The “Charlie Brown” Reality of Race and DEI in Education

How the Trump Administration is Creating Fear by Using “Ready-Fire-Aim” Tactics

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Dear Colleagues,

Introduction: Are We Living in a Charlie Brown and Lucy van Pelt World?

   As a school psychologist who works in schools nationwide, today’s recent world feels like a surreal dream where you are teetering on the edge of a cliff, risking impending doom.

   But the impending threats to dismantle the U.S. Department of Education are real. . . and the attacks on many existing programs and grants—some in the name of eliminating diversity, equity, and inclusion (DEI) initiatives—have already occurred.

   At the same time, since January 20, 2025. . . as well as for the four years between January 20, 2017 and the same date in 2021. . . our political, professional, and personal worlds have sometimes seemed like a series of installments from Charles Schulz’s Peanuts comic strip.

   Specifically, I am referencing the annually-recurring drama between Charlie Brown and Lucy van Pelt as Charlie lines up to kick a field goal, and Lucy constantly pulls the ball away—leaving Charlie on the ground, frustrated, but eternally optimistic that the next kick will be successful.

   For almost 50 years, this drama ensued between Charlie Brown and Lucy.

   Indeed, the first time Charlie “hit the deck” was on November 16, 1952, two years after Schultz began publishing Peanuts. And, after reappearing every football season, the last time was in 1999. (Schultz retired the comic strip on January 3, 2000 after a stroke the previous November.)

   While there were variations on the theme, Charlie Brown never successfully kicked the ball.

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   The point here—to return to “reality”—is that Educators (maybe, everyone) need to recognize that:

·        Whether we like it or not, we are currently the “Charlie Browns” in a game with the “Lucys” in Washington, D.C.’s current Administration;

·        We need to understand that, while we must stay in the game, we also need to relax and not “jump offsides” by educationally responding—through knee-jerk changes in policy, procedure, or practice—too quickly to threats or attacks; and 

·        We need to maintain a realistic sense of short-term and long-term optimism that (a) the “educational crisis of the day” can and will be resolved over time, and (b) the focus on high-quality instruction, sustained and meaningful student learning, and preparing the next generation of leaders is our most essential responsibility.

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DEI Practices in Education: “Ready-Fire-Aim”

   Since January, the current Administration has operated, in a number of spheres, using “Ready-Fire-Aim” tactics.

   Psychologically or functionally, we can all debate why this is occurring, whether it is random or calculated, and if there are overt or covert strategic or tactical goals.

   And while these analyses are the sensationalized focus of too cable news shows, panels, and interviews. . . what really matters is the often-delayed “Aim” part of the equation.

   Let’s explore two DEI and education-related “Fires.”

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Race-Based Discrimination and DEI in Schools

   The Fire. Last month (February 14, 2025), the U.S. Department of Education’s Office for Civil Rights released a “Dear Colleague” letter to schools saying that Title VI, the federal civil rights law that protects against race-based discrimination, prohibits schools from “using race in decisions pertaining to.... administrative support” and “all other aspects of student, academic, and campus life.”

   [Title VI of the Civil Rights Act of 1964 protects people from discrimination based on race, color or national origin in programs or activities that receive Federal financial assistance.]

   The Letter cited the Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard University (SFFA), which clarified that the use of racial preferences in college admissions is unlawful, and set forth a framework for evaluating the use of race by state actors and entities covered by Title VI.

   But the OCR Letter, and the U.S. Department of Education, took this Court decision way further. It asserted:

Although SFFA addressed admissions decisions, the Supreme Court’s holding applies more broadly. At its core, the test is simple: If an educational institution treats a person of one race differently than it treats another person because of that person’s race, the educational institution violates the law.

 

Federal law thus prohibits covered entities from using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life. Put simply, educational institutions may neither separate or segregate students based on race, nor distribute benefits or burdens based on race.

 

. . . DEI programs, for example, frequently preference certain racial groups and teach students that certain racial groups bear unique moral burdens that others do not. Such programs stigmatize students who belong to particular racial groups based on crude racial stereotypes. Consequently, they deny students the ability to participate fully in the life of a school.

 

The Department will no longer tolerate the overt and covert racial discrimination that has become widespread in this Nation’s educational institutions. The law is clear: treating students differently on the basis of race to achieve nebulous goals such as diversity, racial balancing, social justice, or equity is illegal under controlling Supreme Court precedent.

 

This letter provides notice of the Department’s existing interpretation of federal law. Additional legal guidance will follow in due course. The Department will vigorously enforce the law on equal terms as to all preschool, elementary, secondary, and postsecondary educational institutions, as well as state educational agencies, that receive financial assistance.

 

The Department intends to take appropriate measures to assess compliance with the applicable statutes and regulations based on the understanding embodied in this letter beginning no later than 14 days from today’s date, including antidiscrimination requirements that are a condition of receiving federal funding.

 

All educational institutions are advised to: (1) ensure that their policies and actions comply with existing civil rights law; (2) cease all efforts to circumvent prohibitions on the use of race by relying on proxies or other indirect means to accomplish such ends; and (3) cease all reliance on third-party contractors, clearinghouses, or aggregators that are being used by institutions in an effort to circumvent prohibited uses of race.

 

Institutions that fail to comply with federal civil rights law may, consistent with applicable law, face potential loss of federal funding.

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   The Reaction. Even though the Letter couched its potential actions in “soft language” (using words like: “beginning no later than,” “intend,” “may,” and “consistent with applicable law”), the response of some schools across the country was to immediately change policies, procedures, and/or practices.

   Some did this preventatively—wanting to protect their schools from costly investigations, within district and across community controversies, and fiscal or other sanctions. Others politically agreed with the statements above, and used them for permission—changing policies they had long wanted to change.

