more time, they might not even have a law on the books.

Amanda Selogie:              They might say it’s “what’s reasonable”, which what does that mean?

Vickie Brett:                      Right, whatever is reasonable, and so that is determined by case law, where they’ll have a case law that says 72 days is too long, but there’s no minimum, and so then it just depends where in California, you know we’ll be referencing California law a lot just because that’s where we’re at and that’s the state in which we practice and know the laws just kind of off the top of our head.

Amanda Selogie:              Just to be clear, we are talking about not only special education, but also general education, we have these federal and state laws that kind of govern it. That’s where the system is created, and then when we look at enforcement of these laws, how do we have like this structure? There’s kind of a trickle down effect of how, you know because obviously we have different locales, each state is different, and even in each state, the counties are different, so we start out with the federal US department of education. The US department of education is going to enforce the federal education laws, provide the funding for those laws, provide that funding to the states, and then the states exchange to the school districts.

Like I said, it’s a funding statute, so the enforcement really is, you know, “Hey, you’re getting this funding to operate your schools, so you have to abide by our laws.” In terms of involvement, we look at, there’s different involvement between the state department of education and the federal department. The federal department of education, the USDOE, and like I said, we always do acronyms, so DOE, department of education, their website actually says, “Our mission is to promote student achievement and preparation for global competitiveness by fostering educational excellence and ensuring equal access.”

A lot of our federal education laws are really looking at what we talk about when we look at access to education and non-discrimination. We have a lot of times, looking at just in general at students, and discrimination is not just based on disability, it’s based on sex, gender, and we’ve talked before about like Title Nine and those protections.

Vickie Brett:                      Yeah, and I think the biggest takeaway here is ensuring equal access, right? What does that mean? It always goes back to like what Amanda and I fight for for our kiddos and for all kiddos, is that JFK quote, you guys are going to know it by the time you’re done listening to all of our podcast episodes, it’s like, “Not all of us have equal talents, but all of us should have an equal opportunity to develop those talents,” and that’s just paraphrasing it, because he says it so much nicer. I mean, if we’re sitting here and we’re thinking, “Oh okay, as the US, like we want to foster global competitiveness,” then it’s like, “Okay, well we need to really step back and kind of look.” Is it a problem that it is a federally-funded system, and other countries don’t have that, and so then that’s why they’re able to, you know in Sweden, the kids make their own lunches and they’re learning independence that way, and they’re gardening, and like in Japan there’s differing types of exercising that they’re doing that starts the day with yoga or whatever?

Amanda Selogie:              Well, I mean when I was in undergrad, I was a child development major, and I took several classes on international education and just looking at how different systems work. There are systems in other countries where students have the same teacher from kindergarten through fifth grade, it’s allowing the student to have that recognition, and if a teacher finds a certain technique that works with a kid, they’re really able to individualize and have systems where when they go into high school, they’re technically going to trade schools, they’re already doing what they’re good at. There’s obviously pros and cons to both a federalized system and a non-federalized system, but what’s important to know about our federalized system in America, in the United States, that’s different from other countries, is that we have that equal access, that every child in America is entitled to a constitutional right to an education.

Without a federalized system that protects that right, we would have states that would try to discriminate and not allow students. I mean, even back before some of our special education laws came about, we had students that were being denied access to schools simply because they had a disability. There are a lot of critiques that we can make, and I will always make them about our federal education system, but a lot of times the critiques and what the problems come from is not the federalized system in general, but how it’s being implemented and the oversight, which we’ll get to at the end of this podcast.

The federal department of education has different sectors that handle certain aspects of that federalized education system, so we have the office of civil rights that handles discrimination claims, we have the department of justice that handles that equal access. Jumping into California, we have, or each state has their own state department of education, so in California it’s CDE, or California department of education, which again, is responsible for enforcing those state laws, they’re going to receive funding similar to the federal department of education, and they have involvement that’s very similar as well.

