Future Reflections         Summer 2011

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Is the Law on Our Side?

A Conversation between Dr. Frederic Schroeder and Dr. Adrienne Asch

From the Editor: Dr. Fred Schroeder is the first vice president of the National Federation of the Blind and a research professor at San Diego State University. Over the years he has taught blind children, directed special education programs, and helped to shape education policy at the national level. At the 2010 NFB National Convention, Dr. Schroeder addressed a group of parents of blind children regarding advocacy and the law. He pointed out drawbacks with the Individuals with Disabilities Education Act (IDEA) and explained that in significant ways the law is not on the side of blind children and their parents (see "How to Tell Time at Sea," by Dr. Fred Schroeder, Future Reflections, Vol. 29, No. 1).

Dr. Adrienne Asch is a longtime activist in the field of disability rights and currently serves as director of the Center for Ethics at Yeshiva University in New York. Both Dr. Schroeder and Dr. Asch hold the highest expectations for blind children and care passionately about their education, but they have somewhat different views about the strengths and weaknesses of IDEA. To explore how their ideas differ and where they overlap, they agreed to hold a conversation and share their thoughts with the readers of Future Reflections.

Fred Schroeder: In my opinion, the greatest strength of IDEA is also its greatest weakness--that is, the concept of an individualized education plan to educate an individual child. When you start with the premise that you're going to individualize a child's educational program, in a way you're starting with a blank slate. You're beginning with no expectations whatsoever. You take away all of the assumptions about learning that are a given for a nondisabled child. Then, having taken out all those assumptions, you put back this piece and that piece, and you end up with a program that is often less demanding than that designed for other children. The law reinforces the assumption that kids with disabilities cannot learn as much or as well or as quickly as nondisabled kids.

The model under IDEA is what I call a "progress model." To use the language from a Supreme Court decision, the standard is that the service must "confer some educational benefit." In other words, as long as the child is learning, there is essentially no expectation that the child will learn at a given pace. The standard is simply that the child should be doing better than he did last year or the year before. For example, if a blind third-grader is reading Braille at a first-grade level, and by fourth grade is reading at a second-grade level, the assumption is that the child is progressing as quickly as he or she is able. The system is not required to show that the child is progressing at a rate that makes sense, given the child's overall ability. The measure is only whether the child is doing better.

This is certainly an oversimplification; there are many permutations to this thinking. But this is why I tell parents, "You must hold fast on getting into the IEP [Individualized Education Program] the things you believe are in your child's best interest. You must recognize that the school has a vested interest in keeping the services and the accountability as low as possible. The school doesn't want to come up short at the end of the process."

School districts are great at providing what they have available to provide. If your child needs something that is not easily provided within the school's infrastructure, the school officials will fight to avoid providing it. If your child needs an hour a day of Braille instruction, and the school doesn't have a teacher with that amount of time in his or her schedule, the chances are very low that the school will agree to put that amount of Braille instruction into the IEP.

High Expectations

Adrienne Asch: I certainly see your point that the individual school wants to do what it is set up to do. It's going to fight not to do anything it feels it's not set up to do. As I read the law, though, I find that right up front it talks about high expectations for children with disabilities. The law states that those high expectations haven't been met, and the amendments to IDEA try to deal with that. Obviously the devil is in the details, but it's important to remember that the phrase about high expectations is in the law. I think it gives parents something to batter the school district with when the district says, "Your kid is progressing and we can't expect anything more than that."

The IEP is not about what the child should be learning per se. It's supposed to be about the aids and services that supplement what is going on in the classroom. It's not about whether the child is supposed to learn third-grade material. If the child is in third grade, then it's a given that the child is supposed to learn third-grade material. If the school puts into an IEP that they only expect a blind third-grader to be reading at a first-grade level, that's not the fault of the law. It's the fault of an insidious interpretation of the law.

Fred Schroeder: I agree that the intent of the law is subverted in these cases. The schools will say that if a child has a significant disability, and the child is eight years old, the child will not be doing conventional third-grade work. This idea may be rooted in work with kids who have cognitive disabilities, but it spills over to blind kids. The school will say, "Sure, we want your child to perform at grade level, but you have to understand that he has a lot of special needs. It isn't realistic to have that expectation for your blind child." A lot of special educators play into this kind of thinking.

I'm not necessarily critical of the law itself, but the law has to be implemented. If the law is routinely implemented in a way that is less than desirable, it's logical to say, "Let's find ways to tighten the law."