   The Aim. But, critically, just two weeks (February 28, 2025) after the Dear Colleague letter above, the same U.S. Department of Education Office for Civil Rights released a Frequently Asked Questions About Racial Preferences and Stereotypes Under Title VI of the Civil Rights Act document:

to provide helpful information about how the (SFFA) decision applies to racial classifications, racial preferences, and racial stereotypes as well as how OCR will interpret the ruling in its enforcement of Title VI of the Civil Rights Act of 1964 and its implementing regulations.

   While the proverbial “jury is still out,” it appears that OCR has back-tracked and softened its “aim”—recognizing that it must still abide by the actual Title VI statute, and relevant case law and Supreme Court decisions.

   K-12 Dive (March 3, 2025) stated:

The U.S. Department of Education late last week clarified its stance on diversity, equity and inclusion policies in schools, saying that racial preferences and other forms of diversity and inclusion efforts are indeed allowed in some situations.

 

According to the department’s new FAQ, “Schools with programs focused on interests in particular cultures, heritages, and areas of the world would not in and of themselves violate Title VI, assuming they are open to all students regardless of race.” Celebrating Black History Month, International Holocaust Remembrance Day, or other similar events are also allowed, the guidance clarifies.

 

“Whether a policy or program violates Title VI does not depend on the use of specific terminology such as ‘diversity,’ ‘equity,’ or ‘inclusion,’” the nine-page document said.

 

The Q&A guidance seems to ease the administration’s strict stance on schools’ DEI efforts, which school and district employees had initially feared would also limit inclusive programs and practices like student affinity groups, cultural observances and culturally reflective curriculum in addition to impacting race-conscious school admissions.

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   As noted above, some K-12 districts and universities immediately responded to the February 14, 2025 Letter’s “Fire,” rather than waiting until the February 28, 2025 re-“Aim.”

   While I understand the (intended) fear of the former communication, this fear may have displaced policies, procedures, and/or practices that were legal, equitable, historically-defensible, and beneficial for the common good.

   Hopefully, we can all learn from this situation.

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Teaching About and Celebrating Racial (and Other) Diversity in Schools

   The Fire. The February 14, 2025 Office for Civil Rights “Dear Colleague” letter also stated—contrary to a number of studies (see my February 8, 2025 Blog):

Educational institutions have toxically indoctrinated students with the false premise that the United States is built upon “systemic and structural racism” and advanced discriminatory policies and practices. Proponents of these discriminatory practices have attempted to further justify them—particularly during the last four years—under the banner of “diversity, equity, and inclusion” (“DEI”), smuggling racial stereotypes and explicit race-consciousness into everyday training, programming, and discipline.

   The Aim. This also was softened by the February 28, 2025 Frequently Asked Questions About Racial Preferences and Stereotypes Under Title VI of the Civil Rights Act document, as it noted:

. . . schools with programs focused on interests in particular cultures, heritages, and areas of the world would not in and of themselves violate Title VI, assuming they are open to all students regardless of race. Nor would educational, cultural, or historical observances—such as Black History Month, International Holocaust Remembrance Day, or similar events—that celebrate or recognize historical events and contributions, and promote awareness, so long as they do not engage in racial exclusion or discrimination. However, schools must consider whether any school programming discourages members of all races from attending, either by excluding or discouraging students of a particular race or races, or by creating hostile environments based on race for students who do participate.

   Moreover, this document reiterated the long-standing process—codified in federal statute—for withholding funds from schools:

If OCR determines that a school failed to comply with the civil rights laws that it enforces, OCR will contact the school and will attempt to secure its willingness to negotiate a voluntary resolution agreement. If the school agrees to resolve the complaint, OCR and the school will negotiate a written resolution agreement to be signed by the school that describes the specific remedial actions it will take to address the area(s) of noncompliance identified by OCR. OCR will monitor implementation of the resolution agreement’s terms.

 

If a school is unwilling to negotiate a resolution agreement, OCR will inform the school of the consequences, which may result in OCR initiating enforcement through administrative proceedings or referring the case to the Department of Justice for judicial proceedings.

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   A number of recent Education Week articles have expanded this point:

The executive branch can’t pull funding unilaterally. . .

 

Under nondiscrimination laws, including Title IX and Title VI, the department’s Office for Civil Rights would have to investigate allegations, find a violation, and also find that the school is refusing to address the violation.

 

The department would recommend a funding termination, and there would be a waiting period, during which Congress could override the department’s attempt to terminate funds.

 

Through case law and regulation, the department can’t cut all funding to a school, either, to keep from harming innocent recipients, and to prevent vindictive or punitive use. The funding termination—which is rare—would have to target the particular program where OCR has found a violation.

 

School districts can also appeal funding termination decisions.

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   Thus, once again, the “Aim”—despite it coming inappropriately last in the current “Ready-Fire-Aim” Presidential and U.S. Department of Education mode of operation—eventually put out the “Fire.”

·        The Executive Branch cannot independently withhold federal funds from a school. 

·        And the Legislative and Judicial “check and balance” oversight of the Executive Branch—established by our Founding Fathers—remains intact.

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   Our Advice:

·        Recognize that this “Charlie Brown game” will not let up.

·        Recognize that the Administration will continue to use its provocative “Ready-Fire-Aim” approach to manipulate professional and public opinion. . . while creating chaos, confusion, anxiety, and fear. . . in the hope that some schools will prematurely change their current sound and effective policies to those that align with the Administration’s political agenda. 

·        And, instead. . . let’s support each other to Recognize the reality of what the Administration can do and cannot do. . . as we wait for the hyperbole to ebb, and the laws of our Land to flow.

   Said a different way: Let’s stop “teeing-up” the football—ending up on our collective asses.

   Let’s not let fear drive us to make unnecessary policy, procedure, and practice decisions and/or changes before until “all four quarters” have been played.

