By Facsimile (860-570-1195), E-mail, and First Class Mail
Dear Mr. Governor-Elect:
I write as an attorney who devotes his entire practice to representing children with disabilities in seeking appropriate educational services.I congratulate you on your election.Those in the special education community should be especially proud to have a Governor who is a former special education student himself.You are living proof that our efforts on behalf of children with disabilities pay off for all the citizens of Connecticut.
I write to ask that you intervene to reverse the misguided policies of the State Department of Education (SDE) in the area of designation of children as eligible for special education services on the basis of a specific learning disability.A little background is necessary.When Congress passed No Child Left Behind in 2001, it included requirements that scientific research based interventions be utilized as part of the Reading First program, established in 20 USC §6361 et. seq.This language was subsequently incorporated in the Individuals with Disabilities Education Act (IDEA) when it was reauthorized in 2004 in 20 USC §1414(b)(6), which provided, “In determining whether a child has a specific learning disability, a local education agency may use a process that determines if the child responds to scientific, research-based intervention as part of the evaluation procedures describe in paragraphs (2) and (3).”
The State Department of Education (SDE) has taken this narrow, permissive language, related to reading alone and supported by academic research only for children in early elementary grades, and has expanded it to create a Connecticut Scientific Research Based Initiative[1] (SRBI) program covering reading, writing, math, and social and emotional behavior and equally applicable in high school and middle school as it is in elementary school.The SRBI program is highly controversial.On the positive side, it requires individualized, data-based education for all children and provides a program of progressive more intense interventions for all students showing deficits, whether those deficits rise to the level of special educational eligibility or not.On the negative side, the SRBI program is complicated, time-consuming and expensive[2].It requires classroom teachers to maintain, analyze and present a substantial amount of data on each child.Teachers are not trained in using scientific research based methods of instruction, they are not trained in how to design a sound data collection program, and they are not provided the resources they need to implement the program with any level of fidelity.Further, districts often keep data on easy to measure items, like decoding, but neglect to keep data on more challenging issues like phoneme awareness or comprehension.In many cases, what is measured has little to do with the child’s disability.
This letter is not directly about the soundness of the SRBI program, although that is another area that warrants your attention.Even beyond the conceptual and practical weaknesses of the SRBI program, the SRBI program utilizes a tremendous amount of resources.Even if the SRBI program were as great an educational innovation as its advocates claim, there is a serious question about whether it is sound public policy to devote limited educational resources to SRBI when our schools in Hartford, New Haven, Bridgeport, and Waterbury are failing so spectacularly.While our urban children lack books and pencils, does it make sense to spend money on better data collection systems for suburban schools?
Instead, what this letter concerns is the Guidelines for determining eligibility for special education based on a specific learning disability issued by SDE last spring.The Guidelines rely on the SRBI as the first screen to determine which students need intensive interventions and to mandate that districts provide those interventions.Essentially, the Guidelines state that a student cannot qualify for special education designation, and the legal protections, added interventions, and accountability that come with a special education designation, until and unless the student fails to make progress throughout the entire SRBI program.In three fundamental ways, this reliance is misplaced.
First, it may take a student two years to go through all three tiers of support under the SRBI program.Only then can the student be designated as eligible for special education.The educational research is clear that, for students with learning disabilities, early intense intervention is the best and, at times, the only way for the student to learn to read competently[3]. By delaying special education designation for two years, we may well be sacrificing the student’s long-term literacy.Note that the SRBI program is not limited to literacy and is not limited to the early grades.At all grades and in all aspects of learning disabilities, SRBI will serve to delay a determination of eligibility.
Second, the special education program mandates a high level of parental participation.The SRBI program has no requirement for parental participation.The way SRBI has been implemented in most school districts affords no role for parents.This is unfortunate.Parents often know their children best and can add a great deal to the educational planning for their child.Moreover, any effective learning program at the lower grades requires a significant home component.By cutting parents out of the SRBI program, districts are insuring that the program is far less successful than it could be.
Third, the Guidelines state that, if the child fails to make grade-level progress because the district had an inadequate SRBI program[4], the child cannot qualify for special education designation.So, the draft Guidelines sentence children with learning disabilities in the weakest schools to double punishment: no effective SRBI and no special education services.This is a violation of the school district’s Child Find obligations under the IDEA, directly contrary to the intent of both Connecticut and federal special education law, and inconsistent with the language of the IDEA.More fundamentally, a policy that inflicts additional injury on children attending poor schools is immoral.
There is nothing whatsoever in the IDEA to support this exclusion.20 U.S.C. § 1401(30) and 20 U.S.C. §1414(b)(6) provide substantial legal parameters for determining what is a specific learning disability.In neither of these provisions does the federal statute permit the policy of refusing to designate a student as eligible based on a failed response to intervention program.Section 20 U.S.C. §1414(b)(6)(B) provides that “In determining whether a child has a specific learning disability, a local education agency may use a process that determines if the child responds to scientific, research-based interventions as a part of the evaluation procedures.”The ability to use response to SRBI as one factor in determining eligibility is radically different than saying that a child who has been victimized once by poor implementation of SRBI by a school district cannot be said to be learning disabled.
Note that, even were the SRBI program sound in theory, SRBI has been poorly implemented throughout the state.As noted above, SRBI is an intensively data-driven program requiring weekly and, at times, daily data collection, data maintenance, analysis, and presentation.A teacher with twenty or twenty-five children in the classroom does not have the time to implement the SRBI program with fidelity. Most school districts do not routinely provide aides to assist with data collection.Where there are aides, they not trained in SRBI implementation.The State is not providing any additional funding to school districts to implement SRBI.Further, SRBI also imposes a large change in the way education is delivered and necessitates a change in the culture of schools.Cultural changes take time and continuous reinforcement.The State is doing very little training of administrators, teachers, and aides to administer the SRBI program.The program is complicated.Determining what data to collect and how to analyze it is difficult. As the United States Department of Education advised, in its letter of July 27, 2007, it is unwise to require the use of a response to intervention program, such as SRBI, for purposes of special education designation until the program has been successfully scaled up, in an incremental manner, over time.
When I wrote Commissioner McQuillen on April 13, 2010 concerning this issue, he responded that I had misread the Guidelines. Commissioner McQuillen wrote, “If there is any question or suspicion that a child may have a learning disability, a comprehensive evaluation must be performed even if the child did not receive appropriate instruction or the district did not provide appropriate interventions through their SRBI process.In addition, as specified in IDEA 2004, families and school personnel always have the right to refer a student for consideration of eligibility for special education services by requesting an evaluation at any time, including prior or during the SRBI process.The PPT must respond to all referrals by holding a PPT meeting to determine whether a comprehensive evaluation is warranted.”These reassuring words from the Commissioner are contradicted by the language of the Guidelines, which require that the PPT should, prior to any evaluation, ask, “Are there additional general education strategies and interventions that should be in place and tried before a comprehensive evaluation is considered?”Guidelines, page 24.The effect of this language on school districts has been to given them license to say no to evaluations because the child has not been through the entire SRBI process[5].
What has happened is that a cadre of well-meaning but out-of-touch unelected civil servants have taken hold of a good, but limited idea and expanded it far beyond what the federal law permits, far beyond the scientific underpinning of research based interventions, and far beyond the bounds of good public policy.While you have many pressing issues to address as Governor, I urge you to place this issue on your list of priorities.
I have heard you speak, on many occasions, about your own experience with special education.Under the learning disabilities eligibility Guidelines promulgated by the SDE, it is not clear that you would have received the interventions that have allowed you to become Governor of the State of Connecticut.I, and many of my colleagues, would be pleased to speak with you or your staff about this issue and about ways that we can ensure that sound education policies are in place for all Connecticut’s public school students, both those with disabilities and those without.
Sincerely yours,
Andrew A. Feinstein
[1]The use of the term “scientific research based” is misleading.What research has been done relates to cadres of students and the effect of interventions on the average student in that cadre.There is virtually no research base for the effect of actual interventions on individual children.
[2]I teach Special Education Law in the graduate program at Central Connecticut State University.My class is made up of working teachers.They report that the SRBI program is a bureaucratic nightmare, that they are provided with no training, that they are not clear on their responsibilities, that they find the SRBI requirements a direct interference with their ability to teach effectively.
[3]To delay known effective interventions is to condemn a child to lose critical time that cannot be made up or undone.Often the experience of frustration and escalating anxiety can cause a child to give up before appropriate interventions are implemented.
[4]Federal law requires that a child cannot be designated as a child with a learning disability if the child’s deficits are due to a “lack of appropriate instruction,” 20 U.S.C. §1414(b)(5).It is a huge leap for the SDE to define appropriate instruction as an adequate SRBI program.
[5]This issue arises again and again as colleagues work with parents seeking to have their children designated as having a learning disability.Every week I receive reports from attorneys, advocates and parents that their requests for evaluation were rebuffed with comments from school officials to the effect that the State says they do not have to evaluate until the child fails in the SRBI process.
TESTIMONY OF ANDREW A. FEINSTEIN ON STATE OF CONNECTICUT PROPOSED SPECIAL EDUCATION REGULATIONS August 30, 2010
Attorney DeFrancis, I am pleased to be here to testify concerning the proposed special education regulations issued by the State Department of Education in August. The stated purpose of these regulations is stated as, “To adopt the standards of the Individuals with Disabilities Education Act and clarify state-specific provisions for the provision of special education to children with disabilities and the identification and evaluation of gifted and talented children.” Three years ago, when the State Department of Education was considering predecessor regulations, I, on behalf of nearly 100 parents of children with disabilities, attorneys, advocates, and providers, filed detailed comments. To date, I have not solicited signatories, but I have no doubt that a similar or larger cadre of concerned citizens can be marshaled to ask for changes in these regulations. Indeed, the extent of concern about these regulations will be far greater because these draft regulations do far more damage to special education law in Connecticut than did the 2007 proposals.
These proposed regulations go far, far beyond the stated purpose of conformity with federal regulations. The proposed regulations make massive, ill conceived, and discriminatory changes in eligibility based on a specific learning disability. The regulations lessen State regulation of local boards of education. The regulations significantly expand the time frames under which local boards need to evaluate, indentify, and program for children with disabilities. These proposed regulations comprise a radical document. What is the need for such extreme change?
The purported overall thrust of the proposed regulations is to eliminate aspects of special education law and procedure which are unique to Connecticut and, instead, to conform precisely to the minimal federal standards. Reducing Connecticut protections to the federally-mandated minimum is not required. Indeed, the federal courts have made it plain that states can provide a higher level of protection for students with disabilities than is mandated by federal law and regulation. Blackmon ex rel. Blackmon v. Springfield R-XII School Dist., 98 F.3d 648, 658-59 (8th Cir. 1999); Johnson v. Ind. Sch. Dist. No. 4, 921 F.2d 1022, 1029, cert. denied, 500 U. S. 905 (1991); Burke County Bd. Of Ed. v. Denton, 895 F.2d 973, 982-83 (4th Cir. 1990); Board of Ed. of East Windsor Reg. Sch. Dist. V. Diamond, 808 F. 2d 987, 992 (3rd Cir. 1986) David D. v. Dartmouth Sch. Dist, 775 F.2d 411, 418 (1st Cir. 1985), cert. denied, 475 U.S. 1140 (1986). Connecticut can do better. Connecticut can serve as a model for how to educate children with disabilities effectively. The regulations proposed by CSBE are a move in the wrong direction. Historically, Connecticut led the way, enacting comprehensive special education law before the federal government acted. The proposed regulations execute a u-turn; instead of being in the forefront, Connecticut has decided to be back in the pack. We can do better for the children of the State. Connecticut, through these regulations, has joined the race for the bottom.
My testimony will follow the proposed regulations in the order they appear. I do not comment on some sections. On others, I have a few technical comments. But, for many others, I have substantial objections. To preview, the most objectionable elements of these proposed regulations are:
1. The insertion of new eligibility standards for learning disabilities that effectively preclude children from the weakest schools from ever getting special education services and the type of intensive education they need.
2. The failure to address the concerted effort by school districts to block parents from exercising their right to an independent educational evaluation.
3. The substantial extension of deadlines for referral, evaluation, identification and programming that can leave a child with a severe disability without services for half a school year.
