What’s the End Game?

As the United States government continues to abuse children in unprecedented fashion by ripping them out of their migrant parents’ arms, there is one question no one has addressed? What’s the end game?

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From Politico

As of May 2018, the United States government was holding nearly 11,000 migrant children in detention. The numbers are growing so rapidly that the administration is now holding nearly 1,500 of these children in a former Wal-Mart store in Brownsville, Texas, which is now the largest licensed shelter in the country. Even worse is the plan to house children in a tent city in Tornillo, Texas to hold an additional 450 children. Indeed, the the U.S. government has already proven it cannot handle the number of these children as it has lost track of nearly 1500 of them last year alone.

Although the administration claims that its practice of forcibly separating children from their parents is a deterrent to migration, that claim has no merit, because the numbers of families crossing the border continues to rise. There were over 50,000 arrests for illegal border crossings in May, which was the third month in a row that the number was so high. This is up 160% over May, 2017.

Since ripping children away from their parents and placing  them in tent cities has not proven to deter parents who are fleeing horrific condition from taking their chances to come to the United States, in addition to  demanding family unification, the Administration must be asked the following questions:

  1. How many children does the United States government have the capacity to detain?
  2. How long does it intend to detain migrant children?
  3. What services will it provide to detained children while they reside in U.S. detention centers?
  4. Is there any plan to ever reunite migrant children with their parents?

In addition to feeding and clothing these children, the Administration has probably forgotten that in 1982, the Supreme Court decided in a case called Plyler v. Doe that immigrant children have just as much of a right to an education as American children. As the high court said in this landmark decision.

“[B]y denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation. Such discrimination can hardly be considered rational.”

Even the dissent noted that,  “is senseless for an enlightened society to deprive any children—including [unauthorized immigrants]—of an elementary education.

Of course, the right to a public education includes the right of children with disabilities to special education. Under the Individuals with Disabilities Education Act (IDEA), parents have a legal right to participate in the evaluation and education planning for their children with disabilities. How will the Administration comply with this provision when it is responsible for removing these children from their parents?

The most likely reason no one is discussing the end game of mass detention of children is that the United States government has rarely engaged in such horrific human rights abuses. Even the shameful detention of Japanese-Americans during World War 2 did not include separating children from their parents.

As all decent Americans work to end this horrific practice of mass child detention, advocates should ask these questions of both the Administration and their members of Congress. Perhaps after thinking just a little further down the road, the United States government will realize that it has started down a path with no good outcomes, and will begin to wind down and ultimately end its human rights abuse of these migrant children and their parents.

You can make these points by contacting the Administration and your members of Congress. You can also support the many groups fighting this horrific practice. Click here for a great article which includes links to many ways you can play a role to end this nightmare.

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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.

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The Persistence of the School to Prison Pipeline

Recently, a local reporter contacted me to comment on a case in which a 16-year-old African-American boy with disabilities, who was a sophomore at Madison West High School, and under Dane County Juvenile Court monitoring when he ran away from home. While he was gone, the student’s home detention court monitor in charge of checking up on his school attendance and behavior, asked West High’s dean of students to write a letter to the court about him. The letter characterized the student as a troublemaker who was a bad influence on other students.

As the front page story stated, the dean of students’ letter to the court opened with the following statement, “I write because I think (the student’s) transfer here from (a suburban high school) has ultimately not been good for him and frankly not good for West.” Despite this statement, the boy had not been expelled. The boy’s mother believes that letter resulted in her son being ordered to remain in juvenile detention for another 3 weeks.

As if the dean of students’ letter did not cause enough harm to the boy, according to the newspaper report, “the court commissioner decided to extend the student’s detention, referencing “impulsiveness” described in his individualized education plan (IEP) and the need to come up with a plan to address it.”

I did not represent this student, but due to my background in school discipline and special education matter, the reporter contacted me, and as she reported, I told her that I had never heard of an IEP being used in court to detain a student. I went on to say that this scenario:

is a direct example of the “school to prison pipeline,” the idea that students — particularly children of color and students with disabilities — are pushed out of school into the criminal justice system due to discriminatory discipline practices, lack of resources to support students with special needs, police in schools and other methods.

“In (this example) you’ve got an administrator contacting the juvenile justice authorities about what’s going on in school, and you’ve got an IEP being used against a child.

“You see that children of color and children with disabilities are disproportionately represented in the school to prison pipeline… It is disturbing that we even have such a thing in our society. Schools should be designed not to end up incarcerating children but to educate them.”

The question, of course, is why the school to prison pipeline continues to persist. Many advocates have been fighting against it and while some reductions in suspensions rates have occurred, the trend lines in Milwaukee, Wisconsin’s largest school district are troubling.