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We Need to Practice What We Preach: A Call to Action

   Now it’s time to apply the Title VI “Ready-Aim-Fire” lessons above to the next threat.

   On March 3, 2025, Linda McMahon was confirmed by Congress as our country’s 13^th Secretary of Education. On the same day, she published a speech that she made to the staff working in the U.S. Department of Education (“Our Department’s Final Mission”) on the Department’s official website.

   While not explicitly verbalizing her charge from President Trump to close the Department, most know that an Executive Order in this regard has already been drafted for his signature.

   And yet, most also know that closing the U.S. Department of Education will take an act of Congress.

   To this end, on January 31, 2025, Representative Thomas Massie from Kentucky introduced H.R. 899 with 31 Republican co-sponsors.

   The entire Bill consists of one line: “The Department of Education shall terminate on December 31, 2026.”

   To become law, this Bill will need to pass both the House and the Senate, before it is signed by the President.

   In the 53-Republican to 47-Democrat Senate, it will need 60 votes to pass.

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   Ready-Aim-Fire. While it is incredibly unlikely that the Bill will pass in the Senate, rather than expend a lot of emotional energy worrying about the Department’s closing—and its implications, we recommend that you take action.

·        Call both your Representative in the House and your two Senators, and tell them how you would have them vote.

·        During the same call, tell your Congressional Leaders three ways to improve the educational process in this country. . . from Washington, D.C. through your State Capital to your Local Education Agency. 

·        Finally, look at your district and/or school(s) and think of three ways to improve their educational processes—either for the remainder of this school year or in preparation for the next.

   And then act!

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A Charlie Brown Post-Script

   When researching for this Blog, we came across an October 8, 2014 article by Eric Schulmiller titled:

“All Your Life, Charlie Brown. All Your Life.

The complete history of Lucy’s pulling the football away.”

   In the article, Schulmiller writes:

On the comics pages for years, one sign of fall loomed above all others. I’m speaking, of course, of the annual Saga of the Swipe: Lucy, Charlie Brown, and that infernal football.

 

This sacred autumnal drama, repeated nearly every September or October for over 50 years, has become our collectively-acknowledged paradigm for the uneasy tension between trust and betrayal, hope and despair.

 

To a kid, of course, it was the moment of failure that mattered—not the metaphor. No single act better encapsulated a child’s feeling of powerlessness, and I felt Charlie Brown’s frustration and disappointment with every bone in my body.

 

As the years went by, Lucy’s seemingly compulsive need to torment poor Charlie began to gnaw at me. I started to wonder—what drove Lucy to unrepentantly torture Charlie Brown in this fashion, year after year?

 

(To answer the question,) I began at the beginning, hunting for and examining each (Peanuts) football comic in seriatim, from the 1950s onward, to see if a larger pattern might emerge from Schulz’s kick chronicles.

 

What I discovered was a surprisingly complex story told over decades, with twists, turns, and evolving character motivations that are far richer than might appear from a yearly glance at the funny pages.

 

(W)hy did Lucy start yanking the football away in the first place?

 

It’s true that the first time Lucy pulls the football away from Charlie Brown, it’s an innocent gesture—she simply doesn’t want Charlie Brown’s dirty shoes to mar her brand new football.

 

In fact, in the same strip, Lucy even lets Charlie Brown try again, without pulling away the ball. (Charlie Brown trips over the ball anyway, of course.)

 

But just a few years later, in 1953, is the true origin story for Lucy’s sadistic game.

 

In this pivotal strip, Lucy herself struggles to kick a football. Over and over she tries to punt the ball and flubs her kicks. And what does Charlie Brown do? He publicly and cruelly mocks her.

 

Charlie Brown: You’re hopeless! That was the worst kick I’ve ever seen!
Lucy: Well after all … I’m just a little girl, you know …
Charlie Brown: Little girls don’t belong on football fields! Go home!
Lucy: I don’t understand … I was the star fullback in nursery school …
Charlie Brown: Well, don’t stand around here! GO ON HOME!! Get out of here!

 

Is there any wonder why Lucy would choose to embarrass Charlie Brown with a football year after year? Her humiliation at the hands of Chuck was a formative experience in the young girl’s life.

 

But the story goes even deeper.

 

Twice in the week before this early football-themed comic appeared, Schulz ran strips that featured Charlie Brown failing to kick the football all on his own. First, he simply misses the ball, and a few days later, in a darkly existential moment, we see a forlorn Charlie Brown dwarfed by the gigantic goal posts under which his kick has fallen pathetically short.

 

A week later, in the pivotal comic quoted above, Charlie Brown transfers his feelings of im-punt-ence by lashing out at poor little Lucy.

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   Many political writers—including politicians like former New Jersey Governor Chris Christie—recall the April 27, 2011 White House Correspondents' Association dinner where President Obama roasted (publicly embarrassed) Donald Trump as a pay-back for his obsessive quest to see proof that Obama was born in the United States.

   These writers also document how incensed Mr. Trump was at the time, and how it motivated him to seek the Presidency of the United States.

   In a recent book, Christie said that Trump was “beside himself with fury. He was pissed off like I’d never seen him.”

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   Could it be that President Trump’s “Ready-Fire-Aim” approach to politics parallels Lucy’s decision to perennially embarrass Charlie Brown with a football year after year? . . . but that we are now the proxies for Obama?

   While we will never know “the truth”. . . at the very least, let’s not get trapped in the Charlie Brown role.

   Let’s live beyond the game.

   Remember: A football game. . . like a Presidential term. . . only has four quarters.

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Summary

   We remember that, during the last No Child Left Behind years, the U.S. Department of Education had “policies” where school principals and teachers were supposed to lose their jobs if their students were not demonstrating enough academic proficiency.

   While this created (unproductive) anxiety and angst across the country, in the end, I do not know a single principal or teacher who lost their jobs because their school was not proficient.