Adrienne Asch: One of the things that got us into this conversation was the question of whether the law is on the side of high expectations for the child. As I read the law, it is. It's true that the court made a terrible decision a number of years ago in the Rowley case, when it ruled that the school didn't have to provide an interpreter for a deaf child since she was getting by without one. Still, it's my impression that since then the Supreme Court has been somewhat better about educational services for kids with disabilities. We haven't had a blindness case go to court, but it's not clear to me that the court would say a child doesn't need Braille if the child can squint and read print at fifteen words a minute.

Fred Schroeder: Yes, there is language in the law that talks about high expectations. But realistically, the way it works is that the child is assessed and his or her needs are identified through the assessment process. Then interventions are identified and services are provided. I tell parents, "You have to be very clear about what you want, and you have to be assertive about trying to get it." Also, parents have to recognize that special education is often a resource issue for the school district. Funds are tight, and schools don't want to spend money on things like Braille and O&M.

The Burden of Proof

Fred Schroeder: To go back to what you said a moment ago, I don't think the court would necessarily agree to Braille, even if a child with low vision is reading print at fifteen words a minute. I don't think the court would go with us because I don't think the relative effectiveness of print or Braille for the child is the question that would get before the court. It goes back to the concept of Braille being a special education service. The court would look at whether the IEP process was followed the way the law prescribes. There would have to be an assessment of the child's reading and writing needs, and if the IEP team determined that Braille was not needed after going through the correct process to reach that determination, I think the court would uphold the team's decision.

Adrienne Asch: Then the issue is, what is the correct process? It seems to me that the law could be written more clearly to say that a child with a disability should be presumed to be at the same grade level and to have the same academic ability as a child without a disability, unless proven otherwise. The burden of proof should be on the school and the assessors to show why the child is not able to do grade level work. Even though the IEP process is supposed to be about aids and services supplemental to the regular education program, it's not explicitly clear that the law makes that assumption. If we go back and do amendments, we should put that into the law if it's not there already. It might help the parent say, "Prove to me why my child can't do fifth-grade work if he or she is in the fifth grade. That's the expectation you have for the other twenty-nine children in the class, so have it for my child, too." The IEP should be about providing services to enable the fifth-grade child to do fifth-grade work, not to do third-grade work.

Fred Schroeder: I agree with you entirely. Here, however, is what I think you would get back. Part of the testing that is done on a child in special education is intelligence testing. Another major area is achievement testing. The intelligence testing is supposed to measure the child's ability, and the achievement testing asks where the child is functioning right now.

Well, no instrument for measuring intelligence has been validated for blind kids. There probably never will be such a test because the population is too small for a test to be validated. Back in the 1980s the Perkins School modified the Stanford-Binet and put out what they called the Perkins-Binet. It included tactile graphics to represent the visual portions of the Stanford-Binet, but it was never validated. Another tool that is still often used is the the Wechsler Intelligence Scale for Children, the WISC. With blind kids they give the verbal portion only. It isn't the complete test. An underlying premise of intelligence testing is that the results fall on a normal bell curve, and you'll get that curve if you test enough people. But you just don't have enough people when you're dealing with blind kids.

If you say that you have to assume that a blind child should be on grade level unless proven otherwise, you run into a problem. There is no instrument to prove what the child's intellectual capacity really is. What you're left with is achievement testing. I say that little Johnny should be assumed to be doing fifth grade work because he's in fifth grade. But the school points to an achievement test that places him at the third-grade level. Then where are we?

A Broader Perspective

Adrienne Asch: If schools were doing their job for all sorts of kids--kids with limited English proficiency, kids with learning disabilities--the school would assess each child in multiple ways. Schools aren't doing a good job assessing anyone, including blind kids. Kids aren't being assessed well, and they aren't being helped. The problems that we see for blind kids in the public schools are the things that are wrong for everybody. Schools say that a child isn't achieving, but they don't look at all the things the child is doing outside of the classroom that show intelligence and flexibility. They need to find ways to bring those characteristics into the school setting. We should team up with the progressive forces in public school reform. To make the schools better for blind kids, we need to make them better for all children.

In spite of the problems, some blind kids are getting the things they need in public school, and they're doing well. We need to look at the kids who are successful and find out what makes the difference for them. We need to spend much more time studying those kids, understanding what has worked for them, without giving up on what the public schools and the law have to offer. Going back to segregated education isn't the solution; the solution is to make integrated education work well for everyone.

I'd like to see us in the Federation do serious research with our scholarship winners. We should find out how they got what they needed in school. How did they make friends? How did they get reading skills? What worked and what didn't work? If they can do it, then everybody else can, too.

Fred Schroeder: I don't mean to imply that I'm giving up on the law. But the law doesn't make the schools have high expectations, even though that's its objective. My message to parents is to start with the premise that your child is going to be on grade level and push the school district to provide the services your child needs.

