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PODCAST: | “Freedom to Learn:” It’s Time to be Honest about IDEA

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Debra Tisler on IDEA at 50, Due Process Costs, & the Fight for Services for Students with Disabilities

Last November marked the 50th anniversary of IDEA, or the Individuals with Disabilities Education Act. Over 8.3 million children, or 15% of elementary and secondary school students, are designated as students with disabilities. Despite the existence of the federal law’s promises, many parents of students with disabilities will tell you that the fight to ensure that their children’s unique needs are met, whether it is through services and accommodations or a placement in a specialized private school, is often acrimonious, heartwrenching, and expensive.

Debra Tisler, founder of Emergent Literacy and an educator with 30 years of experience, joined the podcast to talk about the obstacles that parents face, the hostile and litigious due process regime, and why the law has not been reauthorized for over 20 years. But, it’s not all bad news! We also discuss improvements that could better serve students and families, including expanding education freedom programs that enable families to find and afford the best education option for their child’s needs without exhausting and costly lawsuits.

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This conversation has been edited for length and clarity.

We’re going to delve into the details of IDEA, but let’s start with your story first. You taught in Fairfax County Public Schools for a long time, from 1997–2014. What did you teach?

Debra Tisler: I taught a mix of things. I’m certified as a teacher in special education and general education, so I taught at all levels from elementary school through high school. One of the content areas that is my specialty is history. I was able to teach “self-contained” classes or small group classes for children with disabilities in the area of history across that spectrum. I also co-taught classes with a general education teacher in the mainstream setting. I also taught pull-out resource for multi-tiered support services. I worked with the exceptional gifted population, as well.

What was the nature of your training? Was that something that happened while you were in college or subsequently?

Debra Tisler: My undergraduate degree was in history, but my certification was in general education. Once I got into the classroom, I realized so many children were struggling, especially in the area of literacy. I decided to pursue my master’s degree in special education, where I could get more specialized training.

Did the education system change over time?

Debra Tisler: It did, and it grew more in the area of bureaucracy, more administrative focus, rather than outcomes-focused. And I believe that has been something that has haunted the system to this point, where the child’s needs have been lost out of focus, and it’s become more adult-oriented.

November 29th of last year marked the 50th anniversary of the Individuals with Disabilities Education Act, or IDEA, although the law had a different name when it was first passed 50 years ago. What is your concise way to describe what IDEA originally promised?

Debra Tisler: IDEA allows all children to be able to access the public education system. Prior to IDEA and Education for All Handicapped Children Act, that was left to a discretionary basis at the local school level. It’s fundamentally a civil rights act that, if you have a disability, you have access to your public education system. It’s a foundation for that in its most basic form. It’s an entry point for children with disabilities.

However, we have a lot of compliance in there, and that focus on compliance over outcomes has really shifted a lot as we have grown more in that bureaucratic sense in education.

Any parent who’s sat through a meeting about their child and their child’s IEP will be very familiar with that compliance orientation. I remember always having a giant stack of paper being dumped in front of me, which I’m just supposed to sign, to say that I received it, and that the district had complied with this paperwork requirement.

Let’s tackle some of these acronyms. People throw around the acronyms a lot. Perhaps to shut parents out: “we’re on the inside, we’re the experts, you’re on the outside, you need to trust us, we know the lingo.” The first one was IDEA, the Individuals with Disabilities Education Act. Another big one would be FAPE, Free Appropriate Public Education. What is that?

Debra Tisler: The first part is “Free” public education. The parent is not to provide the funding; they’ve already paid their tax dollars. Then the other is “Appropriate” — what is being designed with the parent as an equal IEP team member to provide that meaningful progress, the instruction the child is going to receive that meets their unique needs. That is what the funding dollars are supposed to be allocated for. That’s where it hits that divide with implementation — what’s actually on the paper and what is getting implemented in the classroom.

A couple more acronyms. IEP: Parents know what an IEP is if they’ve been through the process; they just don’t necessarily know how to ensure that they get the best one that meets their child’s needs. What does that stand for?

Debra Tisler: So it’s an Individualized Education Program, and it’s a plan that is supposed to be part of the child’s program that’s individualized for their unique needs.

Information is gathered from the school [district] through an evaluation process, through assessments, through data, and through what the parent brings to the table, as well. That’s why parents are not just guests at the table; they are equal IEP team members. And so all that information needs to be considered by the team, school-based team members, parents, or private providers that have been hired to support the child. And everyone is supposed to work collaboratively to build a consensus to develop that program for the child that’s individualized.

