Should the U.S. Supreme Court Limit the Powers of the U.S. Office of Special Education Programs (OSEP)?

How OSEP Has Taken “Liberties” with the Law, and Spent Tax-Payers’ Money on Flawed Frameworks

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

Dear Colleagues,

Introduction

   One on the ongoing frustrations in my professional life is having to undo the direct and indirect damage done to students, staff, schools, and parents by ineffective practices. . . especially those advocated by and politically pushed by the U.S. Department of Education (USDoE).

   I have experienced this frustration first-hand as a practicing school psychologist, a university professor, and in my work for thirteen years at the Arkansas Department of Education [in a position, coincidentally, funded by the U.S. Department of Education’s Office of Special Education Programs (OSEP)].

   But I am especially dismayed when I consult across the country (like last week), and still find schools and districts implementing these ineffective practices, thereby delaying services to students in academic or social-emotional need and, thus, causing psychoeducational harm to these students.

   And I don’t blame the school professionals.

   They are largely doing what their state departments of education are inappropriately telling them to do. . . because they often mistakenly assume that their state department colleagues know what they are talking about. . . and they don’t have the time to independently validate their advice.

   Similarly, the state department folks often assume that the “national experts” (usually university folks who get credit for the USDoE grants they secure) know what they are talking about. But, sometimes, the USDoE also indirectly suggests that a state’s Title I or IDEA funding could be contingent (see below) on using the ineffective practices that they (the USDoE) are advocating.

   This subtle message is even more alarming when you understand that the USDoE is annually evaluating—especially in special education—every state’s educational outcomes (see below), and that it can withhold funds or financially penalize states for poor outcomes.

   [Can you spell “conflict-of-interest” and “double-jeopardy”?]

   So. . . many states assume that: "If I use USDoE-recommended practices, I will be protected” (which is not true). And, districts and schools then get the same “trickle down” message and advice to use ineffective, unvetted practices.

   Of course, if you confront the USDoE on the advocacy of their frameworks or practices, you risk going on their unofficial “black list,” and they give you the well-honed line that,

“The USDoE is not allowed by law to advocate or recommend any single framework, program, or practice.”

   If you doubt what I say, remember that I worked at Arkansas Department of Education for thirteen years, that I was directly responsible (100 feet away) to the State Director of Special Education, and that I experienced all of this first-hand—even as our proven approaches were more effective than the USDoE’s, eliminated the flaws from their frameworks, and demonstrated consistently more positive student outcomes.

   Indeed, if you really want to understand how insidious this process has been—for well over two decades—feel free to read two past Blogs written on February 15, 2020 and March 30, 2019, respectively:

Did a Misguided U.S. Department of Education E-mail “Confirm” Its Improper Favoritism of the PBIS Behavioral Framework?

Using the School Climate Transformation Grant to Misrepresent, Re-Brand, and Strong-Arm Educators toward Only "Department-Approved" PBIS Consultants

[CLICK HERE to Link to Blog]

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The Art of Doubling Down: How the U.S. Department of Education Creates Grant Programs to Fund and Validate its own Frameworks

Call Congress: The Tainting of RtI, PBIS, MTSS, and SEL

[CLICK HERE to Link to Blog]

_ _ _ _ _

   But my purpose today is not to re-hash the past, but to reflect the present.

   This will be done by triangulating three things. . .

·       A recent U.S. Supreme Court decision limiting the power of the U.S. Environmental Protection Agency; 

·       OSEP’s two recent announcements regarding (a) how schools should be disciplining students with disabilities, and (b) that the vast majority of state departments of education are not in compliance with the Individuals with Disabilities Education Act (IDEA, 2004); and by 

·       Reviewing some of the critical flaws historically recommended by a handful of National Technical Assistance Centers—funded by OSEP—that are still negatively impacting multi-tiered services and supports to students in our schools.

_ _ _ _ _ _ _ _ _ _

A Recent U.S. Supreme Court Decision Limited the Power of the EPA

   I’m sure that many of you are wondering why I am discussing the Environmental Protection Agency (EPA) in a column about education.

   So I’ll be quick.

