Defining “Appropriate Education”

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

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

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

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

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

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  • Public reaction was strong and many were troubled with the U.S. Department of Education rescinded 72 pieces of policy guidance in October; and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

USDOE

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

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

The Q&A concludes by stating that,

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

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

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

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Vague Goals Produce Vague Results

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

school to prison pipeline

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

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

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

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

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

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

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

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

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

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

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

Regarding the disproportionality goal, the report states that:

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

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

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

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

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

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

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

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

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

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

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

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

 

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.

Seclusion & Restraint Surges in Madison

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

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

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

MMSD 2015-16 Seclusion & Restraint Data highlights

Numbers of Students Impacted

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

Numbers of Incidents

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

Districtwide Totals

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

MMSD Analysis

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

Conclusions

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

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

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

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

 

Feds Support Positive Behavioral Supports, not Suspensions

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

USDOE

The guidance letter makes clear that,

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

Moreover,

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

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

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

Therefore,

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

Of course,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Measuring Progress

Recently, a Madison school board member asked me and a number of other special education advocates how to best measure educational progress for children with disabilities. I responded that ultimately, it had to be measured individually, but when examining specific schools or an entire school district, key data points are useful including: suspension rates, graduation rates and reading and math test scores.

As we live in a data driven society, measuring progress is often reduced to examining numbers. While those numbers are often helpful, sometimes it is important to step back from the numbers to examine cultural progress in the way we talk about issues. Right now, the current campaign for a seat on the Wisconsin Supreme Court provides some important lessons.

When Justice Patrick Crooks passed away last year, Gov. Scott Walker appointed Rebecca Bradley to replace him even though she was an announced candidate for that seat (Crooks had previously announced his intention to retire). This was Governor Walker’s 3rd judicial appointment of Bradley since he appointed her to her first judgeship in Milwaukee County in 2012, having then appointed her to the Court of Appeals in May, 2015, just months before he appointed her to the Supreme Court.

portraits

In her application for the Wisconsin Supreme Court position, she was asked to, “List any published books or articles.” She lists 16 publications dating back to 2001. Over the past week, controversial articles she wrote as a columnist for the Marquette University newspaper in the early 1990s have come to light, which she did not list in her application. In these articles she disparages gays and people with AIDS, questions the American electorate’s intelligence for electing Bill Clinton, defends the Marquette University’s Native American mascot (which has since been changed), and asserted that women play a role in date rape.

She initially claimed that she was horribly embarrassed by her college columns, and later offered an apologyoffering assurances that her views on gays have changed since that time.

Of course, ultimately, the voters will decide on April 5th whether Justice Bradley’s college columns should matter 24 years later when they decide whether to vote for her or her opponent Court of Appeals Judge JoAnne Kloppenburg. But, watching this controversy unfold helps me realize how much progress our society has made when it comes to gay rights issues. The sad fact is that in 1992, it was acceptable for Rebecca Bradley to write hateful columns about people who are gay and those who suffer from AIDS in her college newspaper. In 2016, nobody, including her, is defending those hateful writings. They are now considered so universally offensive, that a sitting state Supreme Court judge has publicly declared that she is “horribly embarrassed” and must apologize for those hateful writings. In this particular matter, society has evolved in a positive way.

Of course, Rebecca Bradley wrote other and more recent publications for which she has not apologized and cannot excuse herself as the writings of an immature college student. In 2006, she wrote an opinion piece for MKE Magazine, entitled, Pharmacists are guaranteed the right to exercise their religious beliefsIn that column, she supports a bill that the Wisconsin legislature did not pass, which would have allowed pharmacists to refuse to provide the medicine known as “Plan B” to customers if it did not conform to their religious beliefs and furthermore, did not require objecting pharmacists to refer the customer elsewhere to fill their prescriptions. At the end of her column, she writes:

Rebecca recommends visiting http://www.prolifewisconsin.org and Pharmacists For Life International, http://www.pfli.org, for more info about getting involved.

When this issue was brought to light, Rebecca Bradley declined to weigh in, due to the potential for the issue to come before the high court.

“Justice Bradley believes it is the role of the Legislature to make the law and the role of a justice to apply it,” said spokeswoman Madison Wiberg. “Due to the potential for this issue to come in front of the state Supreme Court, it would be improper for Justice Bradley to give an opinion at this time.”