And it’s not a one-and-done kind of deal with IEPs, right? A child might need to be reassessed with a psychoeducational evaluation every few years. The IEP needs to be revisited. And it’s not necessarily a forever thing. Ideally, it wouldn’t be if a child is struggling with something, but then overcomes it or acquires the skills to manage their disability in the classroom.

Debra Tisler: Exactly. I want to touch on that because, for IDEA and the IEP process and the system in general, if early intervention and what’s called Child Find works—you find the child and you provide them the services early, and you’re helping that child with the appropriate services—there should be a shift in that level of service. It should be going down throughout the development of the child’s IEP to a point where they exit from needing an IEP.

But over time, these IEPs are growing more expansively in the opposite direction, rather than showing meaningful progress and growing and not needing those specially designed services and instruction.

Let’s tackle one more acronym: LRE.

Debra Tisler: That’s a hot one. “Least Restrictive Environment.” Technically, it is the environment where the child is with their non-disabled peers. It’s considered more restrictive if they’re with their disabled peers, and that restrictive level goes over how much time they spend during their day with disabled peers versus non-disabled peers.

That can get a little tricky for parents to understand. Of course, they want their children to feel included, right? They want inclusion, but it all comes down to, where is that child going to make the meaningful progress that they need to succeed? In order to do that, that goes back to the school system to also collect quality data so that everyone can figure out, does this child now have the skills to be in the mainstream setting with their general education, non-disabled peers? When you talk about the least restrictive environment for children, there’s a whole continuum for those settings and placements.

We should be celebrating that students with disabilities have the right to access free, appropriate public education. That’s a good thing.

But sometimes we pretend that everything has been great for 50 years. ‘The law was passed, and then the system was fixed.’ I don’t think that anyone in the system would agree with that, but there’s this make-believe play acting that happens in Washington that scares off people from addressing the law and being honest about the problem.

Let’s talk about when an individual family has a problem. They’re going through the IEP process, and they’re realizing “these folks are not listening to me.” The parents are saying, “I know what these evaluations are saying. I’m seeing the reports on how my child is operating in a classroom. Why is my child being denied services or accommodations to meet their needs?” What recourse do they have at that point? What happens then?

Debra Tisler: They always have the right to request a new IEP meeting. They always have the right to request re-evaluation, which opens up the opportunity for new evaluations, new data collection, and new considerations for eligibility under IDEA.

If they’re unable to get anywhere with that process, they can file a state complaint. They could file a federal OCR (U.S. Department of Education Office for Civil Rights) complaint.

They could file a due process complaint on their own as a parent, but many parents struggle with that. These are very costly administrative procedures that are part of the parents’ rights. But if you don’t know all the “legalese,” if you don’t know all of these acronyms, it’s against you.

The weight is definitely in favor of the school [districts]. It’s extremely costly. Some of the special education attorneys in the area where I live in Virginia, you’re talking about a $15,000 upfront minimum deposit for a retainer to go to due process. It’s extremely costly. You have to pay expert witnesses to come in because there is a heavy deference given to the school [districts].

So then it becomes, to parents, if they even have funds, “Do I invest in due process? What am I going to receive out of this due process, if anything, where the system is stacked against me? Or do I invest that money in a private school that will specialize in my child? Do I invest that money in private tutoring and services?” And if you don’t have the money for an advocate or an attorney to help you to navigate this system, it’s even more stacked against you to get the outcome that you need, which is essentially restoring the rights of your child.

My sense is it’s an expensive and lengthy process. You’re investing a lot of time in something that may or may not work out on behalf of your family.

Debra Tisler: Yes, it’s a lot of time. It’s physical and mental exhaustion all at once. You have to build yourself up for that process as a parent, as well as the financial component of that, figuring out where my child is going to best benefit from those funds, or how else can I support my child with those funds?

In Virginia, less than 1% of rulings were in parents’ favor; they’re heavily in the district’s favor.

This is after they’ve spent all of this money, hired a lawyer, called in witnesses, put together undoubtedly stacks of paperwork and documentation, and it’s less than 1%?

Debra Tisler: Yes. It’s extremely difficult to prepare for due process, as well. That’s also why it’s costly, because the attorneys that are representing the parents have to put in multiple subpoena requests and return responses on motions that the district has filed on simple things like access to the child’s records.

