Computerized IEP generators: the promise and the peril.

• Author: Ulric, David
• Position: Individualized Education Program

1. INTRODUCTION II. HISTORICAL BACKGROUND: SPECIAL EDUCATION FROM THE 19TH CENTURY THROUGH THE POST-BROWN PUSH FOR REFORM III. BACKGROUND: THE EAHCA/IDEA A. Key Provisions of the IDEA B. Judicial Interpretation of the IDEA'S FAPE Requirement: Rowley v. Board of Ed IV. THE EVOLUTION OF THE CIEP GENERATOR A. Four Primary CIEP Generator Paradigms B. Advances in CIEP Software Functionality V. THE TROUBLE WITH CIEP GENERATORS A. The Individualization Problem B. Software Shortcomings and Hardware Inadequacies VI. ADDRESSING CIEP GENERATOR-RELATED ISSUES THROUGH LITIGATION VII. ANALYSIS AND PROPOSALS A. Recommendations for Future Legislation B. Recommendations for Future Research VIII. CONCLUSION I. INTRODUCTION

   The Senate report accompanying the 1975 passage of the Education for All Handicapped Children Act ("EAHCA" or "Act") stated that of the approximately eight million children with disabilities in the U.S. at that time, more than half were not receiving an "adequate" public education. (1) Such provision of inferior or inappropriate educational services to exceptional students had been the norm since the naissance of the public education movement, (2) and it was precisely this inferiority that special education advocates and Congress hoped to address with the Act.

   The Act relies on the Individualized Education Program ("IEP") as the primary tool for defining each child's educational program and as legal documentation that the school has developed a truly individualized plan. (3) This documentary requirement created a huge paperwork burden for teachers and administrators, who then sought to reduce their administrative load and streamline processes by relying on computer software to help in IEP creation and data management. (4) However, rather than freeing teachers from bureaucratic demands, thereby allowing them to spend more time teaching, the use of computerized IEP ("CIEP") generators may actually hinder provision of special education by limiting individualization and erecting other technological roadblocks.

   This paper will provide a brief historical overview of special education in America, up to and including the enactment of the EAHCA/IDEA, as background for the ensuing examination of the positive and negative aspects of CIEP generator use as the software has evolved. Particular emphasis will be placed on program functionality and possible hindrances to IDEA compliance. Case law concerning CIEPs will then be examined and synthesized with what we have discovered about program functionality to arrive at recommendations for future legislation concerning CIEP generator use and future research to better understand the size and nature of the asserted CIEP problem.

2. HISTORICAL BACKGROUND: SPECIAL EDUCATION FROM THE 19TH CENTURY THROUGH THE POST-5ROIUVPUSH FOR REFORM

   Early in the nineteenth century, local governments and civic groups began to establish specialized institutions for treating the mentally and physically ill, the "retarded," and people with other disabilities, such as deafness and blindness. (5) These institutions were often located in the country because it was thought that sickness and other societal ills were caused or exacerbated by city life; (6) therefore, transporting the afflicted to rural asylums supposedly helped provide a cure by distancing them from the urban catalysts of their infirmities. (7) However, rather than proffering therapies and education, such residential institutions often became "sadis[tic]" and "inhum[ane]" warehouses of the mentally, physically, and morally inconvenient. (8)

   By the early twentieth century, the movement to institutionalize the disabled was on the decline, (9) and reformers were advocating for re-integration of the disabled into the community. (10) Despite these changes, the educational situation for disabled children did not greatly improve in the succeeding decades. Although initial steps were taken to offer special education classes and services for students with a variety of disabilities in a handful of public schools, these classes were unavailable to students who were not fortunate enough to live in progressive school districts." Additionally, since the prevailing view was that the mentally retarded were incurable and that all society required was to keep them from hurting themselves or others, (12) many disabled children continued to be completely excluded from public education. (13)

   The Supreme Court's 1954 ruling in Brown v. Board of Education was a watershed moment in special education. (14) After Brown, advocates for disabled students could argue that such children, like African American children, were entitled to equal access to public school education. (15) Two such cases critical to the attainment of public school access for children with disabilities were Pennsylvania Association for Retarded Children v. Pennsylvania ("PARC') (16) and Mills v. Board of Education. (17)