Vickie Brett:                      Right, so if you’re a public school, and that’s part of FAPE, free appropriate public education, you are a public school, you are receiving federally mandated funding, and so you are not able to discriminate against children. Now, the rub is if you are a private school, it’s not like, “Oh, you can just discriminate against kids,” that’s what people think they hear us saying, and that’s not what we say when we’re talking about private schools, and like where a Betsy DeVos would go with the voucher system, we’re talking about what the office of civil rights is handling, that discrimination against race, gender, and disability, where I’m a particular type of private school and I don’t have the capability to handle children with autism, so I’m not allowing them to enroll into my private university.

Obviously this is speaking very generally, like I’m not saying that this happens, but as an illustrative hypothetical, you know that seems to be the fear with going to the voucher system, because they’re not getting federal funding. Some of them do, there’s like little, it’s like we can get into it, there’s nuances, yeah.

Amanda Selogie:              There’s nuances, but the idea is that it’s that funding statute, that it’s an exchange. You have to abide by these laws because you are receiving funding. Now, there are some laws that everyone has to abide by, obviously the Americans With Disabilities Act, Section 504 of the Rehabilitation Act, and there are some laws that do pertain to private schools, but in general, it’s more of it’s the public education system that’s being implemented through the federal and state education system. Going a little bit further down the rabbit hole from the state department of education, we then have what are called SELPAs, or special education local plan areas.

That’s something that in California we have essentially is overseeing a specific sector of school districts. Some larger school districts have their own SELPA, for instance, Los Angeles unified school district is one of the largest school districts in the nation, they’re their own SELPA, but we have some school districts that are very small that only have a couple of schools, and so essentially what the department of education has done is created these SELPAs that oversee the special education aspect of some of these smaller districts. For instance, we might have a small school district that they only have maybe one or two schools, like an elementary school and then like a middle school/high school, so essentially one for each grade level, and that school district is so small, and this is sometimes in the rural areas, that they don’t have an occupational therapist, but the SELPA does.

The SELPA would assist with any specialized services that the school district is unable to handle, and sometimes they do like the coordinating, so they’re kind of overseeing. Then we also have our local departments of education. We’re located in Orange county, so we have the Orange county department of education, and that governs the school districts with regards to general education, and also some special education for all the school districts that are located within Orange county, and same goes for all the counties across the state. It’s kind of breaking up that enforcement, it allows someone … The idea of kind of how this was broken down to begin with was that someone at a more local level is able to handle disputes or conflicts or complaints at a better rate. Unfortunately, sometimes we’re seeing that like the district itself is the problem, and so even going to the highest up in the district isn’t getting us anywhere.

Vickie Brett:                      We’re always about information data, so the legislative analyst office, they’re the numbers people. It’s interesting because we always talk about the budget and what it looks like and how are we providing for these children with special needs or otherwise, and what is surprising is that 60% of special education funding actually comes from local contributions. When you’re in a wealthier district and there’s more money kind of going back into the school, like that’s jarring, you wouldn’t think like, “Oh my gosh, 60%?”, but that’s what the California legislative analyst office has revealed, but there could be various reasons, because that SPED money was being moved around, and so then not all of it was being used appropriately from year to year or whatnot, because we usually like to say that when the districts try to pin general education parents against special education parents, it’s mostly like, “Oh, it’s a money issue, we can’t [crosstalk 00:14:49] it because it’s money.”

Amanda Selogie:              That’s where some difficulties with enforcement come about, because a lot of the department of education has left a lot to the school districts, especially in California, where the school district’s governing body has so much control over their own budget that it almost becomes something where there’s specific money that’s set aside for special education and specific money that’s set aside for general education, but what happens is, these school districts, they pool all the money into a general fund that gets used here and there. It’s difficult, because administrators can then use that money for whatever they want and get their board to approve, and that does harm students.

