Hard Won Independence

In over 32 years of civil rights legal work, I have represented a wide variety of unique individuals in a lot of unusual cases. Many of my cases involve people with disabilities fighting for the right to live the independent lives that all of us wish to enjoy.

Some of my cases involve people who have to fight for independence on multiple fronts. One such case came my way earlier this year, when I was contacted by Nick Rabinowicz, who left his parents home in Massachusetts in late December, 2016, upon turning 18, and moved to Madison. His parents petitioned a Massachusetts court for guardianship over Nick and were awarded temporary guardianship without a hearing. Nick retained me to fight for his independence and get his parents’ petition for guardianship dismissed.

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When Nick came to meet me, he informed me that he was a transgender man who was a high functioning person with autism. He showed me his parents’ petition  for guardianship which alleged that Nick was incompetent because, among other things, he did not shower every day. Although failing to shower every day is certainly not an indicator of legal incompetence, I asked Nick about this, and he provided a perfectly rational response. He told me that on days he does not work out, he might not shower, and on days, he does get sweaty, he might shower twice.

In telling me the story of how he left home, took a train to Chicago on his own, got a ride to Madison, rented an apartment, enrolled in high school, and ultimately found and retained me to fight for his legal independence, it was very clear to me that Nick had every right to live a free and independent life and not have his rights stripped and given over to his overbearing parents through guardianship. As I am not licensed to practice law in Massachusetts, I attempted to convince his parents’ attorney to drop the case, but his parents were unwilling to do so. Even worse, his parents were interfering with Nick’s ability to live independently by refusing to provide him with his health insurance card, his passport and his Social Security card.

Fortunately, despite the barriers presented by his parents, Nick successfully enrolled in La Follette High School in Madison, and graduated this past June. In fighting his guardianship, he was able to obtain very supportive affidavits from his teachers, who were very impressed by Nick. One of his teacher’s beautifully described Nick:

He is an informed citizen of local, national and international news and demonstrated the ability to critically evaluate sources of information and to use acquired information to inform personal decision-making and support his thinking.

In all my years of teaching, Nick’s creative writing is some of the highest quality and most compelling student work I have read. He demonstrates many cultural interests and the ability to both appreciate and create works of art that explore the human experience.

Nick demonstrated the ability to identify himself as a student with autism, explain his learning challenges, and advocate for his learning and social/emotional needs. I observed him respectfully ask to be seated in another area of the classroom where he could focus better, and on occasion during work time, request to move to a quieter location with fewer distractions. Understanding one’s disability and independently and appropriately explaining and advocating for one’s needs is a complex skill that I do not often observe in high school students.

Since the case was in Massachusetts, I arranged for Nick to retain Marty Flax, an attorney who practices in the Boston area, whom I have known for many years, as his local counsel. Recently, Marty and I were pleased to be able to tell Nick that the court had dismissed his parents’ petition for guardianship, and Nick was free to pursue his life as he sees fit.

While guardianship can be appropriate for some people, many do not realize that short of imprisonment, it is the most severe legal denial of civil rights that our law permits. While I do not know all the reasons why Nick’s parents believed that Nick was legally incompetent and sought legal control  over his life, I suspect that being a transgender man with autism had a lot to do with it. I am very glad that I was able to help Nick assert and obtain his legal independence and I look forward to watching him do great things with his life. As his recent picture shows, he is a happy young man, as he deserves to be now that he is free of his parents’ legal challenge to his independence.

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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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If it Ain’t Broke…

You know the tried and true maxim, if it ain’t broke, don’t fix it.

Just about everyone believes that is a sound way of living one’s life. That’s what I thought too until a few weeks ago when I went to the funeral of Will Simmons, the son of a friend of mine and great disability advocate, Liz Hecht and her husband Scott Simmons.

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I got to know Will through my synagogue, as Will had his Bar Mitzvah there about 14 years ago. Since I was President of our synagogue, I had the good fortune of saying a few words of congratulations to Will and bestowing upon him a gift from our synagogue.

Will’s Bar Mitzvah was not a typical Bar Mitzvah. Will had some disabilities, and as a result his speech was very hard for most people to understand. To accommodate his disability, Will read the Torah and led other parts of the service using a computerized voice. This was the first, and is still the only time, that I have seen anyone become a Bar Mitzvah using assistive technology.

Will went on from his Bar Mitzvah and earned a college degree. He even became certified in scuba diving despite many physical challenges.

Sadly, Will died unexpectedly in his sleep a few weeks ago, and I was fortunate to be able to attend his funeral service. Many beautiful eulogies were given by friends and family, but the most profound eulogy came from his roommate and best friend, Sam Katz. Sam also has some disabilities, but like Will, he is also a college graduate, and refuses to let his disabilities stop him from accomplishing his goals.

