Corrupted intentions: reforming special education.

CONSERVATIVES talk a good game about lifting Uncle Sam's heavy hand from the back of American education and restoring control of schools to parents and communities. It's high time they tackle the 'special' education of disabled students. For more than two decades, this program has embodied all that Newt Gingrich and the feisty freshmen say they abhor: onerous, unfunded federal mandates; extra benefits and rights for government-designated populations; opportunities for activists and lawyers to hustle more taxpayer-financed largesse; and, most of all, the smug assumption that Washington knows best how to run the nation's schools.

The special-education program does not even work very well. And it costs real money: about $3.25 billion in federal funds each year, plus billions from Medicaid and other programs that help pay for services it mandates.

Yet today it's not even on the reformers' list. Special education has been exempted from all known block-grant schemes. Bills to abolish the Education Department would transfer it intact. The pending 1996 appropriation scarcely nicks it. Although the main statute awaits reauthorization, nobody on Capitol Hill suggests more than mere tinkering. Sub-committee chairmen Bill Frist and 'Duke' Cunningham handle it with kid gloves.

The reason for such caution is, to put it gently, non-substantive. Everyone knows there's reason to revamp the entire program, recently described by a House staffer as 'an incredible case of . . . micromanaging local school districts.' Still, it's assumed throughout political Washington that any attempt to change it would be suicidal.

The special ed-ifice rests on two pillars. One is civil-rights legislation that since 1973 has barred discrimination against the handicapped. The other is the federal aid program, first enacted in 1975, which declares that every disabled youngster must be provided a 'free appropriate public education' tailored to his unique needs -- whatever that entails.

The statute does not say this should be done within available resources or that Uncle Sam will pay for it. At its peak, Washington covered about 12 per cent of the cost. Today, the federal share is around seven per cent. States and localities are saddled with a bill of at least $30 billion, perhaps as much as $50 billion.

States do not have to participate -- but then they would forfeit their federal monies. Faced with no-escape civil-rights laws and court decisions that use the 'equal protection' clause to mandate extra educational services for disabled youngsters, it is no surprise that the federal program now rules from ocean to ocean.

As one might expect, both the civil-rights measures and the special-education program began as remedies for bona fide wrongs. Many handicapped youngsters did not attend school at all in the early 1970s. 'Compulsory attendance' laws often exempted them. Horror stories told of kids shut in attics and cellars.

In response, a rash of successful lawsuits secured handicapped youngsters the right to public education almost everywhere. By 1975, only two states had not provided schooling for most such children. But leaving this to the states was too slow and patchy for the advocates. Why have fifty programs with different provisions when Uncle Sam could create a single big one -- and dangle the federal dollar to draw everyone into its web?

Today's special-education program is complex, as might be expected of anything that serves five million-plus youngsters. Each state must have a comprehensive plan for serving all disabled persons aged 3 to 21, whether they're in school, home, hospital, or jail. The more such people the state finds, the more federal dollars it gets.

School systems must provide all the services spelled out in each child's individual education plan, even if that means hiring more staff, paying tuition to private schools, or arranging for 'clean catheterization.' In practice the special-education program has first claim on the district's entire budget.

Disabled students must be educated in the 'least restrictive environment,' which means placed whenever possible in regular classrooms. Such 'inclusion' works well for some but can lead to chaos when a teacher must cope with youngsters who have severe emotional and behavioral problems.

YET the teacher does not have much say. Parents have sweeping 'due process' rights to shape their disabled child's educational program, and a thriving legal practice is eager to help them exploit those rights. (Since the school system must pay parents' legal fees, it's no surprise that administrators are apt to cave quickly to their demands.)

A double standard applies to discipline. It's nearly impossible to suspend or expel a disabled child. Even moving him out of the classroom requires parental consent or a court order. Although one federal law requires states to suspend a gun-toting student for a full year, if he is disabled another statute limits even his placement in an 'alternative setting' to 45 days. (For other weapons, the limit is ten days.) Says Fairfax County's school superintendent Robert Spillane, 'Any student who is classified as disabled is now literally able to get away with anything.'

Just as the birth of special education followed the familiar civil-rights scenario, its evolution also hewed to a well-thumbed script. Non-discrimination evolved into affirmative action for the disabled. (The Americans with Disabilities Act is a vivid example.) A once small and discrete population of 'victims' has grown -- and its boundaries blurred -- as more groups see advantages in joining it. Reverse discrimination sets in as non-victims find themselves denied benefits. Huge bureaucracies stretch their tentacles. Lawyers grow rich. Activist organizations get new grants.

The corruption of good intentions begins with special ed's bizarre incentives, particularly the impulse to grow.

How many disabled youngsters there are in the land depends, of course, on how 'disability' is defined. The special-education population has swollen as more students have been classified with 'learning disabilities.' About a hundred thousand youngsters are now added to that category each year and today the 'L.D.' population makes up half of all children in special education, up from barely a fifth in the late 1970s. Indeed, the ballooning of that population accounts for virtually the entire growth of special education -- from 8.5 to 12 per cent of public-school enrollments. (In New Jersey it's reached 16 per cent, in Massachusetts 17 per cent.) And the numbers keep rising. Between 1992-93 and 1993-94, public-school enrollments grew 1.4 per cent, but the special ed rolls added 4.2 per cent, the biggest increase ever.

The children we now term 'learning disabled' were not kept in attics before Washington intervened. Mostly they are kids who, in an earlier time, were said to misbehave a lot or to have a short attention span. Many did poorly in school and some were nuisances in class. Teachers and parents both had reason to welcome an alternative approach. For the teacher, special education became an easy place to send the kid who disrupted her lessons. From the parents' standpoint, it got them off the hook -- Gee, Officer Krupke, my kid's not naughty, he's disabled! -- while opening the door to a trove of services and rights unavailable to the family next door (whose kid was simply naughty).

