Law as Preventive Medicine

In my nearly 3 decades engaging in systems change, legislators and other policymakers often ask 2 questions when advocates ask them to support proposed legislation or policy change:

  1. Will this bill solve the problem?
  2. Will this bill create more litigation?

While these questions appear to have surface level legitimacy, they are often interposed as excuses to avoid supporting legislation.  It does not take deep analysis to understand that mankind has yet to find the law that is universally followed and therefore solves the problem.  Indeed, even the most fundamental universal law, Thou shalt not kill, is sadly violated on a daily basis.  Needless to say, there is not a civil society that has rid itself of its laws against murder because they have not solved the problem.

Regarding increased litigation, that question depends in large part on the nature of the proposal.  Some bills specifically set forth a litigation framework to provide for their enforcement, such as the Civil Rights Act of 1964 which just celebrated its 50th anniversary.  Other bills, such as Wisconsin Act 125, prohibiting the inappropriate use of seclusion and restraint, are framed more at the level of guidance and best practices, but do not envision litigation to enforce them.

For its nearly 40 years of existence, federal special education law, now known as the IDEA (Individuals with Disabilities Education Act), has been vilified by many school district officials and politicians as too litigation oriented.  True, the law has always empowered parents to sue school districts when their children do not receive a free appropriate public education (FAPE) in the least restrictive environment (LRE). However, any reasonable analysis of the numbers of cases litigated under the IDEA demonstrates that the fears of excessive litigation are greatly exaggerated.

For example, during the 2013-14 school year, there were 122,654 children eligible for special education in Wisconsin.  Yet, only 6 administrative due process hearings were filed that year, with only 2 of those hearing requests proceeding to a full hearing.  In percentage terms, these negligible hearing requests are less than 5/1000% of students in special education.

With litigation in such minuscule numbers, it is puzzling why the aura of over litigation in special education continues to hang over the IDEA.  I learned a satisfying lesson about the power of the IDEA and other civil rights legislation to act as preventive medicine during Gov. Scott McCallum’s brief term as Wisconsin governor from 2001-03, which coincided with the Congressional and state debate over the last reauthorization of the IDEA.  Gov. McCallum surprised many when he hired retired teacher’s union director, Morrie Andrews, to lead an effort to build a consensus for state level education reform.  Andrews started that effort by meeting with key education leaders, including me.

During my meeting with Mr. Andrews, he made it quite clear that he felt there was too much special education litigation.  I relayed the paltry numbers of special education cases that were being litigated at the time, which truly surprised him.  He then provided me with an important lesson on the power of law as preventive medicine.

22851007-gold-prescription-signs-in-the-herbal-medicine-grinder

After conceding that I knew the numbers better than he did, he informed me that school districts obeyed the law because they were afraid of being sued.  As I let that sink in, a big smile came across my face as I came to the realization that over 100,000 children with disabilities in Wisconsin were receiving a free appropriate public education in the least restrictive environment because the law was acting as preventive medicine.

My conversation with Morrie Andrews helped me realize that systems change happens in many ways.  Of course, for law to impact behavior, it must provide both guidance and an enforcement mechanism.  But there truly are not enough lawyers (or people who can afford them) to enforce the laws on the books.  That is why successful systems change must include use of the media to magnify the impact of laws on the books and the handful of cases which are litigated to enforce them, so that those who must obey the law understand that the risk of failing to obey the law is simply not worth taking.  

_________________________________________________________________________________________

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.

Advertisements

Replicate this: The Kalamazoo Promise Works

The sound and fury of school reform proponents is deafening as they decry public school failures and urge privatization, charters and high stakes testing.  Equally furious public school supporters seek to cast blame for public school failures on the twin devils of inadequate school funding and student poverty.  Remarkably, neither camp spends a lot of time focusing on innovative programs with proven success and encouraging successful replication.

While successful systems change requires genuine root cause analysis of the problems which require change, real change is far easier and more likely to succeed when a successful model exists which is worthy of replication.  When it comes to increasing high school graduation rates, improving grades, and lowering behavior problems, the Kalamazoo Promise is a program which succeeds in all these measures, and clearly deserves emulation nationwide.

The Kalamazoo Promise started 8 years ago, and has nearly 4000 eligible students. Through sufficient donations, it promises to provide public college scholarships to Kalamazoo High School graduates, with at least a 2.0 grade point average, so unlike many other scholarship programs, it is not designed to serve only academically oriented students.  Of course, students must perform well enough in high school to gain entry into a Michigan college or university, which encourages students who want to obtain the Promise scholarships to work harder.  However, scholarships are available to every Michigan public post-secondary institution from local community colleges to flagship institutions such as the University of Michigan and Michigan State University, thereby fitting the needs of any student who seeks a post-secondary education.

