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.

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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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Systems Change Mentoring

One of the most enjoyable parts of my legal practice has been the opportunity to mentor dozens of law students who have clerked for me over the past 30+ years. Many of these students have gone on to become successful public interest attorneys and I believe that their experience working for me helped guide them along their path towards obtaining justice for those who need it most.

Earlier this week, one of my former law clerks filled me with pride as she took an important disability issue to the national stage when she asked Hillary Clinton a great question during a campaign speech she gave at the University of Wisconsin.

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I first encountered Nicki Vander Meulen when she was a public school student in Walworth County, Wisconsin. Her parents sought my assistance because her school district wanted to place her in the county’s segregated school (Lakeland) which educated only children with disabilities in a program that was not designed for students to prepare them for college, but instead for a life of continued institutionalization and segregation. Nicki’s parents knew that she was capable of much more than Lakeland had to offer, and I was able to help them keep Nicki in regular public school in an inclusive setting, and she successfully graduated high school.

Years later, I was pleasantly surprised to discover that Nicki was attending the University of Wisconsin Law School (something I am quite sure no Lakeland attendee has ever done). She applied to be my intern and I gladly accepted her application.

During Nicki’s tenure as my law clerk, she conducted the research and with my assistance, wrote the first version of the bill that ultimately became Act 125, which forbids the inappropriate use of seclusion & restraint on Wisconsin’s school children. Nicki drafted a bill that was better than the bill that ultimately passed, and set the standard for 12 years of negotiations that led to Act 125’s ultimate passage. The bill she drafted was only sponsored by then Assemblyman (now Congressman) Mark Pocan, and did not even get a hearing. But, we had to start somewhere, and Nicki set the bar high. Systems change always starts with high aspirations and setting the bar high helps to assure a reasonable outcome in the end, which is exactly what happened.

Nicki graduated from law school in 2004 and has maintained a successful private practice as a public defender and advocating for children with disabilities and many others. She periodically calls me for advice and I gladly continue to mentor her and occasionally refer cases to her.

But Nicki takes her work as a systems change agent seriously and knows that systems change goes beyond her paid work as an attorney. So, when she had the opportunity to ask Hillary Clinton an important question at a campaign event, she broke important ground.

As you can see in this video (starting at the 47 minute mark), Nicki openly declares her disability pride  when introduces herself as a lawyer who is on the autism spectrum. She then asks Sec. Clinton what she would do about the sub-minimum wage which is paid to people with disabilities who work at sheltered workshops such as Goodwill, and further, what Sec. Clinton would do to create better employment opportunities for people with disabilities. Clinton answered by acknowledging that it was time to get rid of the subminimum wage in its entirety both for people with disabilities, and other low wage workers, such as restaurant employees who receive tips.

Nicki’s question and Secretary Clinton’s answer quickly received national attention, as The Atlantic published Clinton’s Case Against the Subminimum Wage crediting a “young lawyer with autism” for asking for Clinton’s opinion about this antiquated Depression era exemption to the minimum wage. The article goes on to credit Clinton with being the only Presidential candidate to speak out on this issue, which may not have happened if Nicki had not asked this important question.

Of course, the Presidential campaign is far from over, and even if Sec. Clinton does become President Clinton, much work will need to be done to end the antiquated and discriminatory subminimum wage. However, Nicki started the national conversation in a way that has never been done before, and she will deserve credit for her role in ending the subminimum wage whenever that happens, just as she deserves credit for crafting the first version of the Wisconsin seclusion and restraint law.

I am confident that Nicki will continue to be a successful systems change agent and I am glad that I have played a role mentoring her.

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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.

 

Read my Lips: Charter Schools are Public Schools & Must Comply with Civil Rights Laws

The battle lines have been drawn in the education reform movement.  There are those who would privatize as much of our public education through vouchers as possible, and they are strongly opposed by those who defend public education at all costs.  As is often the case, when the vitriol gets louder, confusion reigns, and in education reform, confusion has reigned supreme in the charter school arena.