As an attorney who has been practicing for over 30 years, I am often bemused by judicial candidates when they decide which issues they can comment on, and which they cannot.I do not consider it progress when Rebecca Bradley apologizes for clearly embarrassing writings that she did not reveal in her application for our state’s highest court, but then refuses to comment on much more current writing claiming that it could come before the Supreme Court. All issues, including the issues of gay rights, can come to the Supreme Court. Justice Bradley should not be given the luxury of choosing which of her own writings, especially more recent writing written as a practicing attorney, she can comment on.

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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. In the interest of full disclosure, he has publicly endorsed Judge JoAnne Kloppenburg in the upcoming race for Wisconsin Supreme Court.

Discipline them ’til they drop out

The U.S. Department of Education recently released the latest data which provides a lot of information about students in special education. Unfortunately, in critical areas, including discipline and drop-outs, in addition to overall high rates of excessive discipline and drop-outs, racial disparities persist. The data varies significantly between states, and readers can check their own states’ data, as well as gender disparities and those of other racial or ethnic groups, on the Dept. of Education’s website linked above, but to illustrate the problem, I will use my home state of Wisconsin’s data for Black, Hispanic and White students, and compare that to the national average.

USDOE

The national data for special education eligibility is:

  • White:                                          49.7%
  • Hispanic/Latino:                      24.75%
  • Black or African American : 18.47%

The Wisconsin special education eligibility rates are:

  • White:                                        66.26%
  • Hispanic/Latino:                     11.33%
  • Black or African American: 15.28%

Since we know that school success can only happen if students remain in school, the data for suspensions and drop outs is deeply disturbing:

The percent of students with disabilities suspended or expelled 10 or more days is as follows:

US suspension/expulsions 10+days:

  • White:                                         30.43%
  • Hispanic/Latino:                      16.55%
  • Black or African American : 47.16%

Wisconsin suspension/expulsions 10+days:

  • White:                                         25.53%
  • Hispanic/Latino:                        9.31%
  • Black or African American : 62.14%

That’s right. Despite the fact that Black students make up less than 20% of students with disabilities nationally and in Wisconsin, they comprise nearly half of US students with disabilities suspended or expelled more than 10 days and nearly 2/3 of Wisconsin students with disabilities

If that does not shock you, it is even more disturbing when one examines the actual number of students with disabilities suspended or expelled out of school.

  • US total students with disabilities suspended/expelled 10+ days: 52,848
  • US total students with disabilities suspended/expelled <10 days: 487,847
  • US total Hispanic/Latino students with disabilities suspended/expelled 10+ days: 8,713
  • US total Hispanic/Latino students with disabilities suspended/expelled <10 days: 90,779
  • US total Black or African American students with disabilities suspended/expelled 10+ days: 24,827
  • US total Black or African American students with disabilities suspended/expelled <10 days: 182,116

The Wisconsin numbers are equally disturbing.

  • Wisconsin total students with disabilities suspended/expelled 10+ days: 795
  • Wisconsin total students with disabilities suspended/expelled <10 days: 10,907
  • Wisconsin total Hispanic/Latino students with disabilities suspended/expelled 10+ days: 74
  • Wisconsin total Hispanic/Latino students with disabilities suspended/expelled <10 days: 1,111
  • Wisconsin total Black or African American students with disabilities suspended/expelled 10+ days: 494
  • Wisconsin total Black or African American students with disabilities suspended/expelled <10 days: 4,332

Of course, when students are disciplined out of school, many of them end up dropping out.

US students with disabilities ages 14-21 dropping out in 2013-14

  • White: 9.49%
  • Hispanic/Latino: 14.55%
  • Black or African American: 14.3%

Wisconsin students with disabilities ages 14-21 dropping out in 2013-14

  • White: 7.95%
  • Hispanic/Latino: 16.73%
  • Black: 29.38%

Once again, to make clear that these are not just percentages, but real live children, here are the actual numbers of drop outs in these categories.

