How the “System” Forces Schools into Decisions that Harm Struggling Students

The “Groundhog Day” Impact of Fear on Staff Mental Health and Job Retention

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Dear Colleagues,

Introduction

   Groundhog Day was released in 1993 (30 years ago!) starring Bill Murray, Andie MacDowell, and Chris Elliott. It is the story of an off-putting TV meteorologist (Murray), his news producer (MacDowell), and his cameraman (Elliott) who travel—for the fourth year in a row—from their TV station in Pittsburgh to cover the annual Groundhog Day festivities in Punxsutawney, Pennsylvania.

   Unhappy with the repetitive assignment, meteorologist Phil Connors begrudgingly gives his on-site, February 2^nd Groundhog Day news report and then, on the way home, gets caught in a blizzard that forces him and his two colleagues to return to Punxsutawney for the night. The next morning, Connors awakens to find that it is Groundhog Day yet again, and he re-lives this second day in exactly the same way—with all of the same personal interactions—as the real one the day before.

  This pattern continues as Connors wakes up each day, in a seemingly endless loop, on another “Groundhog Day” in the same (Victorian) bed at the same (6:00 AM) time with the same (“I Got You Babe” by Sonny & Cher) song playing on his clock radio. Significantly, however, he remembers everything that he did on all of the previous “Groundhog Days,” and he begins collecting information on his experiences with the different inhabitants of Punxsutawney. . . as well as Rita, his producer, for whom he begins to have unrequited feelings.

   Over time, Connors realizes that everyone around him will talk and act exactly as on the first Groundhog Day unless or until he changes his behavior and interactions with them.

   After a number of desperate attempts to stop the recurring Groundhog Days (which do not stop), and to change the events within each new Day (which do not change), Connors begins to consciously “take control” by changing himself. In fact, he begins to spend his time learning a number of new skills: How to play jazz piano, to speak French, to sculpt ice, and to master the art of flipping playing cards into an upturned hat.

   According to one review of the film, Connors “changes from an inconsiderate, callous egocentric into a thoughtful, kindhearted philanthropist, refining his understanding of human decency, which, in return, makes him an appreciated and beloved man in the town. (He) is able to befriend almost everyone he meets during the day, using his experiences to save lives and help the townspeople.”

   Eventually, Connors “gets the girl” (news producer Rita) with the two of them waking up together in bed, finding that it is February 3^rd, and finding that the Groundhog Day loop had been broken.

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The Groundhog Day Loop in Some Schools

   Over the past four months especially, I feel like I have been in the same Groundhog Day loop.

   Across the many “Punxsutawney’s” I have visited during these past months, this “loop” has involved the “mystifying” procedures, practices, and strategies that many multidisciplinary MTSS Teams (or the equivalent) still use—typically with good intent—that are, nonetheless, scientifically unsound and (sometimes) even defy common sense relative to quality services to students.

   At times, these MTSS Teams are following protocols that have been recommended by others—including their state departments of education.

   Sometimes, they have fallen prey to pressure from local administrators or supervisors.

   And often, they simply either “don’t know what they don’t know,” or they do not periodically step back to objectively reflect on and evaluate what they are doing and how it is working.

   I have discussed numerous examples of this “Groundhog Day loop” in the past three Blog articles.

March 11, 2023. Judy Heumann, Special Education’s History of Litigation, and the Continuing Fight: Complacency and Defensiveness Still Stand in the Way of Students with Disabilities’ Rights

[CLICK HERE to Link to this Blog]

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February 25, 2023. “Solutions for Selectively Mute Students and Educators: The Long-Term Adverse Educational Effects When Inappropriate Behavior is Ignored”

[CLICK HERE to Link to this Blog]

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February 11, 2023. “Was a First Grade Virginia Teacher Shot Because Her Student was Denied Special Education Services? What School Administrators Face that State Departments of Education Ignore”

[CLICK HERE to Link to this Blog]

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   Some of the major concerns addressed in these Blogs include the fact that many districts and schools historically and currently:

·  Lack effective and explicit multi-tiered systems of support procedures and protocols, including when to involve 504 accommodations and special education services and interventions, respectively.

 

·   Lack an effective multi-tiered continuum of services, supports, interventions, classrooms, and/or programs within their general education classrooms, as well as “outside” of school—especially including access to self-contained, day treatment, residential, and community-based Systems of Care programs as needed for students with social-emotional challenges.

 

·     Mistake or do not assess some students for the presence of social, emotional, behavioral, or mental health disabilities, concluding—instead—that their behavior is disciplinary in nature and, when extreme, warrants  a school suspension, expulsion, alternative school placement, or law enforcement/juvenile court referral.

