Showing posts with label special needs students. Show all posts
Showing posts with label special needs students. Show all posts

Saturday, January 11, 2025

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.

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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.

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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.]

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   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.

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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.

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 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. 

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   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.

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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.

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 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.

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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]

Saturday, 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 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.

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   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.

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·       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.

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·       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.

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·       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?

_ _ _ _ _

   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]