   Indeed. . . those that lost their jobs lost their jobs because of their own poor performance. . . not the collective performance of their schools.

   My point is: Educators should not professionally fear U.S. Department of Education policies that are not rooted in law, effective practice, and short- and long-term educational benefits to our students.

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   To this end, this Blog uses fifty years of Charlie Brown lining up to kick a field goal—only to have Lucy pull the ball away, leaving Charlie in the grass his back—as a metaphor representing President Trump and the U.S. Department of Education’s “Ready-Fire-Aim” approach to changing educational policy in this country.

   Specifically—and especially in the area of Race and diversity, equity, and inclusion (DEI)—the Administration has “fired off” a number of executive orders and legal interpretations telling schools that a lack of compliance will result in the loss of federal funds. They have subsequently “re-aimed” (through amendments or retractions) their threats, recognizing that they either do not have the legal authority to implement them, or a Court of Law would not support their authority.

   At the same time, these threats have created chaos, confusion, anxiety, and fear. . . and some schools have prematurely changed their current sound and effective policies to those that align with the Administration’s political agenda.

   We made specific recommendations on how to respond to these threats, while maintaining the integrity of the educational process and our responsibilities to our students.

   We concluded by revealing the history of how the Charlie Brown and Lucy van Pelt dynamic began, and encouraged Educators to apply the lessons detailed in this Log to the “next” threat that hopes to dismantle the U.S. Department of Education.

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The “Improving Education Today” Podcast: A New Professional Development Resource Complementing this Blog

   This past January, we announced a new partnership and resource for you.

   The partnership is with popular AI Educators, Davey Johnson and Angela Jones. . . and the resource is their Podcast:

Improving Education Today: The Deep Dive 

   For each published bimonthly Blog, Davey and Angela summarize and analyze the Blog in their free-wheeling and “no-holds-barred” Podcast. . . addressing the topic’s importance to “education today,” and discussing their recommendations on how to apply the information so that all students, staff, and schools benefit.

   You can find the Podcast that accompanies this Blog message at the following link:

Improving Education Today: The Deep Dive | Podcast on Spotify

   Davey and Angela have also created a Podcast Archive consisting of all of this year’s Blog (Volume 3), as well as those from 2024 (Volume 2), and 2023 (Volume 1).

   The Podcasts are posted on Spotify, and you can “Follow” the Podcast Series so that you will be automatically notified whenever a new Podcast is posted.

   Many districts and schools are using the Podcasts in their Leadership Teams and/or PLCs to keep everyone abreast of new issues and research in education, and to stimulate important discussions and decisions regarding the best ways to enhance student, staff, and school outcomes.

   If you would like to follow a Podcast up with a free one-hour consultation with me, just contact me and we will get it on our schedules.

   I hope to hear from you soon.

Best,

Howie

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[To listen to a synopsis and analysis of this Blog on the “Improving Education Today: The Deep Dive” podcast hosted by popular AI Educators, Angela Jones and Davey Johnson on Spotify: CLICK HERE for Angela and Davey’s Enlightening Discussion]

While You Can Write a Student’s Individualized Education Plan. . .

It (Legally) Needs to be Acceptable, Actionable, and Appropriate

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[To listen to a synopsis and analysis of this Blog on the “Improving Education Today: The Deep Dive” podcast hosted by popular AI Educators, Angela Jones and Davey Johnson on Spotify: 

CLICK HERE for Angela and Davey’s Enlightening Discussion]

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

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Dear Colleagues,

Introduction

   Happy New Year !!!

   While it is scary to be thinking about the next (2025-2026) school year when it is only New Years and the current academic year is only half over. . . know that your Superintendent, School Board, and other administrators are already framing out the Budget for next year.

   And with, on average, 14% of your students (at least, nationally) on an Individualized Education Plan (IEP) as students with disabilities (SWD), and the federal and your state department of education still grossly underfunds special education and related services. . . know that your anticipated special education needs must be accurately reflected in next year’s budget.

   Today’s Blog provides some legal contexts and definitions—and some practical advice—so that you can begin the needs assessment process, prioritize your students’ 2025-2026 service-delivery needs, and secure your funds, resources, and services for next year.

   To this end, we will focus on the Three A’s. . . the need for IEPs to be Acceptable, Actionable, and Appropriate. . . using three federal special education court cases as support.

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The First A: Annual IEP Reviews and Acceptability

   In the next few months, many schools will begin the “IEP Annual Review Marathon” where every student’s current IEP is reviewed and rewritten for the next school year.

   Critically, as this occurs, each IEP Team—which includes the parents/guardians of the SWD—must consider:

·       Each student’s educational strengths and limitations as related to areas of disability and non-disability, respectfully;

·       Age and grade level;

·       Current IEP goals and methodologies;

·       Student progress, evaluations, and outcomes; and

·       How all of the variables above will be integrated in the IEP goals, services, supports, and interventions for next year.

   Typically, this process is collaborative, collegial, and consensual.

   But there are times when the parents are unhappy (or worse), and they contest the acceptability of important facets of the proposed IEP.

   At its extreme, the parents might reject the IEP, take the district to a Due Process hearing, exhaust the available procedural and legal avenues for relief (e.g., dispute resolution or mediation), and bring the case to Federal Court.

Chris D. v. Montgomery County Board of Education (1990)

   Many of you know that I am involved in many school law and special education court cases around the country as an Expert Witness (see www.projectachieve.info/services/expert-witness-services).

   Four of my very first cases were heard in Federal Court as I helped defend a number of African-American students with disabilities who were attending the Montgomery County Schools in Montgomery, AL.

   In one of these cases [Chris D. v. Montgomery County Bd. of Educ., 743 F. Supp. 1524 (M.D. Ala. 1990)], the issues directly related to a dispute on the acceptability of the IEP.