The Proposed Regulations
The scope of the proposed regulations is so large that the State Board of Education should proceed with caution and only after fully considering the views of all stakeholders. Unfortunately, the most important stakeholders – children with disabilities – are frequently unable to express directly their needs in this system. Parents, advocates, attorneys for those children, and service providers speak on their behalf. The special education system exists for the benefit of children with disabilities. Drafting regulations is not a matter of balancing the interests of school boards against the interests of parents. Instead, the needs of children with disabilities must be paramount.
In the case of these proposed regulations, the State Department of Education has an obligation to clearly and widely publicize what these regulations do. They have been released with the least amount of publicity the UAPA permits and the stated purpose does not describe what the proposed regulations do. One might suggest that the SDE is attempting to disguise enormous changes in the law. You must not permit that to happen.
Section 1 – RCSA § 10-76a-1 (General Definitions)
Section 1 changes the definitions governing the law. Astonishingly, the very first change is to eliminate the clear definition of “at no cost”. To be sure, the first word of FAPE, free appropriate public education, is free. Just using the term free does not, however, convey the broad expanse of the current regulatory requirement that special education services must be provided at no charge to the parents. And, as we see in RCSA § 10-76d-17, the term “at no cost” to parents remains in the regulations.
The age requirement in the definition of “a child requiring special education” is concerning. The new language limits eligibility to children three, four or five, or children who have attained the age that the town is required to provide services. The language should be amended to read that the law covers both children aged three, four or five, as well as any other children otherwise entitled to services from a town.
The change from school days to calendar days is a step in the right direction because it eliminates the oft used excuse of school boards that they cannot deal with a parent’s request over summer or over vacation. Time limits should be drafted to compel districts to act swiftly to protect the interests of children. They should never be used to deny parents the right to challenge a district’s program.
The change in the definition of the term “evaluation” makes sense. It should be noted that both the existing regulatory definition and the IDEA language mandate that evaluators make specific educational recommendations. Efforts by school districts to limit evaluators from making specific recommendations are improper.
The term “independent evaluation” is inconsistent with federal law. The federal law requires a “qualified examiner”, not someone certified or licensed under standards that often have nothing to do with the expertise needed to conduct a meaningful evaluation. This language is an inappropriate limitation of the right of parents to an independent evaluation.
The change in the definition of least restrictive environment is regrettable. The prior regulation contained a definition of inclusion that is different from the federal standard in 20 U.S.C. 1412(a)(5). As a mandate for a higher level of inclusion than required by federal law, the Connecticut regulation, as it now exists, put the State in the lead and ought not to be abandoned for the sake of national uniformity.
It probably makes sense to avoid confusion for Connecticut to retain the name of a planning and placement team, rather than switching the nomenclature to the federal IEP team. The last sentence, referring to the PPT for gifted or talented students, needs to be amended to include parents.
Section 5 – RCSA § 10-76b-4 (Compliance)
Local school districts need to be made explicitly accountable for compliance with the requirements of the federal regulations, as well as the IDEA, Connecticut law and Connecticut regulations. This is critical to enforcement because the federal requirements on independent educational evaluations, and other matters, are contained in the regulations, not in the statute.
Sections 6-9 – RCSA § 10-76b-8 (Use of seclusion in public schools, requirements)
These sections on seclusion use the term “person at risk” which is defined in CGS §46a-150 to include, inter alia, “a child requiring special education described in subparagraph (A) of subdivision (5) of section 10-76a, who is receiving special education by a local or regional board of education, or a child being evaluated for eligibility for special education pursuant to section 10-76d and awaiting a determination.” This definition is inappropriately narrow. The regulation should be written to apply the section to all students.
Further, the regulation should make clear that seclusion is an appropriate behavioral intervention only if the PPT adopted the technique on the basis of qualified expert opinion and if the PPT explicitly considered and ruled out any alternative interventions. Additionally, any IEP that includes seclusion should be presented to the parent or guardian for knowing, written consent. The parent’s consent should be required anew every semester.
The locking mechanism language is outrageous and criminal. Under the language, a child could be locked in a room for two minutes while a fire blazed around him or her. The entire debate about locking mechanism is unnecessary. The regulation should provide that no locking mechanism may be used and that any child in seclusion shall be in the sight and hearing of a professional staff member at all times.
The regulation needs to make clear that any private placement, funded in whole or in part, directly or indirectly, with district funds needs to comply with the seclusion requirements.
Section 10 – RCSA § 10-76d-1 (Special Education and Related Services)
The language that “the PPT shall determine whether a child who turns three during the summer requires extended school year services” only makes sense if the State Department of Education issues clear guidelines on ESY. The topic brief issued by SDE is not particularly relevant for children just entering into the system.
In this section, the proposed regulations sweep away Connecticut standards for an education at no cost, in conformity with the IEP, least restrictive environment, inclusion in graduation and extra-curricular activities, and bilingual education inserting instead a cross reference to the IDEA and Connecticut law and regulations. Instead, IDEA and state statutory and regulatory standards are incorporated by reference. If that is the route selected, the federal regulations need to be referenced as well. Still, it is sad to see Connecticut forfeiting its leadership role on special education and being content to do the minimum required by federal law. Instead of engaging in a Race to the Top, Connecticut seems to be careening to the bottom.
The move away from SDE-approval of related service and evaluation contracts by local school boards is good, but the deregulation seems to be taken to an extreme. As Section 10-76d-1(c) is rewritten, there are virtually no limitations on school districts. School boards often retain evaluators and service providers who do not assert independent judgment and will blindly obey the district’s direction. The State ought to require that contract personnel be qualified to perform the task, exercise independent, professional judgment, abide by the Code of Ethics of their profession and be available for exchange of information with the parents. Even if no written contact is required, the local board of education should be obliged to disclose the nature of its relationship with each contractor under the Freedom on Information Act.
Further, the proposed regulations would amend the language of RCSA 10-76d-1(b) purportedly to limit services to gifted children only to referral, identification, and evaluation. The way the language is drafted raises ambiguity concerning the obligation of a school district to provide special education and related services to a child who is both gifted and has a disability. Clearly, if a child qualifies as eligible for special education, that child is entitled to the full panoply of services without regard to whether the child also qualifies as gifted and talented. The regulatory language needs to be amended to remove the ambiguity. This is important because some school districts persist in subscribing to the mythology that a student who achieves minimally passing grades is not in need of special education services, without regard to the student’s cognitive ability. The regulations should make clear that the standards for eligibility are far more exacting than merely passing from grade to grade.
Section 11 – RCSA § 10-76d-2 (Personnel)
It appears that subsections (a) through (f) of 10-76d-2 are being deleted (although it is not entirely clear because of the brackets in subsection (f)). I have no objection to the State reducing its micromanagement of local school board’s administrative staff. Local school boards do need to be reminded, however, that insufficient supervision, which becomes possible after this regulatory change, will most likely result in more errors in designation and programming, more due process filings, and, ultimately, higher cost to the district.
The new language on the supervision of aides is good, but not strong enough. Untrained, unqualified aides provide most of the educational services provided to disabled students in Connecticut. Supervision of aides is pathetic in many cases. The only way to make supervision effective is to make the supervisors personally liable for the actions of the aides, in the same way I am personally liable for the actions of my secretary and paralegal. This could be accomplished by having the performance ratings of professions – both teachers and related service providers – based on the performance of the aides under their supervision. If an aide makes a very serious error, the teacher or the certified service provider should be sanctioned. If the service provider is on contract, pay under the contract should depend on the success of the aides. Without real enforceable sanctions, the new language in the regulations is just fluff.
The regulations should define what is meant by the term “direct supervision” and should reference the professional standards applicable. Direct supervision should be defined to mean that a certified or licensed professional drafts the lesson or treatment plan used, trains the aide in the implementation of that plan, observes the aide working with the student on a frequent basis, is responsible for all aspects of the aide’s performance, and verifies all reports of progress. Further, the regulations should make it clear that an aide cannot be assigned any function that the applicable code of ethics or rules of professional conduct of the profession require that the certified or licensed professional perform. In other words, to the extent that the rules of professional conduct for occupational therapists require that a certified professional perform certain hands-on manipulation, the regulations should preclude that manipulation from being performed on a student by a paraprofessional.
The new language on personnel development, requiring teacher attendance as a means of corrective action where the State finds a violation, is necessary. Training, however, needs accountability. It is not good enough for teachers to be required to attend. They need to be tested on the content. Teachers should only be considered to have attended in-service training, whether mandated or not, if they successfully demonstrate that they have mastered the material presented.
Section 12 – RCSA § 10-76d-3 (Length of school day and year)
The two changes to RCSA § 10-76d-3 are excellent. Unfortunately, the regulations are silent on the criteria for extended school year services. The State Department of Education has provided guidance on the issue through a topic brief. The federal regulation, at 34 CFR § 300.16(b)(2) specifically contemplates state standards on extended school year services. The regulations should, therefore, incorporate, directly or by reference, the language of the Topic Brief on Extended School Year Services of March 15, 2007.
Section 13 – RCSA § 10-76d-4 (Physical facilities and equipment)
The State is proposing a substantial deregulation of the accounting by local school boards for assistive technology equipment. We can only hope that a major scandal does not emerge from this change that undermines special education funding in the future.
Section 15 – RCSA § 10-76d-6 (Identification and eligibility of students)
The issue of responsibility for child find is rather complex under the 2004 reauthorization of the IDEA. RCSA § 10-76d-6 provides no meaningful assistance to school boards and parents in navigating this law. Indeed, the revised regulation does not say that the local board of education is responsible for child find for children attending school in the district. For the sake of clarity, uniformity, and comprehensibility, the State should more clearly regulate in this area. The regulations should explicitly set forth which LEA is responsible for identification, evaluation, and provision of services in each set of possible circumstances so that parents and school boards know where responsibilities lie.
Despite the title of this regulation, the current regulations fail to address the requirements for eligibility for special education services in Connecticut. The current matrix of Guidelines and Reports is unsatisfactory. The Guidelines are vague and ambiguous. In many cases, the Guidelines are outdated and plainly inconsistent with federal law. The Guidelines are frequently not based on sound scientific evidence. The eligibility standards are so subjective that there is no way they can be implemented consistently. Parents have no way to know whether school personnel are implementing the standards fairly. A student who might qualify easily in one district would be found ineligible in another. School districts consistently misuse section 504 of the Rehabilitation Act as a sort of IDEA-lite. No area of special education law in Connecticut is more in need of reform and clarification than the eligibility standards.
Section 16 – RCSA § 10-76d-7 (Referral)
The additions to RCSA §10-76d-7, dealing with referrals to special education, are generally helpful with three important caveats.
First, for many uninformed parents, requiring a referral to be in writing is unacceptable. If a parent expresses a concern about his/her child’s possible disability by phone call, at a parent-teacher conference, or in a call to the teacher, the school official who receives that communication should be obliged to fill out a referral form for the parent and commence the referral process. The exception in the last sentence of paragraph (a)(3) for parents “who cannot put their request in writing” is far too narrow. For most parents, the issue is not an inability to write; the issue is they do not understand the process.
Second, at various places in RCSA §10-76d-7, in the proposed amendments, there is language indicating that a child cannot be designated as eligible for special education and related services until and unless regular education interventions are tried and fail. This is not the law. This is not a requirement. Indeed, it runs contrary to the Supreme Court decision in Forest Grove School Dist. v. T.A., 29 S.Ct. 2484 (2009), holding that receipt of prior services in the public school is not a condition precedent to funding an out-of-district placement.
I will return to this matter in far greater depth when we get to the evaluation section, CGS §10-76d-9. For some inexplicable reason, these proposed regulations use the regulation on evaluation to state that no child can be designated as having a learning disability and receive special education services unless the child received appropriate instruction first. While all children are entitled to appropriate instruction, no child should be deprived of the intensive services the child needs because the school did not do its job. A student with a disability should not be forced to endure years of failure before getting the special education services the student needs and to which the student is entitled. And, by the same token, no student with a disability should be denied the special education services the student needs and to which the student is entitled because the local school failed to do its job.