US students with disabilities ages 14-21 dropping out in 2013-14

  • White: 29,876
  • Hispanic/Latino: 18,812
  • Black or African American: 19,452

Wisconsin students with disabilities ages 14-21 dropping out in 2013-14

  • White: 536
  • Hispanic/Latino: 164
  • Black: 639

These numbers are a tragic indication of a failed education  system that metes out excessive discipline ultimately driving tens of thousands of our most vulnerable students to drop out of school, many of whom will commit crimes and fuel the school to prison pipeline.

However, we need to stop admiring this problem. It is not a new problem. Rather, it is a persistent problem. It persists because those who are responsible for underfunding our schools and permitting local school officials to remove students from school excessively are not held accountable. The numbers are only evidence of a deeply rooted problem. With tragic and transparent evidence of such widespread failure, who will accept responsibility and solve this ongoing nightmare? Who will we hold accountable for this failure?

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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.

 

 

 

 

Charter School Expansion: Whither Accountability?

Wisconsin’s powerful Joint Finance Committee recently approved a dramatic change to Wisconsin’s charter school authorization law. This change would expand so-called independent charter schools to over 140 new school districts. More troubling is that the new charter school authorizers would include the University of Wisconsin, the Milwaukee and Waukesha County Executives, tribal colleges and Gateway Technical Colleges, adding to the already confusing maze of Wisconsin school choices.

FallGuide09cartoon(cartoon by Eric Joselyn)

Sen. Alberta Darling acknowledged that this provision did not include any oversight for these new charter schools. Perhaps she and her colleagues who passed this provision failed to understand that they cannot change federal law which contains quite a few obligations for charter schools.

As I wrote about a year ago, charter schools are public schools and they must comply with federal civil rights laws. In fact, perhaps due to the confusion wrought by charter expansion, the U.S. Department of Education issued a guidance letter last year that made perfectly clear that charter schools are public schools subject to all federal civil rights laws.

In summary, that letter confirms that:

  • 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)

all apply to all operations of charter schools.

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.

Specifically,

  • Charter schools may not discriminate in admissions, meaning:

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. 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.

Together with the U.S. Department of Justice, as I have written previously, the U.S. Department of Education has also clarified that, like all other public schools, charter schools must also administer discipline in a nondiscriminatory manner, which is an important component in stemming the tide of the schools to prison pipeline.

If this highly problematic provision passes the full Wisconsin legislature and is signed into law by Governor Walker, it will be interesting to see how all of these new charter entities will implement state and federal special education law, which requires them to provide a free appropriate public education (FAPE) in the least restrictive environment (LRE), and includes many protections to prevent discriminatory disciplinary exclusion of children with disabilities. Each one of these new chartering entities will need to be sure that it assigns a local education agency representative to each Individualized Education Program (IEP) meeting who has the knowledge of all the charter school’s resources and the authority to commit them to students with disabilities whose IEPs require such services.

Of course, in order to be effective, civil rights laws must be enforced. Concerned parents and advocates can contact OCR at (800) 421-3481 & ocr@ed.gov, since OCR is clearly inviting complaints if charter schools violate any civil rights laws. Contact information and complaint forms can be found here. It will be up to parents and advocates to make sure that OCR honors its commitment to enforce the law if violations occur.

Parents who believe charter schools have violated state or federal special education law may file complaints with the state education agency. In Wisconsin, you can find information about how to file a complaint and a sample form here.

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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 Special Education Funding Quandary Continues

Earlier this week, the US Department of Education published a new rule designed to prevent local and state governments from reducing their budget expenditures for special education (known as maintenance of effort-MOE). While on the surface, this is sound policy, it does not solve a longstanding quandary which both the federal and state governments have left local school districts in, forcing them into a rob Peter to pay Paul situation.

On one hand, federal special education law, known as the Individuals with Disabilities Education Act (IDEA) makes quite clear that students with significant disabilities have the right to a free appropriate public education (FAPE) regardless of how much it costs. Yet, as discussed below, both the state and federal governments fail to provide sufficient funding for special education forcing local school districts to choose between honoring the civil rights of their students with disabilities or skimping on that funding in order to fund the education needs of other students in their districts.

When Congress passed the first special education law, it promised that it would fund 40% of those costs. However, Congress has never fulfilled that promise.  In fact, since this promise was enshrined in statute in 1981, the federal percentage of special education funding has roughly ranged between a paltry 10-18%.  Current funding is approximately 16%. The per-child expenditure has essentially been frozen during President Obama’s tenure, only increasing by $1/child in 6 years. You can review charts of this funding here.

