The Alice Cogswell Anne Sullivan Macy Act (H.R. 1959/ S. 813 in the 117th Congress) seeks to improve K-12 education for blind students, but it focuses on the wrong areas.
I. Establishing the Anne Sullivan Macy Center on Visual Disabilities And Educational Excellence – the apparent gravamen of the Macy Act.i
The key goal of the Macy Act is to create a national program (“the Center”), wherein the Secretary of Education contracts with a consortium of stakeholder groups who will, in turn, use federal funds to research and develop K-12 programming for blind students, establish or fund postsecondary programs for teachers of the blind, and enter agreements with entities (e.g. non-profits, etc.) to carry out those activities.ii The Center’s mission is laudable, as it seeks to increase stakeholder influence and expertise in the public education of blind students. But funding for special education is scarce.iii Any excess monies should go directly to the States that administer K-12 education. Instead, the Macy Act creates work for the few eligible groups that comprise the consortiumiv and will use and control the Center’s funding, only some of which will trickle down to local educational agencies. And importantly, the consortium need not include an agency with a record of sound outcomes for blind students, nor must it include a group comprised of blind people – the very people the Center will benefit.
The consortium must include at least two national non profits with experience publishing and disseminating material for teachers of the blind. The only entities that meet this criteria are affiliated with the American Foundation for the Blind, a major proponent of this bill.
II. Otherwise amending the Individuals with Disabilities Education Act (“IDEA”) – The Macy Act has only mild reforms that could inadvertently cause major problems for blind students.
a. “Visual Disabilities” – a new, undefined term
- The IDEA defines a “child with a disability” to include a child with “visual impairments (including blindness).”v,vi The term “visual disabilities” does not appear anywhere in the IDEA.
- The Macy Act uses the phrase “visual disabilities” at least 40 times to refer to blind students.
- The Problem: a new term that does not align with long-standing and unambiguous definitions could create eligibility disputes or invite States to adopt new, inconsistent classification criteria.
b. “Unique Learning Needs” – an unnecessarily duplicative concept
- The IDEA guarantees that students with disabilities get a wholly individualized education. The Supreme Court has explained: “A focus on the particular child is at the core of the IDEA. The instruction offered must be ‘specially designed’ to meet a child's ‘unique needs’ . . .”vii,viii
- The Macy Act amends the IDEA to require Individualized Education Plan (IEP) teams to evaluate and provide instruction for blind students’ “unique learning needs including needs for instruction which may be needed by students without disabilities or with other disabilities but must be specifically designed . . . to meet the unique learning needs of students with visual disabilities.”
- The Problem: this surplusage is simply unnecessary. Moreover, it might be harmful for blind students without a secondary disability, who often struggle to get equity. The IDEA guarantees an educational benefit, not an equal education.ix Some blind students are denied access to the mainstream curriculum or school because their IEP team decided it was not appropriate. There are procedures to litigate those issues, but the burden is on the blind student to prove that the school violated the IDEA, whereas any other student with similar cognitive abilities would get mainstream access by default. The Macy Act does little more than underscore this dilemma.
c. Braille is Blurred – excess instruction and content added to the Braille Presumption
- The IDEA provides “Special Factors” an IEP team must consider in the case of a blind child. Braille is one of those “Special Factors,” as it is often paramount to a blind student’s success.x That provision is known as the Braille Presumption, because it requires the IEP team to provide a blind student with Braille virtually by default. The IEP team is still permitted to consider any other area of instruction, delivery method, content areas, or services that a blind student might need, pursuant to the IDEA’s general mandate. And the IEP team can still determine Braille is not appropriate. But Braille is “special,” thus the Braille Presumption is powerfully written in unambiguous terms. Accordingly, the current language must be preserved. Indeed, most problems do not arise out of the provision itself but its implementation (e.g. evaluation was biased towards print) or enforcement (e.g. reversing the team’s decision that Braille was not appropriate).
- The Macy Act amends the Braille Presumption so that, in the case of a blind child, the IEP team must provide for instruction in Braille and instruction to meet the child’s “unique learning needs” and instruction in at least nine other content areas.
- The Problem: This new, yet unnecessary (see below) text muddies the clear message and mandate of this provision. It also implies that Braille is distinct from instruction that meets a blind child’s “unique learning needs,” when Braille is precisely the kind of instruction unique to blind students. The cumbersome result under the Macy Act is illustrated here.