Many who oppose school privatization oppose charter schools, despite their potential for innovation,  because they believe that charter schools are just another vehicle for privatizing and therefore destroying public schools.  Fortunately, the US Department of Education (USDOE), has made perfectly clear that charter schools are public schools subject to all federal civil rights laws.  In a guidance letter issued by the USDOE’s Office of Civil Rights (OCR) on May 14, 2014, it was made abundantly clear that,

These laws extend to all operations of a charter school, including recruiting, admissions, academics, educational services and testing, school climate (including prevention of harassment), disciplinary measures (including suspensions and expulsions), athletics and other nonacademic and extracurricular services and activities, and accessible buildings and technology.

The guidance letter specifies 4 key federal laws that apply to charter schools:

  • Title VI of the Civil Rights Act of 1964 that prohibits discrimination based on race, color or national origin;
  • Title IX of the Education Amendments of 1972 (prohibiting discrimination based on sex); and
  • Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act (prohibiting discrimination based on disability).

The OCR letter states that a separate guidance letter will be issued in collaboration with the USDOE’s Office of Special Education and Rehabilitation Services (OSERS) to address charter schools’ obligations to comply with the Individuals with Disabilities Eduction Act (IDEA).

Some key provisions of the new guidance letter are:

  • Charter schools may not discriminate in admissions.  This includes:

Charter schools must ensure that language-minority parents who are not proficient in English receive meaningful access to the same admissions information and other school-related information provided to English-proficient parents in a manner and form they can understand, such as by providing free interpreter and/or translation services.Also, communications with parents with disabilities must be as effective as communications with other parents. Appropriate auxiliary aids and services (such as Braille materials or a sign language interpreter) must be made available whenever they are necessary to ensure equally effective communication with parents with hearing, vision, or speech disabilities.

Of course, this means that charter schools may not have admissions criteria which discriminate on their face.  But, in addition,

a charter school may not use admissions criteria that have the effect of excluding students on the basis of race, color, or national origin from the school without proper justification. Charter schools also may not categorically deny admission to students on the basis of disability.

  • Regarding children with disabilities, OCR makes clear that,

every student with a disability enrolled in a public school, including a public charter school, must be provided a free appropriate public education–that is, regular or special education and related aids and services that are designed to meet his or her individual educational needs as adequately as the needs of students without disabilities are met. Evaluation and placement procedures are among the requirements that must be followed if a student needs, or is believed to need, special education or related services due to a disability. Charter schools may not ask or require students or parents to waive their right to a free appropriate public education in order to attend the charter school. Additionally, charter schools must provide nonacademic and extracurricular services and activities in such a manner that students with disabilities are given an equal opportunity to participate in these services and activities.

  • For English Language Learners,

charter schools must take “affirmative steps” to help English-language learners overcome language barriers so that they can participate meaningfully in their schools’ educational programs. (emphasis supplied) A charter school must timely identify language-minority students who have limited proficiency in reading, writing, speaking, or understanding English, and must provide those students with an effective language instruction educational program that also affords meaningful access to the school’s academic content. Federal civil rights laws do not, however, require any school, including a charter school, to adopt or implement any particular educational model or program of instruction for English-language learners; schools have substantial flexibility to determine how they will satisfy their legal obligations to meet these students’ needs.

The latest guidance on charter schools also affirms that the prior guidance issued by the USDOE jointly with the US Dept. of Justice on discriminatory school discipline also applies to charter schools.  As I wrote about previously, this guidance is an important step in stopping the schools to prison pipeline.

Of course, laws are only as good as their enforcement, so it is good that OCR ends its guidance by providing a link to its contact information and complaint form.  It also provides its toll free number and e-mail address: (800) 421-3481 & ocr@ed.gov.  OCR is clearly inviting complaints if charter schools violate the law.  It will be up to advocates to make sure that OCR honors its commitment to enforce the law if violations occur.

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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.

Response-Ability: Critical to Personal and Organizational Success

The human condition involves making mistakes.  The challenge we have both personally and organizationally is how we deal with those mistakes.  That is where responsibility becomes the key to both personal and organizational growth and strength.