   Last month on June 30th, the U.S. Supreme Court ruled that the Environmental Protection Agency had overstepped its authority by writing regulations that went too far beyond the original legislation passed by Congress. 

   According to Forbes (July 5, 2022):

Last week, in a case brought to the Supreme Court–West Virginia v EPA–in a 6-3 decision the Court restricted the Environmental Protection Agency’s (EPA) ability to regulate greenhouse gases. This sets a precedent that could limit government agencies’ capacity to establish certain new regulations.

 

The Court’s decision is grounded in the “major questions doctrine” which was deployed in this case for the first time. The upshot of this doctrine is that government agencies, such as EPA, have little leeway in setting new regulations of “major economic and political importance” that rely on powers not clearly spelled out in detail by Congress.

 

The major questions doctrine holds that in such instances federal agencies must be able to point to specific Congressional authorization for their actions. In the West Virginia v EPA case, the Court’s decision substantially limits the EPA’s rulemaking authority.

 

Throughout history, when Congress established federal regulatory agencies, it purposely adopted wide-ranging language that wouldn’t narrow the agencies’ mandate to specific sets of rules and regulations. Indeed, regulatory agencies have always been meant to interpret laws, carry out their intent, and create regulations in an ever-changing societal dynamic that involves evolving challenges.

 

In this context, Congress relies on the expertise of federal agencies, such as the EPA and others like the Food and Drug Administration (FDA), to implement new rules and regulations as they see fit. This is partly due to lawmakers not being as knowledgeable, or at least not sufficiently so, to regulate the specifics of issues which may impact the public.

 

How could the Court’s decision affect other agencies, such as the FDA? In light of acute and ongoing public health challenges there are new regulations that the FDA might try to formulate and implement. The major questions doctrine is not fully defined or delineated, so it’s unclear which of the regulations would be a target of the doctrine.

 

Nevertheless, if new regulations go against existing practice and conflict with certain stakeholders’ interests, they could be subsumed under the major questions doctrine. Accordingly, these regulations could be subject to litigation. The precedent created by West Virginia v EPA could then be used to legally challenge such regulations. 

_ _ _ _ _

   My point here is that the U.S. Department of Education (USDoE) has similarly overstepped is regulatory authority in some cases. . . and this has occurred more due to the Department’s employed and tenured staff, and not to the Secretary of Education who currently holds that political position.

   And while the USDoE has written some exceptionally well-crafted regulations, there are major concerns about its history in the areas of special education, PBIS, RtI, and MTSS.

   Critically, we cannot depend on a state to sue a federal agency—as in the case above.

   Instead, districts and schools need to hold the USDoE accountable when it writes unnecessary, impractical, or inappropriate regulations to operationalize laws passed by Congress. This is accomplished by knowing the limits of what a state or federal agency can do when it advocates for ineffective practices.

_ _ _ _ _ _ _ _ _ _

Understanding the Contexts and Limits of OSEP’s “Reach”

   Over the past few weeks, the U.S. Office of Special Education Programs (OSEP) has had its hand in two major announcements.

Announcement 1

   On July 19, 2022, U.S. Secretary of Education Miguel Cardona unveiled new guidance related to school discipline and students with disabilities.

   This was largely done through four new resources that included (a) two guides on how Section 504 of the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act protect students from discriminatory discipline practices; (b) a guide for stakeholders on “positive, proactive approaches to supporting the needs of children with disabilities;” and (c) a letter from Cardona on the importance of supporting the needs of students with disabilities.

   While I will leave an analysis of this guidance and these documents for another time, here is the point related to today’s Blog topic:

   Educators need to know the law, understand the limits of a guidance document, and resist the pressure that follows these documents from the USDoE.

   These documents can get pretty scary for districts and schools.

   For example, in breaking the story about Secretary Cardona’s announcement, Education Week’s first line in the article was: 

Schools must determine if a student’s behavior is related to their disability before disciplining them, according to new U.S. Department of Education guidance meant to further clarify federal protections against discrimination. 

   This, of course, is true. . . if you know the law.

