The Short Rise and Faster Fall of Special Ed. in the State of Michigan

If Michigan eliminated our state-imposed special education rules, other states’ would fall like dominoes. I could not let that happen. Not without waging a war on the MDE [Michigan Department of Education] and anyone working to deny children with disabilities an education, and hope for a future of independence, and access to the American Dream. Michigan had become a “national” issue.

~Marcie Lipsitt, longtime child activist for students with disabilities in the State of Michigan.

By Marcie Lipsitt

Michigan once had a proud heritage of believing in the educational rights of our students with disabilities.

But what has transpired over the past 46 years is not worthy of our history books or a wondrous fairy tale of children’s dreams come true. For Michigan’s 176,000 students with an Individualized Education Programs (IEP), it has been a long, treacherous, and disappointing road to what we call a “Free Appropriate Public Education.”

Here is the map to Michigan’s 39 years and unraveling of special education.

• Michigan Public Act 451, 1976, the Michigan Mandatory Special Education Act passed in 1972 and was signed into law by Governor William G. Milliken, and creating the Michigan Administrative Rules for Special Education (“MARSE”). A law permitting children with disabilities to attend school between the ages of three to twenty-six.
• P.L. 94-142, the Education for All Handicapped Children’s Act passed in 1975 and was signed into law by President Gerald Ford, and now known as the Individuals with Disabilities Act (IDEA, 1997 and 2004).
• Headlee Amendment passed in 1978, amending the MI Constitution to require that any state mandated activity would be funded by the state. This created the infamous “Durant lawsuits” and an ongoing battle between school districts and the MI Legislature over special education funding.
• Term Limits passed in 1992, amending the MI Constitution and removing the institutional knowledge so critical to legislators; along with a Legislature with legislators in office long enough to pass thoughtful laws.
• In 1996 Governor John Engler purposefully signed Executive Orders that stripped the State Board of Education of virtually all of its elected authority over public education. This gave 100% of non-elected power to our State Superintendent (first Arthur Ellis, then Tom Watkins Mike Flanagan, Brian Whiston and a new State Superintendent will be hired on July 1, 2019 to replace Mr. Whiston. Mr. Whiston passed away in May 2018). Special education rules have eroded under all four individuals.
• In 2001 the Michigan Department of Education (MDE) proposed revisions to our MARSE to align them with the reauthorization of the IDEA 1997. The revised MARSE promulgated in 2002 did irreparable harm to the IEP. Former State Superintendent Tom Watkins promulgated the WORST rule in our state’s history, infamously known as R 340.1832e. A Rule allowing Michigan’s 56 Intermediate School Districts (ISD) to create 56 sets of rules. Both class size and teacher caseloads have exploded. The end, to the beginning of special education in Michigan, began in earnest in 2002.
• In January 2009, President Obama signed the American Recovery Reinvestment Act (ARRA) that included an unprecedented 12.1 billion for IDEA funding. The MDE released a memo which resulted in giving EVERY school district the permission to shift up to 50% of this one-time Federal increase to their General Fund. Michigan’s special education programs and services have not been appropriately funded, and both student outcomes and teachers’ working conditions have suffered.
• On May 14, 2010 the MDE unleashed its “Criteria to Determine the Existence of a Specific Learning Disability.” the Department created an arbitrary “9th percentile” that a student must have on a norm-referenced achievement test (like Woodcock-Johnson) or curriculum based assessment to even be considered for eligibility. Michigan’s special education population and especially those with learning disabilities are dropping like educational-flies. Between 2006, when OSEP promulgated the final regulations pursuant to the amending of the IDEA in 2004 and through 2016, Michigan has seen the percentage of students found eligible under a Specific Learning Disability drop by 34%. Michigan’s 34% is virtually three-times the 12% national average over this ten year period.
• The MDE’s most recent attempt to reduce our state Rules to the federal minimum was in 2014. The MDE released proposed revisions to the MARSE for public comment on February 13, 2014. Below is just a sample of their proposed revisions:
• Removing accountability from special education timelines by requiring parents to sign the consent to special education programs and services prior to an IEP team meeting, following an evaluation.
• Exiting students from special education as soon as they earn the credits for a high school diploma.
• Requiring a paraprofessional to have only a high school diploma.
• Authorizing school districts to determine annually the special education staffing based upon the number of students with IEPs. An example, Speech caseloads capped by our Rules at 60 could have and would have increased.
• Removing short term objectives for students taking our State’s standardized general education assessment, and leaving only “goals” that are too often not measurable.
• Eliminating “Multidisciplinary Evaluation Teams” and replacing them with watered-down versions of so-called experts;
• Adding a physician’s assistant to the eligibility for an Other Health Impairment, Physical Impairment, Traumatic Brain Injury, and Hearing-Vision Impairment. MI Rules have required a licensed physician to be a member of these evaluation teams. Heaven forbid the MDE had suggested a revision to permit a PhD psychologist, but no, their mission was to save money, and at the expense of necessary evaluations by “experts.”
• Requiring a student with Autism to fail to make eye-to-eye gaze in order to qualify for special education. The Autism Society of Michigan did not send out an action alert for the first two weeks of the public comment period. Just an example of the MDE’s exemplary job of brainwashing special education administrators, teachers, Parent Advisory Committees and local special needs organizations into believing that the proposed revisions were nothing substantive, and that I was a misguided Chicken Little.