BRAILLE PRESUMPTION § 1414(d)(3)(B)(iii)
(iii) in the case of a child who is blind or visually impaired, provide for instruction in Braille and the use of Braille unless the IEP Team determines, after an evaluation of the child's reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the child's future needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not appropriate for the child;
AMENDED BRAILLE PRESUMPTION as proposed by the Macy Act (in bold italic)
(iii) in the case of a child who is blind or visually impaired, provide for instruction in Braille and the use of Braille unless the IEP Team determines, after an evaluation of the child's reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the child's future needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not appropriate for the child; and provide instruction meeting the child’s unique learning needs, including instruction that –
(I) May be needed by students without disabilities or with other disabilities but which shall be specifically designed, modified, or delivered to meet the unique learning needs of students with visual disabilities; and
(II) Includes assistive technology proficiency (inclusive of low vision devices), self-sufficiency and interaction (including orientation and mobility, self-determination, sensory efficiency socialization, recreation and fitness and independent living skills), and age appropriate career education;”
d. Low Vision Technology – over-emphasis on one class of devices
- The IDEA already requires States to evaluate blind students’ needs for any assistive technology device or service, low vision or otherwise.xi It also requires that each State submit a plan showing it has “policies and procedures” to ensure IEPs are developed in accordance that requirement.xii
- The Macy Act would require States to describe, in their annual report to the federal government, the methods used to “properly evaluate students’ need for low vision devices”xiii and the processes used for providing them to blind students for whom such devices are found to be appropriate.
- The Problem: This duplicative language places undue emphasis on low vision devices. Requiring States to describe how they will comply with the law with regard to just a few types of devices will force administrators to develop policies and practices dedicated exclusively to low vision devices. Absent a similar requirement for nonvisual technology, it is unlikely States will bother to develop similar policies and practices for refreshable Braille displays and screen access software with text-to-speech. Given that blind students are often encouraged to use low vision devices when nonvisual technology may be more appropriate, this could cause more harm than good.
III. NOT Amending the IDEA – key issues omitted or ignored in the Macy Act.
The Macy Act offers the opportunity to crystalize proposed reforms years ahead of IDEA reauthorization and then build widespread, longitudinal, and bipartisan consensus. But the bill does not contemplate certain reforms or clarifications that other disability rights advocates might feel are important, such as:
- Students deserve so much more than a de minimus benefit – codifying In Re Endrew F.xiv
- IDEA vs. ADA enforcement – addressing the impact of Fry v. Napoleon Community Schools.xv
- Better reading media assessments – The Macy Act calls for blind students to be evaluated in new areas but does not change what makes an assessment acceptable. The Braille Presumption (see above) requires the IEP team to decide whether Braille is appropriate after an evaluation, but one commonly used assessment is biased towards print and not based on objective evidence.
Note: This analysis focuses only on substantial questions or concerns raised by Title II of the Macy Act, which seeks to improve education for blind students. Minor issues with Title II have been omitted. Likewise, this analysis does not address Title I (improving education for deaf students) or Title III (improving education for deaf-blind students).
The Macy Act should be amended as follows:
Re-think the Anne Sullivan Macy Center on Visual Disabilities and Educational Excellence – the sponsors should omit the section that establishes the Center and proceed only with an advisory panel to assess whatever data is obtained as a result of new reporting requirements from the Macy Act. In its place, they should add provisions to increase federal funding to States and stimulate personnel development for teachers of the blind, just as the bill does for teachers of deaf and deaf-blind students. Or, at the very minimum, the section should be amended:
- to the list of entities eligible for the Center’s consortium, add at least one national nonprofit comprised of blind people;
- to the list of entities eligible for the Center’s consortium, add at least one State or local educational agency with a bona fide record of sound outcomes for blind students to ensure that funding goes directly to those agencies that administer K-12 special education; and
- require that a percentage of funds go directly to State and local educational agencies.
Strike “Visual Disabilities” – the term should be replaced with “blind or visually impaired.”
Strike “Unique Learning Needs” – each part of the Macy Act that requires additional consideration, evaluation, or instruction related to a blind child’s unique learning needs is redundant and unnecessary.