The dictionary definition of responsibility includes:

the quality or state of being responsible: as

:  moral, legal, or mental accountability

:  reliability, trustworthiness

However, when thinking of this important quality in terms of personal and organizational growth, I prefer to break the word into its component parts:

Response Ability=the Ability to Respond

On an individual level, being responsible means having the ability to respond to mistakes one makes by rectifying them when possible and apologizing if it is truly impossible to rectify them.  Few of us do not have the ability to respond, though many of us choose not to respond when we make mistakes or fail in our responsibilities.  Such failures inevitably lead to anger, disappointment and fractured personal relationships.  Most certainly, responsibility cannot mean blaming others for one’s own mistakes and failures, or as depicted here taking the short-sighted approach that problems that you will need to confront are really someone else’s problems.

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In my career as a civil rights attorney, mostly in the non-profit sector, when confronting serious governmental or organizational malfeasance, more often than not the wrongdoers rarely accept responsibility for their own actions, much less so the actions of their subordinates, over whom they theoretically have responsibility.  Examples include:

  • the Appleton principal who refuses to take responsibility for the abuse that one of his teachers inflicted on multiple children with disabilities over a number of years right under his nose.
  • multiple school districts’ failure to take responsibility to comply with the reporting requirements of Wisconsin’s seclusion and restraint law; and
  • the Department of Public Instruction’s failure to enforce the Americans with Disabilities Act (ADA) obligations of private voucher schools.

The list, of course, can go on, but when engaging in systems change, one key aspect of achieving real change is to create responsible organizations and governments which have the ability to respond when mistake are made.  The Ontario Human Rights Commission has an excellent description of organizational responsibility as part of its Policy and Guidelines on Discrimination Because of Family Status, a portion of which is worth quoting here:

There is an obligation to ensure that environments are free from discrimination and harassment. It is not acceptable from a human rights perspective to choose to remain unaware of the potential existence of discrimination or harassment, or to ignore or fail to act to address human rights matters, whether or not a complaint has been made.

This obligation can and should extend to both individuals and organizations, in a wide variety of settings.  The next time you are seeking to find out who is responsible for a problem, ask:

Who is able to respond?

If the answer is nobody, or if you are tossed around the organization in a Kafka-esque manner, then you know that the organization has failed to organize itself in a manner in which it can effectively respond to problems which inevitably occur, and is in need of serious systemic change.

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For more information on how I can help you accomplish effective, progressive systems change e-mail Jeff Spitzer-Resnick or visit Systems Change Consulting.

Wisconsin Fails to Protect the Civil Rights of Children with Disabilities in Voucher Schools

As I reported last May,

I joined with the ACLU in filing a complaint with the US Dept. of Justice (DOJ) which clearly documents that Wisconsin’s private school voucher program violates the Americans with Disabilities Act (ADA).  Recently, after a lengthy investigation, DOJ issued a directive to the Wisconsin Dept. of Public Instruction (DPI), which makes clear that DPI must eliminate discrimination against children with disabilities in the Milwaukee voucher program.

Since I am no longer at Disability Rights Wisconsin, I am not directly involved in that complaint.  However, my sources recently provided me with DPI’s stunning rebuke to DOJ in a letter dated November 25, 2013.  This letter is stunning for the length of time it took DPI to reply (over 7 months) demonstrating DPI’s utter indifference to the plight of children with disabilities in Wisconsin’s voucher (Choice) school program. It further disappoints due to DPI’s failure to accept responsibility to address the very real discrimination these students experience in this program.  As this letter is not available on-line, you can e-mail Jeff Spitzer-Resnick if you want a copy.

First, DPI takes the position that it does not discriminate against children with disabilities in the administration of the voucher school program.  This, of course, misses the entire point of the complaint, which never accused DPI of such discrimination.  The complaint alleges massive discrimination by the voucher schools in keeping children with disabilities out of their schools, and further, that as administrator of the program, DPI must prevent and remedy such discrimination.

