Sent via fax 916-445-4633
September 9, 2004
Governor Arnold Schwarzenegger
State Capitol Building
Sacramento, CA 95814
Re: REQUEST FOR VETO OF AB 1858
We are writing on behalf of A2Z Educational Advocates to encourage you to veto Assembly Bill 1858. A2Z is an organization consisting of attorneys and advocates assisting parents of special education students in legal matters, providing advocacy for parents, and empowering parents to be their own advocates. Because of our active role in the education process in California, particularly our involvement with placing special needs students in nonpublic schools (NPSs), we are concerned with the likely negative impact of AB 1858. AB 1858 may have begun with noble intentions to assist foster children; however, the series of amendments since the Bill’s inception have stripped the Bill of any benefits for foster children. Your veto of AB 1858 will protect the interests of special education students and their parents, support the foster students this bill professes to serve but ultimately abandons, and prevent unnecessary waste of state funds on costly litigation and ineffective bureaucracy.
We have represented many parents of students whose needs cannot be met in the local public schools and who therefore must turn to NPSs to provide appropriate services. These students are kids with dyslexia, who don’t learn to read in the local schools; kids with autism, who can no longer be safely and appropriately educated in the large public middle or high schools, or kids with emotional or behavioral disabilities that need intensive, structured and therapeutic placements in order to succeed.
Nonpublic schools and nonpublic agencies are privately owned and operated special education service providers that are often at the cutting edge of research-based academic and behavioral instruction for students with autism, mental retardation, severe learning disabilities, challenging emotional problems, and other serious disabilities. These schools are a critical part of the continuum of services that states must offer special education students under the Individuals with Disabilities Education Act (IDEA). When public school districts cannot provide a legally appropriate education for their neediest students, they must contract with nonpublic schools and agencies to fill this gap in services. AB 1858 attacks the flexibility of NPSs to provide the innovative curriculum and disability-specific pedagogy that have made nonpublic schools successful in meeting students’ needs.
(1) AB 1858 orders nonpublic schools to provide the “same instructional materials” used by the local school district “to the extent” they are available in that district (p.34, lines 19-24). This provision, added last-minute, makes sense neither educationally nor fiscally. As explained above, nonpublic schools exist to provide instruction that local school districts cannot. In our experience, many students, particularly those with learning disabilities like dyslexia, must attend a NPS because the instructional methodologies used by the local schools are not meeting their educational needs. For example, in a recent case, we represented a middle school aged student with dyslexia, who had not made progress in four years in the curriculum used by the local school district to teach reading. However, this student is able to progress in an NPS where specialized instructional methodologies, that have been proven to work with dyslexic students, are used.
NPS success therefore often depends on their ability to provide students with innovative, specialized instruction materials—still focused on state standards—which are tailored to the needs of students with disabilities. Forcing nonpublic schools to utilize district materials would hinder their ability to meet students’ needs. Also, this would, in effect, require nonpublic schools to purchase and use local district books and materials; this requirement would be costly for NPSs and school districts who are funding the NPS placements of special needs students. Overall, this provision destroys NPS flexibility to choose materials that will best allow their students to succeed academically and creates increased materials costs which will be passed on to local school districts.
(2) AB 1858 also requires staff at nonpublic schools and agencies to hold credentials “equivalent to that which staff in a public school hold in the service rendered” (p.32, lines 1-7). A few years from now, when No Child Left Behind is fully implemented and requires public schools to provide fully certified staffs, nonpublic schools will have to do the same. Realistically, as is the case now, there will not be enough certified teachers to go around. As is also the case now, public schools will have an advantage in the competition for certified teachers because they can pay higher salaries and provide better benefits. Currently, nonpublic schools have the flexibility to use staff with less-than-full state credentials. Under AB 1858, however, that flexibility would be lost. The irony is that generic state credentials provide no assurance that teachers are qualified to teach students in nonpublic programs—the neediest students in the special education system.