Third, the language of the regulation should be redrafted to require the convening of an IEP team meeting whenever any of the following occurs: (1) a student has been placed on out-of-school suspension for more than five days in total during a school year; (2) a student has been absent for more than ten days during a school year; (3) a student has failed or is in danger of failing an academic course; and (4) a student repeatedly fails to turn in homework. Absent some compelling non-disability explanation for such conduct, the team should conduct an evaluation in all areas of suspected disability. Too often, school districts only respond when a parent demands an evaluation. Often, when parents do not know their rights or when school districts are particularly recalcitrant, children with ample manifestation of a suspected disability are never evaluated. By changing the regulation mandating a required IEP meeting under certain circumstances, school districts will be obliged to conduct evaluations where evidence exists of a suspected disability without regard to the capabilities of the parent.
Section 17 – RCSA § 10-76d-8 (Notice and consent)
This section substantially re-writes the notice requirements of RCSA §10-76d-8. Three comments are in order:
First, the change from five school days to ten calendar days is fair and makes sense.
Second, the ten days should run from when the parents are provided with written notice, even if that written notice is the Prior Written Notice page from a PPT meeting. Too often, parents cannot follow what is going on at a PPT meeting and need the written document to let them know. Districts should be in the practice of handing parents the completed Prior Written Notice page at the end of each PPT meeting.
Third, construing parent failure to respond to a request for consent for evaluation as refusal after ten days is inappropriate. Parental refusal can only be construed from silence after the school district makes a serious and a documented effort to elicit a response from the parent. Frequently, parents are confused about the process and do not know what a consent form means. To construe that as refusal, with the serious consequences that can attend a refusal of evaluation, is unfair.
Related to this issue is the conspicuous failure of school boards to properly fill out consent forms. Unless the consent form contains the name of the evaluator, the evaluation instruments to be used, and the purpose of the evaluation, the consent form is not valid. No parent should be deemed to have refused to consent to an evaluation if the consent form is not completely filled out by school officials. The regulation should be amended to make this clear.
The prior written notice requirements of 34 CFR § 300.503 do not contain the five-day advance written notice contained in the current Connecticut regulation, nor does it contain the presumption that the parents fail to consent if they do not respond within ten days of the notice. There is nothing in the IDEA that prevents Connecticut from providing greater procedural protections to parents than are required by the federal statute. The time limits in the current Connecticut regulation should be retained. Note that C.G.S. §10-76d (a)(8) requires a local school board to provide the parent or guardian with five school days advance written notice of a proposal or refusal to change the student’s identification, evaluation or educational placement or provision of a free appropriate public education and to provide the parent or guardian with five school days prior written notice of a PPT meeting. The Connecticut statute remains in force. Removing these provisions from the regulations will, therefore, not change the requirement, but will create confusion.
Further, the current Connecticut regulation provides that parents have the right to review and obtain copies of all records. This right is not specifically contained in the federal regulation. It is essential that this right be retained in the regulations.
Section 18 – RCSA § 10-76d-9 (Evaluation)
This section involved two of the most offensive elements of the proposed regulation: perpetuation of the practice of depriving parents of their right to an independent educational evaluation (IEE) and new eligibility standards for a learning disability.
Independent Educational Evaluations
In subsection (a) of proposed RCSA §10-76d-9, language needs to be added to reference the federal IDEA regulations in relationship to an IEE. Further, specific language needs to be added preventing local school boards from promulgating IEE criteria that have the purpose of chilling the right of parents to seek an IEE. The State has a strong obligation under the IDEA to regulate local school boards. The outrageous behavior of local school board relating to IEEs needs to be curbed by the State Department of Education.
The responsibility of the State Department of Education to regulate this area is clear. The IDEA is a funding statute. Under 20 U.S.C. § 1412, a state is eligible for federal funding if, and only if, “the State has in effect policies and procedures” to, among other things, implement evaluation of children in accordance with 10 U.S.C. § 1414, specifically, 20 U.S.C. §1412(a)(7), and to ensure that local education authorities comply with the provisions of the IDEA in general, 20 U.S.C. §1412(a)(11). There can be no doubt that the State of Connecticut is responsible to ensure that local school boards in the State comply with the IDEA and its implementing regulations.
Perhaps the single most important right parents have under the IDEA, other than the right to file for due process, is the right to an independent education evaluation at public expense. In this way, the parents can double check school evaluators, get a second opinion, make certain that the school district is not glossing over the child’s disability in order to save money. The IEE is referenced both at 20 U.S.C. §1415(b)(1) and at 20 U.S.C. §1415(d)(2)(A), but the real detail on the extent and limit on the parent’s right to an IEE is contained at 34 CFR §300.502. The Connecticut State Department of Education is explicitly required to ensure that local school boards are complying with these requirements.
Notwithstanding this federal requirement, local school boards are riding roughshod over this right. Attached to this testimony are two examples: one drafted by the law firm of Berchem, Moses & Devlin for Fairfield and one draft by the law firm of Shipman & Goodwin for Darien. I ask that you take administrative notice of the fact that these are the two firms in the state representing the most school districts in special education matters.
Let us look through these two documents. We need get no further than the title. Both are labeled IEE criteria. Yet the federal regulations provide no authority for unique IEE criteria. The regulation, at 300.502(e)(1), is explicit that “the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the public agency uses when it initiates an evaluation, to the extent those criteria are consistent with the parent’s right to an independent education evaluation.” To eliminate any wiggle room, paragraph (e)(2) states, “Except for the criteria described in paragraph (e)(1) of this section, a public agency may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense.” So, these documents are ipso facto illegal.
And that is before we look at the text of each which do impose conditions and timelines directly in violation of federal law. Let’s focus on the Fairfield criteria, which are blatantly violative of the federal requirements in numerous respects. The first paragraph of the Introduction paragraph is drafted to scare parents off from IEE, stating, “In the event that the evaluation does not meet the following criteria, the parent may still obtain the evaluation, but it will not be publicly funded.” That is not consistent with the federal law, which gives parents the right to an IEE with certain minimal restrictions.
In the section labeled procedure, the document says the request for an IEE must be made at a PPT meeting. The federal regulations contain no such requirement. The document says Fairfield will respond in one of three ways. The first response, i.e. “The district will explain that the parent or guardian is not entitled to an IEE at public expense because either the district has not yet evaluated the student, and is entitled to conduct its own evaluation of the student, or the parent or guardian has already obtained an IEE at public expense as a result of a previous disagreement with the same district evaluation,” may constitute reasons the request is invalid, but it is not authorized by the regulations. The regulations, at 300.502(b)(2) provide the district with only two options: file for due process or pay. There is no third option. Under (b)(2)(i), the school district can show its own evaluation was appropriate. Under (b)(2)(ii) the district can “demonstrate in a hearing ... that the evaluation obtained by the parent did not meet agency criteria.” In either case, the district’s resort is to due process hearing, not a refusal at a PPT meeting.
This language also does not deal with the situation in which the district fails to evaluate the student in all areas of suspected disability, 20 U.S.C. §1414 (b)(3)(B). In that case, the parent has the right to an independent evaluation and can seek reimbursement of the costs from the district under the Burlington standard, i.e. when a district fails to provide a student with a free appropriate public education, including failure to properly evaluate or designate a student as eligible for services, the parent has the right to remedy the failure and compel the school district to pay. This is not an IEE under 34 CRR 300.502. Yet, if school districts are permitted to issue detailed guidance on independent evaluations, notwithstanding the clear federal law to the contrary, they should be required to explain this right to parents as well.
The language of the Fairfield criteria goes on to explain that the district has the right to evaluate first. What these criteria do not include is the language of 34 CFR § 300.502 (b)(4), stating that “the public agency ... may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint to request a due process hearing to defend the public evaluation.” Again, if school districts are to issue guidance on the subject, and I see no authority for them to do so, they ought to fairly and completely state the law. If the parent asks for an IEE and the district claims its right to go first, unless the district conducts its evaluation promptly, the district’s claim to go first is waived and the district must fund the parent’s IEE.
The Fairfield criteria states that the district will recommend evaluators. That service is not authorized in the federal regulations because of the inherent biased relationships which might ensue. Indeed, it has been my experience that school districts have developed overly cozy relationships with certain evaluators who know how to avoid specific recommendations and know how to read the signals sent by school district personnel. Channeling parents to these evaluators defeats the purpose of an independent evaluation. School districts should be precluded from supplying lists unless requested.
The criteria for evaluators is only valid if it is precisely the same as the one used by the district for its own evaluations and if the education, certification, licensure, cost, independence, evaluation content, consultation, timeliness, and location requirements are reasonable and “are consistent with the parent’s right to an independent educational evaluation.” 34 CFR § 300.502(e)(1). It may well be unnecessary to explain in detail just how profoundly and unreasonably inconsistent the balance of the Fairfield document is to the parent’s right to an IEE. Rather than document all the examples of unreasonableness, I will provide examples:
• It is not reasonable to permit a master’s level school psychologist to conduct a psychological evaluation but require a doctoral degree for a clinical psychologist.
• It is not reasonable to require a clinical psychologist to have three years experience evaluating children of the same age level and not require the same thing for school personnel.
• It is not reasonable to require clinical background, advanced training and recent experience in the area of disability for a clinical psychologist and not require the same thing for school personnel.
• It is not reasonable to require a neuropsychologist to have a two year post-doctoral fellowship in neuropsychology.
• It is not reasonable to require an educational evaluator to have a valid, current educator certification from the State of Connecticut.
• It is not reasonable, and not authorized by the federal regulation, for a district to impose rigid cost requirements on evaluators.
• It is not reasonable, and not authorized by the federal regulation, for a district to preapprove or argue down the cost estimate of an independent evaluator.
• It is not reasonable, and not authorized by the federal regulation, for a district to preclude the use of evaluators who have testified against the school district.
• It is not reasonable, and not authorized by the federal regulation, for a district to preclude the use of an individual who has provided treatment for the student as an evaluator.
• It is not reasonable, and not authorized by the federal regulation, for a district to preclude the use of an individual who has advocated for the student as an evaluator. Indeed, for many of the professions of independent evaluators, the code of ethics require the evaluator to act as an advocate for the client.
• It is not reasonable, and not authorized by the federal regulation, for a district to require an in-school observation for all IEEs.
• It is not reasonable, and not authorized by the federal regulation, for a district to require all evaluators to interview school staff.
• It is not reasonable, and not authorized by the federal regulation, for a district to require the independent evaluator to submit to interrogation by school staff.
• It is not reasonable, and not authorized by the federal regulation, for a district to require that school-based information be addressed and discussed in the evaluator’s written report.
• It is not reasonable for a district to require all evaluators to be from Fairfield or New Haven County.
• It is not reasonable, and not authorized by the federal regulation, for a district to pre-approve the identity of evaluators from other areas.
The Darien IEE criteria are more minimally drafted and present fewer problems. Still, many of the same problems exist.
The Connecticut State Department of Education has embarked upon a set of regulations to bring Connecticut’s regulation in line with the IDEA. The Department has an affirmative obligation to ensure compliance by local school districts with the IDEA requirements. In the case of IEEs, we have school districts publicly thumbing their noses at federal requirements. The State Department of Education is obligated under federal law to step in. The regulations need to be amended to state:
“Any board of education may provide the text of 34 CFR 300.502 to parents providing notice of their intent to pursue an independent education evaluation at public expense. A board of education may append to such text a copy of any published board-approved policies for the retention of independent consultants by the board of education. No board of education shall issue, promulgate, distribute, publish or provide any other rules, regulations, guidelines, criteria or similar document purporting to explain the independent education evaluation process to parents.”
Eligibility Standards for Specific Learning Disability
Subsection (b) of proposed RCSA §10-76d-9 is poorly-conceived, counterproductive, and potentially discriminatory against those from poorer communities. The draft regulation states that, if the child fails to make grade-level progress because the district had an inadequate SRBI program, the child cannot qualify for special education designation and the legal protections, added interventions, and accountability that come with a special education designation. So, the draft regulation sentences children with learning disabilities in the weakest schools to double punishment: no effective SRBI and no special education services. This is a violation of child find, directly contrary to the intent of both Connecticut and federal special education law, and inconsistent with the language of the IDEA. More fundamentally, this policy is immoral.