   The facts of the Case were as follows:

The case Chris D. v. Montgomery County Board of Education involved a 12-year-old boy named Chris D., who was emotionally disabled. Chris’ mother filed a lawsuit against the Montgomery County Board of Education, claiming that the school system failed to provide Chris with a "free appropriate public education" (FAPE) as required by the Education of the Handicapped Act (EHA).

 

The court found that the school board did not meet its obligations under the EHA and ordered that Chris be placed in a full-time residential school to address his needs. This case highlights the importance of ensuring that students with disabilities receive the appropriate support and education they need.

 

1988-89 School Year

The 1988-89 school year was very difficult for Chris. He was placed at Bear Elementary School in regular classes with special support for his behavior problems. Almost immediately, Chris began exhibiting behavioral problems which disrupted his classes and resulted in his frequent referral to the principal's office. He became involved in fights with other students, misbehaved in class and on the bus, used profanity, stole money from school personnel, and beat on the walls of the principal's office when called there for disciplining. The police were called in to intervene on at least one occasion.

 

In November, the school system returned Chris to the Davis Learning Center. At Davis, however, Chris continued to have severe emotional and social problems similar to those he had at Bear. He used vulgar language with teachers and other students, he refused to do his work, and he disrupted classroom activities. Finally, in December, Chris’ mother removed him from the school system because the principal at Davis had severely paddled Chris for misbehaving as two other staff held him down. As a result of the paddling, Chris became distrustful of the staff at Davis and exhibited a strong desire for revenge.

 

In January 1989, Chris’ mother met with school officials and requested that Chris be placed in a residential school where he could be supervised 24 hours a day and could receive continuous behavior training. School officials persuaded Chris’ mother to return him instead to Bear Elementary where he could attend a special education class for the full day. At Bear, Chris continued to manifest severe social and emotional behavioral problems, and the police were again called in to help handle him.

 
1989-90 School Year

The 1989-90 school year was even more difficult for Chris. His mother again requested residential placement, but the school system refused to make any changes in his placement at Bear. Chris’ mother immediately sought administrative review and, when that proved unsuccessful, filed this lawsuit.

 

During the fall of 1989 Chris continued to exhibit behavioral problems at Bear, including hitting other students, which resulted in the police department being called on one occasion. In November 1989, Chris was suspended from Bear. The problems continued after Chris returned from his suspension until finally, on February 6, 1990, he was suspended indefinitely as a result of a severe outburst of disruptive behavior.

 

After informal discussions with the court, the school board and Chris’ mother agreed to return him to the special education class at Bear, pending final resolution of this lawsuit. However, on March 28, less than two weeks after returning to school, Chris became aggressive and disruptive again. An officer from the local police department was again called and, after an unsuccessful attempt to talk to Chris, the officer handcuffed Chris and removed him from school grounds. Charges were subsequently brought against Chris in juvenile court.

 

Chris’ mother again requested that the school board be required to place Chris in a residential school. The school board offered instead to return him to the Davis Learning Center. The United States Magistrate who heard the motions agreed with Chris’ mother and recommending that, pending disposition of the Federal lawsuit, the school board should be required to place Chris in a residential school. This recommendation was based on findings that for Chris, "any interim placement must include a behavior modification component" which requires "the opportunity to interact with other students" and that neither individual instruction at home nor individual instruction in an administrative building away from other children could meet this requirement. The magistrate also concluded that Davis Learning Center was inappropriate for Chris. The school board objected to this supplemental recommendation, and the case was tried in Federal Court with Chris’ mother prevailing.

   The implications of the Case include the following:

·       From the formal beginning of the case (the 1988-89 school year), there were no indications that a functional behavioral assessment was done of Chris’ behavior, or that there was any consideration (or use) of a behavioral intervention or positive behavioral interventions and support—consistent with the Individuals with Disabilities Education Act (IDEA. . . which is referred to as EHA above).

·       The use of corporal punishment was completely inappropriate (and emotionally harmful) to Chris as a SWD.

·       Across the continuum of less to more restrictive special education placements, a residential setting is less restrictive than a home-bound setting.

·       As a full member of an IEP Team, a parent or guardian has the right to not accept a new IEP, or to retract an earlier permission. 

If a new IEP is recommending a change in the student’s special education placement or service delivery setting, the current placement or the placement on the last fully accepted IEP must be maintained (this is the “stay-put” provision of IDEA).

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Here and Now Recommendations

   When parents are full partners in the IEP process and the (special) education programming for their child, their acceptance of the new/next IEP during the annual review process is typically routine and uneventful.

   However, as above, when “surprises” arise at the annual review meeting, collaboration and trust can become strained. Such surprises include, for example:

·       IEP goals that have not been addressed or evaluated over the past year;

·       IEP interventions or related services that have not been (consistently) provided;

·       Significant negative changes in the student’s academic or behavioral progress from previous years;

·       The apparent lack of coordination and scaffolding between general education and special education teachers who share the teaching responsibilities for a student;

·       A recommendation of a more or less restrictive setting, by the staff on the Team, which has not been previously discussed with the parents; or

·       A decrease of services and supports—perhaps, because the student is moving from an elementary to a middle or a middle to a high school.

   At this point in the school year (i.e., January), if any of the above (or other) “surprises” are impending for a specific SWD, it is in everyone’s best interest for school staff and parents to discuss the status of a student’s special education services and progress right now. . . well before the annual IEP review meeting later this semester.

_ _ _ _ _ _ _ _ _ _

The Second A: Writing and Delivering an Actionable IEP

   One of Jerry Seinfeld’s most memorable T.V. Show moments occurs when he arrives at a Car Rental place to pick up a mid-size car that he has previously reserved. . . only to find that they “have run out of midsize cars,” and only have compact cars left.

   The actual clip from the Show “tells the story” best.