During Sam’s eulogy, he shared with the hundreds of friends and family members who gathered to pay tribute to Will, that Will’s favorite saying was,

If it ain’t broke, you’re not trying hard enough.

As you might imagine, hearing this tried and true phrase turned inside out made me and probably everyone else, think about why one would prefer to break things rather than leave well enough alone.

As soon as I heard Sam share this inside out version of the truism, I smiled, as I realized that Will had a passion for viewing the world in a way that would work for him, rather than  remain content with a world that was not built for someone who used a wheelchair and whose speech was difficult to understand.

As someone who has dedicated most of my life to systems change, I realized that Will’s view of the world makes a lot of sense. While it might be easier to leave things alone if they are not broken, the truth is that the status quo is simply not acceptable for the vast number of people that do not fit neatly into mainstream society’s norms.

For Will, if computer software did not perform in a way that fit his needs, even if it was not necessarily broken, he knew that he would have to try harder to make the software (or any other tool or device) fit his needs, even if it meant breaking it to do so.

Nobody ever discovered anything new by remaining content with the status quo. Will refused to be content with the status quo because it was not built for him. In fact, the Americans with Disabilities Act (ADA) requires reasonable modifications and accommodations to buildings and programs so that those with disabilities can fully participate in society.

Will’s abbreviated life, and the way he chose to live it, with tremendous support from his  parents, sister, family, friends and caregivers, which sadly ended too soon, provides important lessons for those who may be square pegs trying to fit into society’s round holes. As he said, “If it ain’t broke, you’re not trying hard enough.”

May Will’s memory be a blessing and his lesson help many live a better life.

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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.

Inclusion in the Family

We all have telephone calls we receive that we never forget. Two calls which I will never forget came from my brother-in-law and sister-in-law, Jeff and Miriam. The first call informed us that their 4th child, Arielle, was born, which was wonderful. However, they reported that Arielle had a stroke in utero which resulted in cerebral palsy.

Much to the credit of Jeff and Miriam, they were determined that Arielle would get the medical and therapeutic care that she needed, as well as a high quality education. Her 3 older siblings, were very supportive, and the family included Arielle in all their travels and adventures. Although the cerebral palsy weakened Arielle’s right side, she persevered and participated in all the physical activities at school and in the neighborhood park, as well as the many hikes her family enjoyed.

Her mother, Miriam, is a Rabbi, and her father, Jeff, is a Jewish educator. They made sure that she got a high quality Jewish education, including learning the Hebrew language and prayers, and most important of all, Jewish values.

When Arielle was growing, she often needed to use a brace to support her left lower leg. This made her disability visible to others, including some neighbors, who created the reason for the second call that I remember so clearly. Apparently, a neighbor did not think it was appropriate for Arielle to ride a bicycle like all the other children her age, so she called the police. The police, in turn, contacted child protective services (CPS), who contacted Jeff and Miriam, to investigate. Jeff and Miriam called me for legal advice and I supported them in being completely honest with the county social worker to inform them that they wanted Arielle to have all the joys of childhood and that she was perfectly capable of riding her bicycle regardless of the misperceptions of their neighbor. Fortunately, CPS closed the case without further action.

Two years ago, Arielle and her parents moved from Massachusetts, where she had lived her entire life, to Greensboro, North Carolina, which was a challenging change for Arielle. In addition to a significant cultural change, it required her to make new friends and navigate around a brand new school. A couple of weeks ago, my wife and I were pleased to travel to Greensboro to watch Arielle receive her diploma with a variety of academic honors, from Grimsley High School.

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Arielle in cap & gown with her parents Jeff & Miriam, and sister Leora, who recently graduated from Washington University.

The graduation took place in the evening. After the graduation, the school held an overnight alcohol-free party for the graduates. Arielle does not drive yet, so her mother took her to the party which started at 11 PM. Her parents assured her that they would keep their cell phones on overnight by their pillows in case she wanted to come home early.

My wife and I were staying in a guest house across the street from Jeff, Miriam and Arielle’s home. I am an early riser and shortly after I wake up, I meditate. While meditating, I relax my eyes and while they are often closed, occasionally they open. The morning after Arielle’s graduation, while meditating, I opened my eyes to see Arielle walking up to her house at around 6:15 AM, after being dropped off by a friend. That is a beautiful inclusive vision that I will never forget.

Arielle has been admitted to the University of Hartford, but she is contemplating taking a gap year before starting college. I am confident that whatever she decides, she will continue as she has done thought her life, to move through life with joy and confidence that she can and will be included in whatever she chooses to do.