By the early 1990s, one in eight of New York City's one million students was classified as disabled; nearly a quarter of the school budget went into special education; and a fourth of the system's employees worked within its sprawling bureaucratic empire.

SUCH growth served diverse interests: special-education bureaucrats, of course, whose domain and power grew; teachers who could off-load classroom pests; school-system budgeteers who got extra money as their special-ed population grew; superintendents who could boost scores by excluding more pupils from state tests; parents who could claim added services for their kids via this route; and litigious lawyers and advocacy groups whose living this is.

The program's growth created problems even beyond its soaring costs. New forms of segregation emerged as many minority youngsters (mostly boys) found themselves 'sent to special ed' in urban school systems. Traditional civil-rights groups began to protest. Parents who sought extra help for their children didn't necessarily want them in separate classrooms. Most avant garde special educators fervently believe in 'mainstreaming.' Yet inclusion has produced its own backlash: classrooms disrupted and students shaken by the erratic behavior of disturbed classmates.

As for the putative beneficiaries, there's scant evidence that special education does them much good. A University of Pittsburgh team, for example, found that 'general education settings produce achievement outcomes for students with learning disabilities that are neither desirable nor acceptable.' The federal Education Department admits that '[A]chievement for students with disabilities remains less than satisfactory. . . . Results for students with learning disabilities and emotional disabilities are particularly poor.'

There are five solid reasons why Congress ought to place the overhaul of special education high among its priorities:

-- It's a burdensome, costly, and growing unfunded mandate-cum-entitlement.

-- It establishes a class of people who are entitled to benefits that others do not receive while creating incentives to expand that class.

-- It impedes other promising reforms. Because the special-education empire is threatened by anything that cuts red tape, its lobbyists oppose charter-school bills, standards-based accountability, and vouchers.

-- Its cost-benefit ratio is dubious. This is a sensitive topic, as only a churl would skimp on disabled children. Yet in weighing society's overall human capital investment, it's appropriate to ask whether the next million dollars are better spent on more services for a few handicapped youngsters or on physics and math for a large number of kids who are apt in the future to be mainstays of the country's economic strength.

-- It fans the flames of victimhood and Washington-knows-best while making it easier for educators and parents to avoid responsibility for their students' achievements.

Even the education establishment is no longer of one mind. The American Federation of Teachers is troubled by the burdens that special education places on teachers. School boards are aggrieved by its soaring costs. Principals find school safety threatened by its double standards.

Desirable reforms are easy to sketch. Distribute federal block-grants via a formula that doesn't create perverse incentives. Permit states to close the program's open-ended entitlement and weigh special-education services against competing priorities. Roll back the rules (and bureaucracies) that substitute Washington's judgments for those of teachers, parents, and school boards. Eliminate the double disciplinary standard. Restore the civil-rights protections to prohibitions against individual discrimination, not group benefits. Exempt innovative programs like charter schools. Quit paying lawyers' fees. Experiment with vouchers for parents.

Easily described, yes, but not easily done as long as the entire topic is avoided on Capitol Hill. Not even the intrepid House freshmen, in their bill to abolish the Education Department, were willing to touch special education. No presidential candidate has gone near it.

As for the Clinton team, its special-education bureau is headed by a long-time activist, and its civil-rights office by a litigious and enterprising enforcer. Between them, the Education Department grows ever more intrusive. A recent 'monitoring report' on South Carolina's program faulted the state for not screening prison inmates to see if they need special-education services. They held an Alabama district to be discriminatory because resource classes for L.D. youngsters were held in a trailer.

They even hassle their own agency. They're pressing the National Assessment of Educational Progress to divert scarce resources into costly accommodations to enable more disabled youngsters to take its tests (though nobody expects such data to be comparable). Until members of Congress complained, they sought to restrict the government's popular 'blue ribbon' schools competition to the handful of buildings that are fully 'accessible.'

Insofar as the program's excesses are buttressed by zealotry, its reform prospects are slim. But what about cowardice? Will political calamity truly befall all agents-of-change in this domain?

Perhaps not. The special-education population is about the same size as the Hispanic enrollment in U.S. public schools (and about as large as the total private-school enrollment). No member of Congress has high concentrations in his district, though none is without some such constituents. Every community and state has its own built-in special-education lobby. That is why some state laws go farther than the federal program and why today, even if Uncle Sam were to fold his tent, disabled youngsters would not be shut in closets or barred from school.

The governors have already signaled that they'd like to have more such decisions returned to the states. So have state school superintendents. Allying those two powerful groups with teacher unions and school boards would yield some political 'cover' for skittish Congressmen. If special-education reform were also harnessed to changes that benefit masses of non-disabled youngsters

-- e.g., vouchers, real block grants, or safer schools -- such a coalition might wield serious clout.

Of course, the specter of tiny wheelchairs circling the Capitol in protest cannot be dismissed. Special-education advocates are expert at lathering the parents of disabled children into paroxysms of outrage and entreaty. And many of the kids tug at the heartstrings -- and the TV screen.

The activists know this well and can be as cynical in using such assets as are partisans of other causes. That's why special education is a test of Congressional consistency and resolve. The reason to reform U.S. education, after all, is not to placate its producer interests and their lobbyists but to strengthen its quality for all children, disabled and non-disabled alike. Exempting one bloated bureaucratic remnant of the early Seventies from the norms of the late Nineties does nobody much good.