In Wisconsin, we have a double problem when it comes to state funding of special education. First, despite, once promising in state law to fund 63% of special education funding (another promise never fulfilled), state budget support of special education funding continues to fall. Twenty years ago, state government paid for 45% of special education costs. That reimbursement rate has dropped to 27%.

The math is simple:          lots-of-dollar-signs-clip-art

Federal special education funding:  16%

State special education funding:       27%                 

Local special education funding:      57%

The problem is compounded in Wisconsin because state law imposes revenue caps on local school districts which are completely unrelated to their special education costs. School districts may only increase their budgets beyond nominal inflationary amounts by going to referendum, and no school district has ever successfully had the voters approve a referendum to increase their special education funding at the local level. Thus, the twin failure of the federal and state governments to provide sufficient special education funding, combined with revenue caps leaves school districts in a situation where they can only meet their legal obligations to their students with disabilities by taking funding from other parts of the school district budget.

No parent of a child with disabilities wants this dilemma posed by their child’s civil right to a sufficiently funded education, and our state and federal government’s failure to provide sufficient funding to make that right a reality. The US Department of Education’s new Maintenance of Effort regulation is a small step in the right direction, but it fails to address the real problem created by Congress and the states by their failure to provide sufficient special education funding.

I have often told school district administrators that they cannot refuse to fund the educational needs of my clients with disabilities, but I understand their fiscal plight, so I am willing to join them in the battle for additional state and federal funding. I look forward to the day when that dilemma forced upon local school districts by the failure of Congress & state legislatures is a thing of the past.

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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.

Madison School Improvement Plan: Insufficient Accountability

Earlier this week, Madison Metropolitan School District (MMSD) Superintendent Jennifer Cheatham held a press conference touting the progress which the district has made after one year under her leadership.  The basis for her claim was the progress made by many schools as set forth under her First Annual Report.  To make sure that MMSD parents were aware of how each school is doing under what she has dubbed the Strategic Frameworkshe e-mailed MMSD parents with links to the Annual Report, and encouraged them to examine the results of the children’s schools.

FrameworkImage

To that end, I have examined the results at Madison East High School, and despite the fact that my son gets a good education there, the results reveal significant academic problems, huge racial disparities, and simply no information about school discipline issues.

First, it is worth examining the demographics of East High, which interestingly are found in the accountability link.  In the 2013-14 school year, East High had:

  • 55.4% low-income students;
  • 24.7% English Language Learners;
  • 21.5% Special education students; and
  • a minority white student, with 59.3% of its students being non-white.

Next, the academic achievement results as shown in the School Improvement Plan which provides no data for any minority groups other than African-Americans and students in special education reveals that:

  • While there was some improvement with 33% of 9th graders having 2 or more course failures compared to 38% the prior year, this is still a very high rate of failure and is magnified by significant racial and disability disparities with 49% of African-American 9th graders having 2 or more course failures, and 45% of students in special education having 2 or more course failures;
  • Once again, there was some improvement with 36% of 11th graders having a 3.0 grade point average or higher (compared to 31% the prior year), these rates plummet to 11% for African-American students, and 10% for students in special education;
  • Reading and math scores show similar improvement, but once again striking racial and disability disparities with 45% of students at a college ready reading level, but only 22% of African-American students and 18% of students in special education reading at that level; and 40% of students at college ready math level, but only 12% of both African-American and students in special education reading at that level;
  • Finally, the 4 year graduation rate has improved overall to 83%, but it is only 70% for African-American students and a mere 49% for students in special education, which unfortunately suggests that many students are graduating without college ready reading or math abilities.

Sadly, given all the attention paid to the school district’s significant modification of its Behavior Education Plan earlier this year, there is no school discipline data provided to parents or the public, which means there are no goals, nor any accountability for this area which is so critical to improving student achievement and shutting down the school to prison pipeline.

In sum, while some improvement is worth bragging about, the high level of racial and disability disparities which remain, and complete lack of data and goals around improved behavior mean that MMSD has a long way to go if it School Improvement Plan will result in a quality education for all of its students, preparing them to be productive adults upon graduation.

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