Further, there is nothing whatsoever in the IDEA to support this exclusion. 20 U.S.C. § 1401(30) and 20 U.S.C. §1414(b)(6) provide substantial legal parameters for determining what is a specific learning disability. In neither of these provisions does the federal statute permit the policy of refusing to designate a student as eligible based on the failure of the school to provide the child with an appropriate education. Section 20 U.S.C. §1414(b)(6)(B) provides that “In determining whether a child has a specific learning disability, a local education agency may use a process that determines if the child responds to scientific, research-based interventions as a part of the evaluation procedures.” The ability to use response to SRBI as one factor in determining eligibility is fundamentally different from saying that a child who has already been victimized by poor implementation of a school district’s SRBI must also be deprived of special education services. By adopting the proposed regulation, the State Department of Education would be setting up school districts for a rash of litigation.
Note that, however sound the SRBI program devised by the State, SRBI is certain to be weakly executed in a significant number of Connecticut schools. There are three reasons for this. The first is that SRBI is an intensively data-driven program requiring weekly and, at times, daily data collection, data maintenance, analysis, and presentation. A teacher with twenty or twenty-five children in the classroom does not have the time to implement the SRBI program with fidelity. Many districts do not routinely provide aides. Where there are aides, they are often poorly trained. More to the point, the State is not providing any additional funding to districts to implement SRBI. Indeed, the State is cutting back on funding for local school districts under the Governor’s Budget.
The second reason is that SRBI imposes a large change in the way education is provided and necessitates a change in the culture of schools. Cultural changes take time and tremendous encouragement.
The third reason is the State is doing very little training of administrators, teachers, and aides to administer the SRBI program. The program is complicated. Determining what data to collect and how to analyze it is difficult. Establishing a serious SRBI program in all the school districts in Connecticut is a time-consuming and very expensive proposition. As the United States Department of Education wisely advised in its letter of July 27, 2007, it is unwise to require the use of an RTI process for purposes of special education designation until the program has been successfully scaled up, in an incremental manner, over time.
With many reforms, partial implementation leads to somewhat better results. With SRBI, partial and imperfect implementation will lead to a calamity for thousands of Connecticut school children who will be deprived of any special education services where SRBI fails. Proposing this regulation assumes a universal, viable SRBI system. Such a system does not now exist. More to the point, the proposed regulation punishes disabled students, not the ineffective school districts, for the failure of the district.
In fact, when I raised this issue with Commissioner McQuillen a few months ago, he wrote, on May 20, 2010, “If there is any question or suspicion that a child may have a learning disability, a comprehensive evaluation must be performed even if the child did not receive appropriate instruction or the district did not provide appropriate interventions through their SRBI process.” The proposed regulation runs directly counter to the clear statement made by the Commissioner. This proposed regulation needs to be withdrawn.
Evaluation, Generally
Connecticut should take the lead in vindicating the parent’s right to an evaluation. As Justice O’Connor noted in Shaffer v. Weast, the evaluation is really the most critical protection that the parent has. The regulation should be amended to include the following provisions, some of which are already mandated by federal law or case law:
• Where the district or a hearing officer utilizes a report, evaluation, observation, or testimony of an expert retained by the parent to make any change in a student’s eligibility, program or placement, the costs associated with the report, evaluation, observation, or testimony must be at public expense.
• An independent educational evaluation can be used to assess the disability and educational needs of the child as well as to review the appropriateness of any education placement or program proposed by the district or the parent.
• Parents have the right to an independent educational evaluation both when they disagree with an evaluation conducted by the district and when the district refuses to support an evaluation requested by the parents.
• A district can challenge its obligation to pay for an independent educational evaluation by filing a request for due process within thirty days of notice from the parents of the independent evaluation request. If the district fails to file due process within the time limit, it shall have waived its right to do so and shall be liable for the reasonable costs of the evaluation.
• Parents can trigger an independent educational evaluation with written notice to the district, as well as by requesting the evaluation at an IEP team meeting. After receiving a written request, the district can schedule an IEP team meeting to discuss the request. The time limit to challenge the independent educational evaluation would run from the date of the IEP team meeting or from the date of the letter if the district does not schedule an IEP team meeting within twenty days of receipt of the request.
• Within thirty days of receiving a copy of an independent educational evaluation, the district could challenge its obligation to pay by filing a request for due process and demonstrating at such hearing that the report lacks validity.
• Parents have the right to observe any program or placement proposed by a district and the right to interview staff of such program or placement. Further, the parent has the right to be accompanied by or send in lieu of the parent an expert to conduct such observation and interviews. Any parent or expert observing would be bound to safeguard the confidentiality of other students seen. To address this confidentiality issue, the state should promulgate a form for parents or their experts to sign. In this way, school districts should be prevented from relying on protecting the confidentiality of other students as an excuse not to permit observation.
Here, the State proposes to sweep away years of Connecticut requirements for IEPs and comply only with minimal federal standards, with the exception that short-term objectives would continue to be required in Connecticut. Again, Connecticut need not subscribe to the lowest standard permitted by federal law. At least, the proposed regulations retain short-term objectives.
Section 21 – RCSA § 10-76d-12 (Meetings)
The parental participation regulations are inadequate. In paragraph 1, parents need to be provided with 10 calendar days, not 5 calendar days notice of a PPT meeting. It is not fair to shorten the time from 5 school days to 5 calendar days.
In paragraph 3, the first remedy for parental unavailability must be to reschedule the meeting. Conference calls or home visits should only be suggested if rescheduling is not possible.
Paragraph 4 needs to be amended to ensure that no PPT meeting is held in the absence of the parents until three attempts have been made to schedule the meeting with the parents present.
Section 22 – RCSA §10-76d-13 (Timelines)
Here, the proposed regulations substantially and inexplicably extend the time lines for school districts to provide special education services. Under the current regulations, an IEP must be implemented within 45 school days, or nine weeks, of the initial referral. Under the proposed regulation, an IEP could be delayed for 90 calendar days, or thirteen weeks or longer. This is simply inexcusable. So, a parent who notices real problems in the first month of school and makes a referral on October 1, is guaranteed an initial referral PPT meeting by October 15. The board then proposes evaluations, which the parent may consent to on October 20. The evaluation then can take 90 days, until January 18. A new PPT is held and the program has to be implemented by February 3. This time line is unacceptable. Under current law, the IEP would need to be implemented by December 10.
Further, under the proposed regulations, the IEP has to be sent to the parents ten school days after the PPT meeting, doubling the current five days.
What makes matters worse is that these timelines are honored more in the breach than in the observance. With no new enforcement sanctions included in the regulations, the message SDE is sending to school boards is that delay and avoidance are perfectly acceptable policies for designating children eligible for special education services.
Timelines are critical to make the process accessible and understandable by parents. Timelines should be clear and enforceable. Further, the timeline should apply not just to new determinations of eligibility but also to evaluations in newly suspected areas of disability. The regulations need to retain a requirement that districts send IEPs and records of IEP team meetings to parents within one week of the meeting. Most important, some meaningful sanction needs to be imposed on districts that fail to meet the provided timeline. An appropriate sanction would be that the district is liable to provide compensatory education for the period of time that the determination of an appropriate IEP was delayed beyond the time limit set in the regulations.
Section 23 – RCSA §10-76d-14 (Program)
The proposed regulation re-enacts and formalizes the diagnostic placement option, while making clear that a diagnostic placement would not be stay put. The diagnostic placement can be an excellent assessment tool when other assessments are borderline or contradictory. The State needs to be vigilant in ensuring that diagnostic placements are only made for appropriate reasons by local school districts.
The proposed regulation also removes the explicit vocational requirement from the Connecticut regulations. This change is acceptable because IDEA 2004 imposed far more elaborate transitional requirements on local boards of education.
Section 24 – RCSA §10-76d-15 (Homebound and hospitalized instruction)
The proposed regulation completely rewrites the law on homebound instruction. The proposal takes the right approach in requiring homebound when the child’s treating physician determines it necessary, after consulting with school health personnel. The appeal to the school’s medical advisor is, however, not fair and not likely to produce a just result. A medical practitioner who is independent of both the school and the parents should make the final determination where there is a dispute between the treating physician and the school nurse. It is not reasonable to expect a fair and impartial decision from a doctor in the pay of the school system.
The proposed regulation needs to be amended to include serious psychiatric and psychological afflictions that preclude school attendance. In those cases, the treating doctor could be a psychologist, who is not a physician.
Additionally, there is no reason to limit the provision of homebound instruction to students attending public schools.
New subsection (e) is unworkable, especially in the case of students with social skills goals in their IEPs. A student on homebound cannot, by definition, participate in general education. It makes no sense to pretend otherwise in this subsection.
Finally, homebound instruction is frequently used as a way to resolve disciplinary problems without utilizing the counterproductive remedy of suspension or expulsion. This use of homebound instruction is not authorized by regulation but can be highly effective to deal with behavioral issues for children with disabilities. The regulation should be amended to permit use of homebound instruction to remove a child from the school environment for a temporary period to deal with a behavioral issue, with the consent of the parents. The regulation needs to be drafted, however, to prevent school administrators from providing homebound instruction as an inexpensive alternative to in-school behavioral therapy.
The school nurses association has made certain proposals relating to this section that should be rejected outright. Essentially, the association proposed that school nurses ought to be able to overrule the opinions of private medical doctors. The absurdity of this proposition is self-evident. Certainly, school officials ought to be able to challenge what private doctors say. Still, final medical decisions need to be made by independent physicians, not nurses employed the school system.
Section 25 – RCSA §10-76d-16 (Placement)
The proposed regulations wipe out the entire priority list for placements previously in the regulations. This priority list ran afoul of federal law and case decisions in numerous regards. Its elimination is a step forward.
Section 26 – RCSA §10-76d-17 (Private facilities)
This proposed regulation makes numerous changes relating to private placements. First, after eliminating the priority for Regional Educational Service Centers (RESCs) in Section 25, the amendments in paragraph (1) would reestablish that priority. There is no basis in federal law, rule or regulation for such a priority. It needs to be eliminated.
Paragraph (3) says the placement shall be at no cost to the parents, but in Section 1, the proposed regulations eliminate the definition of the phrase “at no cost”. If the term is to be used, as it should be, it needs to be defined.
The rigid new requirement in paragraph (4) for the participation of a representative of the private program in the child’s PPT meeting may not work in numerous cases. Often, the district proposes a number of possible placements at the PPT meeting. The parents then visit each one, select their favorite, and the placement is made. A new PPT meeting is held a few weeks later so that the private program can propose goals and objectives. To require that a new PPT meeting be scheduled with a representative of the facility prior to the placement could end up delaying the delivery of appropriate services to children with disabilities, which in a number of cases, would be detrimental to the child. This section should be reworded to provide flexibility.
The additions to paragraph (5) are excellent.
The redrafted subsection (b) is not an accurate statement of the law. A student can be placed in a private special education program for other than educational reasons by the student’s own district, not just by the State. Further, a child can be placed in a private special education program by order of a hearing officer, without any further action by the PPT. Moreover, the language “PPT of the board of education” reflects a serious misunderstanding of the nature of the planning and placement team. The planning and placement team belongs to the child, not to the board of education. The PPT is a collaborative effort of parents and school officials. The PPT does not belong to and is not a subordinate entity within the local board of education.
The striking of the time limits for attendance at a private special education program makes sense.
The expanded requirements on private special education programs are useful. Particularly laudatory is new paragraph (11) ensuring that parents have the right to observe their students in school. The requirements of new subsection (c) need to be applied to schools operated by RESCs as well.
The requirements of Florence County School District #4 v. Carter, 510 U.S. 7 (1993) should be set forth in the regulations to make it clear that parents have the right to unilaterally place their child where the district has failed to provide an appropriate program and that districts have the authority to reimburse parents or directly fund the placement.
Finally, the proposed regulations also would add a new provision, at RCSA §10-76d-17 (c)(12), relating to the Establishment Clause of the First Amendment of the United States Constitution. While it is the case that a private program cannot intertwine the State of Connecticut in the establishment of a religion, it is also the case that private special education programs have to follow civil rights, labor, and criminal laws. To single out one legal requirement to the exclusion of all others raises an unfortunate implication.
Section 27 – RCSA §10-76d-18 (Educational records and reports)
Here, in relation to student records, it makes sense to incorporate by reference federal law. Still, the elimination of the requirement for written school board policies is unfortunate.