When a general education parent is concerned, like okay, this child with autism is going to need all these services, so it’s going to take money out of my kid’s pocket, but that’s not true. It’s separate money from the state and federal government that’s allocated specifically for students that are on IEPs and students that are not, and so it’s supposed to be completely separate, but actuality and practicality, it’s kind of combined. What’s shocking to us is a lot of people don’t realize that there is a lot of money in education, it’s just not being used appropriately. Teachers are not getting paid what they should, the money is not going into the classrooms. That’s why we see all these teachers who have to spend all their own money on supplies, but then you go and look, and I will encourage you to go look at your local school districts, it’s public record how much your administrators make, your superintendents, and you’d be surprised on just how much administrators make, and then they get pensions after only being sometimes with the school district for like 20 years.

The money is there, it’s just not being allocated the right way, because we have administrators who are allowed to set their own budget, move around money, and it’s essentially going into their own pockets, unfortunately. It’s a difficult thing for some people to grasp, but you know we’ve looked at transcripts from school board meetings where the superintendent or the president of the board has actually told their constituents that, “Oh, we’ve saved $100,000 on special education this year, we did such a good job. What should we spend the money on?” Then they decide to put the money towards a new swimming pool or a jumbotron, and what does that mean when they save that money? I mean, it means that certain kids are not getting the services that they need.

Vickie Brett:                      Yeah, I mean and if you think about the funding and the way that it’s been distributed, it was like AB602, which was passed in ’98, so we have numbers of, so that 40% that comes from the state, that funding came from AB602, California constituents passed. Basically when you have that budget being created in the 90s and it not necessarily increasing over time, and this is why we feel it’s important to have the right people in the state and federal government positions, because if you don’t understand that, “Oh wow, we created that budget for SPED kids back in ’98, and it’s almost 2018,” then you don’t understand that with more children with different disabilities, like you’re going to want to pay the right people, the teachers, the personnel, the support staff, the specialists, but it hasn’t been increasing as the same rate as you would want money or general fund amounts.

You always see that every time you go to the local elections, is there’s always like, “We need more money, the schools need more money.” Well, it’s not necessarily going to special education students, it’s going to the general fund for the entire district or for the entire city that you are in.

Amanda Selogie:              It’s important to remember that when we talk about like kids now maybe need more, it’s not necessarily that they need more, but you know back when the IDEA, the Individuals with Disabilities Education Act, came about, it was thought that a lot of these students with disabilities either shouldn’t go to school or should be segregated in the classroom. If you have 20 students and you only have one teacher and certain services being provided in that classroom, it’s going to cost a lot less than if that child was going to be integrated. We are focusing so much more on inclusion, which we talked about, and back then things didn’t cost the same, like Vickie said, but also the techniques of what we’re doing to help these kids, of just how much we’ve learned about the brain and brain development and how we can help these kids become full-fledged functioning members of society and contributing to society, there’s a lot more that we can do.

Because it was thought of before that there was only so much we could do, so we didn’t spend as much money, versus now, there are techniques that we can use and that we should be using, you know that’s what increases it sometimes too.

Vickie Brett:                      Right, and I’m getting a lot of my information about how funding is unequal from a really great article that was written earlier this year in the Voice of San Diego, and it was by Maya, and I’m going to mess up her last name, Srikrishnan, it’s S-R-I-K-R-I-S-H-N-A-N. I’m sorry, I said it was in May, it was actually in August, so it was only a couple months ago, and the title is When it Comes to Special Education in California Schools, Funding is Very Unequal. It’s a great article, you should read into it, but that’s where I was kind of pulling that the funding was created in the 90s, the actual law that was passed, and what the legislative analyst office has been seeing.

Because overall an increase in special education students being enrolled in schools has been on the rise, but overall enrollment of just general students has been decreasing, so like the funding for special education children has kind of increased, it’s just not at the same rate as the general funding that has been increased over the years to adjust for costs of living. Yeah, getting kind of into the numbers of it, you know everybody is going to have their opinion, everybody’s going to have numbers on it, that’s our understanding, those are our opinions of course. Obviously where I’m pulling from is from an article that is outside of ourselves, so those are just facts, that those types of things from the legislative analyst office are being looked into.