   In the “Placement in Alternative Educational Setting” section of IDEA (2004), it says:

(C) ADDITIONAL AUTHORITY- If school personnel seek to order a change in placement that would exceed 10 school days and the behavior that gave rise to the violation of the school code is determined not to be a manifestation of the child's disability pursuant to subparagraph (E), the relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner and for the same duration in which the procedures would be applied to children without disabilities, except as provided in section 612(a)(1) although it may be provided in an interim alternative educational setting.

   Thus, the Education Week line was really saying that, if a student is already identified as a student with a disability under IDEA, then the school must conduct a “Manifestation Determination.”

   Education Week (and the law) do not say that every student committing a disciplinary offense must be assessed to determine if s/he has a disability.

   But there is a more important point.

   Relative to 504, the newly-published July 2022 guidance document echoes IDEA. It states:

1. Evaluations Prior to a Disciplinary Removal that Significantly Changes the Placement of a Student with a Disability

 

Section 504 requires school districts to evaluate students with disabilities prior to any significant change in a student’s placement. In the context of a significant change of placement due to a proposed disciplinary removal, the purpose of the evaluation (referred to in this guidance as a manifestation determination) is to decide whether the behavior for which discipline is proposed is based on the student’s disability, and, if so, whether changes in the student’s placement are required to ensure the student receives FAPE.

 

Under Section 504, OCR’s longstanding interpretation (my emphasis added) of a significant change in placement in the context of discipline has been an exclusion of more than 10 consecutive school days or a similar pattern of removal. Examples include an expulsion or an out-of-school suspension or other disciplinary removal of more than 10 consecutive school days.

   Note the emphasis on “interpretation.” This interpretation is based on IDEA (see the footnotes in this section of the guidance document) and court decisions that have supported this interpretation.

_ _ _ _ _

   But the “bigger picture” is that this is a guidance document.

   In footnotes on Page 1 of this document, it states:

(Footnote) 2. The Department has determined that this Dear Colleague Letter is significant guidance under the Office of Management and Budget’s Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432 (Jan. 25, 2007). If you are interested in commenting on this guidance, please email us your comment at OCR@ed.gov or write to us. . .

 

(Footnote) 3. This guidance is issued to provide recipients with information to assist them in meeting their obligations, and to provide members of the public with information about their rights, under the civil rights laws and implementing regulations that the Department enforces. The Department’s legal authority is based on those laws. Except for the underlying statutory or regulatory requirements referenced in this Dear Colleague Letter, this significant guidance is nonbinding and does not create or impose new legal requirements. Instead, it provides information and examples to inform recipients about how the Department evaluates whether covered entities are complying with their legal obligations (my emphasis added).

   The point here (note my underlines) is that this guidance document is “nonbinding and does not create or impose new legal requirements.”

   Often, USDoE (or state department of education) representatives will cite a guidance document’s recommendations as if the recommendations are law.

   Critically, if you know the law and are complying with the law in ways that are different than the recommendations, you are still following the law.

   At the same time, most School Board Lawyers will recommend a conservative approach (because their goal is to keep the District in compliance with a federal agency and/or out of court), and say, “Just follow the guidance document’s recommendations.”

   But what if the recommendations do not reflect effective practice—in general or as applied to the students in the District?

_ _ _ _ _

Announcement 2

   The second OSEP announcement related to its annual review of every state department of education in the country on seventeen Indicators that are tracked in a public State Performance Plan.

   For all students with disabilities in a state, these indicators are:

·       Indicator 1: Graduation Rates

·       Indicator 2: Drop-Out Rates

·       Indicator 3: Assessment

·       Indicator 4: Suspension/Expulsion

·       Indicator 5: Least Restrictive Environment – School Age

·       Indicator 6: Least Restrictive Environment – Preschool

·       Indicator 7: Preschool Outcomes

·       Indicator 8: Parental Involvement

·       Indicator 9: Disproportionality in Special Education by Race/Ethnicity

·       Indicator 10: Disproportionality in Classification by Race/Ethnicity

·       Indicator 11: Child Find

·       Indicator 12: Early Childhood Transition

·       Indicator 13: Secondary Transition

·       Indicator 14: Post-School Outcomes

·       Indicator 15: Hearing Requests Resolved by Resolution Session

·       Indicator 16: Mediation Agreements

·       Indicator 17: State Systemic Improvement Plan

_ _ _ _ _

   A July 18, 2022 article in Disability Scoop titled “Most States Repeatedly Fail To Meet Special Ed Responsibilities, Education Department Finds,” reported:

More than half of states have failed to meet their obligations to students with disabilities under the Individuals with Disabilities Education Act for at least the last two years, federal officials say.