In the 2015-16 school year (the most recent data available), Milwaukee Public Schools (MPS) suspended:

  • 10,267 students or 13.6% of all its students up from 10.6% the year before;
  • 8,227 African-American students or 20.3% of those students;
  • 436 White students or 4.4% of those students;
  • 3,044 students with disabilities or 19.7% of those students;
  • 7,223 students without disabilities or 12% of those students.

Thus, a disproportionately high number of MPS suspensions are of African-American students and students with disabilities.

Racine, which is the 5th largest school district in Wisconsin, had the second highest number of suspensions in Wisconsin that year. That school district suspended:

  • 2,151 students or 11.2% of all its students up from 9.5% the year before;
  • 1,292 African-American students or 25.5% of those students;
  • 395 White students or 5% of those students; and
  • for reasons that are unclear, Racine has not reported the number of its suspended students who have disabilities.

Despite lacking the disability information, the Racine data reveals the troubling trend of racial disproportionality in school discipline.

As this ACLU infographic shows, this is not an isolated problem, as the national data on the school to prison pipeline continues to persist.

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In the Madison case, the newspaper report concluded with a bit of good news. The dean of students who wrote the damning letter to the court conceded that:

“As an educator, I need to be an advocate for our students, and in this instance, I fell short. There isn’t any excuse for that, and I recognize the negative impact it had on this young person’s life,” she said. “I am learning from it, and I am committed to supporting and serving all students going forward.”

Moreover, the boy has since left West and enrolled in an alternative program in the district. Although his mother said she will have trouble ever trusting the district again, she told the reporter that her son is already doing better in the new environment.

“He really likes it,” she said.

When I sent a friend the article in which I am quoted, he noted the good news at the end of the article, but then he went on to say,

“Maybe this is the heart of things. Instead of focusing on a student’s needs for a smaller alternative program to further his education, it got framed as needing to protect the school from a dangerous student. In the name of “school safety,” we’re willing to harm individual kids-disproportionately kids of color and with disabilities. I think this is how Madison does racism. We never use the language of it but the impacts are just as bad.

While the persistence of the school to prison pipeline may have many reasons, one common theme is the persistence of racism and discrimination against students with disabilities. Until we tackle those issues, improved policies alone will not solve the problem.

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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.

Defining “Appropriate Education”

Ever since Congress passed the original law requiring public schools to provide a free appropriate public education (FAPEto students with disabilities in 1975, everyone involved in the special education system has struggled with the definition of “appropriate.” This includes teachers, parents, advocates, attorneys and the court system. The problem, of course, is that the word appropriate defies precise definition. On one hand, the law does not require public schools to provide children with disabilities the best possible education, even though parents should always advocate for that. On the other hand, if a child fails to make any progress and merely gets a de minimis education, that is clearly not appropriate and therefore violates the law. The challenge has been in that huge grey area in between. Some have said the the child is not entitled to a Cadillac type of education, but only a Chevrolet. I like to add that the Chevrolet must have 4 wheels and be in sound operating condition.

Fortunately, earlier this year, in a unanimous decision, the U.S. Supreme Court offered updated clarification on this issue and rejected the 10th Circuit Court of Appeals definition of appropriate. The 10th Circuit had ruled that public school merely needed to provide, “merely more than de minimis” education to children with disabilities, but in the case known as Endrew F., the Supreme Court stated that,

a school must offer an IEP [individualized education program] that is reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.

The Court additionally emphasized the requirement that “every child should have the chance to meet challenging objectives.”

While this case, especially in light of its unanimous nature in an often divided Supreme Court, is very important, earlier this week, something even more important happened when the U.S. Department of Education issued a Q&A on the Endrew F. decision. This Q&A is very important because:

  • Many advocates feared that Secretary DeVos would eviscerate enforcement of the special education law known as the IDEA (Individuals with Disabilities Education Act);
  • Public reaction was strong and many were troubled with the U.S. Department of Education rescinded 72 pieces of policy guidance in October; and
  • Most important, as set forth below, the Q&A fully supports both the substance and rationale of the Endrew F. decision and thus the U.S. Dept. of Education appears prepared to enforce the IDEA according to this landmark decision.