   In PARC, parents brought action against the State of Pennsylvania and individual school districts within the state for excluding "retarded" children. (18) The parents alleged due process and equal protection violations (as in Brown) and claimed that disabled children were "arbitrarily and capriciously den[ied]" the right to a public education. (19) The case was settled, thus theoretically opening Pennsylvania's public schools to all children. (20)

   Similarly, Mills was a class action brought on behalf of children with disabilities in Washington, D.C. who had been excluded from public schooling. (21) In its defense, the District claimed it lacked funds to provide the children with an education and further asserted that using funds earmarked for other uses would be unfair to nondisabled students. (22) The court, in ruling for the plaintiffs on equal protection and due process grounds, held "[i]f sufficient funds are not available to finance all of the services and programs that are needed ... then the available funds must be [allocated] so that no child is entirely excluded from [public education]." (23)

3. BACKGROUND: THE EAHCA/IDEA

   In 1975, as a result of years of lobbying by parents and advocates for the disabled, Congress passed the Education for All Handicapped Children Act ("EAHCA") to ensure that disabled students are provided with "equal protection of the law ... [and] special education and related services designed to meet their unique needs." (24) Although a detailed discourse on the EAHCA (renamed the Individuals with Disabilities Education Act ("IDEA") during its 1990 reauthorization) (25) is beyond the scope of this paper, the following discussion of relevant provisions and interpretation of the Act is essential for the ensuing examination of CIEP generators.

   1. KEY PROVISIONS OF THE IDEA

      The IDEA requires that the individual states and school districts within the states provide disabled students (26) with a "free appropriate public education" ("FAPE"), (27) defined as "special education and related services ... provided at public expense ... meeting] the standards of the state education agency []; including] an appropriate preschool, elementary school, or secondary school education ..." (28) In order to ensure that the states and school districts actually provide all eligible students with a FAPE and meet other federal dictates, the IDEA sets out stringent reporting requirements that must be met in order for state agencies and local schools to receive federal funds. (29) The primary mechanism used by the IDEA to ensure that every eligible child receives a FAPE is the IEP. (30)

      An IEP is "a written statement for each child with a disability that is developed, reviewed, and revised [under relevant IDEA rules]." (31) The document must include the child's "present levels of academic achievement and functional performance," (32) "measurable annual goals," (33) "a description of how the child's progress toward meeting the annual goals ... will be measured," (34) a "statement of the special education and related services and supplementary aids and services ... to be provided," (35) and other information relating to the timing and nature of the services to be provided. (36)

      The IDEA specifies that each IEP is to be developed by a "team" consisting of the child's parents, at least one regular education teacher (if applicable), at least one special education teacher, a representative of the "local educational agency," other specialists as needed, and "whenever appropriate, the child with a disability." (37)

   2. JUDICIAL INTERPRETATION OF THE IDEA'S FAPE REQUIREMENT: ROWLEY V. BOARD OF ED.

      Although the IDEA is a highly technical and multifaceted piece of legislation, Congress left most details for implementing the Act's mandates to the individual states. The courts serve to clear up ambiguities in the Act by interpreting its provisions and the provisions of IDEA-inspired state laws. (38) The primary case interpreting the requirements of the IDEA is Board of Education v. Rowley, in which the Supreme Court defined the Act's amorphous "FAPE" requirement and underscored the importance of the IEP in determining whether a student has received a FAPE. (39)

      In Rowley, the parents of a deaf, but otherwise non-disabled student, sued to require the district to provide a sign language interpreter in addition to the other services and accommodations (such as a tutor for the deaf and speech therapy) already included in her IEP. (40) The Court, in finding for the District, held that a mainstreamed child receives a FAPE when the state provides individualized instruction and related services that will enable the child to benefit educationally. (41) The Court further held that these requirements are satisfied if the IEP is "reasonably calculated to enable the child to achieve passing marks and advance from grade to grade." (42) Since Amy Rowley was receiving an educational benefit and was advancing from grade to grade, the Court concluded that the district was meeting the IDEA'S...