 

In an annual report evaluating each state’s special education performance, the U.S. Department of Education determined that just 21 states qualified for the designation of “meets requirements” for the 2020-2021 school year for students with disabilities ages 3 through 21.

 

All other states were labeled “needs assistance,” a category that 26 states and Washington, D.C. have fallen into for two or more consecutive years, the agency said.

 

Under IDEA, states must report each year to the federal government about their performance in providing special education services. Then, the Secretary of Education issues a determination letter assigning them to one of four categories.

 

States that don’t qualify for the “meets requirements” designation for two or more years are subject to various Education Department enforcement actions, which may include being required to access technical assistance, implementing a corrective action plan or funds being withheld, among other things.

 

The states that achieved the threshold of “meets requirements” in the current report include Connecticut, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Maine, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, Oklahoma, Oregon, Pennsylvania, South Dakota, Virginia, Wisconsin and Wyoming.

_ _ _ _ _

   The essential points related to the seventeen Indicators are:

·       OSEP established these Indicators based on their interpretation of the requirements in IDEA. 

·       Every district receiving federal funds must provide their state department of education the data represented on the State Performance Plan. Thus when a state is out of compliance with OSEP, the state department of education identifies its out-of-compliance districts and holds them accountable (with potential oversight and penalties). 

·       Guided by OSEP benchmarks, the states largely determine the statistical criteria to identify its out-of-compliance districts. These criteria, however, must be approved as part of the State Performance Plan process by OSEP. 

·       Most states establish their out-of-compliance criteria for each Indicator so that approximately 5%  to 10% of the districts in their state “trigger” on an Indicator. Thus, each year, there may be districts not providing appropriate services to students with disabilities that do not statistically trigger. 

·       There are no universal district criteria across states on virtually all of the Indicators, thus there may be large differences in the quality of services across states.

   In addition, there are two critical issues here that relate to today’s topic.

   First, there are times when OSEP does go beyond its legal authority.

   For example, Indicator 17, was unilaterally established by OSEP around 2013—almost ten years after IDEA was passed in 2004. Here, OSEP requires each state to create a State Systemic Improvement Plan (SSIP) that identifies a specific area where the state’s general and special education units work together to accomplish a set of stated outcomes.

   However, every state gets to choose its own improvement area, the districts that will be involved, and how the collaboration will be implemented.

   Significantly, this Indicator is not specifically required by IDEA. And yet, no state department of education has chosen to “call” OSEP on this statutory over-reach.

   Second, for some of the Indicators, OSEP has established outcome criteria that cannot be traced directly back to IDEA. For example, Indicator 5 relates to ensuring that school-aged students with disabilities are educated in the least restrictive environment.

   In 2020, for example, the USDoE spreadsheet, outlining the State Performance Plan’s evaluation criteria [CLICK HERE], defined the evaluation criterion for Indicator 5 as:

5. Percent of children with IEPs aged 5 who are enrolled in kindergarten and aged 6 through 21 served: A. Inside the regular class 80% or more of the day; B. Inside the regular class less than 40% of the day; and C. In separate schools, residential facilities, or homebound/hospital placements. (20 U.S.C. 1416(a)(3)(A)) 

   Critically, in national meetings, OSEP continually tells state departments of education that all students with disabilities should be educated inside a regular education classroom 80% or more of their school days.

   The problem is that OSEP’s legal rationale (20 U.S.C. 1416(a)(3)(A)) for this Indicator states:

(3) Monitoring Priorities. The Secretary shall monitor the States, and shall require each State to monitor the local educational agencies located in the State (except the State  exercise of general supervisory responsibility), using quantifiable indicators in each of the following priority areas, and using such qualitative indicators as are needed to adequately measure performance in the following priority areas: (A) Provision of a free appropriate public education in the least restrictive environment.

   Thus, OSEP uses a generic monitoring requirement as its legal and statistical rationale to establish the Indicator 5 criterion that it then uses to evaluate states and (as part of the downward extension) districts.