·     Excessively use exclusions, seclusions, restraints, and (where still allowed) corporal punishments— once again, in the absence of effective multi-tiered services and behavior-change interventions.

·     Continue to use the flawed Positive Behavioral Interventions and Supports (PBIS) and Response-to-Intervention/Multi-tiered Systems of Support (RtI/MTSS) frameworks advocated by the U.S. Office of Special Education Programs (and forced on many state departments of education).

·    Fail (or wait) to review, analyze, and objectively evaluate the current and historical facts and functioning of students who are academically struggling or presenting with social, emotional, or behavioral challenges at Tier I.

 

·    Do not use (at all or effectively) an objective data-based problem-solving process that links intervention to diagnostic root cause assessments for students with more complex Tier II or Tier III needs... instead implementing interventions generated by convenience, through brainstorming, or to fit a specific staffperson’s skills, caseload, or subjective beliefs regarding “what is needed.”

·     Do not train all general education, special education, and related services personnel in the use of differentiation, remediation, modification, assistive supports, and specific, strategically-chosen accommodations for students needing these approaches.

·    Lack effective transition services and pre-vocational supports that include career and technical education coursework, training, partnerships, or apprenticeships with regional education resource centers, community businesses, and state offices of Vocational Rehabilitation (or the equivalent)... as required by IDEA for students with disabilities starting at age 14, but as equally important to non-disabled students with these interests.

_ _ _ _ _

   Please note: I am not trying to be critical, unfair, or unrealistic relative to the effective and needed systems and practices in the list above.

   Indeed, the vast majority of them are required by federal law (the Elementary and Secondary Education Act, the Individuals with Disabilities Education Act, Section 504 of The Rehabilitation Act of 1973) or their related rules, statutes, or evaluation mandates (more about this later).

   And many of the flawed or unsound approaches noted above came from somewhere. It’s just that the “somewhere” that has been embraced has not delivered the needed outcomes.

   Putting this in Groundhog Day terms:

   Many districts, schools, and/or MTSS Teams are caught in a Groundhog Day loop where they continue to “relive” their flawed approaches day after day.

   And like the Groundhog Day residents of Punxsutawney, some of the MTSS Team members do not even recognize that they are enmeshed in this loop.

   The Solution?

   Like the fictional Phil Connors, MTSS Teams need to begin making their own changes—disrupting and displacing their educational loops— in order to “wake up the next day” serving students more effectively and/or efficiently.

   This can begin when MTSS Teams:

·       Question and objectively evaluate their psychoeducational impact on all students—but, particularly, students with academic struggles and behavioral challenges; and 

·       Design, Commit to, Implement, and Evaluate the systemic, procedural, and practice-related changes needed to be more successful—on behalf of their students across the multi-tiered continuum—regardless of history, tradition, politics, funding, or resistance.

_ _ _ _ _ _ _ _ _ _

Yet Another Groundhog Day Loop

   To the list above—and the vignettes described in the past three Blogs—I would like to add another recurring story.

   A number of weeks ago, I was observing an MTSS child study meeting at an elementary school that included the parents of the student in question.

   The young Hispanic student was in the Third Grade, and she had attended this school for her entire school career. Indeed, prior to her school entrance, the child’s parents had intentionally moved into this school district due to its reputation as a “great” district.

   Attending the MTSS meeting were the Principal, the student’s current Third Grade teacher, the student’s Second Grade teacher from the year before, two Reading/Literacy Intervention Specialists, the school’s Math Intervention Specialist, the School Counselor, a Special Education teacher, and another general education teacher representative.

   It was a pretty impressive group. . . and, they were “on their game.”

   Communicating effectively with and listening intently to the Parents, the group went around the MTSS table describing the student’s strengths and weaknesses, detailing specific instructional and intervention approaches and methods, and sharing outcome data and the student’s current status.

   But something just didn’t add up.

   This Third Grade student was functioning at the end of Kindergarten to beginning of First Grade levels in reading and math, and she was making progress—but at an incredibly slow pace despite the small group and even one-on-one interventions being provided. She had a history of distractibility, and she was beginning to avoid some schoolwork because she was feeling so unsuccessful.

   These learning problems were historic in nature. They were well-documented during the first six on-site months of her Kindergarten year—before the year was disrupted due to the Pandemic, and before her virtual-instruction First Grade year “in school.”

