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.

_________________________________________________________________

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

Advertisements

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.

_________________________________________________________________

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.

_________________________________________________________________

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.

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.

_________________________________________________________________

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.

_________________________________________________________________

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.

Law as Preventive Medicine

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

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

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

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

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

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

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

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

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

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

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

_________________________________________________________________________________________

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

Results Driven Accountability: Raising the Bar for Students with Disabilities

Today, the US Dept. of Education announced the first results of its new Results Driven Accountability (RDA) system for monitoring the performance of state education agencies’ implementation of the Individuals with Disabilities Education Act (IDEA), the federal special education law.  This new system moves away from decades of focus on procedural compliance and towards an examination of how well students with disabilities are learning.  This is a welcome change as parents and advocates have learned that procedural compliance alone does not guarantee that children with disabilities are actually learning what they need to know in order to become independent productive adults.

In his press release, Secretary of Education Arne Duncan stated what parents and advocates for children with disabilities have known for decades:

Every child, regardless of income, race, background, or disability can succeed if provided the opportunity to learn. We know that when students with disabilities are held to high expectations and have access to the general curriculum in the regular classroom, they excel. We must be honest about student performance, so that we can give all students the supports and services they need to succeed.

This chart showing the poor and declining math performance for students with disabilities from 2005-2010 demonstrates exactly why this new emphasis on educational results is so critical to the long-term success of children with disabilities.

Image

Reading results are similarly poor with less than 40% of students with disabilities capable of reading proficiently, with stagnating results from 2005-2010.  Worse yet,

Less than 10 percent of our nation’s eighth graders with IEPs are scoring proficient in reading, according to the best available data. We can and must do better,

said Michael Yudin, acting assistant secretary for special education and rehabilitative services.

Today, the Dept. of Education announced the results of its multi-pronged RDA analysis based on 2012-13 data, where states are grades in one of 4 categories: Meets Requirements; Needs Assistance; Needs Intervention; or Needs Substantial Intervention.  Here is how all state education agencies were categorized.

  • Meets Requirements

Florida, Georgia, Indiana, Kansas, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, Pennsylvania, Vermont, Virginia, Wisconsin, Wyoming, Federated States of Micronesia, Marshall Islands, Palau

  • Needs Assistance

Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Hawaii, Idaho, Illinois, Iowa, Kentucky, Louisiana, Maine, Maryland, Michigan, Mississippi, Montana, Nevada, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Washington, West Virginia, American Samoa, Commonwealth of Northern Marianas, Guam, Puerto Rico

  • Needs Intervention

California, Delaware, District of Columbia, Texas, Bureau of Indian Education, Virgin Islands

Fortunately, no states were deemed in need of substantial intervention, but it is deeply troubling that nearly 40 years after Congress first passed federal special education mandates, a majority of states still need federal assistance or actual intervention in order to provide meaningful education to their students with disabilities.

It remains to be seen how vigorously the US Dept. of Education will enforce these new requirements, as prior federal enforcement has been notoriously lax.  In theory, if a state needs assistance for 2 years in a row, the Dept. of Education must take actions such as requiring the state to obtain technical assistance or identifying the state as a high-risk grant recipient. If a state needs intervention for 3 years in a row, federal law mandates that the Dept. of Education must take specific actions, which can include requiring the state to prepare a corrective action plan, enter into a compliance agreement or, ultimately, withholding a portion of the state’s funding.

To help states improve the quality of education which students with disabilities receive, the federal government is providing $50 million for a new technical assistance center, the Center on Systemic Improvement to help states make effective use of the $11.5 billion in federal special education funds which they currently receive to improve outcomes for students with disabilities.

Parents of and advocates for children with disabilities should pay close attention to the new RDA, particularly in states which need assistance or intervention,  to make sure that the federal promise that this new program will improve the education of students with disabilities comes true.

________________________________________________________________________________________________________________________

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

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

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

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

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

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

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

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

Some key provisions of the new guidance letter are:

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

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

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

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

  • Regarding children with disabilities, OCR makes clear that,

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

  • For English Language Learners,

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

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

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

__________________________________________________________________________________________________________________________

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

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.

__________________________________________________________________________________________________________________________

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.