The new language concerning prompt parental access to records needs to be amended to ensure that parents can review, inspect, and copy records prior to any manifestation determination PPT meetings or expulsion hearing.
The proposed regulations make no change in the language in RCSA §10-76d-18 (b)(2) concerning access to copyrighted test materials. The language contained is far too restrictive. Under the fair use doctrine, copyrighted materials may be copied. The language should be amended to permit parents to receive copies of test protocols and interpretive material, but not the test forms themselves. Moreover, properly certified experts retained by the parents should have the right to review all information in the possession of the district concerning any test administered, including any answer sheets filled out by the student.
Section 28 – RCSA §10-76d-19 (Transportation)
The amendments to the regulation on transportation are generally satisfactory. The language at the end of subsection (e) is, however, unnecessary. If the board offers appropriate transportation, it has provided FAPE. If the parents disagree, they can take the matter to hearing. The provision of transportation is no different than the provision of special education services or related services in this regard. The verbiage tagged on at the end of subsection (e) is superfluous. More importantly, adding this language in relation to transportation, raises a negative implication when similar language is not added in relationship to programming or related services.
Reference to the federal rate of reimbursement is not clear. The correct reference is to the “standard mileage reimbursement rate for a privately owned automobile (POA) established by the Internal Revenue Service (IRS)”.
The deletion of the mandate that school boards file due process against parents in certain circumstances in subsection (c) is appropriate.
On the other hand, the deletion of the language at the end of subsection (d) reading, “A parent’s right to a due process hearing may not be delayed or denied for failure to comply with the notice content requirements of this subsection” is inappropriate. Parents operating pro se, as many do, cannot be expected to know all the sundry requirements for filing due process. It is not fair to penalize them for failing to comply with the notice content requirements, particularly where the hearing officer can elicit the information during the prehearing conference.
Section 31 – RCSA §10-76h-4 (Statute of limitations)
The amendments to the statute of limitations are appropriate and consistent with the case law. While the revised regulation generally comports with case law, a provision should be added that, in the case of continuing violations, parents may challenge the district’s action for the preceding two years without regard to when the continuing violation started. As an example, Student should properly have been designated as eligible for special education in the second grade. The Student is now in the tenth grade. The Student should be able to seek relief for the preceding two years despite the fact that the initial failure to identify occurred eight years ago.
Section 32 – RCSA §10-76h-5 (Mediation)
It is amusing to find the State Department of Education, which has failed to provide sufficient mediators to resolve pending cases in a timely manner, proposing to eliminate the thirty-day time limit for mediation. The fact is that it currently takes far too long to arrange mediations. The removal of the time limit may be used by SDE to delay the process further. Delaying the process raises costs for all involved. Instead of tampering with the time limits for mediation in the regulations, the State Department of Education should be devoting more resources to training and utilizing mediators.
The proposed regulations on mediation do not go far enough. Currently, a substantial percentage of disputes are resolved through mediation. The State Department of Education declines to get involved in enforcing mediations agreements, but such agreements are purportedly enforceable in state or federal court. However, there is no provision for expediting such enforcement actions and there is no provision for the award of attorney’s fees to parents if they prevail. Hence, a district can generally ignore the requirements of a mediation agreement without fear of consequence. As more instances arise of districts failing to implement a mediation agreement, the attractiveness of these settlements diminishes. Further, there is no one who has the specific task of ensuring that the interests of the child are protected in the mediation agreement.
To remedy this situation, a hearing officer should be asked to review the mediation agreement and the record and accept brief testimony before accepting or rejecting the mediation agreement. The hearing officer would maintain jurisdiction over the matter so that, if one party claimed that the other party failed to abide by the agreement, the hearing officer could act quickly to determine whether the agreement was complied with and, if not, to issue orders requiring compliance.
Section 33 – RCSA §10-76h-6 (Advisory opinion)
Section 33 of the proposed regulations essentially restates the existing regulations on advisory opinions contained in RCSA § 10-76h-6. The advisory opinion route has been one rarely taken because it is not particularly user-friendly. To make it more attractive, the proposed regulation should read that the hearing officer shall, not may, facilitate settlement discussions after rendering the advisory opinion.
The change to new paragraph (6)(E) permitting the parties and the hearing officer to modify the rigid time and witness limitations in the regulation is an important step forward.
Section 34 – RCSA §10-76h-7 (Appointment of hearing officer. Scheduling of prehearing conference and hearing dates)
Section 34 appears to provide new authority to limit the length of a hearing, the number of witnesses, the length of testimony, and the length of cross-examination. The use of the term “sole discretion” is misleading. Any limitation by the hearing officer must be fair to both parties and must be reasonable. Using the term “sole discretion” may inappropriately convey to hearing officers that they have unbridled discretion; they do not.
Section 37 – RCSA §10-76h-10 (Expedited hearings)
The proposed regulation is correct in incorporating by reference the IDEA for the rules governing expedited hearings. The current Connecticut regulation is inconsistent with federal law.
Section 38 – RCSA §10-76h-13 (Conduct of hearings)
It is hard to understand why the proposed regulations strike out the reference to the specific federal authority for the appointment of an independent evaluator by a hearing officer, at 34 CFR §300.502 and instead broadly and vaguely refer to the requirements of Part B.
Section 39 – RCSA §10-76h-15 (Evidence)
RCSA § 10-76h-15 should be amended to establish procedures for telephonic testimony of necessary witnesses for whom travel to the hearing would be unreasonably difficult. This would include school officials and experts attached to out-of-district placements. The rules should provide that the witness is unable to be present for a very good reason; that the witness is sworn in by a notary public; that any document relied upon is submitted in advance to both parties; that the moving party serve on the opposing party a curriculum vitae of the witness five days prior to hearing; and that the notary submit an affidavit after the hearing attesting that the witness relied on no other documents and consulted with no other individual during the testimony.
Section 40 – RCSA §10-76h-16 (Decision, implementation, right of appeal)
Section 40 of the proposed regulations makes no substantive change in RCSA §10-76h-16 relating to hearing officer decisions. This section should be amended to provide that hearing officers can enter consent degrees or settlements between the parties, under the same requirements as were described in the section relating to mediation. There are at least three advantages to this approach. First, the hearing officer, acting much like a federal judge in considering a stipulated judgment, ensures that the interest of the child is protected in any settlement reached between the parties. Second, the hearing officer would assume jurisdiction over the matter and could quickly determine whether any alleged violation had occurred and how to remedy it. Third, the entry of an agreement by the hearing officer would provide the judicial imprimatur required for the award of attorney’s fees in Buckhannon Bd. and Home Care Inc. v. West Virginia Dept. of Health, 532 U.S. 598 (2001). Note that the effect of this provision would be the prompt resolution of more cases. A number of cases do not settle now because the parents need to recover their attorneys’ fees and cannot do so unless they go through a full due process hearing to decision.
Conclusion
Presumably, the draft regulations proposed by the State Department of Education were initially motivated by a desire to make Connecticut special education law and practice entirely consistent with the federal law and regulations. Nothing in the IDEA requires that a state reduce its protection of children with disabilities to the lowest common denominator. Rather, as the First Circuit noted in Town of Burlington v. Department of Education, 736 F.2d 773 (1st Cir. 1984), aff’d, 471 U.S. 359 (1985), the federal law permits states to impose more stringent standards that better protect children with disabilities. Connecticut would be untrue to its heritage as a leader in providing education to children with disabilities if it now retreated to a position of merely providing the minimum protection permitted under the federal law.
The regulatory change concerning designation as eligible for special education services based on a learning disability will deprive thousands of children from lousy schools the right to receive special education services. The current eligibility requirements for a specific learning disability are indecipherable. This proposed eligibility standard, mischievously tucked away in the regulation on evaluations, is dreadful. Drafting the eligibility requirements for children with learning disabilities should be an open, inclusive process, in which the ramifications are well explored. The proposal contained in these draft regulations needs to be withdrawn.
Finally, the State Department of Education needs to address and rectify the attempt by numerous school districts to cut off the right of parents to independent educational evaluations. These regulations are the appropriate place to do so.
Thank you for the right to present testimony. I would, of course, be delighted to answer your questions or dialogue about this.
Sue:Welcome to our narrow place, our Egypt.It’s not quite as tight as last year because Eric could not make it.Tonight, as we do once each year, we will attempt to extricate ourselves from the narrow place in which we live and struggle to reach the promised land, the land of milk and honey.Each Passover Seder we relive the Exodus from Egypt.In doing so, we strive to liberate ourselves from our own slavery.Yet each year we return to try to do it again.Perhaps this year we can do it right.
Andy F.Over the past decade, we have explored various aspects of the Seder.One area we have ignored (or avoided) is the Four Children of the traditional Seder.I did not include this section because it is filled with bad child rearing advice, bad psychology, and is basically stupid.For that reason, tonight we will focus on that part of the liturgy.
Tonight’s seder does not have you play roles.Instead, the text assigns words for each of you to speak.The lines are distributed so that everyone has a roughly equal number of words and so everyone stays involved.The words I have put in your mouth have nothing to do with who you are or how I perceive you.By way of example, I did not make Carol the bossy, know-it all character in the script.
Before getting to the four children, we will conduct a fairly traditional Seder, so, in our quest for the original and the relevant, we do not forget the basics.The one major change we will make is to move up the Motzi Matzoh and the discussion and consumption of the Seder plate to the beginning so we do not suffer while we go through the rest of the Seder.Our ancestors in Egypt suffered enough; there is no need for us to suffer more.
B. Candle Blessing; Blessing of Children; Kohanim Kaddish
Rose Ann:Our God and God of our ancestors, may the light of these festival candles cast their glow throughout the world and bring light to all who dwell in darkness, bondage, oppression or war and to all who live in their own prisons of addiction and poverty and family discord. By lighting these candles, we are making a powerful statement about the human condition and our personal responsibility for it.In blessing the lighting of these candles we are committing ourselves to bringing light into the darkness of others who suffer.And, we are committing ourselves to bringing light into those areas of our own lives that we have, consciously or unconsciously, left in darkness.As we light these candles, ask yourself, “What do I know but refuse to admit that I know.”
Laura:Praised be Adonai, sovereign of the universe, who has made us holy by imposing commandments on us, especially the commandment to illuminate festival lights.Our own holiness, our own worth in the world, depends fundamentally on our effort to shine the light of truth, the light of freedom, the light of hope into the dark corners of our lives and into the dark corners of our society.
Praised be Adonai, sovereign of the universe, who has kept us alive, provided us with sustenance, and enabled us to reach this season.Note the juxtaposition of the two prayers.The Shehechianu thanks God for permitting us to make it to today.The blessing over the candles recognizes that our value as human beings is entirely based on what we do from here forward.We are thankful for the past but must act in the future.
Rhoda:On Shabbat, festivals, and any other occasions, Jews bless their children.Parents bless their sons by saying, May God bless you as God blessed Ephraim and Manasseh, and daughters by saying, May God bless you as God blessed Sarah, Rebecca, Rachel and Leah.
So place your hands over the child to the left of you, without regard to the age of that child, and say, with me: May God bless you as God blessed Ephraim and Manasseh
Now, place your hands over the child to the right of you, without regard to the age of that child, and say, with me:May God bless you as God blessed Sarah, Ephraim, Rebecca, Manasseh, Rachel and Leah.
And now hold your hands out in front of you let us say together the Priestly Benediction.Split your ring and little finger from you first and middle finger, Star Trek style.And let’s say this together:
May Adonai bless you and keep you;
May Adonai cause God’s face to shine on you and be gracious to you;
May Adonai turn God’s favor to you and grant you peace.
C.The First Glass of Wine
Jon:The Passover Seder is filled with fours:
Four glasses of wine.
Four questions.
Four types of children.
This is because four times in the Torah God promises to free the children of Israel from bondage.The four cups of wine are described as the cup of sanctification, the cup of deliverance, the cup of redemption and the cup of acceptance.
While we are at it, we should celebrate the Fab Four, the Final Four, the Four Tops, the Four Seasons, Four Seasons Hotels, Four Seasons Salad Dressing, 4 by 4’s, Four Roses Bourbon, Four Leaf Clovers, Piano Four Hands, the Four H, the Brothers Four, Four Freedoms and Four of a Kind.Does anyone have any additions?
