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.

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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.

 

Weed Harvesting

Though I was an American history major in college, the best class I took was Practical Botany. During that class, I learned the definition of a weed. It is quite simple. Weeds are plants that are in an undesired location. For example, grass growing in your vegetable garden is a weed, even though it is not a weed in your lawn.

Healthy lakes include plant life. In some cases, the plant life is so abundant that it becomes a weed because it interferes with the healthy growth of other species or other desired uses, such as safe boating and swimming.

Goose Lake, where I chair the Watershed District, is a very healthy lake. In fact, it contains designated critical habitats which support a myriad of plant and animal life, as detailed in this report.

Maintaining a healthy balance between sustaining the critical habitat which thrives in Goose Lake, and allowing the lake to be enjoyed by residents and visitors is included within the responsibility of the Goose Lake Watershed District (GLWD). One of our responsibilities is to harvest weeds from the non-critical habitat. A few years ago, we bought a used weed harvester. Since then, we have been able to harvest the weeds as needed instead of depending on the schedule of an unreliable contractor.

However, most people think of weeds as something to pull and get rid of instead of harvest. Given our respect for the environment, we harvest the weeds by transporting those we cut to a nearby organic farmer. The nutrition from the weeds is thereby returned to the earth to grow healthy, organic food.

As you can see, there are a lot of weeds to turn into organic compost. A local homeowner, Fred Mess, has done a marvelous job maintaining our old harvester, including fashioning parts when used parts are no longer available. He volunteers his time to both maintain the harvester and harvest weeds.

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Fred Mess with a full load of weeds, approximately 3500 pounds.

Fred has also trained others to run the harvester as no organization should rely on a single person for a critical task.

Since we also maintain the public beach and boat launch, last weekend while Fred and John were harvesting weeds from the lake, a few of us raked weeds from the beach to make the beach safe and pleasant for swimming.

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Nick Homan raking the beach weeds in order to transport them to an organic farm along with the weeds cut by the harvester.

Harvesting weeds to improve our lake and convert an undesired plant into organic food is a perfect example of environmental systems change. It is also a metaphor for systems change in many other areas of life.

Rather than simply getting rid of things that are undesirable through seclusion and restraint in our schools, or incarceration, the better approach is to use tools such as positive behavioral support and restorative justice as a form of positive harvesting.

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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.

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.

 

Seclusion & Restraint in Our Own Backyard

As a leader in the movement to reduce the inappropriate use of seclusion and restraint of our school children, I was pleased to see that Disability Rights Wisconsin, Wisconsin FACETS and Wisconsin Family Ties held a press conference yesterday to release their new report: Seclusion and Restraint in Wisconsin Public School Districts 2013-14: Miles to GoThe report reveals both data and stories about the ongoing use of seclusion and restraint in Wisconsin school, despite the passage of Act 125 in 2012, designed to reduce the inappropriate use of these aversive techniques.

In November of 2012, I posted a summary of the key provisions of Wisconsin’s New Law on the Use of Seclusion and Restraint of School Children on my blog. Tellingly, it has been viewed every single month since then, and is my 3rd most read blog post.

To this day, many of my cases continue to involve the use of seclusion and restraint, including in my local school district, in Madison, Wisconsin. As the new report reveals, the number of children subjected to seclusion and restraint in Madison’s schools is actually increasing. In the 2012-13 school year, 248 students were subjected to seclusion and restraint. While in the 2013-14 school year, that number increased to 264. Sadly, these children are subjected to these aversive measures over and over again, which suggests that staff are not receiving the appropriate support to manage student behavior without using these dangerous techniques. In the 2012-13 school year, there were 2,291 incidents of seclusion and restraint (an average of over 9 incidents/student subjected to seclusion &/or restraint). In the 2013-14 school year, there were 2,362 such incidents (just under 9 incidents/student).

Sadly, when asked to respond to this problem, John Harper, Madison’s Executive Director of Student Services, failed to acknowledge the problem and instead fell back on the long debunked argument that these traumatizing techniques “ensure the safety of our students and staff.

