Key Protections for Students with Disabilities

Before leaving office, President Obama’s Department of Education issued critical protections for students with disabilities in 4 key documents. Given the desire of the incoming administration’s proposed Secretary of Education Betsy DeVos to expand charter and voucher schools, these documents will provide important protections for students with disabilities in the coming years.

USDOE

The Office of Civil Rights (OCR) issued a comprehensive 47 page Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools which provides important guidance especially because most states fail to enforce this important law in public schools  and it is often ignored or misunderstood by public schools.

Key provisions include:

A school district must evaluate a student if it has reason to believe the student has a disability and the student needs special education or related services as a result of that disability, even if the student only exhibits behavioral (and not academic) challenges.

In OCR’s investigative experience, school districts sometimes rely on a student’s average, or better-than-average, classroom grades or grade point average (GPA) and, as a result, make inappropriate decisions. For example, a school district might wrongly assume that a student with an above-average GPA does not have a disability and therefore fail to conduct a Section 504 evaluation of that student, even if the school suspects that the student has ADHD or the school is aware that the student has been diagnosed with ADHD outside of school.

However, a student with a disability may achieve a high level of academic success but may nevertheless be substantially limited in a major life activity due to the student’s impairment because of the additional time or effort the student must spend to read, write, or learn compared to others.

School districts violate Section 504 when they deny or delay conducting an evaluation of a student when it would have been reasonable for a staff member to have suspected that a student has a disability and needs special education or related services because of that disability.

Section 504 is critically important for students with disabilities who need reasonable accommodations and/or modifications to receive a free appropriate public education (FAPE) but do not require special education. As OCR states:

To the extent that services and aids, or changes to policies and procedures (for example, allowing testing accommodations such as extended time for exams) for a student with a disability can be implemented by a student’s regular education teacher, the regular education teacher is responsible for implementing them.

For example, a regular education teacher may need to provide a student with a disability an outline of the teacher’s lecture, permit the student to sit in the front of the classroom, or allow the student to turn in homework late.

However, the school district is ultimately responsible for ensuring there are sufficient qualified personnel available to provide the supplemental and related aids and services.

Sec. 504 provides important protections for students with disabilities who are bullied or harassed due to their disabilities.

Appropriate steps to end harassment may include separating the student who was harassed and the student(s) engaged in the harassing behavior, providing counseling for the students, or taking disciplinary action against the harasser. These steps should not penalize the student who was harassed.

OCR also issued a comprehensive 23 page Dear Colleague letter on Restraint and Seclusion of Students with Disabilities. Key concepts include:

For a student already identified as a student with a disability, a school’s use of restraint or seclusion could be evidence that the student’s current array of regular or special education and related aids and services is not addressing the student’s needs. Because the Section 504 FAPE obligation is ongoing, when a school district has reason to believe that the student’s educational needs are not being met, it must consider different or additional approaches or services to address the student’s behavioral needs, and if necessary, reevaluate the student, which could include evaluating the need for positive behavioral interventions and supports and other strategies to address the student’s behavior that could mitigate or eliminate the need for restraint and seclusion.

In OCR’s view, persuasive indicators that a student’s needs are not being met appropriately would include: situations that would impede the student’s learning or that of others, such as new or more frequent emotional outbursts by the student, or an increase in the frequency or intensity of behavior; a sudden change into withdrawn, non-communicative behavior; and/or a significant rise in missed classes or sessions of Section 504 services. A notable drop in academic performance, such as a sudden decline in grades, could also be an indicator of the need to consider different or additional approaches or services, but a change in a student’s academic performance is not a necessary indicator in every instance. Alternatively, a student’s current array of services might only address the student’s academic challenges but now must be modified to address new or changed disability-related behavioral challenges that the student may be experiencing. These and other indicators that the student’s behavior is out of the expected range of behaviors of students that age could trigger a school district’s Section 504 obligation to determine if the student’s needs are being met appropriately, and whether a reevaluation is needed under Section 504.

While federal law does not prohibit the use of seclusion and restraint, the use of these aversive techniques in inappropriate or discriminatory circumstances can violate federal law.

When a school district restrains or secludes a student with a disability for behavior that would not result in the restraint or seclusion of peers without disabilities, OCR would likely find that the school district engaged in unnecessary different treatment on the basis of disability prohibited by Section 504. Similarly, a school district that subjects a student to restraint or seclusion on the basis of assumptions or stereotypes about disability also engages in conduct prohibited by Section 504.

The repeated use of restraint or seclusion in school could deny a student’s receipt of FAPE in another way. Consider a student with a disability who engages in behavior in response to which the school secludes him for extended periods and on multiple occasions. While secluded, the student does not receive educational instruction or services. Cumulatively, the school’s repeated use of seclusion with that student could result in the school’s failure to comply with the Section 504 team’s decision about the regular or special education, related aids and services, or supplemental services and modifications that the student needs, or the appropriate setting in which to receive those services and therefore may constitute a denial of FAPE.