Alison:The first glass of wine is the glass of sanctification.In drinking it, we elevate ourselves from prosaic and trivial existence and try to glimpse something more meaningful about our lives. This is a critical transition.We need to move ourselves away from our daily existence, our worries about family and money and jobs, the taxes due, the work we need to get done.We need to move to a new plain where we consider who we are, what it means to be free, why we are here.This glass of wine is our pivot point.We bless the first cup of wine in Hebrew:
We praise you Adonai.You have called us for service from among all people and have elevated us by giving us commandments.In love, you have given us festivals for rejoicing, seasons for celebration, this Festival of Matzah, the time of our freedom, a day of sacred assembly commemorating the Exodus from the narrow place.We praise you for giving us this joyful heritage and for sanctifying the people of Israel and the festival days.God, we ask you to help us make more of ourselves, to permit us to live up to the potential within each of us.God, we ask us to recognize the goodness within ourselves and to be able to express that goodness.
Before we drink, we thank God for the wonder of life itself.We sing the Shehecheyanu together.
Liz:Twice we wash our hands at the beginning of the Seder.A little wash before we eat the Karpas.A bigger wash before the meal.The first wash with no blessing and no soap.The second wash with a blessing and soap. Go figure.
In this age of swine flu scares and Purell, the notion of hand washing has achieved a whole new cachet.This washing is both hygienic and spiritual.We remove both the bacteria, the germs, the filth of disease and we remove the bacteria, the germs, the filth of our daily lives.As we wash our hands, with these handy Wash & Dry’s, we want to think about how we have contaminated our pure essence.What behaviors, modes of thinking, habits, actions have fouled our souls?Can we, symbolically at least, wash them off just as we wash off H1N1 viruses?
E.Karpas
Claire:The green vegetable or Karpas is a symbol of spring, of rebirth.This is not just the season, of course.The idea of rebirth has to do with a spiritual rebirth.The freedom we seek tonight can only come if we can become reborn into the beauty and truth of our inner selves.The Karpas is the elixir to induce that rebirth.
Yet, we dip the vegetable in salt water to remember pain and suffering.Yes, we remember the pain and suffering of the Egyptians from whom we stole jewels and gold on the way out of Egypt and who we drown in the Reed Sea.And, we remember our old pain and suffering as slaves, as exiles, as victims of the Holocaust.More personally, however, we dip the elixir or rebirth into salt water to come to terms with our own wounds, the wounds we were born with, the wounds our parents inflicted, the wounds we inflicted on ourselves.We cannot hope to be reborn unless we understand how we got to where we are.
Andy F.:Now I lift up the middle matzah and break it into two. Matzah is the bread of poverty.One reason we break the middle matzah is to set aside a portion for the less fortunate.Our redemption is incomplete.By breaking it in two, we symbolically provide food to the poor.
Doug:Isn’t that sweet?Makes us feel good, doesn’t it?We arrive in our luxury cars, wear expensive clothes, give each other expensive gifts, and then we pretend we care about the poor by breaking the middle matzah in two.Either we can do better than that or we ought to just drop the pretense that we care.
Nancy:Boy, Doug, I didn’t know you had that in you.For years I have been coming to these seders and thinking what a bunch of hypocrites we are.
Arthur:Not now, kids.Let’s continue with the seder so we can eat.We break the middle matzah and hide the larger half, known as the Afikomen.You kids used to be so excited about finding it to end the meal and getting a reward from me.Of course, I gave you money whether you found it or not.
Lucille:We have set aside this special matzah of hope.Let me sing you the old Yiddish song: Zog Nit, which became the official hymn of the Vilna Partisan Brigade fighting the Nazis.
Never say that there is only death for you,
Though leaden skies may be concealing days of blue.
Because the hour that we have hungered for is near,
Beneath our tread the earth shall tremble: we are here.
We have the morning sun to set our day aglow,
And all our yesterdays shall vanish with the foe.
And if the time is long before the sun appears,
Then let this song go like a signal through the years.
Andy B.:Thanks, Lucille.That was beautiful.The Holocaust was critical to your generation and kept Judaism alive.Great synagogues were built in the 1950’s and 1960’s to release our pain and guilt and shame about the Holocaust.Judaism had a nice run for a generation or two.But now, synagogues are dying.Young families are not joining.The Holocaust has no purchase among my generation.It is lovely that we keep these traditions alive, but to what end?Are we really happy being a people that defines our identity by who hates us?Is that a religion I want to be a member of?
Carol:I have an answer to that question.I, frankly, agree that if Judaism is little more than another ethnic group keeping its age-old sense of victimhood alive, it is of little value to the world.I think that Judaism is more than that.Judaism was the first and is the most clear ethical monotheism in the world.It is purer than Christianity because our ethics come without eschatology.We are good, not because of some reward in the world to come.We are good not because we fear a vengeful God will strike us down.We are good because that is what it means to be a Jew.What a beautiful thing.
Katie:Excuse me, Carol.What evidence do you have to indicate that Jews are more ethical than anyone else?
Carol:I have no such evidence because none exists.My point is that Judaism is worthy of survival and our support because it provides a vital ethical framework, which, to my mind, is something of immense value to the world.
Katie:I have a bookshelf full of philosophy books providing vital ethical frameworks.Modern and ancient, from the east and from the west, religious and atheist.You want an ethical framework, I can provide you with plenty.Judaism has no monopoly on ethics.Unless Jews manifest a higher moral state in the world, I see no reason to believe that Judaism has any greater claim to value than does Greek god worship or witchcraft.
Donna:Sharing bread is one of the most ancient and most universal ways of creating a bond between people.By eating matzah together we create a bond with people in slavery throughout the world.We declare the equality of all people and we declare our responsibility for the liberation of all people.The larger piece of the matzah represents lachma anya, the bread of the poor.The message of Passover is that we should identify with those who are afraid to eat their bread, and always leave something for later.After all, weren’t we all wretched as slaves in Egypt?
Jenny:As a sign of hospitality, we open the door to welcome into our seder anyone who is hungry, anyone who is needy.We recite the Aramaic call to Pesach:
Ha lachma anya dee a-cha-lu a-va-ha-sa-na b’ara d’mitzrayim.
This is the bread of affliction, the poor bread our ancestors ate as slaves in the land of Egypt.
Kol dichfin yay-say v’yaychul; kol ditzrich yay-say v’yifsach.
Let all who are hungry come and eat.Let all who are needy share in the hope of this Passover celebration.
Ha-shata hacha, l’shana ha-ba’ah b’ara d’Yisrael.
This year we are here.Next year may we be in the land of Israel.
Ha-shata avday, l’shanah ha-ba’ah b’nay chorin.
This year we are all still in bondage.Next year may all be free.
You know, these are some of the most ancient words in the Haggadah.What would happen if some homeless person heard this and came in?Would we open our house to a stranger?Would we feed the hungry at our table?Could we relax and continue with the service if a poor family joined us?I suppose that is why we say this in Aramaic: to reduce the risk that someone might hear and take us up on the offer.
H.The Second Glass
Emma:The second glass of wine addresses deliverance, liberation.What can we do, as individuals or as a community, to free individuals from bondage?Bondage comes in many forms.Poverty is a form of bondage.Illiteracy is a form of bondage.Lack of health care is a form of bondage.Addiction is a form of bondage.Clueless parents and ungrateful children are forms of bondage.What are our resolutions for the coming year to liberate people from oppression?What are our resolutions for the coming year to liberate ourselves from oppression?
Lily:Now we wash our hands for the second time, this time with a prayer:
Blessed are You, Lord, our God, Sovereign of the universe, who has sanctified us with commandments and commanded us concerning the washing of the hands.
Traditionally, no one, other than the leader, should not speak until after making the next two blessings and eating the Matzah.
J.Motzi/Matzah
David:We will now start work on our seder plates.Traditionally, this comes much later, just before the meal.But, we are hungry.So why wait?Me, I’m always hungry.
We bless the matzah with two blessings.The first is the regular motzi, thanking God for producing food.The second thanks God for giving us the commandment to eat matzah.I will break up the top and bottom matzot and distribute them for you to eat after I say the blessings.
Baruch Atah Adonai Eloheinu Melech ha-olam, ha-motzi lechem min ha-aretz.
Now you may take a bite of plain matzah, traditionally with salt on it.But save some for the maror, the horseradish or bitter herb.We mix some horseradish and some haroset, the bitter and the sweet, make a sandwich and eat after I say the blessing.
Daniel:Tradition adds one more custom to honor Hillel, the head of the rabbinic academy around the time of Jesus’ life.Hillel combined the pesach, or pascal lamb, the matzah and the maror and ate them together to fulfill the commandment that “They shall eat the Pesach lamb offering with matzah and maror together.”Because the destruction of the temple ended animal sacrifice, we omit the meat from the sandwich.
So, the modern Hillel sandwich combines the bland cardboard of matzah with the searing heat of the horseradish.What are we trying to say with this combination?Life is boring and monotonous flavored with a fair helping of pain?Or are we supposed to learn to love the taste of the horseradish?Are we meant to realize that life without pain and suffering, challenge and disappointment, frustration and anxiety is as boring and tasteless as the matzah?Are we saying that life is not about finding grace, peace, salvation, that it is not about redemption in the world to come or in some messianic age?Are we saying that life is not about the peaks, the highs, but rather about the peaks and the valleys, the highs and the lows?What matters is not just the good times but the journey, the path, the trek.Life, to Jews, is not about eternal joy, as some religions proclaim, or about suffering, as others teach.It is about living life, the good and the bad, in a way that honors who we are, the divine soul within us.
Dan:Before we consume the contents of the seder plate, we need to explain what is on it.We have talked about the parsley, the matzah and the maror.That leaves this chicken wing, the apple and nut mush, and this lovely hard-boiled egg.The chicken wing is supposed to be a roasted bone of the paschal lamb and is know as the Pesach.It recalls the animal sacrifices that our ancestors used for worship, not because we support animal sacrifices but it was a good change from the human sacrifices that went before.And, the blood of the lamb was used to mark the houses of the Israelites in Egypt so that when God was going around killing Egyptian first-born sons, He knew to skip the houses of the Israelites.Why does the all-knowing sovereign of the world needs houses marked in blood so He knows who to skip? I wish the writers of the Bible had stuck with one consistent view of who this God fellow was.So, this simple chicken wing is a symbol of murder, sadism, primitivism, and a confused god.Bon Appetit.
Betsy:Charoset, or the apple and nut mush as you so felicitously call it, comes from the Hebrew word for clay.The charoset is meant to remind us of the mortar the Israelites used to build pyramids for their Egyptian taskmasters. Parts of the Jewish Diaspora in Persia have a tradition of including forty different ingredients in the halegh, their version of charoset. The number forty signifies the forty years of wandering in the desert. Included are all the fruits mentioned in the Song of Songs: apples, figs, pomegranates, grapes, walnuts, dates with the addition of wine, saffron and cinnamon. To arrive at the magic number of forty, some recipesinclude five different varieties of apples, two different varieties of pears, three different varieties of grapes, two different varieties of dried figs, fresh ginger, grated, dates, dried apricots, dried peaches, dried cherries, prunes, red raisins, yellow raisins, currants, walnuts, almonds, cashews, pistachios, filberts, pomegranate juice, cinnamon, cardamom, allspice, nutmeg, fenugreek seeds, saffron, cloves, black pepper, white wine, red wine, rose wine, vinegar, and bananas.Is that forty?Our charoset, having only apples, wine and nuts, is tasty enough, but lacks the complexity and sophistication, not to say the Biblical significance, of the Iranian version.
Natalie:The egg or beitzah, is a relatively recent addition to the seder plate and is fraught with symbols.An egg is a symbol of fertility and birth.The egg is like the Jews, allegedly, in that it is one of the very few foods that gets harder when heated.The egg is a perfect yellow globe surrounded by pure whiteness.It is the world surrounded by the majesty of God. It is our troubled, guilt-ridden suffering selfs surrounded by a universe of love and forgiveness.A hard-boiled egg, symbolizes the korban chagigah (festival sacrifice) that was offered in the Temple in Jerusalem and roasted and eaten as part of the meal on Seder night. Although both the Pesach sacrifice and the chagigah were meat offerings, the chagigah is commemorated by an egg, a symbol of mourning (as eggs are the first thing served to mourners after a funeral), evoking the idea of mourning over the destruction of the Temple and our inability to offer any kind of sacrifices in honor of the Passover holiday. Since the destruction of the Temple, the beitzah serves as a visual reminder of the chagigah.Does anyone associate hard-boiled eggs with mourning?Of course, I associate eggs generally with morning, but that is another matter.Note, there is no prayer or ritual surrounding the egg.