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Due to the importance of both the Endrew F. decision and the administration’s interpretation of it, everyone involved in the education of children with disabilities should be aware of the following key points emphasized by the Q&A:

  • Public schools must offer an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” to all students with disabilities, including those performing at grade level and those unable to perform at grade level.
  • “[A] student offered an educational program providing merely more than de minimis progress from year to year can hardly be said to have been offered an education at all…The IDEA demands more.”
  • Each child’s educational program must be appropriately ambitious in light of his or her circumstances, and every child should have the chance to meet challenging objectives.
  • In determining whether an IEP is reasonably calculated to enable a child to make progress, the IEP Team should consider the child’s previous rate of academic growth, whether the child is on track to achieve or exceed grade-level proficiency, and any behaviors interfering with the child’s progress.
  • The IEP Team, which must include the child’s parents, must give “careful consideration to the child’s present levels of achievement, disability, and potential for growth.”
  • The IEP must include annual goals that aim to improve educational results and functional performance for each child with a disability. This inherently includes a meaningful opportunity for the child to meet challenging objectives.
  • Annual IEP goals for children with the most significant cognitive disabilities should be appropriately ambitious and “reasonably calculated to enable the child to make progress appropriate in light of the child’s circumstances.”

The Q&A concludes by stating that,

IEP Teams must implement policies, procedures, and practices relating to: (1) identifying present levels of academic achievement and functional performance; (2) the setting of measurable annual goals, including academic and functional goals; and; (3) how a child’s progress toward meeting annual goals will be measured and reported, so that the Endrew F. standard is met for each individual child with a disability.

In sum, with both a typically divided Supreme Court and the U.S. Department of Education which advocates feared would take special education backwards, making strong statements in favor of a meaningful definition of appropriate education, parents and advocates now have important tools to insist that children with disabilities receive the kind of education that will allow them to make meaningful progress every year.

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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.

Vague Goals Produce Vague Results

Three years ago, I wrote with concern that the Madison Metropolitan School District’s (MMSD) Behavior Education Plan (BEP), while laudable in its purpose to reduce suspensions and expulsions and improve in school behavior, would be challenged to make genuine progress without specific goals. While I would be glad to admit that my prediction was wrong, the recently released Quarter 1 Review of the BEP confirms my fears.

school to prison pipeline

To be clear, due to some criticism of the BEP, including my own concern that it had vague goals, and insufficient staff training and support, a new implementation plan was adopted along with the following goals:

1) to promote and increase positive student behavior and social emotional growth, 2) to reduce use of out-of-school suspension and 3) to decrease disproportionate use of out-of-school suspension practices for African American students and students with disabilities.

Yet, these laudable goals are not specific, i.e., how much should positive student behavior and social emotional growth increase, how much should out-of-school suspensions decrease, and how much should disproportionate use of out-of-school suspensions for African American students and students with disabilities decrease? Moreover, if even these vague goals are not achieved, who should be held accountable for the failure to achieve these goals, and in what manner?

Remarkably, three years after the BEP was passed by the school board, without explanation or justification, the report concedes that:

A small number of schools, however, are working on establishing stable response systems, and achieving a basic level of positive student behavior and support for social emotional growth. These schools experienced, in first quarter, a disproportionate increase in level 2-5 behavior due in part to a lack of robust systems to support positive student behavior.

To be sure, there is good news in the report. For example:

  • Compared to first quarter of 2016-2017, the out-of-school suspension risk ratio for African American students in middle school has decreased significantly from 20:1 to 8:1.
  • The district-wide out-of-school suspension risk ratio for African American students and students with disabilities in Quarter 1 of this year is the lowest (10:1 for African American students and 6:1 for students with disabilities) it has ever been when comparing data from the past three first quarters of school.

However, these improvements are in stark contrast with the following bad news:

  • an overall increase in behavior events by 18% this year compared to 2016- 2017;
  • Elementary schools account for 61% of all level 2-5 incidents in Quarter 1 this year. Three of those schools had 28% of all elementary level 2-5 incidents;
  • Out-of-school suspension rates overall have increased by 15%, as compared to first quarter last year; despite reduced risk ratios, the increase is driven largely by middle school (24% increase) with students of all ethnicities accounting for some portion of the increase;
  • At the high school level, out-of-school suspensions and level 2-5 incidents are slightly up this year compared to last year, and the increase mostly impacts African American students; and
  • Most schools are below the expected baseline of implementation in the intervention category and have strategies “off track” to address the need.

Remarkably, the report’s Next Steps contain absolutely no focus on problem schools, specific goals to achieve or accountability for failure to achieve the many goals that remain out of reach.

What remains unexplained is how the behavior incidents dropped from 17,015 involving 3,841 students in the 2015-16 school year to 14,929 incidents involving 3,344 students, but then rose to exceed the already high 2015-16 numbers to 17,678 incidents involving 4,112 students. Without evidence, the report attributes this over 16% jump to, “more cohesive and comprehensive school implementation of practices foundational to behavior education.” Yet, such a statement is clearly counter-intuitive since the primary goal of the BEP is reduce behavior incidents, a dramatic rise in behavior incidents the 3rd year of implementation simply cannot be the result of better implementation that is counter to the goal.