   Indeed, when comparing the Student-in-Question to her peers the next “post-pandemic” on-site school year, her Second Grade teacher provided instructional and intervention data demonstrating the same learning struggles (as in Kindergarten and First Grade) and micro-slow progress.

   At one point during the MTSS discussion, the Dad asked, “Does my child have a learning disability? Do we need to get her tested?”

   So what was amiss?

_ _ _ _ _

   After the parents left the meeting-proper, the MTSS Team began to debrief the case and recommendations.

   Eventually, they looked at me and asked for my perspectives.

   I asked three questions:

·       Is this Third Grade student cognitively impaired? Neurologically damaged? Dyslexic? Or what? 

Answer: The Team did not know because the Student had never been formally assessed for a disability by the Special Education Assessment Team (which was a different team of professionals in this District—with only one person sitting on both the MTSS and Special Education eligibility teams).

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·       At what point, during this Student’s school career so far, did anyone working with her feel that her skill gaps were not responding to the intensive instruction and interventions being implemented?

Answer: This question caused a little bit of angst and anxiety. Finally, one of the Team members asked if he could be completely candid.

He then confided that different members of the Team wanted to refer the student to the Special Education Assessment Team in Second Grade, but they “were afraid” it would be kicked back because they hadn’t tried “enough interventions” and/or “did not have enough data.”

This was confirmed by the Building Principal who said, in essence, that he had been “told” that too many students in the District had been placed into special education, and the District was at-risk of being “out of compliance” by the state department of education.

This was occurring even though the Special Education Assessment Team was a school-based team, he was a member, and he was responsible for annually supervising most of the members.

_ _ _ _ _

·       Were there other reasons why the Student was not referred to the Special Education Assessment Team earlier?

ANSWER: Once again, the Team spoke honestly and candidly.

They admitted that, had the parents been “different” (in essence, Middle Class or above, or Non-minority) parents in the District, and/or had “pushed” or had an Outside Advocate, the Second Grade referral would have been easier to initiate and be accepted.

Because I did not need to respond to that striking admission, my primary response was:

“You know that, by federal law (IDEA), if anyone on the MTSS Team suspects that a student’s educational progress is being impeded by a disability, the school must complete the special education eligibility assessments needed to confirm or reject that possibility.

Moreover, while late in the game, as soon as this Parent asked if his daughter was Learning Disabled, that provision of the law was immediately enacted.”

_ _ _ _ _

   While well over a year late, this last comment was pro forma. The MTSS Team, during its meeting with the Parents had decided to initiate a referral to the Special Education Assessment Team.

   Nonetheless, as shared by the Second Grade Teacher, “You know, we did not do right by this Student.”

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How Systemic Issues Tax the Mental Health and Retention of Staff

   Prior to the MTSS Team meeting, different members of the Team were discussing the different staff who were either talking about or actually leaving the School District at the end of the school year. The staff included the full range of professionals employed across the District. . . no single educational role or position was missing.

   While it is not easy to be in education today, too many districts and schools make it more challenging... as in the example above. . . than it needs to be.

   Everyone working with this Third Grade student was emotionally impacted on some level.

·       They were impacted by their desire to serve the Student, the time and effort they were investing in modified instruction and intensive intervention, and their frustration that she was not making demonstrable progress.

·       They were impacted by the fear (their word) that a legitimate referral to the Special Education Assessment Team would be kicked back, and that they would be berated (their word) for not “doing their job” (because this had occurred in the past).

·       They were impacted by their inability to candidly share their frustrations, by recognizing the inequity of not being able to successfully advocate for parents who have less money or power than others, and by the resulting sense of hopelessness and powerlessness.

_ _ _ _ _

   Indirectly, this MTSS Team was also being emotionally impacted by some additional systemic issues. These include the fact that:

·       The District was (over-)serving 20% of its total population as “students with disabilities” largely because (a) many of these students’ needs were not being addressed in their general education classrooms or at the Tier II levels; (b) the District was placating different groups of parents in the community—who threatened due process hearings—by “qualifying” them for special education services; and (c) the District was allowing each school to create is own MTSS process and continuum of services and supports.

·       The State Department of Education was micromanaging the District’s MTSS process while ignoring the unique special education needs in each district by not recognizing that every school district has (a) a different percentage of students with disabilities across the thirteen different federal disability categories; (b) a different percentage of students with “mild,” “moderate,” and “severe” intensity of intervention and related services needs; and (c) a different mix of within-district and across-community resources as a function, for example, of their geographic location (urban, suburban, rural), their demographics (including their families’ socio-economic status), and their funding/tax base.