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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.

Saving IRIS…one more time

About a year ago, in my role as a member of the Board of the Autism Society of South Central Wisconsin, I joined with other disability advocates to encourage the Joint Finance Committee to reject Governor Walker’s budget proposal to eliminate IRIS, which stands for, “Include, Respect, I Self-Direct.” IRIS is Wisconsin’s self-directed, community- based, long-term care program for adults with disabilities & older adults with long-term care needs. People using IRIS have the flexibility to self-direct their plan of care within an authorized budget based upon their individual needs and desired outcomes. IRIS participants choose and direct the services and supports that make it possible for them to live, work, and participate in their communities, allowing more people to stay in their homes and avoid costly nursing homes and other institutions.

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We were partially successful. Both the Joint Finance Committee and the Wisconsin legislature rejected Gov. Walker’s radical upending of Wisconsin’s long-term care system. However, in doing so, the budget which ultimately passed directed the Wisconsin Department of Health Services to obtain public input and propose a new system that would be managed by private health insurance companies, instead of the current non-profit care management organizations. This has become known as Family Care/IRIS 2.0.

Yesterday, I co-signed a letter from the three Autism Society affiliates to the Joint Finance Committee in which we state that we:

do not believe the Department of Health Services has justified the disruption of care to the 55,000+ people currently enrolled in Family Care and IRIS programs.

Specifically, we are concerned about:

  •   The uncertain future of self-direction and the IRIS Program: The concept paper does not reflect the level of self-direction of the current IRIS program. There remain significant questions as to how current IRIS participants will experience self-direction as they do now.
  •   The uncertain future of Behavioral Health Services: The concept paper is lacking details on how behavioral health services may be integrated in the new model.

    We also share many of the conclusions made by the Wisconsin Long Term Care Coalition in their Analysis of the Numbers behind Family Care/IRIS 2.0 on May 11, 2016.

    Given that there are no projected savings in long term care as a result of Family Care/IRIS 2.0 and there are still significant questions about the concept plan, we believe that moving ahead at this point would unnecessarily disrupt the lives of over 55,000 Wisconsin residents.

    We are writing to ask members of the Joint Finance Committee not to move forward with the Family Care/IRIS 2.0 concept plan as currently written.

The good news is that since Family Care and IRIS operate under a federal Medicaid waiver, they cannot be modified without federal approval. The Walker administration has already conceded that it understands this cannot happen until at least 2018. Hopefully, the next President will accept the recommendations of Wisconsin elders and people with disabilities, their families and friends, who are generally satisfied with the current Family Care/IRIS long term care system and do not want their lives disrupted, their independence lost, and their futures controlled by for-profit health insurance companies.

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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.

 

 

Stop Paternalizing Children with Disabilities

In the many years I have advocated for children with disabilities, I have frequently encountered those who purport to care so deeply for children with disabilities (rarely their own) that they support methods of care and support and even legislation that purports to protect these children, but when analyzed more closely, does a great disservice to these children by preventing them to live as fully and independently as possible.

My advocacy has included combatting paternalistic policies and practices including segregating children with disabilities in separate schools, which prevents them from making friends with non-disabled children who will help them with sustaining networks in their adult lives.  Even worse, is institutionalizing children with disabilities under the guise of protecting them, but ultimately ruining their chances to live free and independent lives.

It has recently come to my attention that under the guise of helping students with disabilities, Louisiana’s legislature is proposing 2 bills that would undermine those children’s access to a quality education.

House Bill No. 993 contains the following highly damaging provisions:

  1. Waives the requirement that students with disabilities must meet state and local performance standards in order to graduate high school;
  2. Waives the requirement that students with disabilities must pursue the same “rigorous curriculum required for his chosen major by his school as approved by the State Board of Elementary and Secondary Education,” as all other students.
  3. Waives all state and local graduation requirements for students with disabilities.
  4. Waives the requirement that students with disabilities (along with all other students) must read at the “approaching basic” level on either the English/Language Arts or mathematics component of the 8th grade state assessment, as well as the other objective criteria established by the local school district, in order to be promoted from 8th grade to 9th grade.
  5. Waives the requirement that students with disabilities (along with all other students) who score at the unsatisfactory level on the state assessment, must complete a summer remediation program in that subject area in order to complete a high school major in that subject area.
  6. Provides that all pupil grade progressions for students with disabilities shall be determined by the child’s Individualized Education Program (IEP) team.
  7. Provides that if a pupil with disabilities meets her IEP goals, she can receive a high school diploma.