When I ran a special education program, I was criticized by the state department of education. For our kids we had the overarching goal on the IEP that "Johnny will function at or above grade level in all academic subjects." Then we got into the details about what services Johnny needed to make that happen. The state said, "You can't have that as an overarching goal. It has to be an individualized goal for each child." For goodness sake! Even today they do a kind of full task analysis so everything is measurable. Your child will learn to identify thirty Braille contractions with 80 percent accuracy, that kind of thing. It's very hard to push the system to support high expectations. Part of it is attitudinal and part of it is about resources.

Adrienne Asch: I think it's very important to say that the law has tools in it that parents can use. The law is on the side of parents if they know how to use it.

What Parents Need to Know

Fred Schroeder: Yes. I agree--if parents understand what the law can do for them and what it won't do for them. I'm saying to parents, "You've got to be an advocate. You've got to go out and meet blind people and understand what the future can be for your child, and then you need to be assertive to make sure your child gets the services he or she needs in order to reach that expectation."

Adrienne Asch: If I were going out to parents, that's what I would be saying, too. It sounds as though you think perhaps you've oversimplified a bit, and you could be more positive about the tools the law has in it as well as what it won't do. Then we might not have any disagreement at all.

Fred Schroeder: I'm not bashing the law as much as I'm telling parents they have to be really assertive. I'm not pushing any kind of placement, either schools for the blind or public schools. A parent has to pick whatever seems best for their child. I'm not pushing a placement concept as much as the whole notion of expectations and not letting your child be sold short.

Adrienne Asch: It seems to me we should be saying to parents that the school has the burden of proof to show why your child can't be on grade level. The services you want for your child are the services to keep your child on grade level or above. An hour of Braille a day is not a good way to think about it. The child needs to learn enough Braille to read in Braille what his or her classmates are reading in print. Maybe it's an hour a day, maybe it's three hours, maybe it's an hour a week with a lot of practice and having all their books in Braille.

Working toward the Goal

Fred Schroeder: Yes, but when you're sitting there filling out the IEP form, part of what is identified is the amount of service. It gets quantified in minutes. If a school says, "Your child will get fifteen minutes of Braille twice a week," that's what the child gets.

Adrienne Asch: But the amount of service could be, "The child must do the classwork using Braille texts." It could be written that way.

Fred Schroeder: I'm all for it. But I don't think most school districts would agree. When I was in graduate school I remember hearing that in a regular ed class only 17 percent of the kids are at grade level. The rest are above or below. So you get the argument from the school, "We don't ensure that a child without a disability is on grade level. It's a goal, but many children are behind, for a variety of reasons." You get into a lot of nebulous areas, and in the end there is no expectation.

Adrienne Asch: That's why we need to team up, not only with people in the blindness and disability fields, but with the people in school reform who want to make schools different generally. In big cities there are horrendous dropout rates. I read in the Times the other day that some schools have only 11 percent of kids at grade level. Some were happy because they went from 5 percent one year to 12 percent the next year, but that meant that 88 percent still weren't up to grade level. And we're not talking about kids with disabilities here.

Fred Schroeder: Bottom line, blind kids, and all kids, need a school environment that brings out their fullest potential. I'm totally open to partnering, to changing the law, to developing teacher prep programs, and doing whatever else will get us there.

I think that young blind kids need to be introduced to computers and notetakers with refreshable Braille in a much more aggressive way. Sighted kids get exposed to computers at an early age now, and blind kids need much more early exposure to technology. It facilitates integration and all sorts of other skills that they will need to use. Part of the dilemma we have is that the schools will say, "We don't provide laptop computers to sighted kids, so what you're asking for is above and beyond." In my mind it really isn't.

Tools for Learning

Adrienne Asch: Actually there is text in the law about technology, designed to implement the educational goals of the student. We would have to show that today the equivalent to the pencil and paper for the blind child is a refreshable Braille PDA or laptop computer. A laptop or a notetaker is the way to go if that's what will help the child keep up.

I would like to see all blind kids learn Braille. I think they also need to learn to use all the other tools such as audio recordings that will help them get the information they need. I'm not sure how we define literacy. It's not just taking in information; it's more than that. The question is, what tools is the law going to give you to advocate for the services that your child needs?

I think it's important to push hard for Braille. I don't want to see schools let off the hook. But I don't want to see it done in terms of minutes per day. I want to see it done in terms of what your child will be able to do with Braille, the things that sighted children are doing with print. There are things that can only be done through reading--you need to understand how sentences are constructed, you need to understand the length of a paragraph, you need to understand how things are arranged on a page.

Fred Schroeder: I use the minutes per day example because that's the operational shorthand used in the IEP. I agree with you that it's not the way to look at it. It's inadequate. I say to parents, "If you have a functional goal in your mind, make sure you get enough intervention for your child to reach that goal."