·       The U.S. Office of Special Education Programs (OSEP) continues to annually evaluate state departments of education who simultaneously evaluate individual school districts and regional educational agencies on 17 Special Education Indicators—some of which were set internally by OSEP based on their interpretation of the intent of IDEA.

One critical example is Special Education Indicator 5 which “pressures” districts to serve all of their students with disabilities for at least 80% of their school day in a regular education class.

This Indicator (as above) is not sensitive to each district’s mix of students across the thirteen disability areas, nor to the intensity of their service, support, and intervention needs.

Too many times, I hear this Indicator invoked when Teams are writing specific students’ Individual Education Plans (IEPs)—putting additional pressure on everyone in the school when a student is (mis-)placed for too much of his/her educational program in the general education classroom, while simultaneously sacrificing the educational benefits that would occur with more time with a special education teacher.

_ _ _ _ _

   All of the issues above represent yet another Groundhog Day loop. And, admittedly, many of these issues sometimes fall in the “gray areas” where there are “no easy answers or pathways” to complete success.

   At the same time, this is not a movie. This is real life.

   Some of these pressures are artificial or manufactured and, unchecked, they are taking an undue and unrelenting toll on dedicated and conscientious educators. . . some of whom are considering other options outside of their districts and even outside of their professions.

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Summary

   The movie Groundhog Day was metaphorically used to describe the recurring experiences I have been having with MTSS Teams across the country who continue to use “mystifying” procedures, practices, and strategies—typically with good intent—that are, nonetheless, scientifically unsound and (sometimes) even defy common sense relative to quality services to students.

   The use of the metaphor continued as we specifically delineated many of these mystifying approaches and their impact on students with academic struggles and/or social, emotional, or behavioral challenges.

   We recognized that some MTSS Teams are following protocols that have been recommended by others—including their state departments of education. Others have fallen prey to pressure from local administrators or supervisors. And still others simply either “don’t know what they don’t know,” or they do not periodically step back to objectively reflect on and evaluate what they are doing and how it is working.

   But we also recognized that the vast majority of the MTSS gaps across many districts today still are required by federal law (the Elementary and Secondary Education Act, the Individuals with Disabilities Education Act, Section 504 of The Rehabilitation Act of 1973) or their related rules, statutes, or evaluation mandates (more about this later).

   And many of the mystifying approaches came from somewhere. It’s just that the “somewhere” that has been embraced has not delivered the needed outcomes.

   Putting this in Groundhog Day terms, we noted:

   Many districts, schools, and/or MTSS Teams are caught in a Groundhog Day loop where they continue to “relive” their flawed approaches day after day.

   And like the Groundhog Day residents of Punxsutawney, some of the MTSS Team members do not even recognize that they are enmeshed in this loop.

   The Solution?

   Like the fictional Phil Connors, MTSS Teams need to begin making their own changes—disrupting and displacing their educational loops— in order to “wake up the next day” serving students more effectively and/or efficiently.

   This can begin when MTSS Teams:

·       Question and objectively evaluate their psychoeducational impact on all students—but, particularly, students with academic struggles and behavioral challenges; and 

·       Design, Commit to, Implement, and Evaluate the systemic, procedural, and practice-related changes needed to be more successful—on behalf of their students across the multi-tiered continuum—regardless of history, tradition, politics, funding, or resistance.

_ _ _ _ _

   I appreciate your willingness to read our Blogs, reflect on the educational settings where you work, and evaluate the efficacy of your work and your impact on students, colleagues, and programs.

   Know that I am working with many schools right now on the Needs Assessments they need to map out their academic and instruction, discipline and behavior management, multi-tiered system of support, and school improvement initiatives for next year.

   If I can help you in any of these areas, my first consultative contact with you and your team is free. Just give me a call, or drop me an e-mail.

Best,

Howie

[CLICK HERE to read this Blog on the Project ACHIEVE Webpage]

 

Judy Heumann, Special Education’s History of Litigation, and the Continuing Fight

 Complacency and Defensiveness Still Stand in the Way of Students with Disabilities’ Rights

[CLICK HERE to read this Blog on the Project ACHIEVE Webpage]

Dear Colleagues,

Introduction

   Last Sunday, I woke up early to prepare and leave for another two-week consultation trip to New Jersey and Michigan. Still thinking about a topic for my next Blog, I dialed into LinkedIn to peruse the feed. There, I saw an obituary and testimonials for the life and accomplishments of Judy Heumann—who passed away the day before (March 4, 2023).