Regarding the disproportionality goal, the report states that:

Disproportionality, particularly for our African American students, students with disabilities, and male students persists. With a disproportionality increase of 2%, in behavior incidents for African American students supporting schools, particularly addressing the implementation area that focuses on decision making. While we have not yet moved the needle for our African American students, we have experienced a 2% decrease in disproportionality for male students and 7% decrease for students with disabilities.

Since it is well documented that the school to prison pipeline is fueled by out of school suspensions and expulsions, one must wonder why MMSD has failed to reduce out of school suspensions. Yet, the report reveals that:

Out-of-school suspension rates overall have increased by 15%, as compared to first quarter last year, an increase (24%) driven largely by middle schools.

Worse than that and perhaps revealing the complete failure of accountability in implementing the BEP, the report honestly concedes that:

this data is not surprising. A key reflection, following the evaluation, was that continuing to do more of the same will not move the needle.

While the report praises the fact that out of school suspension disproportionality for African American students has decreased, such a decrease hardly matters when the overall suspension rate continues to rise.

The report fails to comment on the deeply troubling data that out of school suspension disproportionately for students with disabilities increased significantly. While 15% of MMSD’s students have disabilities, 55% of out of school suspensions involve students with disabilities, up from 50% in the prior 2 years. Sadly, the report fails to mention a single recommendation about how to improve supports for special education staff and students to mitigate this problem.

To its credit, the report is candid about the many ways in which the school district is off track in implementing the BEP. What it does not explain is why such failure is allowed to persist. Towards the end of the report, all schools are listed by where they are in implementing the BEP divided by 3 phases. This shows that elementary schools are making vastly more progress in implementing the BEP with a majority of those schools already at phase 3. But, without explanation, this chart also shows that no middle schools are at phase 3 and only half are at phase 2 of implementation, and even  worse, no high schools are in phase 3 and only 1 (Memorial) is at phase 2.

As I have said since I praised the adoption of the BEP, the plan is a good one, the failures then as now continue to be that it has:

  • vague goals;
  • lack of accountability; and
  • insufficient staff training and support.

Until the MMSD school board addresses these problems, we can expect to see a continuation of mixed results from an otherwise laudable plan, which is a wasted opportunity to improve the lives of our students and keep them out of the school to prison pipeline.

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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.

 

Small Class Sizes=Big Results

As the Madison Metropolitan School District (MMSD) Board of Education considers its budget for the coming year, some school board members are supporting an initiative to reduce class sizes in high poverty elementary schools in kindergarten-third grade classrooms. This initiative is supported by at least 4 board members (Anna Moffit, TJ Mertz, Nicki VanderMeulen and Dean Loumos), but 2 board members (Mary Burke and Kate Toews) appear to need more research to demonstrate the benefits of small class sizes.

The STAR (Students-Teacher Achievement Ratio) project is a well-known study of a class size reduction program in Tennessee. The study was conducted with a controlled group of 10,000 students. Classes of 22 through 26 were reduced to 13 through 17 students. In addition, the schools in the study had an adequate number of quality teachers and adequate classroom space. The project found that smaller classes resulted in substantial increases in academic performance of children in primary grades, particularly for poor and minority children.

In the second phase of the Tennessee study, known as the Lasting Benefits Study, it was demonstrated that,

year after year, the students who were originally in smaller classes con- tinued to perform better than the students from regular-sized classes with or without a teacher’s aide.

This graphic shows that the lasting benefits of small class sizes for low income children extend all the way through significantly improved high school graduation rates.

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These results should not be surprising given the benefits of fewer students in a classroom such as:
  • Students receive more individualized attention and interact more with the teacher.
  • Teachers have more flexibility to use different instructional approaches.
  • Fewer students distract teach other than a large group of children.
  • Teachers have more time to teach due to fewer discipline problems.
  • Students are more likely to participate in class and become more involved.
  • Teachers have more time to cover additional material and use more supplementary texts and enrichment activities.

Improved high school graduation rates for low income students, students of color, and students with disabilities should be among MMSD’s top goals. A review of the district’s most recent report card shows that although the district on average meets state expectations, one of the district’s four main high schools (LaFollette) fails to meet state expectations and another (East) meets few expectations. Equally disturbing is the overall graduation rate disparity for children of color, low income children and children with disabilities as follows:

  • 93% of white students graduated compared to just under 58% of Black/African-American students, just under 70% of Hispanic/Latino students;
  • 94% of students who are not economically disadvantaged graduated, while only 62% of those who are economically disadvantaged did so;
  • Just under 92% of students without disabilities graduated, while just under 57% of students with disabilities did so.

Although MMSD has made some progress in closing these gaps, the remaining gaps are cavernous. The school board should consider closing these gaps of the utmost importance and the best evidence is that the most effective way to close these gaps is to reduce class sizes in high poverty elementary schools just as some board members have proposed. Hopefully, this important initiative will pass when it comes to a vote.