I invested almost one entire year into sounding the alarms, and stopping these proposed revisions. In an unprecedented show of support, the National Center for Learning Disabilities, Council of Parent Attorneys and Advocates, the Advocacy Institute, Diane Ravitch and Eclectablog, issued national action alerts on Michigan’s Rule revisions. I filed a formal complaint with the United States Department of Education, Office for Civil Rights (“OCR”) pursuant to my belief that the MDE’s website for the proposed Rule revisions was in violation of Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 2008 (“ADA”). On June 5, 2015, the MDE, our Attorney General’s office and the OCR, signed and executed a comprehensive Resolution Agreement to bring the website and all webpages into compliance with Section 508 web accessibility, Section 504 and Title II of the ADA .

One year, of sleepless nights, and an engine running on fear and determination, I lived on phones, emails and texts with state legislative offices, disability stakeholders, parents, teachers, clinicians, the news media, social media and anyone who would listen, and in my quest to sound the alarm that special education was under the attack of all attacks.

My hypothesis was simple.

If Michigan eliminated our state-imposed special education rules, other states’ would fall like dominoes. I could not let that happen. Not without waging a war on the MDE and anyone working to deny children with disabilities an education, and hope for a future of independence, and access to the American Dream. Michigan had become a “national” issue. If we could stop the MDE’s proposed revisions, we could use this effort as an example to stop other states’ attacks on special education. Michigan is still a national issue, but there are other states and other children with ineffective IEPs and eroding special education programs and services waiting for our attention.

Still, thankfully and through months of effort, the Chairs of our Michigan Joint Committee for Administrative Rules (“JCAR”) held a hearing on December 11 2014 and in effect, shut down the Rules package and urged the MDE to withdraw them. Parents, children with special needs, and some brave and caring teachers filled two rooms at our Capitol and spilled into the halls. Senator John Pappageorge, Chair of the JCAR, said that in his fourteen years in the MI Senate he had never seen such an outpouring of support for children, and against the proposed revisions to our Rules.

Michigan’s Lt. Governor Brian Calley, the father of a child with Autism, testified against the proposed Rules. “Rules for children with disabilities are different than other Rules and must be protected,” he said. And so, the MDE’s deplorable package of proposed revisions to the Michigan Administrative Rules for Special Education were not approved. Senator Pappageorge urged MDE administrators to withdraw the package, and Lt. Governor Calley said that he looked forward to working with the Department and parents over the next year.

For one bright and shining day, a day of renewal of spirit and hope, we had prevailed and our children had won.

And what did the MDE do after the December 11, 2014, JCAR hearing? They whined like three-year olds and threatened to take action against our Lt. Governor for testifying at the JCAR hearing.

• The Spring and Summer of 2015, Lt. Governor Brian Calley created a “Special Education Listening Tour,” and listen he did! Lt. Governor Calley then presented the findings from his “Listening Tour” to the State Board of Education in September 2015.
• September 18, 2015 the United States Department of Education, Office of Special Education Programs (OSEP), issued “OSEP letter to Lipsitt” and finding the Michigan Department of Education’s Complaint procedures in violation with the IDEA 2004.
• In October 2015, Governor Rick Snyder, issued a press release to announce the formation of a State Special Education Reform Task Force and to be led by Brian Calley. Surprisingly, I was asked to be a member! The Task Force spent one year working on recommendations for changes to improve the education and outcomes of our children with disabilities. On December 29, 2017, Lt. Governor Calley signed into law a package of bills precluding the use of barbaric and ineffective seclusion and restraint practices in our state’s public schools outside of emergency situations.