When Act 125 passed, I was proud to be a co-author of this landmark legislation. I worked for 12 years along with many others to ultimately secure unanimous passage and the Governor’s signature on this important piece of legislation. Without this law, we would not have the data that this new report revealed.

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Governor Walker signing Act 125

But all advocates know that passage of a law is only a first step, albeit an important one. The law has improved behavioral management practices in many school districts. But, others remained challenged and fall back on punitive and traumatizing techniques. What we need are school superintendents and building principals who declare their schools to be seclusion and restraint free zones and for our legislature and Governor to provide sufficient funding to school districts so staff can receive the appropriate training and support to teach children appropriate behavior rather than traumatize them with the inappropriate use of seclusion and restraint.

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

Applying the 10% rule to Systems Change

Last week, I wrote about how the 10% rule helps to overcome obstacles, specifically related to physical training, and in my case, running.  As promised, this week’s post discusses how to apply that rule when seeking systems change.

Of course, this rule is easier to apply to physical challenges.  In the running example I used last week, I simply increased my distance 10% at a time until in 8 steps, I had doubled my distance. Systems change, however, is not always as easy to measure.

In reality, applying the 10% rule to systems change is a recognition, that in all but the most unusual cases, it takes a step by step, gradual approach, in order to accomplish genuine systems change.  Indeed, those who expect systems change to happen in one fell swoop, are as unlikely to accomplish their goals as those who think they can run 10k without gradually building up the strength and stamina to do so.

Perhaps the best way to describe how this approach works is to set forth the steps taken over many years to pass Act 125, Wisconsin’s law eliminating the use of inappropriate seclusion  and restraint of children in public schools.  Of course, given the complexity of the issue, some of these steps overlapped each other and occurred simultaneously and repeatedly.

  1. Represent school children in numerous cases around the state to bring legal actions against school districts and abusive educators who used inappropriate seclusion and restraint on children.
  2. Expose stories of abusive seclusion and restraint use on school children in the media.
  3. At a time when only 6 states had laws prohibiting the inappropriate use of seclusion and restraint on school children, analyze those laws and develop a model law for Wisconsin.
  4. Find a legislative sponsor for the model law.
  5. After years of being unable to get a legislative hearing on the bill, collect dozens of stories, team with other groups, and publicize them in the widely released Out of Darkness….Into the Light: New Approaches to Reducing the Use of Seclusion and Restraint with Children.
  6. Organize witnesses to tell their stories of seclusion and restraint at Senate hearing.
  7. After Senate Education Committee refuses to vote on bill, create Wisconsinites Concerned About Seclusion and Restraint Facebook page as an organizing tool.
  8. Work to develop a consensus bill with key stakeholders.
  9. Obtain unanimous legislative passage of seclusion and restraint bill.
  10. Get Governor to sign bill S-R bill signing1
  11. Monitor the bill’s implementation, including media exposure of problems.

These steps took place over a period of nearly 15 years, and of course, the problem as indicated in the last step, is not completely solved.  But the 10% rule clearly demonstrates how using this gradual approach, Wisconsin advocates were able to achieve fundamental systems change.

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

Seclusion & Restraint of School Children Remains Problematic

It has now been over 2 years since Wisconsin passed a law prohibiting inappropriate use of seclusion and restraint and regulating its reporting and use.  Just last month, Alaska became the latest state to pass a law regulating seclusion and restraint of students in schools, making it the 33rd state to have some level of regulation of this dangerous practice, although the nature of the regulation amongst the states is highly inconsistent.  This is why many educators, parents and advocates have called for passage of the Keep All Students Safe Act (KASA) by Congress so that our nation has uniform protection of children to be safe from the dangerous inappropriate use of seclusion and restraint.

Even when states, such as Wisconsin, pass laws on seclusion and restraint, enforcement of those laws and reporting of the use of seclusion and restraint is often inconsistent.  Indeed, a recent study concludes that that use of seclusion and restraint on students with disabilities continues to be a problem despite passage of these state laws.