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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.

Sensory Summer

Since last fall, I have been engaged by the Madison Children’s Museum (MCM), to help facilitate the implementation of a generous 3 year grant it received to improve its services to children with autism and other sensory processing disorders and their families. This has been a unique opportunity to bring together parents, self-advocates, providers and educators to engage with MCM staff in order to map out a strategy that will not only improve MCM’s services to this group of children and their families, but to provide a national model for other museums to improve their services.

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After my first meeting with MCM staff, I noticed this light on the main floor of the museum and it truly represents the vision of the incredible staff with whom I work on this project . Deb Gilpin, the Executive Director, has been very supportive of this truly unique project. The project lead, Sandra Bonnici, pours a tremendous amount of effort and passion in order to make sure this project succeeds. She considers it, “a great opportunity to truly understand community aspirations and challenges for people on the spectrum and their families and to collaborate with the ASD and SPD community improved experiences and genuine inclusion for these children and families both at MCM and within the museum field.”  Her very capable colleagues, Heather Davis, Kia Karlen and Anneke van Lith, have provided the support she needs to carry this project to fruition.

After getting substantial input from the Advisory Group, MCM staff realized that the museum needed to conduct an assessment of itself in order to determine both its strengths and weaknesses when serving children on the autism spectrum and their families. Fortunately, the enthusiasm of the Advisory Group has resulted in a steady flow of participants eager to help with that assessment. University of Wisconsin Professor Karla Ausderau has recruited some of her students to help with this assessment, which will include gathering information from museums around the country to determine what they are doing in terms of serving children on the spectrum.

In additional to a professional assessment, Dr. Ausderau recommended that we use the museum itself as perhaps the most critical assessment tool. As a result, the museum is now engaged in planning a Sensory Summer. While the museum is still working out details and will get more input from the Advisory group, the basic idea is twofold:

  • Provide free passes to children with autism and other sensory processing disorders and their families over the summer and request that they fill out on-line or paper surveys to let the museum know which parts of the museum work well for them and which do not. Of course, the museum will also seek information regarding suggested improvements which it could make to enhance the experience of these children and  their families; and
  • Schedule 4 sessions when the museum is normally closed (early weekday evenings and weekend mornings) to allow children on the spectrum and their families to enjoy the museum without the normal chaos of many other children participating in the many activities which the museum has to offer. During these sessions, the museum will create some quiet and sensory spaces and provide some assistive devices that may help some of these children enjoy the museum more. The museum will also engage well trained friendly observers to make note of what works and what does not work with the children who attend these sessions.

Before Sensory Summer begins, we will engage a planning committee composed of volunteers from our Advisory Group, and the museum will contract with an expert trainer to provide basic autism and sensory processing training to its entire staff.

In my nearly 25 years of disability advocacy experience, this is the deepest engagement I have seen a non-disability public entity voluntarily take on to better serve a generally underserved group of children and their families. This is truly systems change at its best. It is voluntary, enthusiastic and inclusive. I am truly honored to help the Madison Children’s Museum become a national (and perhaps international) model for how to best serve children with autism and other sensory processing disorders in a public museum setting.

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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.

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.

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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.

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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.

Seclusion & Restraint Surges in Madison

In response to an Open Records request, I recently received the 2015-16 school year seclusion and restraint use data from the Madison Metropolitan School District (MMSD). As MMSD has not published this data on its website, contact me at through my website if you want a copy of the data.

The use of these dangerous, aversive techniques rose significantly from the previous year, which had increased from the year before that as the numbers below reveal. Even more troubling is the wide variation of use of seclusion and restraint between schools and particularly high use in elementary and alternative schools, as well as among children with disabilities.

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U.S. Senator Tom Harking introduced the “Keeping All Students Safe Act” in 2014

MMSD 2015-16 Seclusion & Restraint Data highlights

Numbers of Students Impacted

  • Elementary School Mean Use on Students with Disabilities: 7.09
  • Elementary School Mean Use on Students without Disabilities: 5.23
  • Elementary School with Highest Use: Orchard Ridge: 16 students with disabilities/33 students without disabilities (lowest numbers were redacted by school district to protect confidentiality)
  • Middle School Mean Use on Students with Disabilities: 5.62
  • Middle School Mean Use on Students without Disabilities: 3.46
  • Middle School with Highest Use: Whitehorse: 7 students with disabilities/ 0 students without disabilities
  • Middle School with Lowest Use: O’Keefe had 0 incidents of seclusion or restraint
  • High School Mean Use on Students with Disabilities: 3
  • High School Mean Use on Students without Disabilities: 1.6
  • High School with Highest Use: East: 18 students with Disabilities/ 19 students without disabilities.
  • High School with Lowest Use: Shabazz had 0 incidents of seclusion or restraint