 

   Applying this to today’s discussion:

   “You can write the IEP (and have it accepted), but you have to deliver the IEP.”

   That is, once the IEP is “signed and sealed,” the district and school need to provide—with integrity—the personnel, services, resources, time, expertise, interventions, evaluations, and feedback written into the IEP.

   Moreover, per the film clip above, IEP Teams should not be promising things in an IEP. . . with the hope that their district’s Special Education Supervisor will “bail them out” when the promises are due to be honored.

   The IEP is a contract. And the provisions in the contract need to be Actionable and enacted.

Cory M. v. Montgomery County Board of Education (1990)

   The second of the four cases where, in 1990, I served as an Expert Witness against the Montgomery County Schools in Montgomery, AL. involved an African-American elementary school student receiving special education services as a student with an emotional disability [Chris D. and Cory M. v. Montgomery County Bd. of Educ., 743 F. Supp. 1524 (M.D. Ala. 1990; Civ. A. No. 89-T-1165-N)]. Note that this Case was merged with the Chris D. case above as the lawyers attempted to merge the cases into a class action suit.

   The facts of the Case were as follows:

The case Cory M. v. Montgomery County Board of Education involved a student named Cory M., who was emotionally disabled and claimed that the Montgomery County Board of Education failed to provide him with a "free appropriate public education" as required by the Education of the Handicapped Act (EHA). Cory's parents filed the lawsuit on his behalf.

 

Cory was a 13-year old boy in the fifth grade in the Montgomery County public school system. Since he entered the system as a first-grader in 1983, Cory achieved little academically and exhibited severely disruptive behavior. Nevertheless, he was not evaluated to determine if he was educationally handicapped until 1987, and only began receiving special education in 1989.

 

Cory's parents alleged that the school board violated a number of procedural and substantive requirements of the EHA. The essential dispute in this case revolves around whether Cory was receiving educational benefit from his current placement or whether significant changes in his educational program along with related services were necessary to provide him with a "free appropriate public education" as required by the EHA. Cory's previous schooling and performance were relevant to determining whether, under the EHA, school system officials were adequately serving his present (at the time the Case was filed) educational needs. Therefore, the court turned first to Cory's background as a student in the Montgomery County public schools.

 

Prior to the 1988-89 School Year

Cory experienced problems from the time he entered the first grade at Patterson Elementary School in Montgomery in September 1983. He failed all his major academic subjects and was required to repeat the first grade. Although Cory was promoted to a higher grade after each of the following three school years, he continued to receive failing marks in virtually all his academic courses. Moreover, Cory's conduct grew progressively worse during this period. By the third grade, his conduct marks had deteriorated from poor to failing.

 

School system officials, however, did not evaluate Cory to determine whether his difficulties in school might be attributable to an educational handicap until 1987, as he was completing the third grade. When a team of special education personnel did evaluate him in June of that year, they considered only whether he might be educably mentally retarded, despite the fact that his test results and school records suggested he suffered instead from an emotional disability. The committee determined that Cory was not retarded and concluded he was not entitled to special education.

Thus instead of receiving special education, Cory was promoted to the fourth grade and attended Davis Elementary School during the 1987-88 school year. Again, Cory received failing grades in most academic areas, exhibited poor conduct, and was held back to repeat the fourth grade the following year. School system officials did not reevaluate Cory that school year and did not provide him with any special education.

 

The 1988-89 School Year

Cory's disruptive behavior grew even more severe in the early weeks of his second year in the fourth grade at Davis Elementary School. During the first semester of the 1988-89 school year, Cory was repeatedly disciplined by his teachers and principal for verbal abuse, hitting other students, and refusing to follow directions, and was ultimately suspended several times for misconduct. Cory also continued to have academic problems, despite the fact that he was repeating a grade.

 

In October 1988, Cory's parents asked school system officials to reevaluate Cory to determine whether he had an educational handicap entitling him to special education. In November 1988, after an evaluation of Cory, a committee of special education personnel concluded that he was educably mentally retarded and recommended his placement in a class exclusively for educably mentally retarded students.

 

In February 1989, Cory's parents told school system officials that they objected to the IEP adopted for Cory as well as to the evaluation.  and placement of Cory as educably mentally retarded. School system officials agreed to reclassify Cory as both educably mentally retarded and emotionally conflicted, but made no changes in Cory's IEP.

 

In July 1989, an Independent Evaluation was completed that concluded that Cory was not mentally retarded, and recommended that Cory be placed in a self-contained classroom for emotionally conflicted children. At the urging of Cory's parents, school system officials re-classified Cory as only emotionally conflicted and agreed to place him in a class designated for emotionally conflicted or learning disabled students for the 1989-90 school year.

 
The 1989-90 School Year

Although it began on a positive note, the 1989-90 school year proved an extremely difficult one for Cory. In September 1989, Cory's teacher wrote a new IEP for him, which was adopted at a meeting among herself, Cory's mother, and a special education supervisor. Like Cory's previous IEP's, the new plan included only broad, generic objectives and vague methods for monitoring Cory's progress. Moreover, despite Cory's extensive record of behavioral difficulties, the new IEP, like those before it, contained no mention of any goals or techniques for teaching Cory to control his conduct. 

 

The absence of any program for addressing Cory's behavior resulted in him manifesting more severe social and emotional problems than ever before. Although school officials made various efforts to control him, including pulling him out of regular classes, locking him in the classroom, calling his parents in for conferences, and assigning him to sit in the office with a special "crisis" teacher, Cory's misbehavior escalated through the second six weeks of the school year. Physical restraints were employed and, early November 1989, school system officials instructed Cory's parents to keep him out of school until further notice.