In this study, the authors compared nationwide data from the 2009-10 school year to that same  data from the 2011-12 school year.  While this data does not include possible reductions in seclusion and restraint due to recently passed laws, such as in Wisconsin  and Alaska, the authors findings should still cause concern.  Their conclusions include:

  • Low poverty, low minority school districts are more likely to report use of seclusion and restraint than high poverty, high minority districts; and
  • Use of seclusion and restraint is more common in cities than in rural school districts.
In addition to advocating for Congressional passage of KASA, concerned parents, educators and advocates can also consider advocating for the following key improvements to reduce the inappropriate use of seclusion and restraint of children in our schools:
  1. Provide training and funding for implementation of Positive Behavioral Intervention and Supports (PBIS) in our schools;
  2. Provide training for parents and funding for advocates for children to make sure their rights to be free from the inappropriate use of seclusion and restraint in school is honored;
  3. Pressure state education agencies to enforce the laws which they have on the books which restrict the inappropriate use of seclusion and restraint; and
  4. Provide sufficient funding for adequate staffing in the classroom so that teachers and their aides do not react impulsively by inappropriately using seclusion and restraints due to insufficient support.

Our children deserve better and their staff deserve clear guidance and the support they need to provide appropriate behavioral interventions and support instead of the inappropriate and dangerous use of seclusion and restraint.

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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.

Don’t Let the Perfect be the Enemy of the Good

When seeking systems change, idealists typically march down a path seeking their desired outcome, rigidly holding true to their ideals.  While ideals are certainly important, those who hold onto them without examining a realistic view of the variety of challenges that may stand in the way of matching those ideals with an achievable outcome, will likely end up accomplishing nothing but disappointment.

Voltaire is credited with the aphorism from his poem La Bégueule,

Don’t let the perfect be the enemy of the good (Dit que le mieux est l’ennemi du bien).

While many have written about how personal perfectionism can be a barrier towards accomplishing personal goals, for those trying to accomplish systems change, avoiding the pitfalls of systemic perfectionism is critical in order to obtain a successful outcome.

On numerous occasions in my career, I have encountered this dilemma.  In fact, those opposing one’s desired outcome may often utilize a strategy of labeling advocates’ idealistic vision as unrealistic in order to kill the possibility of any incrementally positive outcome completely.

A good example is the battle to pass laws at both the state and federal level to prevent the inappropriate use of seclusion and restraint on children in schools.  As I have reported previously, I worked with many individuals and organizations for 12 years to finally achieve our goal of having Wisconsin pass such legislation. However, the bill that passed was not a perfect bill from the perspective of those who had been advocating for its passage for so many years, as it contained many gaps such as the failure to cover private school students or the use of seclusion and restraint by police officers in schools, among others.  Indeed, even the bill’s implementation has demonstrated that despite strict reporting requirements contained in the law, there is inadequate reporting of the use of seclusion and restraint in school.

But does this mean that children in Wisconsin’s schools would have been better off without a law on this important topic because the bill we could pass was not perfect?  Of course not.  In fact, the primary argument for passage of a federal bill on this topic is that so many states continue to fail to have any law protecting school children from the dangers of inappropriate use of seclusion and restraint.

Dubbed the Stop Hurting Kids campaign, the effort to pass federal legislation recently held a Congressional briefing to urge passage of the Keeping All Students Safe Act which I wrote about here.  The effort to pass such legislation is now 7 years old, so deeper questions must be asked about why Congress keeps failing to pass this important bill.

As reported in the Stetson Law Review,

Several groups, such as the American Association of School Administrators and the National Conference of State Legislators, argue that since thirty-one states have regulations regarding restraint and seclusion in place and fifteen more states are developing legislation in this area, the issue should be left to the states.

As a result of interest group opposition, the bill continues to stall.