Next, while DPI has agreed (in an unspecified timeline) to,

establish and publicize a complaint procedure for individuals to submit complaints to the DPI regarding disability-related discrimination in the Choice program,

it goes on to express concern that it has no authority to do anything about many of those complaints, by stating that it can only withhold voucher funds regarding discrimination by voucher schools in the admission of students with disabilities.  While this is some progress, it does not address the very real failure of voucher schools to accommodate the educational needs of children with disabilities, as required by the Americans with Disabilities Act (ADA).

In response to DOJ’s request that DPI gather disability related information from voucher schools, it then goes on to complain that it,

lacks statutory authority to force Choice to schools submit the information required for items requested.

What is so utterly disappointing about this continual denial of responsibility is that:

  1. DPI has done nothing to seek the authority it alleges it needs; and
  2. DOJ has made it clear that DPI’s obligation is under federal law (the ADA), so the lack of a state statute providing similar authority is irrelevant.

Can you imagine if DPI took the position that it had no authority to respond to discrimination against racial, ethnic or religious groups by voucher schools?  The public outcry would be tremendous, and so it should be in this instance as well.

Fortunately, DPI has agreed to conduct public outreach about the school choice program to students with disabilities, including the rights of students with disabilities in those programs. The problem, of course, is that if DPI will not enforce the rights of those students, there will be a serious credibility gap in that outreach.

Remarkably, DPI even refuses to provide ADA training to voucher schools, stating that,

DPI does not provide ADA training for any public schools in Wisconsin.

Instead, it is “willing” to have the federal Office of Civil Rights (OCR) conduct that training.  

As one of the initial filers of this complaint, I certainly hope that DOJ will not simply accept DPI’s excuse that it has no authority under the ADA.  Further DPI should use this as an opportunity to push for more authority to hold voucher schools accountable for their long-standing discrimination against children with disabilities.

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For more information on how I can help you accomplish effective, progressive systems change e-mail Jeff Spitzer-Resnick or visit Systems Change Consulting.

Wisconsin Charter School Bill Exacerbates Failure to Serve Students with Disabilities

As the Wisconsin legislature attempts once again to expand so-called independent charter schools statewide through the introduction of AB 549, it is important to analyze the impact of such an expansion on children with disabilities.  In Florida, an investigation showed that charter schools failed to serve children with disabilities.   As demonstrated below, it is clear that many provisions of AB 549 would encourage Wisconsin charter schools to refuse to serve children with disabilities thereby increasing the segregation already found by the US Dept. of Justice in Milwaukee’s voucher schools.  In addition, passage of AB 549 would complicate who is responsible for providing special education in charter schools.

The first problem with AB 549 is in its granting permission for a pupil to attend any independent charter school anywhere in Wisconsin.  Not only does this fly in the face of special education law’s Individualized Education Plan (IEP) team based placement process, but it also muddies the water of who is responsible for following both state and special education law.  Is it the charter school or the local school district which is responsible for providing students with disabilities with a free appropriate public education (FAPE) in the least restrictive environment (LRE)?

The second problem is the mandatory requirement to approve additional charter contracts for charter schools that have a “proven track record of success.”  While this may seem attractive, the definition of “proven track record of success” is that students in the charter school must have a 10% or higher number of its students scoring advanced or proficient on state assessments than students attending the local school district in which the charter school is located.  Not only is this problematic due to the ability of students from outside the local district to attend the charter school, but it is also a clear disincentive for the charter school to admit any students with lower test scores including those with disabilities and English Language Learners (ELL).  Charges of exactly this kind of disability discrimination have arisen in Ohio.

Perhaps most shocking of all is the attempt by AB 549 to eliminate charter schools’ obligation to follow state special education law.  Despite this crude attempt, there is no doubt that charter schools are still public schools obligated to follow all federal civil rights laws including the Individuals with Disabilities Education Act (IDEA).

For the moment, it appears that while this bill may pass Wisconsin’s Assembly, it may not pass the Senate due to insufficient support from majority Republicans. Advocates for children with disabilities would do well to voice their opposition to AB 549 with moderate Senate Republicans for the reasons stated herein.


For more information on how I can help you accomplish effective, progressive systems change e-mail Jeff Spitzer-Resnick or visit Systems Change Consulting.