You can’t prepare for your own case or even to defend your child on your own if access to the education records is difficult. It can be obstructed throughout the process of this system. You can’t defend your position when the burden of proof is on you without that full access. So a lot of money is spent going back and forth on things that are basically fundamental to try to defend your position for your child.

What is the best-case scenario if you go all the way through the process and you’re one of the 1% that “win”? What happens at that point?

Debra Tisler: A lot of the due process cases, if you’re going to invest that type of funding for this, it is private placement in a school that has the services that will meet your child’s unique needs. And that tends to be the larger reason why parents would invest that type of money for their child.

In Northern Virginia, I know of a private school that’s supposed to be excellent for children with dyslexia, and another for children who are on the autism spectrum. These are private schools that are ready to serve the child and have the ability to do so. And then the public school district is paying for the child’s tuition to go there? That’s private placement?

Debra Tisler: Correct. It’s publicly-funded private placement at that school. There’s a lot of evidence that has to go into preparing for a case like that. I recently supported a family that was seeking that. They had an attorney, and I was trying to help them organize that information, and it was a struggle. Eventually, the cost was too much for them to keep pursuing it, so they just reinvested that money back to their child when they saw how much it was going to cost in the long-term with the attorney.

This is why state school choice programs that are designed to provide funding for families to send their children to a private school make so much sense. You don’t have to spend months, years, all this heartache fighting for your child to go to private school. You receive an Education Savings Account (ESA), or you receive a scholarship, and you just send the child to that school. I understand that some of these specialty schools are very expensive, but that’s where it’s good when you have a state that adjusts the amount of the education savings account based on the child’s level of disability.

For example, Texas has a new ESA program. Students will receive about $10,000 for that. But if they are students with disabilities, depending on their level of need, they can receive up to $30,000. And that makes sense, versus this really difficult process.

There’s so much more to talk about with IDEA, but I want people:

• To be familiar with the terms;
• To understand that FAPE is not a magic guarantee — it’s something that parents fight for;
• To hear that an IEP does not guarantee services and accommodations that meet the child’s needs. Again, that’s something that parents fight for; and
• To learn about this whole due process world that does not receive a lot of attention or coverage.

I’d like to know your thoughts on why folks are so scared to dig in and tackle IDEA. It hasn’t been reauthorized since 2004. So we’re talking over 20 years, and generally you’re supposed to reauthorize bills every three to five years. That doesn’t necessarily happen with education bills in general at the federal level, but over 20 years is a really long time. So clearly, people are scared to tackle IDEA. What’s your sense of why that is?

Debra Tisler: I think it’s at the administrative funding level where that fear is getting pulled from. Now that we’re seeing the opportunity for school choice and funding models, that’s scary for the bureaucracy itself and for those that want to keep the funding solely within the public schools. It’s not necessarily that it is the best for the child.

Portability of the funding is really a hiccup there. People don’t know how that will then transfer out at the public school level. Some people are scared that it means we’re going to have staffing shortages at the school level. But with school choice, we know that staffing can shift, right? It brings in competition. It levels up the playing field to make sure that students are receiving quality instruction across the board. If you want to keep your students in your school, then make sure you’re providing top-notch services, like with anything else. You’re not going to go to the car dealership with three stars to buy a car, you’re going to go to the car dealership with five stars. Providing that competition is helpful.

In the same sense, so much funding is being spent at the school and district level fighting due process complaints. The legal component has grown to, in some districts like ours in Fairfax County, million-dollar-plus levels. Looking at IDEA to allow that portability, especially around the area of placement talks, is so important to alleviate the adversarial instances that are happening between parents and schools, and all of the money getting shifted when due process, state, and OCR complaints are filed.

If parents do place their child in private school and their child has disabilities, there’s still supposed to be funding available for services for that child, although they’re very limited. So, that’s another area that also brings up questions with reauthorizing IDEA. What will the obligation then become? Will we have to expand that money that will then go to parentally-placed private school students?

You’re saying there’s a lot of fear within the system that they might lose money, and that adults might lose jobs. That was not the goal of IDEA, to protect adults’ jobs and to ensure that funding stays within one system.

As you said, from the get-go, there’s been this concept of equitable services, which means all students are supposed to be benefiting from IDEA regardless of where they are enrolled in school. And that includes private school students and students who are homeschooled. It’s a different process, but they do have access to that private services plan and some services.