Strike or Expand the Addendum on Low Vision Technology – Section 202 of the Macy Act should be stricken in its entirety, as it places undue emphasis on low vision technology. Or, the section should be amended, so that the new addendum to States’ annual plan instead describes how they evaluate and provide for all assistive technology services, nonvisual, low vision or otherwise.
Consider Other IDEA Reforms. The bill sponsors should consult with the disability rights advocacy community as a whole to determine what other reforms should be added. The Macy Act presents an opportunity to get longitudinal consensus for a substantial IDEA reform bill, long before its reauthorization.
Define Deaf-Blindness and Intervenor Services. The bill sponsors should consult deaf-blind advocates and experts to discern the meaning of these definitions and then codify them in the Macy Act.
WITH THESE CHANGES, THE MACY ACT COULD BE AN EFFECTIVE VEHICLE FOR K-12 REFORM
For more information about the NFB’s position on the Macy Act, please contact:
Stephanie Flynt – Government Affairs Specialist, National Federation of the Blind
410-659-9314, extension 2210
iCompare Section 2(3) (one purpose of the Macy Act is to foster more research on how to improve the special education of students with visual disabilities and methodologies to meet their unique learning needs) with Section 3(9) (before data is ever published, finding a national resource is needed to collect data and supplement the public education of blind students); compare Section 201 (reforming the child-find provisions of the IDEA to ensure greater data on blind students) with Section 214 (the amount of funds appropriated for the Center must be no less than .02 percent of the funds appropriated for grants to States under Part B of the IDEA, which are based, in part, on the number of eligible children identified through child-find); compare Sections 203 and 204 (adding language requiring evaluation for and consideration of instruction to meet a blind child’s “unique learning needs”) with, e.g. Section 211(b)(4) (the Center’s mission is to research, identify, develop and evaluate assessments and interventions for “measuring and addressing unique needs of students with visual disabilities”).
iiSee, e.g., Section 211 (one mission of the Center is to conduct research) and Section 213 (Center’s activities include research); but see Section 215(b) (acknowledging that the Department of Education is already responsible for conducting research).
iiiSee, e.g. Ronald D. Wenkart, An Essay: Unfunded Federal Mandates: The No Child Left Behind Act & The Individuals With Disabilities Education Act, 20 WESTS’S EDUC. L. REV. 461, 462-62 (2005)
iv Section 212(b) (Eligibility) states that a consortium, which will operate the activities and distribute the funds of the Center for Excellence, must be comprised of at least two national non-profits with experience in publishing materials and course curricula for students with visual disabilities and related personnel; at least one national non-profit that may include a special school serving the blind; at least one institution of higher education, and any other entities that they choose to partner with.
v 20 U.S.C. § 1401(3)(A)(i).
vi Accordingly, the provision known as the “Braille Presumption” applies “in the case of a child who is blind or visually impaired.” 20 U.S.C. § 1414(d)(3)(B)(iii).
viiEndrew F. ex. Rel. Joseph F. v. Douglas Cty. School Dist., 137 S.Ct. 988, 999 (2017) (emphasis original) (quoting §§ 1401(29), (14)).
viii Placement is also determined on a case-by-case basis. See 20 U.S.C. § 1412(a)(5) (placement should be in the least restrictive environment to the maximum extent possible for each particular child); 71 Fed. Reg. 46,586 (2006) (“The process for determining the educational placement for children with low-incidence disabilities (including children who are deaf, hard of hearing, or deaf-blind) is the same process used for determining the educational placement for all children with disabilities. That is, each child’s educational placement must be determined on an individual case-by-case basis depending on each child’s unique educational needs and circumstances, rather than by the child’s category of disability, and must be based on the child’s IEP.”
ixSee Board of Educ. of Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. 176 (1982).
xSee Edward C. Bell, Ph.D., et al. Employment Outcomes for Blind & Visually Impaired Adults, 5 JOURNAL OF BLINDNESS INNOVATION & RESEARCH 2 (2015).
xi 20 U.S.C. § 1401(1)(A) (defining an “assistive technology device” to include “any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve functional capabilities of a child with a disability”; § 1414(d)(3)(B)(v) (in the case of a child who is blind or visually impaired, the IEP team must consider “whether the child needs assistive technology devices and services.”); 34 C.F.R. § 300.105(a).
xii 20 U.S.C. § 1412(a).
xiiiSee Section 202.
xivSee, supra, n.6 (137 S. Ct. at 999).
xv 173 S.Ct. 743 (2017).