Is the Tea Party really Advocating Anarchy?

While nobody in the Tea Party is likely to admit that their goal is anarchy, it is worth taking a closer look at the meaning of anarchy and the goals of those who wish to force a government shut down.  The dictionary definition of anarchy is:

absence of government.

It is not surprising then, that the next definition given by Merriam-Webster is:

a state of lawlessness or political disorder due to the absence of governmental authority.

Grover Norquist has been actively involved in promoting the Tea Party and believes that it should serves as the “exoskeleton” that protects newly elected Republicans against the pressures bound to be imposed on newly elected officials by “the spending interests.”  His most famous quote is that:

Our goal is to shrink government to the size where we can drown it in a bathtub.

The irony of this radical position advocating what amounts to anarchy, is that both Grover Norquist and every single Tea Party member enjoy the fruits of government on a daily basis.  They drive on government built and maintained roads.  They call the police and fire department and expect prompt service when necessary.  They collect Social Security and Medicare when they retire.  They expect our military to defend our nation when called upon.

So, if the Tea Party and Grover Norquist are not really advocating for anarchy, why does the Republican led U.S. House of Representatives pass a Continuing Budget Resolution that it knows will result in a government shut down?  Why does Senator Ted Cruz make a mockery of the Senate by engaging in a fruitless filibuster, including reading Dr. Seuss’ Green Eggs and Ham, that even his own party’s Senate leadership disavows?

The clear hypocrisy of Norquist and Cruz and their minions can only mean one thing.  What  they really want is the power to control where government spends its money.  The best example of this is the Tea Party’s advocacy for private school vouchers.  This advocacy does not really shrink government spending.  It just shifts it to private interests who are free to discriminate against children with disabilities, as I wrote about previously.

In fact, the Tea Party’s blog says quite clearly,

Because Freedom isn’t Free.

So, House Republicans and Senator Cruz, get off your high horses and stop advocating anarchy, because as the Tea Party states quite clearly: Freedom isn’t free.


For more information on how I can help you accomplish effective, progressive systems change e-mail Jeff Spitzer-Resnick or visit Systems Change Consulting.

Defending the Civil Rights of Children with Disabilities in Voucher Schools

The challenges which disenfranchised people face are as old as mankind. Fortunately, the courage to defend their civil rights also goes back millennia.  As the famous Rabbi Hillel said,

“If I am not for myself, then who will be for me? And if I am only for myself, then what am I? And if not now, when?”

Martin Luther King, Jr., gave a compelling sermon invoking the “if not now, when?” question at Ebenezer Baptist Church in Atlanta just 6 months before his assassination.

King specifically referenced the system of justice in his famous and compelling, Letter from Birmingham Jail, where he stated:

“Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly… Anyone who lives inside the United States can never be considered an outsider…”

It was in that spirit that I joined with the ACLU in filing a complaint with the US Dept. of Justice (DOJ) which clearly documents that Wisconsin’s private school voucher program violates the Americans with Disabilities Act (ADA).  Recently, after a lengthy investigation, DOJ issued a directive to the Wisconsin Dept. of Public Instruction (DPI), which makes clear that DPI must eliminate discrimination against children with disabilities in the Milwaukee voucher program and orders DPI to undertake the following actions:

  1. Establish and publicize a complaint process for parents of children with disabilities who believe their children have been discriminated against in the Milwaukee voucher program.
  2. Collect data to determine the extent to which children with disabilities are being served by voucher schools.
  3. Conduct outreach to parents of children with disabilities to inform them of their rights related to attending voucher schools
  4. Monitor and oversee voucher schools to ensure that they do not discriminate against children with disabilities.
  5. Provide ADA training to voucher schools; and
  6. Provide written guidance to voucher schools on ADA compliance.

Sadly, to date, well over a month after the DOJ issued its directives, DPI has done absolutely nothing to comply with these directives.  In fact, rather than decry disability discrimination by voucher schools, and pledge to eliminate it, DPI has repeatedly stated that it is reviewing the directives which are now more than a month old, and wrongly believes it needs more legal authority to enforce them.