House Bill No. 1015 goes even further down the road of degrading the education of children with disabilities in the name of protecting them.  It would:

  1. Exclude children with disabilities from the same grade promotion standards as all other children and simply allow their IEP team to determine whether to promote the child to the next grade.
  2. Excludes all state and local assessment scores from children with disabilities from the state’s accountability system.

While some may believe that these provisions serve to protect children with disabilities, my experience has demonstrated otherwise.  If these bills pass, Louisiana will be able to graduate its children with disabilities after 12th grade, even though federal special education law clearly allows students with disabilities who need up to 3 more years of education to receive those critical additional years of education.

Furthermore, these bills will make it impossible for parents of children with disabilities to determine how well their school districts are educating their children.  Parents and advocates of children with disabilities fought long and hard for the federal law provision that requires schools to educate children with disabilities in the general curriculum.  These bills take Louisiana down the road of a separate and unequal education for children with disabilities.  This is particularly troubling because the vast majority of children with disabilities are of average or greater intelligence.  Why take those students out of the the accountability system unless Louisiana simply wants to wash its hands of its responsibility for them?

The National Center for Learning Disabilities published an excellent report about the low graduation rates of children with learning disabilities (who by definition have average or greater intelligence).  That report reveals that Louisiana has the 2nd worst graduation rate for such children in the nation (only Nevada is worse).

This graph shows how badly Louisiana’s students with disabilities are faring when it comes to graduating from high school.  As you can see it fares poorly in comparison to both national and other state data.  Indeed, currently more students with disabilities drop out of high school in Louisiana than graduate.

HS graduation rate graphIf these bills pass, Louisiana will look like it is graduating the most students with disabilities even though it is providing less education to them.  Parents and advocates of children with disabilities cannot allow this to happen. Indeed, my fear is that if it happens in Louisiana, your state could be next.  For that reason, national disability advocates should weigh in to oppose these problematic bills.

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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.

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

As I reported last May,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Celebrating Independence Day–Escaping Institutionalization

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In a recent case of mine, frantic parents retained me worried over the future of their son, who has autism and challenging behaviors.  Equally troubling was their fear that government overreach was in the process of removing their parental rights.

These parents had done everything they could to help their son succeed at home and in school, but due to state funding limitations of the Children’s Long Term Care waiver, in-home services declined and then virtually disappeared over the past year. Not surprisingly, this evaporation of critical child and family supports resulted in a downward spiral.  First, in mid-fall, the school district determined that it could no longer educate the boy in school and started providing his education in the family home.  Then, the boy’s challenging behaviors escalated.

As the parents sought answers, they received recommendations to send him to a state Institution where the state no longer admits long admits long-term residents, but does provide 30-60 day assessments to, in theory, help families in situations such as these.  Unfortunately, my clients’ decision to send their son to an Institution developed into an over 5 month stay there because the County determined that it needed to take over parental medical decision making and further determined that the child was not fit to return home.  The County pursued this case in court seeking to send the boy to another Institution 4 hours from his home, without a plan for returning him home.  The County even took the drastic step of seeking transfer of medical legal custody of the boy from the parents to the County.

The parents retained me only a few weeks before the scheduled 1/2 day trial. Initially, I contacted the county’s attorney to determine whether settlement was a possibility. Sadly, the County was unwavering on its Institutionalization path and had no interest in settlement.

As the trial began, my first witness was the child’s pediatrician who was strongly supportive of returning the boy home to his family and fully supported the parents’ medical decision-making.  Initially, I felt a need to rush through the case because the court had only allotted a few hours for the trial.  Fortunately, the judge quickly realized that this case was too important to rush and announced that he had cleared his calendar for the following business day as he knew we needed to carefully put on all relevant testimony.

Another compelling witness was the boy’s 17 year old brother.  He told the court that he was the only one who could get his brother to talk and calm down and that he had no regrets that he needed to spend most of his non-school hours at home helping to care for his brother.

For its part, the County only put on 2nd hand hearsay testimony (allowed in these types of cases) critiquing the parents’ caregiving.  While it did not budge from its Institutionalization position, the lead county social worker did testify that if the boy returned home, he would need ample in-home services.  Sadly, the Guardian ad Litem (GAL) supported the County’s Institutionalization position.

When the judge announced his decision, he concluded that the parents’ first-person testimony, from themselves, their son, and their pediatrician, far outweighed the county’s second hand testimony, and convinced him that the boy should be returned home with the ample home-based services which the county social worker testified were necessary.  The parents were elated and his father can proudly state that his service to our country in the armed services is that much more meaningful as the family celebrates a very meaningful Independence Day in their home today.

