in public schools are well aware of the fact that the Department of Education
issues "Dear Colleague" letters on many issues from time to time.
Often these create controversy and confusion. One of these, the November 16
Letter about a free appropriate public education, is discussed
“Dear colleague” Letter by the US Department of Education about a FAPE: A school attorney’s response
By Miriam Kurtzig Freedman
seven-page Letter tells educators—presumably, general and special educators—that
holding students with disabilities to “rigorous academic standards and high
expectations” is a “shared responsibility for all of us,” and that these
students should be taught the “same challenging academic content and
achievement standards [as] all children in the State”… at the “grade level in
which the child is enrolled” The Letter raises many concerns.
First, it is unclear whether the general
education teachers and administrators’ perspective was taken into account. Their voice and leadership in this “shared responsibility,”
especially as most services are provided in general education classrooms, is vital.
Two special education Department offices authored this Letter—OSEP
(Office of Special Education) and OSERS (Office of Special Education and
Rehabilitative Services). Where is general education’s OESE—Office of
Elementary and Secondary Education?
While this Letter presumes to be about special education, it is
also very much about general education.
OESE needs to be at the planning table especially since the Letter
urges the same standards for all students “regardless of nature or severity of
the disability.” Without input from
general education, this Letter is simply a one-sided approach—like the
tail wagging the dog.
Second, while no one disagrees about
the importance of holding all students to high standards and expectations, I
fear that the Letter downplays the cornerstone of special education law—individualization. The Individuals with Disabilities Education
Act (IDEA) provides services to meet eligible students’ unique needs. Yet, this
Letter appears to gloss over the reality that, even with similar
curricular standards, students’ rate of learning and ability to master skills
and concepts will differ, as they are impacted by the nature and severity of
their disability. The concept of “closing
the gap” (Letter, at page 5), while prominent in this Letter, is
inconsistent with the IDEA!
education focuses on whether students make gains in their areas of need—not on how
they measure up against others. For some students with disabilities, the gap
between them and their non-disabled peers will widen over time. That does not mean per se that they are failing to learn, or that their teachers are
failing to teach them. Sadly, this Letter leads us to see failure even
when students succeed—in direct contrast to the law’s mission and good
Third, in order to include students
with disabilities in general education settings, this Letter favors the
use of modifications of assignments, audio and other aids—inadvertently
creating a trap for schools. Such methods often bypass the student’s unique
needs and entitlement to a FAPE (free appropriate public education). The sad
reality is that schools that follow this Letter’s approach may lose at
due process hearings and in the courts because the approach can be viewed as a
way to get students to “pass” and get “through” school—without providing the individualized
benefit the law requires.
sum, general education teachers and administrators who currently work in our
schools need to lead the effort and be at the table to build schools that truly
educate all students—from the most needy to the most advanced. Their input is especially vital now, given
the Department’s push for inclusion to occur in general education classrooms. The Department should aid schools in their
efforts to comply with current legal mandates, not divert them to paths that
contradict the law.
Miriam Kurtzig Freedman has written six books
(including the influential Fixing Special Education) on law and education and has
spent her career in public education as a teacher, hearing officer, and an attorney representing public schools.