Numbers of Incidents

  • Elementary School Mean Incidents of Restraint Use Only: 56.29
  • Elementary School Mean Incidents of Seclusion Use Only: 74.6
  • Elementary School Mean Incidents of Seclusion  and Restraint Used in combination: 36.6
  • Elementary Mean total Seclusion & Restraint Incidents: 94.29
  • Elementary School with Highest Use: LEAP (Olson Elementary Alternative Program): 435 total incidents (note as number of students was redacted, this means that 5 or fewer students were secluded and/or restrained a total of 435 times)
  • Middle School Mean Incidents of Restraint Only: 12.38
  • Middle School Mean Incidents of Seclusion Only: 10.38
  • Middle School Mean Incidents of Seclusion and Restraint Used in combination: 6.62
  • Middle School Mean total Seclusion & Restraint Incidents: 16.15
  • Middle School with Highest Use: Sennett: 27 total incidents (note as number of students was redacted, this means that 5 or fewer students were secluded and/or restrained a total of 27 times)
  • High School Mean Incidents of Restraint Use Only: 7.33
  • High School Mean Incidents of Seclusion Use Only: 5.17
  • High School Mean Incidents of Seclusion and Restraint Used in combination: 3.5
  • High School Mean total Seclusion & Restraint Incidents: 9
  • High School with Highest Use: East: 49 total incidents

Districtwide Totals

  • Students with Disabilities Secluded and/or Restrained: 324
  • Students without Disabilities Secluded and/or Restrained: 231
  • Total Incidents of Restraint Use Only: 2,136
  • Total Incidents of Seclusion Use Only: 2,749
  • Total Incidents of Seclusion & Restraint in Combination: 1,369
  • Total Incidents of Seclusion and/or Restraint Use: 3,516

MMSD Analysis

  • 2% of MMSD students experienced seclusion and/or restraint
  • 5.6% of MMSD students with disabilities experienced seclusion and/or restraint
  • Seclusion and restraint use is highest in elementary schools (16.49%)
  • Mean incidents of restraint use in elementary schools was 56.3/building with a range per building of 1 to 436
  • Mean incidents of seclusion use in elementary schools was 74.6/building with a range of 0 to 309
  • There has been a steady increase in use of seclusion in restraint since data was collected for the first time in 2013-14 as follows:
    • 2013-14: 975 incidents of restraint and 1,387 incidents of seclusion
    • 2014-15: 1,266 incidents of restraint and 1,688 incidents of seclusion
    • 2015-16: 1,452 incidents of restraint and 2.064 incidents of seclusion
  • A small number of elementary schools account for the vast number of incidents with 23 elementary schools reported increased use and only 12 elementary schools reporting a decline.
  • MMSD hypothesizes that the increased use is simply due to better data collection
  • MMSD concedes that, “for those elementary schools that have consistently demonstrated increases in the number of incidents of restraint and seclusion, a pattern of over-reliance on restraint/seclusion may be evident.” MMSD plans training and follow up for these schools.

Conclusions

When I helped to pass Act 125 in 2012 to document and regulate the use of seclusion and restraint in Wisconsin schools, one of the chief goals was to reduce the use of these aversive techniques. Sadly, MMSD has gone in the opposite direction, and has failed to:

  1. hold principals of schools with continually increasing rates accountable for these increases;
  2. correlate the increased use of seclusion and restraint with a decreased use of suspension; and
  3. establish clear goals for the reduction and eventual elimination of the use of seclusion and restraint in MMSD schools.

Simply blaming the increasing numbers on better documentation is insufficient in the face of an ever increasing use of dangerously aversive techniques that are well known to traumatize children. In order to reverse this troubling trend, MMSD must insist on better training in the use of Positive Behavior Intervention and Supports (PBIS) and accountability for its staff and administrators who fail to reduce and eventually eliminate the use of seclusion and restraint.

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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.

 

Feds Support Positive Behavioral Supports, not Suspensions

On August 1, 2016, the U.S. Dept. of Education (USDOE), Office of Special Education and Rehabilitation Services (OSERS) issued an important 16 page guidance letter informing schools that they must do more to provide positive behavioral supports to children with disabilities, instead of suspending them. The letter decries the fact that in the 2013-14 school year, nationwide 10% of all children with disabilities were suspended for 10 days or less, and that rate rises to 19% for children of color with disabilities. The guidance focuses on short term suspensions because the law gives school districts far more flexibility with suspensions of 10 days or less.