   Part of the press release—“The World Mourns the Passing of Judy Heumann, Disability Rights Activist”—announcing this sad loss stated:

Judith “Judy” Heumann—widely regarded as “the mother” of the disability rights movement—passed away in Washington, D.C. on the afternoon of March 4, 2023. Judy was at the forefront of major disability rights demonstrations, helped spearhead the passage of disability rights legislation, founded national and international disability advocacy organizations, held senior federal government positions, co-authored her memoir, Being Heumann, and its Young Adult version, Rolling Warrior, and was featured in the Oscar-nominated documentary film, Crip Camp: A Disability Revolution.

 

Born in 1947 in Philadelphia and raised in Brooklyn, New York to parents Ilse and Werner Heumann, Judy contracted polio at age two. Her doctor advised her parents to institutionalize her when it was clear that she would never be able to walk. “Institutionalization was the status quo in 1949,” she wrote. “Kids with disabilities were considered a hardship, economically and socially.” When Judy attempted to enter kindergarten, the principal blocked her family from entering the school, labeling her a “fire hazard.” However, her parents, particularly her mother, fought back and demanded that Judy have access to a classroom. Judy eventually was able to attend a special school, high school, Long Island University (from which she earned a B.A. in 1969), and the University of California, Berkeley, where she earned a Master’s in Public Health six years later.

 

In the 1970s, . . . the New York Board of Education refused to give Judy a teaching license because they feared she could not help evacuate students or herself in case of fire. She sued and went on to become the first teacher in the state to use a wheelchair. Continuing her fight for civil rights, Judy helped lead a protest that shut down traffic in Manhattan against Richard Nixon’s veto of the 1972 Rehabilitation Act, and she launched a 26-day sit-in at a federal building in San Francisco to get Section 504 of the revived Rehabilitation Act enforced.

 

Judy was instrumental in developing and implementing national disability rights legislation, including Section 504, the Individuals with Disabilities Education Act, the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the UN Convention on the Rights of Persons with Disabilities.

 

In 1993, Judy moved to Washington, D.C. to serve as the Assistant Secretary of the Office of Special Education and Rehabilitation Services (OSERS) in the Clinton Administration, a role she filled until 2001. From 2002-2006, she served as the first Advisor on Disability and Development at the World Bank. From 2010-2017, during the Obama Administration, she worked as the first Special Advisor for International Disability Rights at the U.S. State Department. She also was appointed as Washington, D.C.’s first Director for the Department on Disability Services.

 

“Some people say that what I did changed the world,” she wrote, “But really, I simply refused to accept what I was told about who I could be. And I was willing to make a fuss about it.”

   I met Judy a few times briefly as part of my leadership work with the National Association of School Psychologists, and listened to many of her speeches when she was the Assistant Secretary of OSERS.

   Judy was a true advocate. She used the experiences in her life to advocate for others. The supports and opportunities that she expected—representatively—for herself, she expected for all children and adults with disabilities.

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Living (Some of) the History of Special Education-I

   I started my graduate school training at Syracuse University in the Fall of 1976—one year before the implementation of our nation’s first federal special education law, Public Law 94-142 (The Education for All Handicapped Children Act)—now known as IDEA, the Individuals with Disabilities Education Act, 2004). While I was training to be a School Psychologist, our Program rightfully wanted us to be prepared in special education.

   Syracuse University’s (SU) existing special education program was established in the late 1940s led by its first director, William Cruikshank. Significantly, this was the first university program in the country to offer a full range of degrees for teachers in special education—from a BA to a PhD.

   Cruickshank was well known before coming to SU. He was a pioneer in the field of interdisciplinary special education, believing that teachers should not neglect or isolate students because of physical or mental disabilities.

   His research frequently looked at the relationships between disabilities and social adjustment, often in school settings, and he wrote about the effect disabilities had on individuals and the community. Cruickshank also significantly impacted the emerging area of learning disabilities, and he left SU in 1967—although he returned to give guest lectures, a few of which I attended when I was there.

   When I began my studies at SU, the College of Education was dominated by professors who continued the Special Education Division’s mission of supporting the disability rights community and students with disabilities.

   Indeed, the Dean of the College in 1976 was Burt Blatt, a special education professor who helped establish the Center on Human Policy at SU, an institute dedicated to insuring the rights of individuals with disabilities. The Center’s staff (which included graduate students with funded assistantships) often threatened or took school districts and other agencies to court as they legally (before P.L. 94-142 was implemented in 1977) simply excluded students with disabilities from public education or public services, respectfully.