Arthur:You may now join me in consuming everything on your seder plate.
K.The Four Questions
Sue:We now move to the really big show, the Four Questions or Mah Nistanah.In honor of her 13th birthday, which occurs today, we will give Natalie take the honor of chanting the Mah Nistanah in Hebrew while the youngest verbal child at the table, Lily, will tell us what they mean in English.
Natalie:
Lily:Why is this night different from all other nights?
On all other nights, we eat either leavened or unleavened bread.Tonight, only unleavened.
On all other nights, we eat all kinds of vegetables.Tonight, only horseradish.
On all other nights, we do not dip our vegetables.Tonight, we dip them twice.
On all other nights, we eat sitting upright.Tonight, we recline on pillows.
Rhoda:That was beautiful.
Nancy:And stupid. If we are going to ask four questions tonight, why ask about matzah, vegetables, salt water, and pillows?I mean, who gives a crap?Why don’t we ask questions worth asking?Let me offer four questions that really are worth asking:
Number One: Judaism preaches sobriety, yet we are commanded to drink four glasses of wine tonight to synthesize the joy that we cannot bring ourselves to feel naturally.What is that all about?
Number Two:Why is it that every single commandment in the Torah is contradicted by some action within a few pages in the book?We should not murder, but Moses murders an Egyptian slave supervisor.We should not steal, but Jacob steals the birthright from his brother.What is the lesson?That we are supposed to be hypocrites?
Number Three:What is the point of religion?Does it make us better people?Does it answer important questions in the world?Or does it just provide some feeling of security to the ignorant and employment to clergy and Jewish professionals?
Number Four:Why is there evil in the world if our God is all-powerful, all-knowing, and all-good?
And, if you don’t like those four, I have plenty of others.
Malcolm:Arthur, what is with these kids tonight?It seems like the younger generation has given up on Judaism.
Arthur:I just want to get through this damn seder and eat.Every year it is the same.We know what the Haggadah says.Let’s just get through it for the sake of tradition.
Carol:Do you guys have any idea what it means to be a Jew?It means that we wrestle with God.That is what we are doing.And, that is what you are not doing by trying to stifle those who are questioning what the seder is all about.
Rhoda:I am not trying to stifle anyone.I am just trying to get dinner on the table.The brisket is drying out in the oven.Andy, please shorten the service.Do you think that the story of the Exodus is going to come out different this year?
Sue:We are commanded to tell the story.Can you kids do it quickly?
Zoe:Sure.We can do it in tweets.I’ll go first: Israelites were slave of @pharoah in Egypt.
Emma:@moses splits town, sees burning bush, returns.
Andy B.:Plays 10 plagues with @pharoah.Kills Egyptian kids.
Natalie:Israelites flee to Reed Sea.Get mad at @moses.
Laura:LOL, no food.No bed.
Jenny:Freedom. BFD.
Katie:@moses splits sea.@miriam sings.
Lily:Live HEA. Cool.
L.The Plagues
Doug:In the Haggadah we recite the ten plagues, one at a time, spilling a drop of wine on our plates after each plague.
Why do we dip a finger in wine and spill a drop for each of the plagues?To signify our compassion for the Egyptians who were victims of arrogant, narrow-minded leaders.They were also, of course, the victims of the vengeful and hyperactive Jewish God.So, are we celebrating their defeat by carefully reciting the depredations we subjected them to?Are we mourning the evils of war?Are we ashamed of what we did?Are we pleading guilty to committing war crimes, to collective punishment, to genocide?
If so, let’s not stop with the Ten Plagues.How about our use of unmanned aerial vehicles to kill participants in weddings in Afghanistan and Iraq?How about our depriving poor Americans of health care?How about torturing suspects in secret, foreign prisons run by foreign intelligence services?Why don’t we spill gallons of wine to confess our guilt, as Americans, to the war crimes and inhumanity of our country?
We spill the ten drops of wine to manifest our sadness.Our tradition prohibits us from celebrating the defeat of the enemy.
These were the ten plagues that the Holy One, praised by God, brought upon the Egyptians in Egypt.
Jon:Lighten up, Doug.This is not the ten plagues.This is the Top Ten List of how to have a really bad day if you are an Egyptian.
Natalie:Number Ten: Dam or Blood, actually all the water of the Nile was turned to blood.As in, would you like a nice, refreshing glass of blood with that sandwich?Or, does water softener help when you are washing you shirt in blood?
Zoe:Number Nine: Tz’fardea or Frogs.“The river shall swarm with frogs; they shall come up into your palace; into your bedchamber and your bed, and into the houses of your officials and of your people and into your ovens and your kneading bowls.”Honey, I sure hope that is your hand on my stomach?Or, mom, you know I don’t like frog in my cherry pie.
Emma:Number Eight: Kinnim or Vermin.More accurately translated as gnats.Sure is a nice night for a cookout except for this swarm of gnats.My fog lights really don’t help when driving through a swarm of gnats.
Katie:Number Seven: Arov or Wild Beasts. I think they were rhinos.Did I tell you these:
How can you tell that a rhinoceros has been in your fridge? By the footprints in the custard.
Why do rhinos paint their feet yellow? So that they can hide upside-down in the custard.
Did you ever find a rhinoceros in your custard? No? Well, it must work.
How do you know there is a rhinoceros in the oven? You cannot shut the door.
How do you make a rhinoceros float? With two scoops of ice-cream, a bottle of root beer, and a rhinoceros.
Lily:Number Six: Dever or Cattle Disease.“A deadly pestilence” will strike the “livestock in the field: the horses, the donkeys; the camels, the herds and the flocks.”God protected the livestock of Israel from the disease.I would like my diseased steak medium rare.May I have a pestilence burger please?Gives the term “chicken pox” a whole new meaning.
Natalie:Number Five: Sh’hin or Boils.This is the first plague to strike humans directly.For the first time, after this plague, the Torah tells us that God stiffened Pharaoh’s stubbornness.Darling, you look lovely, except for that enormous boil on your forehead.
Jenny:Number Four: Barad or Hail.Actually, thunder and lightening too.God gave the Israelites notice so they could protect themselves and their animals.This is the origin of the Weather Channel.I wonder whether the Egyptians blamed it on climate change.Of course, if God had really wanted to punish the ancient Egyptians, he could have given them Al Gore.
Emma:Number Three: Arbeh or Locust.The locust not only destroyed the Egyptian’s crops but were also generally considered to be a ill omen.This list sounds like a modern farmer: the harvest was lousy: bad water, locust, hail, blight.Luckily, Egyptians could go to Whole Foods and get spelt bread because no self-respecting locust would ever attack spelt.Is spelt bread like spilled milk?Is my bread misspelt?
Zoe:Number Two: Hoshekh or Darkness.Light is the symbol of freedom; so darkness is the symbol of enslavement.That is, God is giving the Egyptians a taste of their own medicine.You know, you can only handle so much nightlife.Of course, the really serious effect was that, with more nighttime, the networks increased prime time programming from four hours to fourteen.The Egyptians lost their minds watching hour after hour of Lost, House, NCIS, and Desperate Housewives.The entire civilization collapsed when the networks starting showing Survivor reruns.
Katie:And the Number One Way to Make Life Bad for an Egyptian: Makat B’khorot or Killing of the First Born.Before the final plague is administered, an additional warning is provided.The word used here for plague has the same root as touch and connotes death by disease.When big brother is killed, who will take out the trash?Sibling rivalry is one thing, but I didn’t want him killed.
Laura:It is curious how much the book of Exodus has God bragging of killing innocent children.Why does God mention it so often?Is God proud of it?One will study Midrash and Talmud in vain for an explanation.Is God teaching us a lesson?That God alone has the right to kill?That no human has the right to imitate God?If so, is a god who revels in the killing of innocent children a god who is worthy of our love and obedience?
M.The Third Glass
Donna:The third glass of wine is the glass of redemption.What is redemption?The dictionary says it is the act of redeeming, or of buying back.We have all been through much in our lives.Those experiences have made us wiser but that have also made us more brittle and cynical.With the third glass of wine, we wash off the cynicism and buy back the simplicity, the openness, the curiousness, the acceptance of our inner selves.
Why do we want to buy back our true selves?Because the more we deny who we are, the more we engage in conduct that is destructive and painful and alienating.We need to know who we are and what our hearts desire to have any chance of getting what we need and living freely and happily.
David:While we drink our third glass of wine, we must not forget the prophet Elijah’s cup.Tradition holds that the greatest miracle-maker among the prophets visits all Jewish homes to drink wine from his own cup.Elijah is a friend and companion to all who need friendship and comfort.He is the mysterious stranger who arrives at precisely the right moment, to bring hope to those in despair.We have no better defender in heaven that Elijah.He is the chronicler, the historian of Jewish distress.He records every tragic event, every upheaval, ever tear; thanks to him, nothing is lost.His most glorious role is that of witness.He is the memory of the Jewish people.
Andy B.:Elijah is not the messiah, but he is alleged to be the herald of the messiah.Elijah is the one major biblical character who never died. He appears in the Hebrew Bible, Talmud, Mishnah, New Testament, and the Qur'an. According to the Books of Kings, Elijah raised the dead, brought fire down from the sky, and ascended into heaven in a whirlwind (accompanied by chariots, not in one). In the Book of Malachi, Elijah's return is prophesied "before the coming of the great and terrible day of the Lord," making him a harbinger of the Messiah and the eschaton in various faiths that revere the Hebrew Bible.
In Judaism, Elijah's name is invoked at the weekly Havdalah ritual that marks the end of Shabbat, and Elijah is invoked in other Jewish customs, among them the Passover seder and the Brit milah (ritual circumcision). He appears in numerous stories and references in the aggadah and rabbinic literature, including the Babylonian Talmud.
Elijah is also a figure in various folkloric traditions. In Serbia and Bulgaria, he is known as "Elijah the Thunderer" and in folklore is held responsible for summer storms, hail, rain, thunder and dew.
So, we open the door and welcome Elijah by singing:
Bim-Hey-Ra B’Yamenu, Yiv Aleinu.Im Moshe-ah Ben David.
O.Fourth Glass
Betsy:The fourth glass of wine is the glass of acceptance.We drink it while reclining.And, it brings us to silence.There comes a time in spiritual practice when words are no longer important.Rather, we discover that we are one with some higher power.We accept that we are an essential part of the cosmos.None of us will reach such a state just by participating in this seder.We drink the fourth glass of wine, not just to simulate enlightenment, but as a statement that we know the importance of continuing our spiritual journeys.
We come to the fourth glass of wine: the one for acceptance, for reclining, for silence.
In drinking this glass of wine, we wish the world, our friends, and ourselves peace.Not the peace of no conflict, but the peace of accepting conflict, of accepting the good and the bad, the peace of loving who we are.
P. Four Children
Sue:The traditional Haggadah says:Blessed is the Omnipresent One, blessed be God! Blessed is God who gave the Torah to the people Israel, blessed be God! The Torah speaks of four children: One is wise, one is wicked, one is simple and one does not know how to ask.
Carol:The wise one, what does the wise child say?"What are the testimonies, the statutes and the laws which the Lord, our God, has commanded you?" You, in turn, shall instruct him in the laws of Passover, [up to] `one is not to eat any dessert after the Passover-lamb.'
Daniel:The word statutes, chukim in Hebrew, means laws having no apparent rational reason, such as not mixing linen and wool.So, apparently, the wise child is capable of reasoning out the rationale for restrictions that make sense but needs help understanding the more obscure parts of Halakah, or Jewish ritual law.In other words, the wise child is a rationalist.He understands reason and logic but has trouble with the mystical, the spiritual, the emotional.
Dan:Here, the Haggadah confuses knowledge for wisdom.It may be tasty mind candy to debate the number of angels on the head of a pin or to try to figure out if circumcision was health-based or merely a intentional scarring for purposes of tribal identification.But that has little to do with wisdom. As Jimi Hendrix said, “Knowledge speaks but wisdom listens.”
