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March 16, 2006

State Attempts to Gut Parental Rights
Department of Education Bill will override parental refusals

        Sparks flew at the Capitol when a Minnesota Department of Education (MDE) proposal came under fire at its first House and the Senate Education Committee hearings Tuesday. Legislators and  their staff from both parties were fuming that a major policy shift was slipped into an MDE bill meant for "technical" corrections only.

        Dr. Karen Effrem alerted legislators by e-mail Monday night that the Department of Education's technical bill (HF 3179, Article 3) would  reverse parental rights over the testing of their children for special ed. The Department language would reinstate school districts' ability to override parental refusal of a special education evaluation or re-evaluation. The proposed language will allow this forced evaluation, right or wrong, to follow a student for life.
        Current law that requires school administrators to honor parental special ed refusals passed the House Education Policy committee several years ago with only two opposing votes. It also enjoyed bipartisan support in the conference committee in a very contentious year. Disparate groups from EdWatch to the NAACP worked hard for its passage, because of the over-identifying and over-medicating of school age children with dangerous and ineffective psychiatric medication. .

        Each year about 10% of the nation's school children are prescribed drugs, such as Ritalin, for learning and attention difficulties. According to an NAACP statement, "Children of color, especially African American boys, are much more likely to have these behavior- and mind-altering drugs prescribed for them. In fact, a recent study in the state of New York showed that 'minority boys' are 11 times more likely to be on mind-altering medicines than is the general student body." The President's Commission on Special Education 2002 report states that 90% of special ed determinations are not physiological, but, rather, subjective classifications like "emotional disturbance" and learning disabilities from teacher referrals, using "psychometric testing." 

        Poor and minority families have the least financial and logistical wherewithal to fight the system of mediation or due process hearings, and yet they are the ones who will disproportionately have to participate in these hearings, whether or not they want an evaluation or services. According to the National Academy of Sciences report on minority students in special education,  African-American students are much more frequently labeled as emotionally disturbed or mentally retarded than are white students.

        At Tuesday morning's House Education hearing, MDE staff testified in support of removing parental rights, calling their language a technical correction that brings state law into conformity with recent changes in federal law -- Individuals with Disabilities Education Act (IDEA). The Department's testimony focused on the need to override parental refusal of re-evaluations, saying, in essence, that it was necessary to override parental rights so that a child would not languish in a potentially inappropriate special education placement. They never admitted, explained, or attempted to justify the clear language in the bill that parental refusal of initial evaluations would be overridden as well.  Legislators were visibly upset over the Department's testimony that federal law would usurp the legislature's authority to protect parental rights in this area.

        Dr. Effrem then testified in opposition to the Department's proposal, stating that the federal IDEA law has not changed on these matters. Federal law states:
`(ii) ABSENCE OF CONSENT-`(I) FOR INITIAL EVALUATION- If the parent of such child does not provide consent for an initial evaluation under clause (i)(I), or the parent fails to respond to a request to provide the consent, the local educational agency may pursue the initial evaluation of the child by utilizing the procedures described in section 615, except to the extent inconsistent with State law relating to such parental consent.  (20 USC Chapter 33, Section 1414(c)(ii)) [Emphasis added.]
        In other words, the states can choose how to handle parental consent.

        The President's Special Education report describes the diagnostic criteria for Special Learning Disabilities (SLD) as vague and subjective, 90% of which are caused by reading problems. The respected textbook on ADHD (another high incidence diagnosis seen in special education) edited by Drs. Jensen and Cooper, for example, says, =93The questionnaires most commonly used to diagnose ADHD are highly subjective and impressionistic.=94 

         Commissioner Seagren appeared stunned by the information that the federal law did not require her legislation, and she wrote down the reference to the IDEA statute. To her credit, she stated to Dr. Effrem after the hearing that she "supports parental rights," and that, after researching the federal IDEA law Dr. Effrem cited, the provision would be removed if found to be unnecessary.

        The working assumption apparently so easily adopted by the MDE -- that federal law requires states to trample parental rights to make education decisions regarding the education of their own children -- is one that, if true, should inspire outrage. The apparent lack of protest to what would be an abusive usurpation of federal authority over parental rights is extremely concerning. In fact, since 90% of special ed identifications are based on very subjective social-emotional diagnoses and learning disabilities, that means that coercing parents into special ed evaluations and re-evaluations amounts to coercive mental health screening.

        Tuesday's hearings further revealed a deeply disturbing development of federal and state governance --  the very state agency employing numerous tax-paid and high-salaried individuals who are charged with administering the federal law and its massive (mostly unconstitutional) programs in our state appears to know less about that federal law than Dr. Effrem, a volunteer policy analyst and lobbyist.

        That very afternoon, the commissioner and her staff were still promoting their proposal as a technical change to bring Minnesota into compliance with federal IDEA changes, testifying in the Senate Education Committee conducting a hearing on the same bill (SF2994). Word of the morning House controversy had made its way into the Senate by that time, and Sen. Kelley introduced Article 3 as "controversial." He said that perhaps they would wait until new federal regulations on IDEA were written. Again, the Department did not admit that the parental override would apply to both initial and re-evaluations. Again, Dr. Effrem supplied the evidence that MDE testimony was wrong, and that their bill would overturn broad bi-partisan support for parental rights protections, contrary to the requirements of IDEA.

        Dr. Effrem's testimony continued:
First, parents, regardless of their position on the political or socioeconomic spectra, deeply and justifiably resent the arrogant attitude that 'government knows best' which will force children to undergo a special education evaluation over parental objection. That evaluation, right or wrong, will stay in a child's educational records for life.
        The Department had no response or rebuttal to Dr. Effrem's testimony during the hearing. Both Republican and DFL Senators were unhappy with the misleading information coming from the administration.  
        No votes were taken on the legislation in either committee. The House Committee expects to continue its hearing on HF 3179 sometime next week. The Senate plans to lay the bill over for possible inclusion in an omnibus policy bill later in the session.

For more information, link to these resources:
Infant mental health (11/23/05)

Myths and Facts Regarding Mental Health Screening Programs and Psychiatric Drug Treatment for Children (pdf)
Dangers of Universal Mental Health Screening, Briefing Book

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