   Burt (as everyone called him), wrote Christmas in Purgatory, a portrait of life in a mental institution, and he consulted continuously with federal and state agencies on different ways to support individuals with disabilities. Burt was famous for “finding” cases that the Center could advocate for by wandering the streets of downtown Syracuse at lunch time, talking with parents whose children with disabilities were playing in the neighborhoods because they were excluded by the school district as uneducable.

   Burt attracted a slew of Syracuse University professors who were dedicated to “radical” (for its time) special education advocacy, research, and instruction. Indeed, the College of Education’s staff included:

·       Doug Biklen, who wrote Let Our Children Go: An Organizing Manual for Advocates and Parents—published by the Center on Human Policy; 

·       Wolf Wolfensberger, who founded the Training Institute on Human Service Planning, Leadership and Change Agentry, was known for popularizing the principle of normalization in North America and developing the concept of social role valorization, and who was one of the most influential scholars in developmental disabilities in the 20th century; and

·       Gunnar Dybwad, an internationally known lawyer and advocate, who reframed community- and family-based services for those with disabilities and cognitive impairments as a civil right, not a medical condition. Dybwad emphasized the importance of a broad range of programs and facilities to meet these individuals’ social and educational needs, and argued for the elimination of involuntary placements of people with intellectual disabilities into state facilities.

Dybwad was active in this latter area as he represented the Association of Retarded Citizens (The Arc) in the 1950s as it worked to "liberate people" from custodial institutions. He also played a major role in encouraging the 1972 Pennsylvania Association for Retarded Children (PARC) to file disability rights litigation in federal court—successfully securing the right for these children with disabilities to receive a free public education.

   While at SU, I was privileged to take courses with both Biklen (on Advocacy) and Dybwad (on Special Education Law).

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Remembering (Some of) the History of Special Education-II

   As alluded to above, before the controversial P.L. 94-142 was passed in 1975 (and before the passage of Section 504 of the Rehabilitation Act of 1973), students with disabilities (and all individuals with disabilities, respectfully) had no nationally-secured right to a free and appropriate education (FAPE) in the least restrictive environment (LRE) with due process as needed.

   These rights were largely secured (a) through litigation in the court system, and (b) by brave advocates—like Judy Heumann, Burt Blatt, Gunnar Dybwad, and others—who stood up against all odds.

   Indeed, prompted by the advocates, many of the foundational rights for P.L. 94-142 were based on different state, Federal, or Supreme Court decisions—with these courts saying, in essence, to Congress. . . “get this done.”

·       The initial anchor for the subsequent court decisions was Brown v. Board of Education (1954) where African-American school children from four states argued that segregated public schools were inherently unequal and deprived them of equal protection of the laws. Indeed, the Supreme Court found that these children had the right to equal educational opportunities, stating that segregated schools “have no place in the field of public education.”

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·       Testing and reinforcing the Brown decision, Hobson v. Hansen (1967) was a federal court case filed by civil rights activist Julius W. Hobson against Superintendent Carl F. Hansen and the District of Columbia's (DC) Board of Education. Hobson asserted that the DC Public Schools discriminated against Black and poor students relative to their right to the same (i.e., equal) educational opportunities received by White and affluent students. He asked the federal court to address questions related to the segregation of the DC’s schools, its use of academic testing and ability grouping, and its disproportionate assignment of minority students to lower-ability tracks where they received lower quality instruction.

Ultimately, Federal Judge Wright ruled that the DC Public School’s tracking system needed to be eliminated as it (a) was rigid, (b) based on culturally-biased tests, (c) resulted in academic tracks built on race and socio-economic status rather than ability and, therefore, (d) was unconstitutional and violated the equal educational opportunity provisions in the 14th Amendment to the U.S. Constitution.

Wright further noted that the students in the lowest tracks received substantially different and inferior educational opportunities, and he ordered the integration of teachers and the abolition of optional attendance zones. Wright’s decision finally stated that ability grouping, in and of itself, was not unconstitutional, and that leaders in the DC Public Schools could not be cited for discriminatory intent.

_ _ _ _ _

   After Brown and Hobson v. Hansen, the most-notable special education court decisions in the early 1970s were:

·       Diana v. (California) Board of Education (1970)

This case was filed on behalf of a group of Spanish-speaking students who were inappropriately assigned to classes for the cognitively impaired based on assessments by monolingual school psychologists who tested these students in English and used these data to place students in special education classes. The case, filed in 1969, was settled out of court in 1970 where it was stipulated that linguistically different students must be tested in their primary language as well as English.