Donna:And I suppose it is hardly worth noticing that the wise child’s question is in the second person, i.e. What are these laws that God has commanded you?The evil child is severely criticized for asking exactly the same kind of question.Is the difference that the wise child is asking out of real curiosity and the evil child is asking out of anger and confrontation?
Jon:The most important part is, of course, that in asking about the meaning of trivial and irrational laws, the wise child does not even think about the real questions, questions like why do bad things happen to good people, how can a good God permit evil, is there any proof of the existence of God, what does it mean to be a good person. Indeed, the sort of knowledge possessed by the wise child seems to mainly have to do with a way that the wise child can assert power over others.
Liz:The wise child lives entirely in the head.He or she represses and denies emotions.Those emotions surely exist but emerge in different, more destructive ways.The wise child lacks social skills, is devoid of empathy, is entirely self-centered.The wise child uses knowledge to separate himself or herself from others, to feel superior, to refrain from engaging.While playing the intellectual game, the wise child makes sure not to feel sad or insecure or lonely.The wise child considers emotions to be childish, weak, signs of frailty.The wise child is not smart enough to know that it is emotions that lead to happiness and peace.
Claire:Indeed, the proper answer to the wise child is not to explain the statutes and regulations.The proper answer is to tell the wise child to walk in nature, to work in a homeless shelter, to visit the sick in the hospital.The wise child knows everything about matters of no import and nothing about what really matters in life.What the wise child misses is:
Nowhere you can be that isn't where you're meant to be.
It's easy.
All you need is love, all you need is love,
All you need is love, love, love is all you need.
All you need is love (all together now)
All you need is love (everybody)
All you need is love, love, love is all you need.
Rose Ann:The wise child exists within all of us.We need to use our knowledge to be compassionate people who serve others.We need to guard against using knowledge for power and to deny our emotions.And, we need to understand that knowledge has nothing whatsoever to do with wisdom.Wisdom comes from engagement in the world, not from studying the laws.
Andy B.:The traditional Haggadah reads: What does the evil child say?"What is this service to you?!" The evil child says `to you,' but not to him! By thus excluding himself from the community he has denied that which is fundamental. You, therefore, blunt his teeth and say to him: "It is because of this that the Lord did for me when I left Egypt"; `for me' - but not for him! If he had been there, he would not have been redeemed!"
Rose Ann:Oy.It is responses like that which lead to the creation of child welfare agencies.Is it possible to develop a more counterproductive, psychologically more destructive response to a child?The evil one here is not the child who is questioning the meaning of the service.The evil one may be the rabbi who answers with anger and contempt.What is it in the rabbi’s heritage, training and perceived role that leads him to lash out with such anger when he is challenged?What leads each of us to react with anger and contempt when our deeply held views are challenged?
Doug:Many modern Haggadahs re-label the evil child as the rebellious child, I suppose to take the sting out of the moniker.But, this makes it far worse.Rebellion, questioning, refusal to accept conventional thinking are all hallmarks of Jews.Indeed, Israel means one who has wrestled with God.Unlike Islam, which is about obedience to divine law, Judaism is all about challenging divine law.The Haggadah writer appears to be in denial about his own Jewish heritage.And, what is a rebel?It is just a curious child with an edge of anger.Indeed, should we not venerate the child who seriously and emotionally challenges the accepted wisdom more than the child who passively accepts what she is told?
Jon:See the way he walks down the street
Watch the way he shuffles his feet
My, he holds his head up high
When he goes walking by
He's my guy
When he holds my hand I'm so proud
'Cause he's not just one of the crowd
My baby, oh he's the one
To try the things they've never done
Just because of that they say
He's a rebel and he'll never ever be any good
He's a rebel and he'll never ever be understood
And just because he doesn't do what everybody else does
That's no reason why I can't give him all my love
He is always good to me, always treats me tenderly
'Cause he's not a rebel, no no no
He's not a rebel, no no no, to me
Nancy:The question posed by the evil child is a good one.What is this service to you?Why do we sit through this?Aren’t there easier ways to get a brisket dinner?Are we here to reassemble with family?Perhaps but the fact is that, if we were not relatives, we would probably have little to do with each other.Are we here to worship God?I doubt it.Most of us have a hard time believing in God.Are we here because we have a need for a spiritual connection?Maybe, but there are better events for spirituality.Are we here to keep up tradition?Sure, but we have abandoned lots of traditions.Why keep this one up?The evil child asks, what am I doing here.It is an excellent question.
Claire:I am not so sure what I am doing here.To figure out what I am doing here, it helps me to hear why others are here.That is what the evil child is asking. Rhoda, why do you spend weeks poaching salmon and brewing chicken soup?Sue, why do you disrupt your life each year to rearrange your house, rent tables and chairs, and make Dan put his toys away?Daniel and Rose Ann, why do you fly half way across the country for this?Indeed, as the evil child asks, what is this service to you?
Donna:If we are alive, thinking human beings, we need to ask the hard, provocative question.We would be automatons if we merely accepted attending a seder as a God-given commandment with which we need to comply.So, let us praise and bless the evil child within each of us.Let us celebrate our need to understand what this service means to us.Let us delight in challenging others with the same question.And, let us repudiate and treat with utter contempt the rabbi who says that the one who challenges the seder would not have deserved to be redeemed.
Lucille:The traditional Haggadah reads: The simple child says, "What is this?" Thus you shall say to that child: "With a strong hand the Lord took us out of Egypt, from the house of slaves."The message is to answer the child on the child’s level.If the child is unable to understand difficult concepts, answer in simple ones.This is just good parenting.
Katie:'Tis the gift to be simple, 'tis the gift to be free,
'Tis the gift to come down where we ought to be,
And when we find ourselves in the place just right,
'Twill be in the valley of love and delight.
When true simplicity is gain'd,
To bow and to bend we shan't be asham'd,
To turn, turn will be our delight,
Till by turning, turning we come round right.
Laura:The simple child is the one who asks the basic question.The wise child may ask what the meaning of washing hands twice is.The simple child asks what this whole thing is about.The simple child is the one who has the real power to make us uncomfortable.She challenges our most basic presumptions.
How basic can we get?What is the seder?What is Passover?What is freedom? What is religion?What is God?Why do we need a seder?Why do we need Passover?Why do we need freedom?Why do we need religion?Why do we need God?
Andy B.:So, the advice to answer the simple child in simple terms is basically irrelevant.Maybe we need to answer the simple child in the deepest, most heart-felt terms we have.Or maybe we need to recognize that we have no answers whatsoever for the simple child.Look, I have a fairly good understanding of the laws of physics.I can tell you in very precise terms why the stars emit light and other electro-magnetic waves.But, I have no answer to the simple question of why the stars shine in the sky.
Rose Ann:If we have no answer to the simple child’s fundamental questions, we are left in a troubled place.Through her questions, the simple child has adroitly kicked the legs out from under us.We have all gone through a lot of trouble to get here, yet the simple child has made it clear to us that we have no clue why we are here, both at this seder and in this life.We learn more and more the how of life.At the same time, we know less and less about the why of life.
Jenny:The real challenge posed by the simple child within us is whether it is healthy and productive to ask the fundamental questions.At some point, we cannot function if we challenge all of our own beliefs, traditions, and habits.On the other hand, if those beliefs, traditions, and habits are not producing peace and happiness within us or if those beliefs, traditions, and habits are producing pain in others, we need to confront them, understand what needs they serve, and make changes.In AA terms, the simple child invites us to make a fearless moral inventory.As the serenity prayer puts it:
God grant me the serenity
to accept the things I cannot change;
courage to change the things I can;
and wisdom to know the difference.
Lucille:We need to keep the simple child alive and active within us.We cannot stifle her altogether.But, we cannot permit her to take over either.We need to know when it makes sense to scrape down to bedrock and when it does not make sense to do so.Tonight, at this seder, we have a safe place to reflect on what this is all about.We need to ask, “What is this?”
Zoe:The traditional Haggadah says: As for the one who does not know how to ask, you must initiate him, as it is said: "You shall tell your child on that day, `It is because of this that the Lord did for me when I left Egypt.'"Clearly, the idea is that Jewish children should be inculcated with the tradition from long before they are able to speak or understand.Right, Jacob?
Carol:This brings up the question of the effectiveness of Jewish education.As Jews have moved from self-contained ghetto settings into pluralistic society, fewer and fewer young Jews grow up to be adult Jews.Some convert away, but for the most, religion, any religion, plays no part in their lives.Some reject the memory of the old guy with the beard in the synagogue telling you what you cannot do.Some find Judaism to be meaningless and non-productive ethnicity.Many see God as having no role in their lives.
Emma:Synagogue membership is declining sharply.The massive structures built in the 50’s and 60’s are now standing nearly empty.Is this something to be concerned about?Is more and better Jewish education the answer?Does the fact that Jewish education over the last two generations has failed to stem the erosion mean we should do more or does it mean we should do something different or does it mean we should give up?
Liz:I would like to move back to the personal area.The idea of a child who does not know how to ask is a powerful concept.In order to know how to ask, we need to know what it is that we truly want or need.Often, because we are not clear on what we want or need, we fail to ask for it.Instead of asking for what we want, we manipulate others, we engage in passive aggressive behavior to express our frustration, we resort to addictions to hide the pain or loss.
Daniel:Passover is the festival of freedom.I am not a slave to an Egyptian taskmaster but I do not feel free.I have to rush back tomorrow to get to work.I work basically to pay the mortgage and buy food and put gas in my car.Quitting my job is not an option.Moving out of my house is not an option.I do not know what freedom looks like.I am not altogether happy bit I do not know how to ask for what I want because I cannot tell you what I want.
David:I live in a nice home, drive a nice car, ski, take vacations, go out to dinner with friends.All of this is good, but then I drive through Springfield or Hartford or the South Bronx and I ask myself how I can enjoy the good things in my life when there are some many people without adequate housing, without health care, without enough food to eat, without decent schools for their kids.I would like this to change.I would like to help bring about this change.But, I do not know what to ask for.
Dan:Externally, my life appears great.But, I do things that hurt my spouse.I do not pay attention.I eat too much.I drive too fast.I drink too much.I get angry for little reason.Clearly, something is eating at me.There is something I need, but I cannot define it.I am indeed a child who does not know how to ask.
Alison:We are all children who do not know how to ask for what we need.We do not know how to ask because we do not really understand what we need.We do not understand what we need because we suppress the simple child within us who wants to ask the hard and basic questions.Instead, we often use one of two common defense mechanisms.One is to be the wise child, the know-it-all, the one who has all the answers.The other is to be the angry, rebellious, oppositional child who externalizes the need, the anger, the frustration.Instead of looking within to understand what we need, we push it out on others.
Liz:So, we are all each of the four children.The rabbinic answers to each are pathetic, wrong-headed, irrelevant.Yet, the four attributes – wise, evil, simple, not knowing how to ask – are critical to all of us.Getting in touch with each of these attributes can bring us the freedom and the peace that the Passover promises.
Andy F.:Our last task before the meal is to sing Dayyenu.The reality is that we will never say Dayyenu, it would have been enough.We want more.
Carol:Elu, Hotzi, Hotzi Anu, If you just make me wise, it would not be enough.
Andy B.:Elu, Hotzi, Hotzi Anu, If you just make me rebellious, it would not be enough.
Lucille:Elu, Hotzi, Hotzi Anu, If you just make me simple, it would not be enough.
Zoe:Elu, Hotzi, Hotzi Anu, If you let me know what to ask for, that would be enough.
Q.Dayyenu
Andy F.We end the service with the singing of Dayyenu.Sadly, this group does not gel as a musical ensemble.It is surprising.Doug is a serious guitarist.Sadie had a beautiful voice.Jack was chazan at the Deep River shul.Malcolm was an accomplished violinist and Stanley played the trumpet.Yet, when we sing Dayyenu together, the sound is not lovely.Still, the singing of Dayyenu unites us and makes the statement that we have celebrated another Passover as one.
So, here is the drill:We will sing one chorus of Dayyenu.Then, each of us will offer a statement in the form of, “If God had only given us ____, Dayyenu.”In other words, we should list one thing which, by itself, makes life worth living.After everyone has contributed, we will sing the chorus again and then eat.