 

Cory returned to class in January 1990. While his conduct and school work initially improved, it regressed again by Spring. In April 1990, apparently in light of Cory's growing misbehavior, school officials reassembled a "security desk" that physically confined Cory. Overall, Cory's behavior deteriorated in spite of the fact that Cory's teacher had, in February 1990, modified Cory's IEP on her own to include, for the first time, certain general behavioral goals and objectives.

_ _ _ _ _

 

The Court found that the Montgomery County Board of Education did not meet the educational requirements of the EHA and ordered the Board to create a new Individualized Educational Program (IEP) for Cory and provide appropriate counseling and training for his parents. The issue at-hand was not the quality of the IEP, but the fact that the Board of Education did not have the resources and, especially, the expertise to implement the interventions written into the IEP with integrity.

 

The Due Process Hearing

In December 1989, a due process hearing was conducted, as requested by Cory's parents, to examine whether the school board's treatment of Cory violated the EHA. At the hearing, Cory's parents argued that the board had improperly identified, evaluated, and placed Cory, contrary to the requirements of the EHA. They asked the hearing officer to order the board to pay an independent consultant selected by them to develop an appropriate IEP for Cory and to train and instruct teachers and staff in how to implement such an educational program.

 

Cory's parents also requested that the school board be required to provide them with counseling and other services to enable them to help manage Cory's behavior and contribute to his education. The board responded that it had satisfied the EHA because Cory was receiving "some educational benefit" from his current program. The board also argued that its teachers and staff were already adequately trained and that school system officials had made sufficient efforts to involve Cory's mother in his education.

 

The hearing officer determined that the school board was not providing Cory with a free appropriate public education as required by the EHA. He found that the school system's teachers and staff had failed to identify Cory's handicap in a timely manner or to develop and implement an appropriate, legally adequate educational program for Cory. He also suggested that these personnel lacked the ability to develop a program to address Cory's educational needs.

 

The hearing officer ordered school system officials and Cory's parents to arrange an independent evaluation to be used in formulating a new IEP. Subsequently, the school board agreed to pay Dr. Howard Knoff, the outside consultant retained by Cory's parents in this case, to develop an IEP for Cory.

 

However, the hearing officer did not order the school board to implement the recommendations of this expert in developing a new IEP for Cory, and did not address Cory's parents' requests for training of teachers and staff and counseling for themselves. Cory's parents have brought this action under the EHA challenging the hearing officer's decision.  See 20 U.S.C.A. § 1415(e)(2). As required by the EHA, the court has read the record of the administrative proceeding and conducted a trial at which each side has presented additional evidence.

   In the end, the Federal Court sided with the parents, and ordered that (a) the IEP that I wrote be accepted; and (b) I be hired by the District for 18 months to train, coach, and evaluate the personnel responsible for implementing the IEP with integrity.

   [Parenthetically, the District extended my contract for another 18 months without a court order, and I was asked to train a number of additional schools and staff in multi-tiered social, emotional, and behavioral interventions.]

_ _ _ _ _

   The implications of the Case include the following:

·       The school system did not assess Cory for special education eligibility in a timely way. In today’s terms, a district cannot use its early intervention RtI/MTSS process to delay the assessment of a student for special education eligibility if someone (including the parents) believes that the student is not succeeding due to a disability.

·       Beyond the fact that Cory was originally misclassified and misplaced as “educably mentally retarded” (this term has been modified to “intellectual or cognitive disability”) his initial IEPs did not have social-behavioral goals despite the ever-present “emotionally conflicted” disability classification.

·       Critically, if or once present, these goals should have focused on teaching Cory the emotional awareness, control, communication, and coping skills that he needed. . . rather than only specifying what would occur when he was emotionally out of control.

·       Even though, early on, the parents accepted Cory’s IEPs once written, the lack of Cory’s academic and behavioral progress in school—per his IEPs—demonstrated that they were not appropriate in that the district did not have the expertise to either identify appropriate interventions or to implement them.

·       IDEA permits parents to request an Independent Educational Evaluation (IEE)—which Cory’s parents used to demonstrate that he was not educably mentally retarded.

·       However, IDEA does not have a provision whereby parents can request (and receive at the district’s expense) an Independent Educational Intervention Consultation, which could be employed when everyone agrees on a student’s disability classification, but when parents disagree on the services, supports, and interventions being recommended by the district for the IEP. 

Currently, the case law defers to districts as “the educational expert,” and IDEA states that districts must “consider” the recommendations of an outside expert—but are not bound by them.

_ _ _ _ _

Here and Now Recommendations

   Clearly, relative to the implications here, districts and schools need to evaluate—right now—the current status of all SWDs and whether the personnel, services, resources, time, expertise, interventions, evaluations, and feedback written in their respective IEPs are being delivered.

   Then, they need to project these students’ needs into the next 2025-2026 school year so that budget process that, as above, has already begun for next year, is appropriate.

   All of this is focused on ensuring that the IEPs that have been accepted by the parents of SWDs will be fully actionable.

_ _ _ _ _ _ _ _ _ _

 The Third A: IEPs Need to Result in Appropriate Progress

   FAPE—a “free and appropriate public education”—is one of the most-common reasons why parents of SWDs bring districts to due process or to court.

   Thus, at this mid-point in the school year, it is recommended that districts and schools analyze the IEP-driven progress monitoring data being collected for every SWD to gauge whether she or he is receiving an appropriate education.

   IDEA’s definition of “appropriate” is largely defined by the case of Endrew F. v. Douglas County School District (137 S. Ct. 988).

The Endrew F. Supreme Court Case (2017)

   The Endrew F. case, decided by the U.S. Supreme Court in 2017, involved a student with autism, Endrew F., who was educated in Colorado's Douglas County School District. Endrew F.’s parents sought reimbursement for private special education services, arguing that the public school program did not provide an appropriate education. The Supreme Court's decision rejected the "de minimis" standard that had previously been used to determine the adequacy of an IEP.