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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.

Getting to Yes in the 21st Century

In their seminal book, Getting to Yes, originally published in 1981, Roger Fisher and William Ury’s subtitle, Negotiating Agreement without Giving In, only begins to describe how this fairly short 200 page book, gives valuable lessons on the art of negotiating Win-Win solutions, instead the more commonly experienced Win-Lose, or worse yet, Lose-Lose solutions.  These lessons are needed today more than ever before.

As I previously described in, The Great Dysfunction or Lessons in how Not to Govern, our political environment is poisoned by politicians and their funders who believe that their sole goal is to obtain or retain the political majority.  Sadly, the recent failure of the U.S. Senate to pass the mildest of gun control reforms when it allowed a minority of Senators to block the background checks that roughly 90% of Americans want, demonstrated that the desire to obtain a Win-Win solution was unable to carry the day in the face of the NRA’s desire to “win” at all costs.

While there are numerous other examples of the failure of our political leaders to obtain palatable outcomes on the important issues of our day, rather than point fingers and accuse one side or the other of their responsibility for this miserable failure of leadership, the lessons taught so well in Getting to Yes need revisiting in order to change the unfortunate dynamic we are currently experiencing.

Fisher and Ury explain that we all negotiate on a daily basis, whether we realize it or not.  We negotiate with our families, our co-workers, those with whom we do business, as well as in the legal and political arenas.  While it may feel good to “win” when one negotiates, the long term outcome of having someone you deal with on a regular basis “lose” the negotiation, may not be worth it in the end.

I regularly explain this to parents of children with disabilities, whom I represent, when they want to “win” their legal claim against a wrongdoing school district, but may end up destroying relationships with the very educators whom they need to provide a quality education to their children.  Thus, I regularly remind them to “keep their eye on the prize,” which is the quality education they seek for their children, and not the pound of flesh which their anger may cause them to desire.

Many people who are in the midst of a dispute assume that there will always be a winner and a loser when the dispute is resolved.  This assumption is patently false, as there are two other possible outcomes:

  1. Neither side wins because the dispute remains unresolved (e.g., Israel and Palestine); and
  2. Both sides lose because though the dispute is resolved, neither side is happy with the outcome (e.g., a lawsuit results in a Pyrrhic victory for one side because that side obtains a fraction of what it sought and spent more money on attorneys than it gained through the resolved dispute).

So, how do Fisher & Ury suggest obtaining Win-Win solutions?  They do so by focusing on five key elements of principled negotiations:

  • “Separate the people from the problem.”  In other words,  the goal in negotiating should not be beating the other side.  It should be solving the problem at hand. Successful negotiation should not be considered the equivalent of a competitive sport if the parties are truly interested in solving the problem.
  • “Focus on interests, not positions.”  In the special education advocacy example mentioned earlier, the parents’ interest is in getting their children a quality education, not in having a judge rule in their favor to prove to the school district that they were right.
  • “Invent options for mutual gain.”  This is where win-win negotiating really becomes an art form.  Creative negotiators seek opportunities where both sides can gain from the outcome.  For example, when a school is dealing with a difficult behavioral situation, the win-lose situation is the child either stays in school with continued misbehavior, or the child is expelled, relieving the school from having to deal with the child, but putting the child on the Schools to Prison Pipeline.  The win-win solution involves bringing in a behavioral expert to observe the child in school and to provide sound suggestions to educators on how to improve teaching techniques and behavioral interventions to teach the child appropriate behaviors.
  • “Insist on using objective criteria.”  All too often, negotiation takes place on emotional terms or even outright falsehoods.  We saw this in the recent background check debate where the opponents to background checks simply lied about the bill before the Senate by raising false fears that the bill would prevent sales between family members.  No problems are successfully resolved by relying on falsehoods or emotions alone.
  • “Know your BATNA (Best Alternative To Negotiated Agreement)”  On a regular basis, I must counsel clients on what the likely outcome is if they fail to come to a negotiated agreement.  Without knowing this, the client (or politician) cannot truly make an informed decision as to whether to accept the offer presented.

This is not to suggest that Getting to Yes is easy.  In fact, it takes hard work, checking egos at the door, and regular reminders of what you are really seeking in the midst of your negotiation.  For nearly 28 years, I have had the professional privilege of assisting clients, non-profits and policymakers negotiate Win-Win solutions with the assistance of Getting to Yes principles.  Perhaps it is time for our political leaders to read and follow the rules of this invaluable book.


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

School Suspensions: A Failure to Educate

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

Key findings from this report include the following troubling data:

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

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

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

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

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

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

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

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


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