   This criterion has no legal basis in IDEA. OSEP has never provided any research or practice evidence to support the criterion. The criterion is impossible to attain for students with severe disabilities. And, no state to my knowledge has ever attained or sustained this criterion.

   This is yet another example of OSEP’s over-reach. . . here, as related to its monitoring responsibilities. And, despite the “double-jeopardy” of OSEP both creating, evaluating, and adjudicating its (sometimes unattainable) criteria, there are real political, financial, and educational (for districts, schools, staff, and students) ramifications to OSEP’s over-reach.

   This is the type of over-reach that is directly relevant to the recent Supreme Court decision.

_ _ _ _ _

Post-Script

   Meanwhile, the guide for stakeholders on “positive, proactive approaches to supporting the needs of children with disabilities”—released by U.S. Secretary of Education Miguel Cardona on July 19, 2022— has numerous references advocating the use of OSEP’s Positive Behavioral Interventions and Supports (PBIS) and Multi-Tiered System of Supports (MTSS) frameworks.

   In fact, the OSEP-funded PBIS and MTSS National Technical Assistance Centers, respectively, continually mis-state federal law in this regard.

   In IDEA (2004), the words “positive behavioral interventions and supports” appears only in lower case words, and never with the PBIS acronym.

   In the Elementary and Secondary Education Act (2015), the words “multi-tiered system of supports” appears only in lower case words, and never with the MTSS acronym.

   Thus, contrary to what OSEP and its National TA Centers say, federal law does not require districts or schools to use the PBIS or MTSS frameworks.

   This is yet another example of OSEP’s disingenuousness. And critically, OSEP will only clarify and validate this fact when directly confronted with their “sleight-of-hand.”

_ _ _ _ _ _ _ _ _ _

Multi-Tiered Flaws and Fixes

   Related to its advocacy of the MTSS framework, OSEP and its funded National TA Centers—have allowed and promoted ineffective response-to-intervention and multi-tiered systems of support procedures and strategies for almost two decades.

   OSEP has rationalized this by periodically stating (once again, when under pressure) that (a) it cannot and does not advocate for any single program or approach; and (b) it simply is providing a “framework” of practices that individual districts and schools can choose from.

   As noted, OSEP has created a “monopoly of thought and implementation” through its TA Centers by “influencing” state departments of education practices (through its annual evaluation and oversight process), as well as by providing “free” training—funded by taxpayer money—using only its frameworks.

   At this point, however, it is not about OSEP. It is about getting the most effective services, supports, strategies, and interventions to students with academic and social, emotional, and behavioral challenges.

   To this end, we would like to revisit seven RtI/MTSS flaws that have been built into OSEP’s MTSS framework, and then provide a link to a free resource that identifies the ten resulting practices that need to be included in a multi-tiered services re-design.

·       Flaw #1. Missing the Interdependency between Academics and Behavior. 

Many multi-tiered systems do not evaluate, early on, whether a student is behaviorally acting out because of academic frustration. Thus, they miss the need to address the problem through academic assessment with resulting instructional interventions.

Conversely, many systems do not evaluate, early on, whether an academic problem is due to social, emotional, or behavioral root causes. Thus, they attempt to remediate this problem through academic interventions. . . an approach that will ultimately fail.

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·       Flaw #2. Missing the Continuum of Instruction.

Many multi-tiered systems do not have a braided instructional continuum (from preschool through high school—for both academic and social, emotional, and behavioral problems) that includes effective differentiated instruction and curriculum-based progress monitoring; assistive classroom instructional supports; data-driven remediation, accommodation, and modification; strategic and intervention supports and interventions; and compensatory decision-rules and strategies.

_ _ _ _ _

·       Flaw #3. Avoiding Diagnostic or Functional Assessment until it is Too Late.

Many multi-tiered systems, unlike medical doctors and car mechanics, conduct diagnostic or functional assessment at Tier 3, rather than at Tier 1. This reinforces a “wait-to-fail” system that (a) “allows” students to fail multiple times over multiple tiers for long periods of time. These practices actually intensify some student problems resulting in high levels of student (and staff) resistance to intervention.