Last, but not least, the Department of Education issued two Frequently Asked Questions (FAQs) covering the rights of students with disabilities in charter schools under both Sec. 504 and the Individuals with Disabilities Education Act (IDEA).

While state laws vary resulting in complex charter school governing statutes, one key concept remains valid regardless of the nature of the charter school:

All children with disabilities in charter schools must receive special education and related services and supplementary aids and services in accordance with the child’s IEP.

Regarding students who are not yet eligible for special education but are suspected of having a disability, the child find requirements in IDEA require states and school districts to have policies and procedures in effect to ensure that all children with disabilities residing in the State who need special education and related services are identified, located, and evaluated, regardless of the severity of the disability. This responsibility includes highly mobile and migrant children with disabilities. The child find requirements apply to children enrolled in charter schools, regardless of whether the charter school operates as its own school district or is a public school within a school district.

In instances where charter schools are established to specifically serve students with disabilities,

Before a child with a disability is placed in a charter school established for a specific purpose related to the education of children with specific disabilities (i.e., to provide services for children in a specific disability category), the placement team must ensure that the child is able to receive a program of FAPE consistent with his or her IEP.

Given the growth of on-line virtual charter schools it is critical to understand that:

For example, virtual charter school LEAs must: (1) ensure that each eligible child with a disability has FAPE available to him or her; (2) implement evaluation and eligibility requirements; (3) carry out the IEP requirements, including those governing IEP content, IEP Team participants, parent participation, when IEPs must be in effect, consideration of special factors, the development, review, and revision of IEPs, secondary transition services and participation in State and districtwide assessment programs; and (4) implement the requirements regarding education in the least restrictive environment, including ensuring the availability of a continuum of alternative placements to provide special education and related services.

Regarding charter schools and Sec. 504, a key point is that regardless of whether it is a virtual on-line or bricks and mortar charter school:

Charter school students with disabilities, including current and prospective charter school students with disabilities, have the same rights under Section 504 as other current and prospective public school students with disabilities at the elementary and secondary school level.

Sec. 504 has broader coverage than the IDEA.

Section 504 protects all qualified students with disabilities in charter schools. Under Section 504, a student with a disability is a person who: (1) has a physical or mental impairment that substantially limits a major life activity; (2) has a record of such an impairment; or (3) is regarded as having such an impairment.

Similarly, charter schools cannot get around their obligations under Sec. 504 by contracting out their services  to private entities.

The bottom line is the Sec. 504 prohibits discrimination against students with disabilities.

This prohibition applies to the content of recruitment materials and to all recruitment activities, including formal presentations to, and informal conversations with, parents of prospective students. Additionally, all recipients must ensure that recruitment materials include a notice that the recipient does not discriminate on the basis of disability in violation of Section 504 in, among other things, the admission and treatment of students.

For example:

Statements indicating discrimination in recruitment would include those:

  • Based directly on disability (e.g., “students with an intellectual disability will not be accepted”);
  • Based indirectly on disability (e.g., “all students are required to be present at school at least 170 of the 180 school days per year without exception” would indicate discrimination under Section 504 against prospective students with a disability that causes them to miss more than ten school days per year);
  • Based on noncompliance with an obligation that is required of the recipient under Section 504 (e.g., “students with a current or previous IEP or Section 504 plan will not be admitted” or “students who require a sign language interpreter will not be admitted”).

This is just a summary of these 4 important pieces of federal guidance. Interested educators, parents and advocates would be wise to study the complete documents linked above, and show them to schools that may be operating contrary to the law. The bottom line is that with less than a month left in its administration President Obama’s Department of Education has provided critical protection to students with disabilities which educators must heed, and parents and advocates must  work hard to protect when the new administration takes office.

_________________________________________________________________

For more information on how I can help you accomplish effective, progressive systems change contact Jeff Spitzer-Resnick by visiting his website: Systems Change Consulting.

Tikkun Olam-Repair of the World

Every day we encounter problems that cry out for Tikkun Olama Jewish concept that means repair of the world. As a founding member and President of my synagogue,  Shaarei Shamayim, who has dedicated my professional career towards Tikkun Olam, congregants regularly ask me for advice on what they can do to help repair the world. Such requests have increased significantly since the last election.

Globe with Bandaid/Plaster Over U.S.A/North America

Fortunately, my synagogue has a spiritual leader, Rabbi Laurie Zimmerman, who is also dedicated to Tikkun Olam, and our congregation gladly supports her efforts. However, she knows that it is not enough for her to speak out or take action on issues by herself. Members of our congregation and our community must do so as well, if genuine repair of the world is to occur.