_ _ _ _ _

·       Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania (1972)

Encouraged (as above) by Gunnar Dybwad and tried by lawyer Thomas Gilhool, this case was filed on behalf of fourteen families that had children with intellectual disabilities. These students could not attend public schools based on state laws that allowed schools to deny them access if they had not reached an average intellectual mental age of five by the time they began first grade.

The case was eventually settled following the testimony of expert witnesses (including Burt Blatt from Syracuse University) and the District Court’s approval of the consent decree. This decree held that the State had to guarantee a free public education to all children with intellectual disabilities ages 6 to 21—regardless of the degree of their impairment or associated disabilities, and that all educational placement decisions needed to include a process of parental participation and a means to resolve disputes.

_ _ _ _ _

·       Mills v. (DC) Board of Education, District of Columbia (1972)

The Mills case extended the PARC decision as it established the constitutional right of children with any disability to a public education regardless of their functional level.

This class action suit involved Peter Mills, a twelve-year old boy and ward of the state, and six other children (from eight to sixteen years old) with different disabilities including epilepsy, behavioral disorders, and cognitive impairments. These students were suspended, expelled, or excluded from DC’s public schools primarily due to the high cost of educating these children.

The Judge ruled in favor of the students, finding that they were expelled from the District without due process, and that they were entitled to an education regardless of the costs of their needed accommodations.

_ _ _ _ _

·       Lau v. Nichols (1974)

This case, tried in the U.S. Supreme Court, confirmed that the San Francisco Unified School District was violating of the 14th Amendment to the U.S. Constitution and Title VI of the Civil Rights Act of 1964, and was required to provide supplemental language instruction for students with Limited English Proficiency (or English as a Second Language).

Lau and approximately 3,000 students of Chinese descent attending the District were not proficient in English, only 1,000 of them were receiving a supplemental English language course taught exclusively in English, and many were placed either into special education classes or they were forced to stay in the same grade level for years.

In its unanimous ruling on this class action lawsuit, the U.S. Supreme Court noted that "there is not equality in treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from a meaningful education."

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   After the PARC and Mills decisions, the U.S. Congress launched an investigation into the status of children with disabilities, finding that millions of children were not receiving an appropriate education.

   Recognizing that many of these children had the potential to be independent, productive, contributing citizens with the “appropriate” educational opportunities and supports, Congress began—in 1972—to introduce new legislative bills. These, ultimately, were integrated into P.L. 94-142 which was passed and formally signed into law by President Gerald Ford on November 29, 1975.

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Why Special Education History is Important to Those Working with Today’s Students with Disabilities

   Relative to writing this commemorative (for Judy Heumann) Blog, there is a method to my madness.

   I am concerned that many contemporary administrators, general education teachers, related services professionals (school psychologists, counselors, social workers) and, indeed, special education teachers do not know and may not appreciate the history of special education advocacy and litigation detailed above.

   And in not knowing this history, they do not understand, and sometimes take it personally, when—for example—parents, advocates, and students with disabilities themselves fight against the still-existing education and special education injustices that are rampant across our country.

   But beyond not understanding, some of these educators defensively resist, disparage, and even disenfranchise these parents, advocates, and students. . . clinging to the unfounded beliefs and inappropriate practices grounding these injustices. . . and closing their minds to new and/or convincing research-to-practice that invalidates their approaches.

   Indeed, some of the continuing injustices in special education include the following:

·       The disproportionate office discipline referrals of students with disabilities (SWD), as well as the disproportionate number of suspensions and expulsions. . . in the absence of effective multi-tiered interventions implemented by well-trained special education and related professionals. 

·       The excessive use of seclusions, restraints, and (where still allowed) corporal punishments of SWDs. . . once again, in the absence of effective multi-tiered services and supports. 

·       The singular promotion, by the federal and many state special education departments, of two frameworks, Positive Behavioral Interventions and Supports (PBIS), and Response-to-Intervention/Multi-tiered Systems of Support (RtI/MTSS), that have never been objectively validated relative to their ability to demonstrate sustained academic and social, emotional, and behavioral outcomes for preschool through high school students with different intensities of different disabilities in different geographic and demographic settings.

·       The failure to review, analyze, and objectively evaluate the current and historical facts and status of students with complex special education needs using a data-based problem-solving method that links intervention to sound root cause analysis processes.

·       The absence (and, sometimes, denial) of a continuum of services, supports, and interventions—including their delivery in well-staffed and resourced self-contained, day treatment, and residential centers—for students with social, emotional, behavioral, and mental health challenges. . . in the context of the archaic, almost 20-year-old “emotionally disturbed” definition in the Individuals with Disabilities Education Act (IDEA, 2004) that still is the “law of the land.”