_ _ _ _ _

·       Flaw #4. Not Linking Assessment to Intervention.

Many multi-tiered systems do not validate (beginning in Tier 1, as above) the root causes of students’ academic or social, emotional, or behavioral problems. Most assessments, instead, re-identify (albeit more specifically or normatively) the student problem. This is compounded by the failure to directly link the results of a root cause analysis to recommended interventions that address the root cause.

Many Tier 2 interventions, moreover, are based on screening or interim assessment results, rather than diagnostic or root cause analysis results. Many Tier 2 interventions are generic and given to all students (albeit in a group, and often using paraprofessionals), rather than truly targeted and individualized.

_ _ _ _ _

·       Flaw #5. Focusing on Progress Monitoring rather than on Strategic Instruction or Intervention Approaches.

Many multi-tiered systems focus (relative to staff time and analysis) more on progress monitoring than on intervention. Some multi-tiered systems are grounded in the belief that progress monitoring (with its goal and trend lines) is actually an intervention, when it simply exists to evaluate the efficacy of an intervention.

_ _ _ _ _

·       Flaw #6. Establishing Rigid Rules on Students’ Access to More Intensive Services.

Many multi-tiered systems are designed such that students must sequentially move from Tier 1 to Tier 2 to Tier 3—thereby creating a history of failure, and delaying needed interventions to many students.

Other multi-tiered services are not providing general education teachers with the training and supervision such that they learn to implement selected and relevant strategic or intensive interventions—thereby creating a systemic dependence on Tier 2 or Tier 3 services.

Effective multi-tiered systems are designed to provide early intervention services, and to give students, as quickly and efficiently as possible, the intensity of services, supports, strategies, and/or interventions that they need to be academically and/or behaviorally successful.

_ _ _ _ _

·       Flaw #7. Setting a “Price” on Access to Multidisciplinary Consultation.

Many multi-tiered systems require general education teachers to do a specified number of interventions over a specific period of time, and to show the data that indicate that a student has not made sufficient progress and is not responding to the interventions.

This results in teachers implementing low probability of success interventions that delay services, and that may make student problems worse and more resistant to change. This is often done in the name of “punching teachers’ tickets” to give them access to multidisciplinary team attention, consultation, or student-specific consideration.

_ _ _ _ _

   If districts or schools have built any of these flaws into their current multi-tiered systems, we recommend a redesign that includes one or more of ten effective practices.

   These are outlined in a free resource:

A Multi-Tiered Service & Support Implementation Blueprint for Schools & Districts: Revisiting the Science to Improve the Practice:

[CLICK HERE to find this Resource on this Webpage]

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Summary

   Should the U.S. Supreme Court strike down specific regulations and legal interpretations made by the U.S. Office of Special Education Programs?

   That question will only be answered when one or more states take action against OSEP because of how it has historically and continually exceeded its authority.

   But this is unlikely to happen—because many state departments of education across this country feel dependent on OSEP, and many districts and schools do not understand either this dependency or how OSEP over-steps specific legal boundaries.

   OSEP controls millions of dollars a year in direct grants to state departments of education to fund state and district special education services. It also controls millions more that it uses to give grants, for example, to fund technical support and research by “non-for-profit” organizations (e.g., the American Institute for Research, WestEd), and university research, training, and student stipends.

   And, once again, it is important to understand that OSEP’s operations and decisions are driven more by tenured staff than the political appointees at the top of its organizational pyramid.

_ _ _ _ _

   So. . . short of litigation, what can be done?

   For schools and districts, you need to start small.

   You need to Know, Prepare, and Question.

   First, Know: Begin by re-reading (and researching beyond) the information in this Blog so that you understand the current and historical areas where OSEP and the U.S. Department of Education have exceeded (and may in the future) their legal authority.

   We began this process by triangulating three things for you. . .

·       A recent U.S. Supreme Court decision limiting the power of the U.S. Environmental Protection Agency.

This puts the U.S. Department of Education on notice that they are similarly accountable for times when they have exceeded their legal authority.

·       Two recent announcements by OSEP regarding (a) how schools should be disciplining students with disabilities, and (b) that the vast majority of state departments of education are not in compliance with the Individuals with Disabilities Education Act (IDEA, 2004).