Adrienne Asch: Before we specify the means--an hour a day, ten minutes a day, or what have you--you need a clear description of what you want the child to be able to do. We have to help parents formulate that goal so they can make the argument.

Fred Schroeder: I agree. But if you talk to parents, especially parents who are trying to get Braille instruction for low-vision kids, you will hear story after story of school districts setting ridiculously low goals, and I do mean ridiculously low. Goals like reading nine or ten words a minute for a fourth grader.

Adrienne Asch: Clearly that's not okay!

Fred Schroeder: It's not okay to us, but it's clearly okay to somebody!

Adrienne Asch: I think there is plenty of argument we can make to show why those low expectations are wrong. If a sighted fourth grader is expected to read a given number of pages in an hour, you want the blind child to read comparably. Obviously the more the child reads Braille and the earlier he starts, the better his chances of fluency.

Fred Schroeder: I don't think the law, as it's currently written and implemented, puts that kind of expectation on the school districts. It goes back to the assessment. They do an assessment of your child and say, "Johnny's in third grade, but he's reading at a first-grade level." There's no data that says he should be reading on a third-grade level. The school district uses the assessment to set a low expectation, and then identifies an amount of service or intervention to support that depressed expectation. You and I are in agreement that the expectation ought to be one of parity. How do we establish that goal in a way that will really stick?

Adrienne Asch: I don't know that there is any one way. We can arm parents by telling them to give the school all the information they've got about how the child functions out of school. That means the parents have to do a lot of things before school age--encouraging the child to explore, providing a lot of nonvisual stimulation. Blind kids need to come into school with skills and general knowledge.

Fred Schroeder: It comes back to how we help parents get high expectations written into the IEP and identify the services that will support those expectations.

Adrienne Asch: Maybe we need to go through the law and find what text should be amended to operationalize high expectations. The high expectations language is there, early in the law. We should be able to go through the law and say how the IEP process could better reflect the assumption of high expectations. How can the law put the burden of proof on the school to show why a child is not operating on grade level? That might be a relatively simple but profound amendment, if there is an amendment to make.

Fred Schroeder: What is really troubling is when a school will look you in the eye and say, "Your child is reading at thirty words a minute. That's great! That's fine! You should be happy with that."

Adrienne Asch: There's an answer to that. The parent has to say, "No, I can't be happy with that! At that rate it will take seven hours for my child to do the assignment! You don't expect a sighted child to read at thirty words a minute, so why are you expecting that of my blind child?" It's easy to answer.

Fred Schroeder: It's not at all easy to answer. They'll look you right back and say, "Look, you've got to be realistic. This is part of your child's disability."

Adrienne Asch: There is nothing in the disability of blindness that says you can't read quickly.

Fred Schroeder: And they'll say, "Dr. Asch, we understand that you're extraordinary, and we hope your child is extraordinary, too, but that isn't realistic for most blind kids." It goes round and round and round. I try to tell parents they have to know blind people. They have to have a firm belief in what their child can do, and they've got to push and push for that expectation to be reflected in the identified goals.

A Tremendous Difference

Fred Schroeder: IDEA has its shortcomings, but it has made a tremendous difference. It recognizes the constitutional right of children with disabilities to be educated. I think that's huge. It isn't the end of the struggle, any more than the civil rights legislation of the 1960s was the end of racial discrimination. Even with IDEA in place, a good bit of the problem is attitudinal, some of it is limited resources, and some of it is lack of proper training for teachers. We've crossed the hurdle of saying that kids with disabilities deserve to be educated. Now we have to figure out how to educate them effectively. I don't in any way want to minimize what IDEA has contributed.

Adrienne Asch: Fifty years ago blind kids got educated, but typically it was in a separate setting, whether or not that's what they wanted. The law not only says that kids with disabilities must be educated. It says that they can be educated with and belong with nondisabled kids if that's what their families want, and the school has to provide a situation where they can flourish. That's important in the same way that Brown v. Board of Education was important. The law gives parents the mechanism to say, "I want my child to flourish. I want her to flourish with the neighborhood kids she knows. I want the services she needs so she can flourish in the school environment." The law doesn't give those things without creativity and determination on the part of parents. There's no question about that. We have a lot of work to do.

I think the NFB can work best by giving parents the same high expectations for their blind kids that they have for their sighted children. It's important for NFB members to participate in IEP meetings because they are a testimony to what the parent is trying to say. We have to know the law well so we can show the parent the text of the law they can use. To the extent that the law doesn't operationalize the notion of high expectations as well as we would like, we can work to amend it. Imperfect though it is, the law is on our side, and we can teach people how to use it.

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