·       The lack of training and use of assistive supports and specific, strategically-chosen accommodations for students across the 13 disability areas outlined by IDEA.

·       The development, implementation, and coordination of effective transition services and supports (required by IDEA starting at age 14), that should include career and technical education coursework and training for SWDs—and vocational training partnerships with states’ Office of Vocational Rehabilitation (or the equivalent), as appropriate.

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A Personal Summary

   Two Blogs ago, I talked about how the state departments of education, state departments of behavioral health services, and regional educational cooperative or resource centers in some states are ignoring their responsibilities to students with significant social, emotional, behavioral, and mental health disorders by not having enough well-resourced self-contained, day treatment, and residential treatment programs.

February 11, 2023. “Was a First Grade Virginia Teacher Shot Because Her Student was Denied Special Education Services? What School Administrators Face that State Departments of Education Ignore”

[CLICK HERE to Link to this Blog]

   I connected these gaps to some of the school shootings that have involved these current or former students, and implored us to do better. . . and I further discussed these issues on a March 1, 2023 Education Talk Radio interview with Larry Jacobs (see below).

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   In my last Blog, I discussed the negative effects when educators—who see inappropriate practices and injustices in their schools—become “selectively mute” while looking away.

February 25, 2023. “Solutions for Selectively Mute Students and Educators: The Long-Term Adverse Educational Effects When Inappropriate Behavior is Ignored”

[CLICK HERE to Link to this Blog]

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   In response to the first Blog, I had a colleague from one of those state regional cooperatives (that are mandated and funded to help the districts provide the continuum of services for all students with disabilities) contact me asking for a Zoom conference call.

   In my response—which agreed to the request, I told the individual that I wanted to know “the questions or issues that will be discussed during the call ahead of time.”

   I also stated:

Related to this, if you have specific information that differs—factually—from anything in my Blog, I would like to have/see that information and documentation in advance (so that I can respond to it in an informed way during the call).

 

Parenthetically, while I am happy to listen to your concerns, if the purpose of the call is largely to express displeasure with the Blog, know that the Blog was written by me. . . as a "generic national expert and public servant." If we are going to meet, I want to be respectful of everyone's time, give you and your colleagues an opportunity to share your concerns, but not get into unneeded discussions that are not directed toward more effective services to students and their families, and staff, schools, and districts.

   The individual followed-up with a second e-mail where s/he attempted to cite law and statute so as to defend his/her agency’s service delivery gaps— especially for students with significant social, emotional, behavioral, and mental health needs.

   While I addressed (and attempted to refute) all of the provided information point-by-point, here was my representative response:

As advocates for children and adolescents, how does your (cooperative) staff feel when the only thing a district can do to protect its students (including the student with disabilities) is to put a student into Homebound because the appropriate educational program that they need is unavailable? 

 

And how do you all feel when a District only provides the lowest, legally-required educational services of two hours per week to that student. . . relative to that student's learning, progress, and preparation for their short-term (e.g., successful reintegration into the district) and long-term (e.g., employability) future?

 

Another perspective . . . might be important to think about relative to this issue.  If your (cooperative/regional resource center) were to be sued in a class action suit by parents with behaviorally challenging students who are not receiving the services and supports legally due to them, how would (it) fare in court?

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   As noted above, when educators do not understand that advocacy and litigation were the foundations of our current special education laws and statutes, they sometimes become defensive about their own practices and responsibilities, or inflexible regarding their objectivity and openness to change.

   Some then attempt to “hide behind the law” by demonstrating assiduously that they are adhering to it. And some do not even know that they are doing this.

   Judy Heumann did not hide behind the law.

   She helped to make the law, while acknowledging its flaws and limitations.

   Judy did not let her physical limitations define her. . . nor did she let others restrict her physically.

   Judy was a national treasure. . . She was a giant.

   My three favorite “Judy” quotes are:

The truth is, the status quo loves to say no. It is the easiest thing in the world to say no, especially in the world of business and finance. But for the first time we were discussing civil rights, and no other civil rights issue has ever been questioned because of the cost.

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Our anger was a fury sparked by profound injustices. Wrongs that deserved ire. And with that rage we ripped a hole in the status quo.

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Change never happens at the pace we think it should. It happens over years of people joining together, strategizing, sharing, and pulling all the levers they possibly can. Gradually, excruciatingly slowly, things start to happen, and then suddenly, seemingly out of the blue, something will tip.

   May her memory be a blessing.

Best,

Howie

 

[CLICK HERE to read this Blog on the Project ACHIEVE Webpage]