Here, we showed you the limits of a Guidance Document, and how OSEP can establish evaluative criteria that potentially impact your funding, practice, and services to students with disabilities.

·       The critical flaws historically recommended by a handful of National Technical Assistance Centers—funded by OSEP—that are still negatively impacting multi-tiered services and supports to students in our schools.

Here, we especially emphasized that you are not legally required to use either of OSEP’s PBIS or MTSS frameworks, and that you need to revisit any of the flaws that you have embedded in your current social, emotional, and behavioral self-management or multi-tiered service-delivery systems.

   Remember: As we have done in writing this Blog, it does not take a lot of time to, for example, (a) read a Guidance Document—and, especially, its footnotes specifying its legal limitations; or (b) follow-up a legal citation—that is being used to “support” a state or federal agency’s “authority” to “needlessly intrude into your psychoeducational services and practices.”

   And so. . . adapting an earlier point in this piece:

   Educators need to know the law, understand the limits of the law (by the USDoE and your state department of education), and resist any pressure that occurs when ineffective practices—based on a misinterpretation or over-reach—are recommended (or “required”).

_ _ _ _ _

   Second, Prepare: Next, you need to prepare yourself as you apply the law, the research, and effective practice to your students, staff, and schools.

   Here, you need to analyze and summarize the direct effects of a misinterpretation or over-reach of the law on the efficacy of services and the attainment of academic and social, emotional, and behavioral outcomes for your students.

   This should then be contrasted with the results you have or will attain by using a different, legally-acceptable multi-tiered approach.

_ _ _ _ _

   Third, Question: Armed with both one and two immediately above, question those who are suggesting (or “requiring”) an evaluative criterion or a psychoeducational practice that you feel is a misinterpretation or over-reach of the law or their authority under the law.

   Along a continuum, you may need to question your school or district supervisor, your school board lawyer, your state education department representative or director or commissioner, your federal USDoE representative or director or secretary.

   In my experience—at all of the continuum levels above—when an over-reach has occurred, and your colleague is questioned, they acknowledge the truth and the reality. . . and if you have a better, legally-sound alternative, they will back down.

·       Knowledge is Power. . . 

·       Preparation is Key. . . and 

·       Questions turn into Desired Permission and Results.

_ _ _ _ _

   I hope that this information has been useful to you, and that it motivates you to evaluate both what you are being asked to do by the USDoE and/or your state department of education, and what you need to do on behalf of your students, staff, and schools.

   Please feel free to contact me with any questions, or to set up a free, one-hour consultation to discuss these and related issues with your colleagues, teams, school, or district/agency departments.

Best,

Howie

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

Reviewing Three New Studies on Student Discipline, Disproportionate Office Referrals, and Racial Inequity

It’s Not about School Shootings! It’s about Recognizing What Needs to Change in our Classrooms

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

Dear Colleagues,

Introduction

   Life does not occur in a vacuum.

   And as related to reality and practice, school research certainly does not occur in a vacuum.

   But sometimes, that’s how it is presented in the “popular” educational press. And sometimes, that’s how it’s read and used in our schools.

_ _ _ _ _

   During the past two to three weeks, three important national reports on school safety and student discipline were published and reported on in the popular educational press.

   A few fairly-common vacuums emerged.

   One vacuum is that a lot of national data on school safety and discipline, classroom management and student engagement, and teacher attitudes and students’ (social-emotional) needs seem to be published during the summer. . . when many educators are “on vacation.”

   This creates a vacuum where many educational leaders don’t have the time to discuss—with colleagues and staff—the reports’ outcomes, recommendations, and “lessons” so that needed changes can be planned, prepared, and implemented at the beginning of the new school year.

   A second vacuum—as occurred these past few weeks—is that different organizations embargo their reports, releasing them at the time that will result in the most attention and press. Like the staggered announcements on different Supreme Court rulings, these organizations don’t want their “earth-shattering” report to be unveiled on the same day as another organization’s “don’t-miss” report on the same topic.

   Thus, many times, the reports are published on separate days, and no time (or website space) is invested in comparing and contrasting the reports to identify similarities, differences, and contradictions. . . because another report comes on its heals.