In Wisconsin, 4 critical factors changed the dynamic to allow the legislature to pass a seclusion and restraint bill unanimously after 12 years of failing to bring the bill to a vote:

  1. A well attended state Senate hearing in 2010, which did not result in the bill’s passage, but left those opposing the bill appear as if they actually supported the inappropriate dangerous practice of secluding and restraining school children;
  2. State Superintendent Tony Evers made a personal commitment to bring the various interest groups together after the failure in 2010, to try to craft a bill which all interest groups would support;
  3. Advocates for children agreed to support what became Act 125even though it was not perfect, because it was good enough; and
  4. The willingness of children’s advocates to compromise away from perfection enabled other education interest groups, such as the teachers’ union, school board association, and school administrators’ alliance, to join the effort to pass the bill.

The lesson is clear.  Coalition building amongst one’s allies is generally insufficient to pass meaningful systems change legislation.  Passage requires compromise to build a full cross-political spectrum of allies.  Of necessity, such compromise requires following Voltaire’s dictum:

Don’t let the perfect be the enemy of the good.

The question for the Keeping All Students Safe Act is who will lead the charge to bring the necessary coalition together to pass a compromise, but nevertheless effective legislation?

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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.

 

 

Urge Congress to Pass Keeping All Students Safe Act

About two years ago, Wisconsin’s legislature joined 18 states which have a meaningful law protecting its children from inappropriate use of seclusion and restraint in school.  Known as Act 125, this law went into effect on September 1, 2012, and although it has not eliminated the inappropriate use of seclusion and restraint in Wisconsin schools, anecdotally, its use has dropped, and parents are generally notified when it happens so better planning for the child’s safety and needs can take place.  From my vantage point, I note that this law continues to draw great interest, as my post describing its features back in November, 2012, is my second most popular post, receiving views on a regular basis to this day.

However, as the National Autism Committee reports, the need for federal legislation is great, as most states continue to have little or no meaningful regulation of this traumatizing, dangerous, and sometimes deadly practice.

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Fortunately, Sen. Tom Harkin, has introduced S. 2036, known as the Keeping All Students Safe Act, to remedy this problem.  The key features of this important bill are that it:

  • Requires each state educational agency and local educational agency (LEA) that receives federal funds to prohibit school personnel, contractors, and resource officers from subjecting students to: (1) seclusion, (2) mechanical or chemical restraint, (3) aversive behavioral intervention that compromises student health and safety, or (4) physical restraint that is life-threatening or contraindicated based on the student’s health or disability status.
  • Excludes from the definition of “seclusion” time outs that involve the separation of a student from the group, in a non-locked setting, for the purpose of calming.
  • Allows physical restraint only when: (1) the student’s behavior poses an immediate danger of serious physical harm to the student or others; (2) the restraint does not interfere with the student’s ability to communicate; and (3) the restraint occurs after less restrictive interventions have proven ineffective in stopping the danger, except in certain emergencies when immediate restraint is necessary.
  • Requires school personnel imposing physical restraint to: (1) be trained and certified by a state-approved crisis intervention training program, though others may impose such restraint in certain instances when trained personnel are not immediately available; and (2) engage in continuous face-to-face monitoring of the restrained student.
  • Requires: (1) the parents of a physically restrained student to be notified on the day such restraint occurs; (2) a debriefing session to be held as soon as practicable in which the person who imposed the restraint, the immediate adult witnesses, a school administrator, a school mental health professional, and at least one of the student’s family members participate; (3) the affected student to be given an opportunity to discuss the event with a trusted adult who will communicate the student’s perspective to the debriefing session group; and (4) the state educational agency, the LEA, local law enforcement, and any protection and advocacy system serving an affected student to be notified within 24 hours of any death or bodily injury that occurs in conjunction with efforts to control a student’s behavior.
  • Authorizes a student to file a civil action seeking relief from the use of seclusion or restraint on the student in violation of this Act; and
  • Authorizes the Secretary of Education to award grants to states and, through them, competitive subgrants to LEAs to: (1) establish, implement, and enforce policies and procedures to meet this Act’s requirements; (2) improve their capacity to collect and analyze data related to physical restraint; and (3) implement school-wide positive behavioral interventions and supports.