I think it’s important to discuss this topic because:

1. IDEA hasn’t been reauthorized for a really long time. We need to start having a conversation around that.
2. The system, when you’re talking about due process and what parents are fighting against, is so broken, and we need to start being honest and transparent about that.
3. It’s increasingly expensive. There’s always this magical thinking in D.C. that we’ll just throw more money at it at the top level, at the appropriations level, and “fully fund” IDEA, and that will fix things. No, we need to look at what’s driving the expenses here.
4. We need to have an honest conversation about what students and families really need. We see them taking advantage of these state school choice programs and making sure that their child’s needs are met that way, and I think more people need to know that that’s happening.

Debra, what needs to happen next in your mind? There’s an annual appropriations process that’s never going to change. IDEA is always going to be funded at the federal level. Sure, there’s the possibility of bureaucrats moving from one office to another at the federal level. But what do you think needs to happen to improve implementation of IDEA to improve access and opportunities for students with disabilities?

Debra Tisler: There are a few pieces to that, but the most fundamental is ensuring that parents and guardians actually know what their rights are and how to access them. Providing the special education data in a more transparent format across our states, and even on websites at the federal level. Right now, the data, when it’s presented, is very much for the bureaucracy to interpret.

Say you’re a parent and you have a job opportunity, you can look and see what state is really performing well in meeting students with disabilities’ needs, and specifically my child’s disability? Often, we dump all the data into students with disabilities (SWD), and not every disability is the same.

For a parent to be able to look that up and say, “Well, Texas or Florida or another state is doing something very well. I think I’m going to move there.” Then district-level data. “My child has dyslexia. Look at their literacy rates. They’ve got something really strong there. So I want to move there.” Parents need to have that information at a very basic level; right now, the data is not transparent like that.

I think that’s a very good first step in order to bring the parents into this. I think that will help drive things. With all the grassroots movements that we saw through COVID, we could see that for IDEA.

Portability of the funding would be very, very helpful for parents, to remove that adversarial aspect so they don’t have to become mentally and physically exhausted—and bankrupt—in all different ways to try to access that.

Portability of that federal funding is something that Senator Tim Scott has proposed in the past. Revisiting that proposal definitely is worthwhile.

Debra Tisler: When I have sat down with parents, and I go over their child’s data, and I explain it to them, it just really grows that collaboration with them and their involvement. When data is cut off from parents or access to it is very limited as far as their child’s education record, it creates that adversarial component.

If you’ve got the parents working with you and they see what’s going on as far as what their child needs, they can also help at home, even if they don’t have a lot of money.

How can [schools] keep an education record from a parent? There’s FERPA on top of IDEA. That’s ludicrous.

Debra Tisler: There sure is, but some school divisions are very good about providing that access, and others are not.

In the digital age that we have, having the education record available [so that parents] can just click on it and see, my child’s evaluations are here, that’s great, because sometimes it’s a bureaucracy. Parents will submit a private provider’s evaluation, and for some reason, it doesn’t make it into the record. So you have school staff unaware that this child has these needs from this most recent evaluation.

And that’s after parents have spent thousands of dollars to get that evaluation, and then it’s ignored or lost.

Debra Tisler: Exactly. So it’s also a layer of support for the school system, because who else is going to make sure that the record is correct than the parent and guardian themselves?

As we wrap up, I like my guests to tackle myths around education policy. Is there a myth about IDEA that bothers you and that you’d want to address today?

Debra Tisler: I’m going to go back to the funding issue, that it’s a funding issue and not an allocation problem. I believe, from both being a teacher and a parent involved in this, that it’s an allocation issue.

When we look at the pots of money that we have for IDEA and to support our students, we have the federal level funding, we have state, local, and then we also have Medicaid funding. We need to look at whether we are using that funding wisely and how is it getting allocated before we start raising the red flag that more money is needed.

We saw a huge influx of funding from the COVID era, and we didn’t have that return on investment, the outcomes, the meaningful progress. So, is it really a funding problem or is it an allocation problem? I think that’s a very important question that needs to get answered.

How can people follow your work?

Debra Tisler: I’m online. I have a nonprofit called Emergent Literacy, where you can find instructional resources that you can use at home with your children. Also, reach out if you need some help with advocacy as well. My website address is emergentliteracy.org.

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Access our full conversation on your favorite podcast app. Please follow Freedom to Learn on Apple Podcasts to receive new episodes every Thursday morning!

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