The scholarships provide 65% of public college tuition and mandatory fees for Kalamazoo students who enrolled in high school in 9th grade, sliding up to 100% for those who attend Kalamazoo Public Schools (KPS) from Kindergarten through 12th grade.  This feature has actually served to increase public school enrollment in Kalamazoo, stemming what had been an 18 year trend of declining enrollment and white flight.  Between 80-90% of KPS graduates have been eligible for college scholarships and between 82-85% have received scholarships ranging from $5,000-55,000.

Image

This chart also reveals that KPS is a mid-size urban school district with significant poverty (13.6% in the 2000 census), and a racially diverse make-up, which makes it all the more appropriate for replication in the myriad of other similar districts throughout the country. This enrollment rise reflects both new students coming into KPS because of the Promise as well as fewer students leaving (through drop out or moving) than prior to the Promise.

In addition to the clear benefit from enrollment rising in KPS, a recent study shows important academic and behavioral results from the Promise:

  • Increased credits obtained by KPS high school students;
  • Increased grades earned by all KPS students with a more dramatic increase for African-American students; and a
  • Decrease in days of suspension for all students, with a more dramatic decrease for African-American students.

Image

The researchers appropriately deem these results striking and further find that:

The decrease in the number of days spent in suspension might have shifted past some “tipping point” beyond which more presence in the classroom leads to higher grades, while leaving the white students less affected.

With results like these, school advocates of all stripes should push private foundations as well as state and federal governments to put their energy and funding into replicating the Kalamazoo Promise nationwide.

__________________________________________________________________________________________________________________________

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.

 

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.

__________________________________________________________________________________________________________________________

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.

Combating the Racism of Low Expectations

In the current education reform wars, poverty is often used as a rationale for poor student performance.  Indeed, as discussed in the NY Times:

Data from the National Assessment of Educational Progress show that more than 40 percent of the variation in average reading scores and 46 percent of the variation in average math scores across states is associated with variation in child poverty rates.

But the conversation simply cannot end there and serve as an excuse not to provide an appropriate education to children who are impoverished.  Excuses based on poverty are easily translated into excuses for failing to properly educate racial minorities given the much higher rates of poverty which African-Americans and Latinos suffer from as compared to whites.

A quick look at the data reveals shocking disparities between state level achievement and the achievement of minority groups, especially those concentrated in urban districts.  In Milwaukee, for example, the 10th grade reading performance data shows that only 8.8% of African-American students in Milwaukee were reading beyond the basic level, as compared to 44.1 % of white students who read at that level statewide. Other large districts in Wisconsin, with high minority populations, reveal academic achievement disparities as well.

In addition to academic achievement disparities, there are also discipline disparities. Indeed, the disparities are so bad in Seattle that the US Dept. of Justice launched an investigation of the suspension and expulsion rates there, which are 3 times higher for African-American students compared to white students.

Graduation rates are similarly disturbing.  While Milwaukee has shown some improvement, its latest data shows only 66.2% of its high school students graduating, compared to an 87.5% statewide graduation rate.

This racism of low expectations revealed itself during the class action trial in Jamie S. v. Milwaukee Public Schools, which helped to create some of the recent progress in MPS. Among the methods the school district used to try to defend itself was to try to show that the students we claimed were harmed, MPS suggested had succeeded.  Indeed, one of the plaintiffs graduated and MPS trumpeted that fact.

On cross examination, however, my co-counsel, Monica Murphy, pressed the point with his educators that he graduated with only an 6th grade reading level.  The educators simply did not understand her concern.  In fact, what became crystal clear was that the mere fact that this student had graduated made him a success in his educators’ minds, regardless of his inability to read sufficiently well to succeed in his adult life.  When Monica finished her cross examination, I whispered to her,

You have just elicited testimony on the racism of low expectations.

As long as educators and policy makers believe that graduating an African-American student with an 8th grade reading level is a success, then we will never get beyond the current achievement gap between the races in this country.  Regardless of which side of the education reform debate one supports, everyone should agree that while poverty, and therefore race, may impact on a child’s performance, the answer is not to accept those horrible results.  The answer is to work harder to change them, as has been done in Union City, New Jersey.


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