USDOE

The guidance letter makes clear that,

Research shows that school-wide, small group, and individual behavioral supports that use proactive and preventative approaches, address the underlying cause of behavior, and reinforce positive behaviors are associated with increases in academic engagement, academic achievement, and fewer suspensions and dropouts.

Moreover,

Research shows that implementing evidence-based, multi-tiered behavioral frameworks can help improve overall school climate, school safety, and academic achievement for all children, including children with disabilities.

Since children who are eligible for special education are legally entitled to a free appropriate public education (FAPE), OSERS makes clear that,

when a child with a disability experiences behavioral challenges, including those that result in suspensions or other exclusionary disciplinary measures, appropriate behavioral supports may be necessary to ensure that the child receives FAPE.

Therefore,

In the same way that an IEP Team would consider a child’s language and communication needs, and include appropriate assistive technology devices or services in the child’s IEP to ensure that the child receives a meaningful educational benefit, so too must the IEP Team consider and, when determined necessary for ensuring FAPE, include or revise behavioral supports in the IEP of a child with a disability exhibiting behavior that impedes his or her learning or that of others.

Of course,

IEPs should contain behavioral supports supported by evidence—IDEA specifically requires that both special education and related services and supplementary aids and services be based on peer-reviewed research to the extent practicable. As a matter of best practice, we strongly encourage schools to consider how the implementation of behavioral supports within the IEP could be facilitated through a school-wide, multi-tiered behavioral framework.

In many cases, it is not simply a matter of changing disciplinary practice. As OSERS states,

Appropriate supplementary aids and services could include those behavioral supports necessary to enable a child with a disability to be educated in regular classes or the setting determined to be the child’s appropriate placement. Such behavioral supports might include meetings with a behavioral coach, social skills instruction, counselor, or other approaches. In general, placement teams may not place a child with a disability in special classes, separate schooling, or other restrictive settings outside of the regular educational environment solely due to the child’s behavior when behavioral supports through the provision of supplementary aids and services could be provided for that child that would be effective in addressing his or her behavior in the regular education setting.

Program modifications and support for personnel may also be necessary to assure that children with disabilities are receiving the FAPE to which they are entitled.

School personnel may need training, coaching, and tools to appropriately address the behavioral needs of a particular child.

Fortunately, the federal guidance also includes resources, such for classroom strategies, Positive Behavioral Intervention and Supports Implementation and Self-Assessmentand a School Discipline Guidance Package.

The guidance identifies seven specific ways which may indicate that there has been either a procedural or substantive failure in the development, review or revision of a child’s IEP, including:

  • The IEP Team did not consider the inclusion of positive behavioral interventions and supports in response to behavior that impeded the child’s learning or that of others;
  • School officials failed to schedule an IEP Team meeting to review the IEP to address behavioral concerns after a reasonable parental request;
  • The IEP Team failed to discuss the parent’s concerns about the child’s behavior, and its effects on the child’s learning, during an IEP Team meeting;
  • There are no behavioral supports in the child’s IEP, even when the IEP Team determines they are necessary for the child;
  • The behavioral supports in the IEP are inappropriate for the child (e.g., the frequency, scope or duration of the behavioral supports is insufficient to prevent behaviors that impede the learning of the child or others; or consistent application of the child’s behavioral supports has not accomplished positive changes in behavior, but instead has resulted in behavior that continues to impede, or further impedes, learning for the child or others);
  • The behavioral supports in the child’s IEP are appropriate, but are not being implemented or not being properly implemented (e.g., teachers are not trained in classroom management responses or de-escalation techniques or those techniques are not being consistently implemented); or
  • School personnel have implemented behavioral supports not included in the IEP that are not appropriate for the child.

A child’s IEP may not be reasonably calculated to provide a meaningful educational benefit if:

  • The child is displaying a pattern of behaviors that impede his or her learning or that of others and is not receiving any behavioral supports;
  • The child experiences a series of disciplinary removals from the current placement of 10 days or fewer (which do not constitute a disciplinary change in placement) for separate incidents of misconduct that impede the child’s learning or that of others, and the need for behavioral supports is not considered or addressed by the IEP Team; or
  • The child experiences a lack of expected progress toward the annual goals that is related to his or her disciplinary removals or the lack of behavioral supports, and the child’s IEP is neither reviewed nor revised.

To avoid confusion, the federal guidance also makes clear that disciplinary removals are not limited to formal suspensions. They also include:

  • A pattern of office referrals, extended time excluded from instruction (e.g., time out), or extended restrictions in privileges;
  • Repeatedly sending children out of school on “administrative leave” or a “day off” or other method of sending the child home from school;
  • Repeatedly sending children out of school with a condition for return, such as a risk assessment or psychological evaluation; or
  • Regularly requiring children to leave the school early and miss instructional time (e.g., via shortened school days).