Shortly after the election, we were privileged to have one of our members, Ruth Conniff, the editor of the Progressive magazine, talk to our members about the election results. Her talk inspired many of our congregants to look for ways to get directly involved in Tikkun Olam. Rabbi Laurie convened a number of meetings to determine how best to facilitate the desire of so many members to do good work in our community. I am very pleased to report that we now have now formed 4 projects available to our members:

  • Friends of the State Street Family-providing food and other assistance to people who are homeless in our community.
  • Circles of Support-working with Madison Urban Ministry to provide support to individuals leaving the prison system and returning to our community. I am joining other members of our congregation to participate in this project.
  • Jewish Social Services Resettling Refugees Project-through which our members will help provide assistance to 50 new refugees to our community.
  • Protecting Vulnerable Communities – Reflection, Advocacy, and Action-a group that will look for ways to protect vulnerable communities that may come under attack in the coming days, weeks and years.

For some, it may be difficult to take time out of their busy lives to get directly involved in such projects. Many have realized that it is also important to provide financial support to organizations who are doing good work. I have provided links to the groups our Congregation is working directly with who can certainly use financial support. Recently, I responded to a congregant who was looking for Jewish groups who were taking on the important task of Tikkun Olam as she wanted guidance to provide financial support to them. While there are many such groups, in addition to the groups mentioned above, I also informed her about the following laudable organizations:

  • T’ruah-the Rabbinic Call for Human Rights.
  • Hebrew Immigration Aid Society (HIAS)-HIAS works around the world to protect refugees who have been forced to flee their homelands because of who they are, including ethnic, religious, and sexual minorities. For more than 130 years, HIAS has been helping refugees rebuild their lives in safety and dignity.
  • American Jewish World Service-a community of Jewish global citizens committed to repairing the world.
  • New Israel Fund-Invests in hundreds of Israeli organizations whose work changes the equation on civil rights, on religious freedom, and on social justice. Also organizes, advocates, trains, and convenes to build a community committed to a vision of a democratic, just, and equal Israel.

Of course there are many more projects and organizations which provide ways in which to engage in Tikkun Olam and no one can engage in all of them. So, pick one or more if you are able, and do your part to repair the world. In helping others, you will feel better for doing so.

Although there is much to fear about the unsettled state of our world, I am inspired on a daily basis by the amount of energy that is going into all the work needed to make our world a better place despite the ominous forebodings that surround us. Together, we will repair this world.

_________________________________________________________________

For more information on how I can help you accomplish effective, progressive systems change contact Jeff Spitzer-Resnick by visiting his website: Systems Change Consulting.

Signs of Hope

It has now been over a month since the nation woke up to discover that a man who campaigned for President using hateful rhetoric, surrounding himself with advisors who espoused hate for large swaths of Americans, became our President-elect. Since his election, he has nominated members of his incoming cabinet and key advisors who pride themselves in hating those who are not like them. With an incoming administration seething in hate, it is no wonder that hate crimes have escalated all over the country and many Americans live their lives in fear of what the coming months and years will wreak upon our nation and indeed, the entire world.

Given the choices that the President-elect is making, a Secretary of Education who wishes to privatize public schools in  the name of God; a Secretary of Energy who has called for dismantling that agency; and an Attorney General who does not believe in civil rights laws, the fear which the President-elect and his appointees have instilled in so many Americans is, sadly, a well founded fear. We can and should expect the next Administration to do terrible things which will dismantle many of the civil rights and environmental protections that we have held dear for so many decades.

But cowering in fear will not solve the problem created by the President-elect. Much has been written about various ways to fight back and it remains to be seen how this will play out in Congress, the courts, and elsewhere.

Now is not the time for despair, as it is the enemy of progress. Instead, we need to encourage each other with real and genuine hope for a better future, as hope is essential to systems change. In fact, what we need is radical hope. As Junot Diaz recently wrote, building on Jonathan Lear’s book of the same name:

“What makes this hope radical,” Lear writes, “is that it is directed toward a future goodness that transcends the current ability to understand what it is.” Radical hope is not so much something you have but something you practice; it demands flexibility, openness, and what Lear describes as “imaginative excellence.” Radical hope is our best weapon against despair, even when despair seems justifiable; it makes the survival of the end of your world possible. Only radical hope could have imagined people like us into existence. And I believe that it will help us create a better, more loving future.

The good news is that literal signs of radical hope are popping up all over the place. Groups are forming and actions are being taken to challenge every hateful action taken or inspired by the President-elect. While collective response is important, many people feel isolated and are unsure or simply unable to join either new or established groups to combat the hateful rhetoric and actions that seemingly surround us on a daily basis. Fortunately, there are easy actions that individuals can take that combat hate and create a welcoming environment in our neighborhoods.

Recently, my friend Jennifer Rosen Heinz helped to spearhead a yard sign campaign which was so successful that the Wisconsin Alliance for Women’s Health has now made the sign available on-line in a variety of formats.