So what happened?

• Fall of 2015, the MDE contracted with Pingora Consultants. Two women, a former state director of special education in Wyoming and an education attorney with a penchant for representing school districts, joined forces to wreak more havoc for our nation’s students with disabilities and now in the state of Michigan. Pingora sounds decent on paper until you do some investigating. So what did these women do in Michigan? They taught the MDE how to write convoluted Final Reports pursuant to state complaints filed. They taught the MDE how to find unmeasurable goals and objectives with no violation. They taught the MDE how to take the word of administrators and staff in our school districts over documented factual information. And they taught the MDE how to write corrective action plans heavy on teacher training and completely neglectful of students and compensatory education.
• The 2016-17 and 2017-18 school years saw nothing but further erosion of special education programs and services. Counties like the Kent ISD and Macomb ISD began pushing “consultative” Speech-Language and Occupational Therapy services” in our center-based programs and extended school year services have been reduced to meaningless days and hours or worse, not available at all. The MDE is more unaccountable and both school district and ISD-friendly than in our 46 year history of special education.
• June 2018, the United States Department of Education, Office of Special Education Programs issued their 2018 Determination letters on how students with IEPs are faring in states across the U.S., along with Guam, the Commonwealth of the Mariana Islands, Palau, Puerto Rico and the Virgin Islands. Following four year of the MDE just sitting in the “needs assistance”, they lowered this poor excuse for a State Education Agency (“SEA”) into the “needs intervention.” A category Michigan shares only with the Commonwealth of the Mariana Islands, the District of Columbia, and Palau. Michigan is the only “state” in the U.S. to fall into this category that is a statement to the MDE’s lack of commitment to our 176,000 students with IEPs.
• On October 3, 2018, I will hold my fourth rally since 2007 on the main steps of the Michigan Capitol at 12:30 pm, the “Michigan Kids with IEPs Count Day Rally. My second rally to be held on Michigan’s Count Day, where students are counted for state funding. Well, our districts will have additional days to “count” our children with special needs BUT as they count for nothing else in the classroom, count they will on the steps of the Michigan Capitol on October 3rd.
• November 6, 2018, Michiganders will vote for a new governor, members of our MI Legislature, MI State Board of Ed and seats in the United States Congress, both in the House and the Senate. Folks, the stakes have never been higher and certainly not since 1972 or 1975.
• What happened to the Michigan Department of Education? I believe the answer begins with the removal of elected authority through Governor Engler’s 1996 Executive Orders, and the transparency that has been shrouded in opaqueness and secrecy these past 22 years.
• The MDE and our State Superintendent answer to no one, not even to our State Board of Education. There are no checks and balances. There is no moral compass. There is almost no communication.

To all who read this blog, special education is dying. The small victories come at the expense of more devastating defeats. The outcomes for students with IEPs are egregious. In Michigan, fewer than 63-% of students with IEPs earned a diploma last year and 29-% dropped out of school. Only 17-% of our students were proficient in reading on the M-STEP and only 22-% on the Nation’s Report Card. Look deeper at the diplomas earned and you will see that too many are meaningless and not worthy of the paper they are printed on.

We cannot allow this educational abuse to continue. Every child matters and the majority can, and want to become productive taxpayers.

The battles waged by parents of children with special needs in the 50’s, 60’s and 70’s cannot be forgotten. We must carry them with us. We must use them for strength. We must find our courage and resolve, and fight for America’s “special” children as we continue to do in Michigan. The alternative is unthinkable.

I like to believe that we all want to fight for our children and their right to a free appropriate public education. I live by Dr. Martin Luther King’s “Our lives begin to end, the day we become silent about things that matter…” and Carol Bellamy’s “You need to get up in the morning and say, “Boy, I’m going to—in my own stupid way—save the world today.”
And I say every day, “As an ‘I’ I make a difference, but as a ‘We’ we are unstoppable.

Marcie Lipsitt is an activist for students with disabilities in the State of Michigan. Visit her website the Marcie Lipsitt Education Advocate at marcielipsitt.com.