   Instead, the Court held that an IEP must be reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances. This decision established a higher standard for educational benefit under IDEA, with a greater expectation that IEPs be appropriately ambitious and challenging. 

   The facts of the Case were as follows:

Endrew, a child with autism, attended school in the Douglas County School District from kindergarten through fourth grade. By the fourth grade, Endrew's parents believed his academic and functional progress had stalled, leading them to remove him from public school and enroll him in a specialized private school where he made significant progress.

Endrew's parents sought reimbursement for the costs of the private school placement by filing for a due process administrative hearing. They argued that the new placement was necessary for Endrew to receive FAPE. The administrative hearing decision found against the parents, concluding that the public school had provided Endrew with FAPE. This decision was upheld by a federal district court and the Tenth Circuit Court of Appeals, which ruled that an IEP is adequate under the IDEA if it is calculated to confer an educational benefit that is "merely more than de minimis."

However, the Supreme Court unanimously rejected this standard, stating that an educational program providing a child "merely more than de minimis" progress from year to year can "hardly be said to have been offered an education at all." The Court held that the correct standard of FAPE is whether a school district has presented "an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances."

 

This decision emphasized the importance of the unique needs and abilities of the particular student when assessing the adequacy of the individualized educational plan of that student. 

_ _ _ _ _

   Relative to the implications of the Case:

·       The Endrew F. case has had a profound impact on special education law, requiring educators to understand the differences between minimal progress and meaningful educational benefit as they work to serve students under IDEA. 

·       The Case has also highlighted the need for more specialized IEPs that focus on facilitating students’ academic and functional skills and progress, driving educators to design IEPs with specific, measurable goals that are linked with appropriate interventions. 

·       Finally, the Case requires special education practices, whereby SWDs have access to instruction that meets their unique needs and promotes their mastery, motivation, and success. These practices must facilitate meaningful educational benefits through individually-tailored services, and appropriate progress monitoring.

_ _ _ _ _

Here and Now Recommendations

   Consistent with the implications above, districts and schools need to evaluate all of their SWDs right now to validate that they are making appropriate progress and receiving the educational benefits consistent with their specific disabilities, the severity of their respective disabilities, and the outcomes outlined in their IEPs.

   For students not making appropriate progress, there is still time this year to re-evaluate the services, supports, and interventions they are receiving so that mid-course corrections can be made.

   For students who are making appropriate progress, analyses can begin to determine what services, supports, and/or interventions are most responsible for their success so that these can be carried into the 2025-2026 school year through their next IEPs.

_ _ _ _ _ _ _ _ _ _

 Summary

   Even though the academic year is only half over, district leaders are already working on the budget, initiatives, and activities for the next, 2025-2026 school year.

   Moreover, as most districts, on average, (a) have 14% of their students on Individualized Education Plans (IEPs) as students with disabilities (SWDs), and (b) do not receive sufficient special education federal or state funding, this Blog discusses how to organize the needs assessment process so that SWDs’ service-delivery needs are appropriately prioritized, staffed, resourced, and funded for next year.

   The needs assessment and budgeting should be organized around the annual rewriting of each student’s IEP, and “The Three A’s.”

   Specifically, each new IEP needs to be written such that it is (a) Acceptable—to the parents of each SWD; (b) Actionable—such that IEP services, supports, and interventions are actually delivered. . . with integrity; and (c) Appropriate—so that each SWD makes the progress that is consistent with their disability-related circumstances.

   Three specific, precedent-setting special education court cases are described to demonstrate the importance for each of the Three A’s. . . two of which personally involved me as an Expert Witness.

   In the end, separate Action Steps are recommended in the Three A’s. . . steps that districts and schools should seriously consider right now.

   With these steps and the needed budgeting, districts and schools will be (a) more prepared to maximize their services and supports in the coming school year; (b) SWDs will make greater academic and behavioral progress; (c) parents of SWDs will remain full and collaborative partners with their respective districts on behalf of their children; and (d) districts will more likely avoid the due process or court litigation that results when IEPs are unacceptable, unactionable, and inappropriate.

_ _ _ _ _

A New Podcast and Professional Development Resource for You

   While I hope that you had a great holiday season and break. . . schools have reopened and there is a lot of work to do.

   Over the break, we engaged in a new partnership and developed a new resource for you.

   The partnership is with popular AI Educators, Davey Johnson and Angela Jones. . .and the resource is their Podcast:

Improving Education Today: The Deep Dive 

   For each bimonthly Blog message that I publish, Davey and Angela will summarize and analyze the Blog in their free-wheeling and “no-holds-barred” Podcast. . . addressing its importance to “education today,” and discussing their recommendations on how to apply the information so that all students, staff, and schools benefit to “the next level of excellence.”

   You can find the Podcast at the following link:

Improving Education Today: The Deep Dive | Podcast on Spotify

   Davey and Angela have already created a Podcast Archive of more than 35 additional and separate podcasts reflecting involving all of our 2024 Blogs (Volume 2), and 14 of our most-popular Blogs from 2023 (Volume 1).

   The Podcasts are posted on Spotify, and you can “Follow” the Podcast Series so that you will be automatically notified whenever a new Podcast is posted.

   Many districts and schools are using the Podcasts in their Leadership Teams and/or PLCs to keep everyone abreast of new issues and research in education, and to stimulate important discussions and decisions regarding the best ways to enhance student, staff, and school outcomes.

   Of course, if you would like to follow a Podcast up with a free one-hour consultation with me, just contact me and we will get it on our schedules.

   I hope to hear from you soon.

Best,

Howie

 

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

[To listen to a synopsis and analysis of this Blog on the “Improving Education Today: The Deep Dive” podcast hosted by popular AI Educators, Angela Jones and Davey Johnson on Spotify: CLICK HERE for Angela and Davey’s Enlightening Discussion]