It’s all available online, you can go into the California department of education website and they will direct you to all these different links with all this different funding for people.

Amanda Selogie:              Yeah, and we encourage you to go to your local school district. They have board meetings, and there is an act called the Brown Act in California that requires governmental entities, when they hold meetings, to provide notice of the meetings with agendas and allow for the public not only to attend, but know about it in advance and know what’s going to be covered so that they can go. School district boards are required to abide by the Brown Act, so whenever they have any type of board meeting or meeting where they’re making any decisions, they are required to abide by that, so give you notice, and not only notice of the meeting, but what it’s going to cover, so that you can be prepared to address any concerns that you have, so also anything that is pertinent that gets discussed at those meetings is also something that’s public knowledge, that as a governmental entity, you do have the right to know what your school district is doing, what the board is doing.

We kind of talked about conflicts with funding. The other conflicts that we have with enforcement, not just dealing with the idea that we now have local entities enforcing something that really should be left to the department of education, but there’s sometimes conflicts between these state laws and the federal laws. One thing that is in No Child Left Behind, like a specific example I’ll give you, No Child Left Behind has these sections that pertain to teacher qualifications, that we should have highly qualified teachers teaching our students. It’s a great thing, right? We want that, but what’s the implication of that statute?

Well, a lot of our states, California included, has what’s called tenure laws, requiring school districts to provide certain protections to teachers when they’ve kind of had that loyalty, they’ve been there for a good amount of time. Essentially, the tenure laws prohibit schools from firing teachers for a lot of reasons, so we have teachers that are being protected. Keep in mind, we believe very strongly that good teachers should stay where they are and should have protections, but what happens is we have teachers that have outdated techniques who are not doing their job effectively, and would not qualify under the federal standards of a highly qualified teacher, but they’re not legally allowed to be fired under the state laws.

We have that conflicting push and pull of … One thing that came about in the last year or two is there have been a number of states in the country that have challenged their tenure laws as being unconstitutional because they come in conflict with the federal laws and also really hurt our students. California has not challenged it yet, but from what I’ve heard, it’s something on the purview, it’s something that’s coming.

Vickie Brett:                      Listen, baby boomers, we’re not coming after you, we’re not saying that you’re not doing your job effectively or anything like that. We’re just saying that whether they have been a teacher for many years or been a teacher for one year, I know we’re talking specifically about tenure, but we’re just making a general statement to what the law actually says about highly skilled, and you know it might just be a minimum, but I can’t tell you how many times I’ve gone into IEP meetings and they’re like, “Well, the kid’s just lazy.” It’s like, the kid’s not lazy, the child literally has an auditory processing deficit, and if you would have just given him a copy of your notes, he would have understood everything that you were saying, but because you said it all verbally and he has an issue with processing things that are said aloud, not that he can’t hear, that’s different, he’s just having a hard time processing the information like you or I would process information, those are the types of teachers that we are talking about.

Listen, my dad’s, his whole side of his family, they’re all teachers and educators in different areas up north, in Texas, like believe me, I get it at Thanksgiving and at Christmas every year like, “You’re an attorney and you are trying to get us.” I’m like, “No, I’m trying to help you if anything, I’m trying to be sure that the child with behavioral issues in your classroom actually has aid support so that he can still learn and not be a thorn in your side because you have 30 other kids in your classroom that you’re attending to.”

Amanda Selogie:              I saw a trend a couple of years back of, you know there was a shortage of teacher jobs and there were a lot of teachers getting pink slips, and what we saw was like a lot of the newer teachers are the ones that were being let go because there were so many teachers that had tenure that could not be fired. Unfortunately, some of our newer teachers have these new techniques, and there are a lot of teachers who have been around for a long time who are very ready to learn and get the new techniques and really learn about our different types of kiddos, but then there are some that are not. It’s really difficult if we have, say, a child who could benefit from being fully included and being put into a general education class, but that general education teacher has a misconception about disabilities that they don’t even want to try to learn how to educate this child.