As this current Congress is well known for its dysfunctional inability to pass meaningful legislation of any kind, the only way this bill stands a chance of passing is with a groundswell of grassroots support.  To that end, a Stop Hurting Kids Campaign has been established to make it easy to contact your members of Congress urging passage of this important bill.  You can do so on-line by going to this link.  There is also a Facebook page you can like to get regular updates on the progress of the bill.

Currently, S. 2036 only has 4 co-sponsors (Sens. Murphy (CT); Hirono (HI); Baldwin (WI); and Shaheen (NH).  Contact your Senators TODAY to broaden this group of co-sponsors which will enhance the possibility that the bill will pass the Senate and move on to the House of Representatives.

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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.

The Synergy of Individual Advocacy & Systems Change

Recently, I had the opportunity to demonstrate, once again, the synergy of individual advocacy & systems change.  For nearly 20 years, I have been combating the schools to prison pipeline, as I wrote about over a year ago.  In January, I started writing a series of blogs and submitted them to the Madison Metropolitan School District (MMSD) school board as its administrators developed a series of 4 drafts of what started out as a proposed revision of its discipline plan, but on my advice, became the new Behavior Education Plan, which will go into effect on September 1, 2014, and you can review here.  That plan had been sailing under the radar with relatively minimal public input, until my clients and I recently went public with an expulsion case which was a classic  example of zero tolerance run amok.  Fortunately, in one night, the school board ended my client’s expulsion, and then proceeded to approve the new Behavior Education Plan, in front of a packed auditorium, putting 2 nails in the coffin of zero tolerance.

As I testified to the school board that night, MMSD’s new, improved plan is not perfect, as it fails to set specific goals for reducing out of school discipline such as suspensions and expulsions, and accordingly fails to set specific goals for reducing the racial and disability disparities in both discipline and academic achievement which the district has long struggled to overcome.  In addition, I encouraged the school board to place advocates in each school to assist students and their parents through the discipline process as well as other challenges, including academic, which students may encounter.

Unfortunately, after I made that suggestion, the President of the MMSD School Board, publicly criticized my suggestion, as he does not view the discipline process as “adversarial,” which is fairly remarkable given his work as an attorney, but even more remarkable given that he truly does not understand the role that advocates actively play not only to improve outcomes for the children for whom they advocate, but to help change flawed systems for the better.

For nearly 30 years, my career as a civil rights attorney has involved taking individual cases and evolving them, when appropriate, into positive systems change.  This includes the struggle to finally pass a new law prohibiting the inappropriate use of seclusion and restraint, which only occurred after representing many students harmed by this horrific practice and shedding the bright media light on it.

Any system that desires continuous improvement should recognize the value of advocacy as both an individual corrective tool, as well as a vehicle for identifying systemic problems. Dane County, Wisconsin, has recognized the value of having an internal ombudsman in its human services department to “ensure that people are getting appropriate services.”

While it is unclear whether MMSD can afford to place ombudsmen or advocates in each of its schools, it should certainly examine its budget to pilot such a program in schools with the highest discipline and academic problems.  Moreover, it could partner with outside agencies, which have existing advocacy services, such as Wisconsin Family Ties, which uses non-lawyer professional advocates, Wisconsin FACETS, which uses non-lawyer paid and volunteer advocates, and Disability Rights Wisconsin, which uses non-lawyer advocates with legal back-up and occasional direct lawyer involvement.  However, all of these agencies only work with children with disabilities, and I know of no agency providing school advocacy services to non-disabled students.

If the MMSD truly wants to ensure that its new Behavior Education Plan succeeds, it should actively engage with existing advocacy organizations, and work to obtain foundation support to fund advocates for non-disabled students.  Working together with the school district, on behalf of students, these advocates can correct natural human errors in the new system, and provide useful data to the MMSD administration so it can take corrective measures when repeated problems inevitably crop up.

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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.