Many nonpublic schools and agencies provide focused training to ensure their staffs are qualified to teach the particular students they enroll, regardless of whether the teachers have full state credentials. For example, for many students with autism, the success of a particular teacher or provide does not depend on credentialing, but on the experience and training that the individual has in dealing with this particular disability. The focused training that teachers receive at NPSs specifically for students with autism is therefore much more valuable. Given the inevitable shortage of state certified teachers for the foreseeable future, AB 1858 would eliminate many excellent nonpublic programs that depend on the flexibility to hire people with the specific experience and expertise needed in highly specialized environments.
(3) AB1858 would prevent a nonpublic school from accepting a student unless the nonpublic school agrees to provide, or ensure provision of, all of the services in a student’s individualized education plan (IEP). Under current law, when parents have given notice to a school district that the district is not meeting their student’s needs, and when the district refuses to correct the problem promptly, the parents may place the student in a nonpublic school, at their own expense, with the hope of reimbursement by the district. AB 1858 jeopardizes this well-established parental right.
When parents unilaterally place their student in a NPS, they are essentially saying that the IEP is flawed and that the NPS is the appropriate place for their student. The NPS is the alternative to this flawed program, and it would therefore not make since to force the NPS to implement the IEP that is in question. There is no reason to prevent a nonpublic school with an appropriate program from accepting a student simply because the student’s allegedly flawed IEP cannot be adhered to in every particular.
(4) AB 1858 appears to drastically raise the standard for services school districts must provide by declaring that special education children “have the right to the best educational placement (p.10, lines 3-5, emphasis added). The U.S. Supreme Court held in the landmark Rowley decision that, to satisfy federal law, school districts must provide disabled students an “appropriate” education. Parents will be anxious to demand the “best” possible services for their students, while school districts will continue to insist that “appropriate” is good enough, and litigation would increase. IEP meetings, mediations, due process hearings, and appeals to federal courts will abound. Unless AB 1858 is vetoed, school districts will be burdened with both their own legal fees and the legal fees of prevailing parents.
(5) AB 1858 puts California squarely in opposition to a fundamental aspect of the federal Individuals with Disabilities Education Act (IDEA). The IDEA requires that appropriateness of educational placements be determined by IEP teams, which includes parents. This bill short-circuits the IEP team’s authority by allowing the Special Education Local Plan Area (SELPA), an administrative body, to decide whether “appropriate public alternative educational programs” are available, such that a foster student cannot attend a group home- provided nonpublic program. This infringement on the role of IEP teams is a blatant violation of federal law and would jeopardize federal special education funding in California.
(6) AB 1858 purports to be designed to improve the educational prospects for students who are in foster care; however, the Bill does nothing to help foster students and would thus squander an important, rare political opportunity for this vulnerable population. SB 1108, the educational trailer bill, creates a funding system whereby school districts will receive an annual allocation of funds based on the number of group home and foster family beds located within the district’s geographic area. This funding was originally intended to be spent on the foster student whom the money “follows.” At the last minute, however, two provisions were dropped from the Bill, emptying it of its value to foster children. The Bill used to say that all the funds generated by SB 1108’s funding formula would have to be spent on foster students. It also used to require the state to disaggregate the test scores of foster students so that districts could be held specifically accountable for improving the academic performance of these students. Without these critical safeguards, the money generated by the new funding formula will wash into general district expenses, leaving foster students without promised assistance. Your veto will allow stakeholders to reconvene next year to create a bill that truly achieves the goals for foster students that this Bill failed to reach.
For the foregoing reasons, we respectfully ask you to veto AB 1858. AB 1858 is precisely the kind of bill you and your administration have criticized and is precisely the type of legislation a man of your character would abhor. It began as a bill to assist foster children and then morphed, behind closed doors, into an entirely different piece of legislation. In its current form it is devoid of any benefit to foster children or special needs students, and if signed into law this Bill will be educationally disastrous for special needs students and financially draining for school districts and nonpublic schools in California. Students with disabilities need, and are legally entitled to, the full range of placement options, including nonpublic schools. Stripping the ability of the nonpublic schools to meet the needs of these students is not acceptable. Again, we urge you to veto AB 1858.
Thank you for your attention to this important matter.
Sincerely,
N Jane DuBovy Carolina D. Watts
On Behalf of A2Z Educational Advocates