That’s kind of what we’re talking about in terms of … Look, we talk about this from time to time, but I mean we know that there’s a roomful of teachers in each district, I mean LA is one of the bigger ones, where there are teachers who are not allowed to be in a classroom for one reason or another, but they’re not allowed to be fired because they’re tenured, so they go to the district office every day to show up, and they don’t teach. That’s unacceptable, because we’re spending so much of our taxpayer dollars on their salaries, instead of hiring good teachers that we know are out there, and encouraging our good teachers that are already there, giving them higher salaries, giving them more supports and tools.

When we talk about like, that’s a challenge, is that in conflict between the federal and state laws, and you know we could say that the fact that it’s a federalized system is the cause of that, but I mean I will always be very clear on my position of No Child Left Behind, it is not a good law. It was not a good law because the way that congress passed it, and the president at the time, President Bush, who passed it, there was a lot of inconsistencies, and sometimes that’s what happens with laws, and then we have these implications that the purpose behind the law and what was intended was good and would have been good for a federalized system if it could be implemented the right way.

Vickie Brett:                      I think that that’s just the issue in general with the law is slow to change, and that’s why we have jobs as attorneys in the area of special education, the implementation just even from the head of the director of special education down to the teacher that is teaching in the actual classroom, like something gets lost in translation. That’s why IEP meetings are important, you know you get to know your teachers, your administrative staff, the principal, the vice principal, whoever is there on behalf of the district or the district program coordinator, is to get them on the same page. You’re not asking for the world, you’re just really asking for whatever is appropriate for your child.

As long as everybody kind of understands your child’s needs and why they are unique and why your child needs X, Y, and Z, there shouldn’t be any problems, there shouldn’t be that enforcement problem or implementation problem, because everybody’s just like, “Yeah, the kid needs it, so this is why we need to have it.” That’s what our job is. Obviously we always fight about what is appropriate in free appropriate public education, but that’s part of the problem with the enforcement, implementation of the laws as they stand. A lot of law talk, that was a pretty heavy episode on laws.

Amanda Selogie:              Yeah, I mean it’s intended to kind of give you I guess like a looking glass overview of what it means to have a federalized education system and how it kind of breaks down, and what’s currently happening, and so as we always like to say, calls to action of what you can do. If you’re not satisfied with the way that your school district is operating, or you just want to find out more about how they’re using their funds and whether or not you can get involved, it’s really important, number one, go to your school board meetings. If you’re someone who really wants to get involved, run for your school board. Local elections are very important too, so local elections almost all the time have school district representative, school board members being elected.

If you feel that they’re abusing their power, you know run for office, or encourage someone that you know that has experience running for that position. More importantly, you know we encourage parents to go to the board meetings if you have a concern, because that is their job. Their job is there to listen to, I mean essentially their constituents are the parents in their school district, you know so we encourage you to go out and find out more about your local school district and speak up if you feel something is not right.

Vickie Brett:                      Exactly. That was a good episode.

Amanda Selogie:              Yeah, so continue to educate and empower for equal opportunities, or the three E’s, like I like to call it.

Vickie Brett:                      If that’s how you’re going to end it, that’s how you’re going to end it, I can’t stop you from doing that, but we encourage you to leave a comment about our episode or to share with a friend. We’re really excited and grateful for the opportunity to have you listen to us discuss these topics, and give you kind of some food for thought. We hope you guys enjoy the rest of your morning, evening, afternoon, whenever you’re listening to this, and tune in next week.

Amanda Selogie:              Bye.

Vickie Brett:                      Bye.

  • I loved this episode, especially the distinctions between what ideally should be happening and what is actually happening. I noticed that you talked a lot about No Child Left Behind, so I was wondering if you could possibly address the recent Every Student Succeeds Act that is set to replace NCLB and what changes we could see in education and specifically special education as this new act is implemented at the state level. Thanks!!

    • Thank you for the comment! Yes, we are in the process of learning more about ESSA and the new proposed legislation and will be adding a few episodes to address!

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