206_350x350_front_color-na

Simultaneously, a local pastor distributed 700 of these signs that sold out so quickly that they are now available for sale at the Willy Street Co-op. These signs have spread nationally and the design is open for download. This welcoming sign even has its own Facebook page and has received both local and national press as it spreads across the nation.

yardsign-300x225

We proudly have both these signs posted in our front yard, and as soon as I posted the first one, someone walking by said she liked the sign.

Some may consider it naive to suggest that welcoming yard signs can effectively combat a powerful and hateful government. To be sure, yard signs alone will not solve all the problems which the next administration is likely to foment upon our nation and the world. However, by posting these signs of hope, each of us who does so creates a welcoming message of radical hope which provides more space and courage to do the hard work that will be needed in the months and years to come to protect the most vulnerable people subject to attack and to limit the damage inflicted by the next administration.

_____________________________________________________________

For more information on how I can help you accomplish progressive, effective systems change, contact Jeff Spitzer-Resnick by visiting his web site: Systems Change Consulting.

Sustaining our Dreams

One of the great pleasures of life is to fulfill one’s dreams. I have been very fortunate to fulfill a number of my dreams, including finding my wife, Sheryl, with whom I have had a loving 34 year marriage; raising a deeply thoughtful and caring son, Josh, who is turning into a mature young man; engaging in a successful career as a public interest civil rights attorney for over 31 years, and living in a lovely nearly 100 year old home in welcoming neighborhood for nearly 25 years.

Sustaining each of those dreams takes effort.

  • Marriage is a constant set of intricate negotiations that, when successful, allows each partner to maintain their own independence, while simultaneously allowing the partnership to flourish.
  • Raising a child is perhaps the most difficult and rewarding thing one can do. As I have told my son on many occasions, parents do not receive an instruction manual, and all the parenting books in the world do not anticipate every single situation parents encounter while raising their children.
  • My legal career has flourished in many ways, but it has also had its challenges, particularly when two employers chose to terminate my services, failing to appreciate my efforts for the greater good.
  • While we cherish our beautiful home and neighborhood, its age requires annual maintenance and we anticipate losing some of our dearest neighbors in the coming year.

Perhaps the dream that continues to fulfill me the most is our ownership of 86 beautiful acres of land in Adams County, Wisconsin, on Goose Lake. The sparsely populated area was made famous by Aldo Leopold in his iconic environmental tome, A Sand County Almanac, the descriptions therein could truly be descriptions of our land and the wildlife that we share it with. We keep a copy at our home on Goose Lake which I regularly re-read.

When we bought the land, it was completely undeveloped. There were 2 farm fields which had not been farmed in many years, acres of virgin oak forest, acres of wetlands, and a 2 track road to a camp site with a fire ring of rocks. Initially, we started with the basics, drilling a well and installing a hand pump, building an outhouse, and putting up a full time wall tent for camping.

Eventually, after saving our money, we were able to build a dream vacation home, which of course, needs regular maintenance. Around the same time that we built that home, about 13 years ago, we engaged in another dream fulfilling project. The location of our home is about 1/3 of a mile in from the County Highway along a gravel driveway. The initial part of that driveway was prone to snow drifts due to the slope of the hill and the emptiness of the farm field to the north of the road. We did not want to install an unsightly snow fence, so instead we planted 2,500 spruce and pine saplings in the scrubbier of the 2 farm fields we own that abuts our driveway.

Watching those tiny saplings grow into a forest full of trees, many of which are over 20 feet tall now, has been truly inspiring. However, like all dreams, it takes work to sustain the forest we planted. This past weekend, I thinned about 15 trees, giving 3 of the spruce tops to friends for their holiday decorations.

I will leave the cut trees to dry and cut them up for firewood next year, as I did with last year’s cuttings.

20161204_095519

While this may seem idyllic, it takes hard work and I feel my body’s age increasingly each year. Although somehow, doing hard work to sustain a dream always seems a bit easier than other chores.

In addition, sustaining this dream includes unanticipated work, such as dealing with invasive species. After cutting firewood and thinning our spruce and pine forest, I turned to attacking the invasive Buckthorn that appeared for the first time this fall, at the edge of the spruce and pine trees we planted along the county highway. I prefer to avoid using toxic chemicals on our land, so I was glad to discover that someone at the University of Wisconsin developed a non-toxic method of suffocating the Buckthorn stumps with black bags. Fortunately, I was able to accomplish this task before the snow came down the next day.

20161203_141137

For as long as I live, I will continue to dream. Accomplishing and sustaining my dreams is what makes life worth living.

_________________________________________________________________

For more information on how Jeff Spitzer-Resnick can help you accomplish effective, progressive systems change contact him by visiting his web site: Systems Change Consulting.