DPI’s response demonstrates that it simply cannot be counted on to defend the civil rights of children with disabilities.  It is a mystery why DPI has failed in its legal obligation to enforce the ADA ever since that law went into effect over 20 years ago, while children with disabilities suffer rampant discrimination at the hands of voucher schools.  But even more shocking is DPI’s reticence to follow DOJ’s directives.

In my nearly 2 decades of advocating to protect the civil rights of children with disabilities in school, my observation has always been that DPI considers schools as its clients or customers.  This DOJ directive gives DPI the opportunity to change that paradigm and understand that its true mission should be consider Wisconsin’s students as its customers.

As Rabbi Hillel and Martin Luther King, Jr. made clear, there is no higher calling than defending civil rights.  Now is the time for DPI to take on that mantle and defend the civil rights of children with disabilities.


For more information on how I can help you accomplish effective, progressive systems change e-mail Jeff Spitzer-Resnick or visit Systems Change Consulting.


School Suspensions: A Failure to Educate

While policy makers and politicians debate school accountability and point fingers at various tools and causes, it is remarkable that the continuing upward trend to suspend ever more students, especially students of color and those with disabilities, continues unabated, with a complete absence of accountability.  Earlier this week, UCLA’s Center for Civil Rights Remedies, published a comprehensive report on both the overuse of suspensions in our schools, and the wide disparities revealing severe discrimination regarding who receives suspensions.

Key findings from this report include the following troubling data:

  • Latinos had a nearly 11 percentage point increase in suspensions between elementary school and secondary schools, which is particularly surprising since the Latino elementary school suspension rate is similar to the White suspension rate at the elementary level.
  • Black female secondary students were suspended at a higher rate (18.3%) than secondary male students from all other racial/ethnic groups.
  • The rate of suspensions for secondary students with disabilities (19.3%) was nearly triple that of non-disabled students (6.6%).
  • The highest rate of suspensions were for Black male students with disabilities, a shocking 36%.
  • 323 districts around the country had secondary school suspension rates of 25% or higher.
  • 2,624 schools had secondary suspension rates of at least 25%.
  • 519 schools had secondary suspension rates of at least 50%.
  • Chicago led the nation in the number of schools that suspended at least 25% of any subgroup, with 82 of its schools doing so.  Chicago’s overall suspension rate was a horrific 27.5% which is even more troubling when examining the disparity of its 41.6% suspension rate for Black students compared to only 10.6% of its white students.

Anyone who cares about the education of our nation’s children must seriously question why neither the federal government, nor the states, factor suspension rates into any school accountability formula.  Even from a pure academic standpoint, it goes without saying that the massive number of children who are suspended are generally not receiving the benefit of any education when they are out of school.

Moreover, anyone who cares about the achievement gap should be especially concerned about the disparities which this suspension data reveals.  This is especially true because most suspensions are for minor infractions, such as violating dress codes, use of cell phones, tardiness and truancy, loitering and disruption, so it simply cannot be argued that the high use of suspensions is keeping our nation’s schools safer.

Fortunately, UCLA’s Center for Civil Rights Remedies also published, A Summary of New Research: Closing the Discipline Gap: Research to Policy, which analyzes and consolidates the results of 16 new research papers on this topic in search of a solution.  Key findings of this summary are:

  • Out of school suspensions have serious, disparate and negative academic outcomes including increasing the number of dropouts. One study analyzing Florida 9th graders found that the drop out rate increased from 16% to 32% for students suspended only once, and jumped to 42% for those suspended twice.
  • It is clear that suspension rates are correlated with intentional decisions made by school leaders.