Inappropriate discipline without behavioral supports can impact the child’s right to be educated in the least restrictive environment (LRE) appropriate for the child, as the guidance points out.

Circumstances that may indicate that the child’s placement in the LRE may not be appropriate include, but are not limited to, a scenario in which a continuum of placements that provides behavioral supports is not made available (e.g., behavioral supports not provided in the regular educational setting), and, as a result, the IEP inappropriately calls for the child to be placed in special classes, separate schooling, or another restrictive placement outside the regular educational environment (e.g., home instruction, home tutoring program, or online learning program).

While harsh disciplinarians may not be pleased with the federal guidance, parents of children with disabilities should be thrilled that the federal government has issued detailed guidance which is designed to ensure that children with disabilities stay in school and receive an appropriate education instead of receiving discipline funneling them into the school to prison pipeline. As an attorney who has represented children with disabilities and their parents in school discipline matters for well over 20 years, this guidance is a welcome tool to correct inappropriately harsh discipline meted out by zero-tolerance educators.

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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.

Special Needs Voucher Scam Fully Revealed

Although disability advocates put up a good fight and prevented private school voucher advocates from passing a special needs voucher bill a few years ago, ultimately, the well financed influential voucher lobbyists prevailed and Wisconsin will send taxpayer dollars to uncertified private schools who claim an ability to serve children with disabilities, while stripping parents and their children who take these vouchers of all their rights.

Yesterday, the Wisconsin Department of Public Instruction (DPI) revealed the list of 28 private schools that have agreed to take special needs vouchers in the 2016-17 school year. A thorough review of the descriptions of these schools reveals that this program is a genuine scam siphoning taxpayer dollars while promising little to children with disabilities.

Among the most troubling aspects revealed by this list include:

  • 25 of 28 are private religious schools, all of which are rooted in Christianity;
  • 22 of 28 are in the Milwaukee Metropolitan area so most of the state will have no access to this program;
  • Only 1 of 28 claims to be wheelchair accessible, while 8 others admit that they are not accessible in  clear violation of the Americans with Disabilities Act (ADA), and the remaining 19 are silent on the issue, suggesting that they are not ADA accessible;
  • The Bethel Evangelical Lutheran School concedes that: “Special Education Program limits include limited maximum hours/time designated to any one student (60- 90 minutes daily) as a result of multiple students needing services.” This school concedes that it has no staff with special education licensure.
  • When identifying, “Methods of instruction that will be used by the school to provide special education and related services to SNSP students,” Concordia Lutheran School states that it,”exists for the purpose of “Bringing Christ and excellence in academics to our children for life and forever”. The aim of this ministry is to assist parents:
    1. In helping their children grow in the love and knowledge of Christ, their Savior;
    2. In giving their children a Christian education and training according to the Word of God, for daily living in service to God and their neighbor.”

    great-fake-id-scam

  • Similarly, “Immanuel Lutheran School exists to share the love of Christ.” It has no special education certified staff.
  • Lutheran Special School & Education Services, “provides Christ centered programs and services.” The school concedes that it, “does not provide speech and language therapy, occupational therapy or physical therapy.”
  • The Divine Redeemer Lutheran School identifies no special education services that it will provide. Instead it lists: 1) Speech and language services are provided on campus through the local public school district; 2) A variety of math classes are offered in the middle school to match students with their skill level; and 3) the Accelerated Reader program is in wide use in our school.
  • The Granville, Pilgrim, Renaissance, Saint Martini, Sherman Park and the Northwest Lutheran Schools (all part of LUMIN schools) only identify that they will help children with Specific Learning Disabilities and speech and language issues and concede that they are not wheelchair accessible.
  • Heritage Christian Schools states that it will serve students with “mild learning disabilities or needs” even though students with “mild” needs do not generally qualify for special education.
  • Pius XI Catholic High School provides a college prep program only for students with Specific Learning Disabilities or “similar educational disabilities.”
  • The St. Coletta Day School, “is best suited for students who are…capable of academic achievement and possess sufficient self-care skills to be independent.”
  • St. Paul Lutheran School does NOT offer, ‘handicap accessible rooms/building or full-time one-to-one instructors or educational aides.’
  • Only 1 school (Saint Marcus Lutheran) states that it serves children with autism, cognitive disabilities, emotional behavior disabilities and other severe disabilities.

Since the program does not start providing education to children until the coming school year, it is too soon to tell how the students with disabilities whose parents obtain taxpayer funded vouchers for them to attend these will fare. Of course, everyone hopes that they do well, but based on the description of their programs, most of these so-called special needs voucher schools are clearly ill-equipped to provide an appropriate education to the vast majority of Wisconsin students with disabilities, revealing that this program is simply a bad idea.

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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.