There is good news in this Research Summary and if we are serious about improving our educational system leading to better educated citizens, these findings must be implemented at the federal, state and local level, as follows:

  • Chicago’s safest schools have strong teacher-student and teacher-parent relationships, resulting in low suspension rates.
  • Teacher training and improving student engagement lead to lower suspension rates.
  • Large district-wide investments in social-emotional learning resulted in safer schools than investments in high-security hardware and personnel, such as metal detectors and school police officers.
  • Non-punitive threat assessment protocols reduce suspensions for all groups.
  • As I discussed in Putting an End to the School to Prison Pipeline, the use of Positive Behavioral Interventions and Supports (PBIS) can be effective in reducing suspensions, but only if PBIS is aligned with school codes of conduct and pays attention to subgroups of students.
  • Restorative justice is a viable strategy  to keep students in school and out of the juvenile justice system.

To sum up, if federal, state, and local policy makers are truly serious about improving educational outcomes, they must insist that local schools develop strategies that keep students in school, instead of issuing rampant suspensions.  Moreover, they must provide the policy and budgetary leadership to do so.


For more information on how I can help you accomplish effective, progressive systems change e-mail Jeff Spitzer-Resnick or visit Systems Change Consulting.

Educational Accountability–Doing it Right

When it comes to accountability for our children’s education the battle lines are drawn.  On one side are those who believe that annual point in time testing answers all the questions about how much students are learning, and accordingly, how well their schools are performing.  This movement was at its height with the passage of the almost universally reviled No Child Left Behind Act.  Though its harshest measures have been waived by the US Dept. of Education in a majority of states, those waivers continue to insist on using annual point in time testing to measure accountability, though thankfully, other measures, such as graduation rates, are now added to the mix.

On the other side are those who believe that standardized testing is a sham and should never be used to measure either student performance or consequently school performance.  Indeed, some are now calling for a moratorium on such testing.

As usual, both sides have their faults.  Those who favor standardized testing insist that if we do not have a standard way to measure student performance, then we will never really know how to compare students, schools and school districts in terms of how well their doing.  They have a point.  Without standardized testing, for example, we would not have the evidence that our nation’s largest private school voucher program, the Milwaukee Parental Choice Program (MPCP), performs no better than its public school counterpart (MPS), and arguably worse, since those same standardized tests finally required collection of disability data, demonstrating that MPCP schools discriminate against students with disabilities by barely serving any of them, leaving a disproportionate number of those harder to serve students in MPS. The disability discrimination complaint I filed with the ACLU against the MPCP on this issue is still pending with the US Dept. of Justice.

Those that oppose standardized testing rightly point out that many of the tests are flawed, some racially biased or not suited to English Language Learners (ELLs) or students with disabilities.  They also correctly point out that many aspects of a student’s education cannot be measured by a single test, the most obvious example being behavior.  In addition, they have a good point in saying that blaming an individual teacher for how their students perform on a single test makes no sense when one examines all the other factors that likely affect the students’ performance, such as health, poverty and parental engagement.

So, how do we solve this dilemma?

In the Jamie S. class action settlement, I believe we found the answer.  In that settlement, we required the following:

  • A court appointed Independent Expert approved a high quality reading and math curriculum.  After all, it is simply unfair to measure students’ performance and blame teachers if the students perform poorly, if the tools the teachers are given by the school district are not rigorous and appropriate.
  • Over an 8 year period, starting with elementary schools, and moving up to middle schools, then high schools, all children would be REGULARLY assessed for performance in reading, math and behavior.  The Independent Expert would help build and ultimately approve data systems to monitor these assessments.
  • Any MPS student falling falling behind in reading, math, and/or behavior would receive Early Intervening Services (EIS) to address the student’s problems. While this could include a special education evaluation, that would only happen if EIS failed to resolve the student’s problem and/or there was evidence of a disability.

After 4 years of implementation, this settlement was showing signs of turning MPS around.  Sadly, MPS appealed to the 7th Circuit Court of Appeals and had the settlement thrown out when the court decertified the class.  After that unfortunate decision, both MPS and the Wisconsin Dept. of Public Instruction (DPI) abandoned the settlement.  Ironically, no part of MPS’ legal challenge ever questioned the educational validity of this accountability system.  Thus, education advocates who really care about improving students’ education should push for adoption of an accountability plan on the Jamie S. settlement model without waiting for a class action to force school districts and states to do so.


For more information e-mail Jeff Spitzer-Resnick or visit Systems Change Consulting.