   Popular press journalists have deadlines, and they are not writing for professional journals. They don’t have time to do in-depth comparative analyses. And their audience—which typically wants to know the “bottom line” in a matter of minutes—is probably not going to read and digest the analysis anyways.

   A final vacuum is that, once again—because it is the summer—some educational leaders will see one report but miss others. . . that may have contradictory results.

   When educational leaders have not analyzed all of the reports on a specific topic, nor thoughtfully considered their implications for their schools, staff, and students. . . they respond in a vacuum, and end up unintentionally making less effective strategic decisions.

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   As noted earlier, this Blog will integrate and comparatively analyze three important national reports, sequentially published over the last three weeks, detailing school safety and student discipline data from the school year that just ended. We discuss what these reports reflect as the current “state of affairs” relative to school safety, disproportionate office discipline referrals, student behavior, and racial equity.

   Hopefully, the integration—and our specific recommendations—will help educational leaders make the strategic decisions and plans—this coming new school year—that are needed to address the social, emotional, and behavioral issues in their schools, resulting in the success that we all aspire to.

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It’s Not All About School Shootings. . . Even though It Seems that Way

   With all due respect: While many believe that the Uvalde school shooting represents a “turning point” in how we view and what we do to prevent future school shootings, I am not buying it.

   When you look at all of the past school shootings. . . it seems clear that we have short memories. . . until the next school shooting.

   The ultimate realities are:

·       Every school is at risk when it comes to the “next” school shooting. 

·       School shootings are local events that occur or do not occur due to local decisions. . . at the school, community, and home levels.

·       School shootings, then, are prevented at the local level. . . 

. . . with attention, for example: (a) to staff-to-student relationships; (b) to nurturing positive relationships among different peers groups (while eliminating negative peer interactions like bullying and social rejection); and/or (c) to the willingness for someone (the local gun salesperson, the peer who has seen the student’s social media post, the parents who are aware of their adolescent’s recent depression) to speak up when potential school shooters telegraph their intent.

   But right now, educator awareness is high, and our memories are fresh.

   Education Week (“The World Feels Less Stable: Educators’ Sense of School Safety Right Now,” June 23, 2022) recently shared its survey of 875 district and school leaders and teachers—completed during the second week of June, just weeks after the Uvalde shooting.

   They reported:

Four in 10 educators feel less safe in their schools now than they did five years ago. School shootings factor heavily into their fears, but so does a swirl of other dynamics, from an angry political climate to a rise in student and parent aggression.

 

While 40 percent said they felt less safe than five years ago, 38 percent said their sense of safety hadn’t changed in that period. Two in 10 said they felt safer.

 

At the same time, in another question, 6 in 10 teachers and administrators said that fear of a “purposeful mass homicide” at their schools—by an outsider or a student—was a key factor in their worries about safety.

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   Critically, a few Blogs ago, I noted that—especially from a preventative perspective—school shootings need to be put into the context of a school or district’s extreme failure to design, implement, and evaluate a comprehensive multi-tiered social-emotional learning system.

June 11, 2022    

[CLICK HERE to Link]

Why School Shootings are Extreme SEL Events at the Far End of the Social-Emotional Learning Continuum. . .And Why Schools Need to Conduct SEL Audits and Needs Assessments to Decrease the Future Risks

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   I maintain that position today. . . not that there aren’t extraordinary challenges.

   Indeed, Chalkbeat (“More Student Fights and Classroom Disruptions this Past Year, Data Show,”  July 6, 2022) reported the results of a May, 2022 survey completed by the National Center for Educational Statistics involving nearly 850 public school leaders—mostly principals—that looked at school discipline this past school year.

   Summarizing the National Center’s survey, the Chalkbeat article noted:

(M)any schools did see tensions rise this past year as students nationwide returned to fully in-person learning. For many educators, the behavior challenges were a defining feature of the school year—and complicated efforts to rebuild school communities and get students back on track academically.

Educators said that the upticks were to be expected, as many students were still dealing with heightened stress, isolation, and mental health needs this past year. Grief also still permeates many students’ lives as an estimated 200,000 children and teens in the U.S. have lost a parent or caregiver to COVID since the pandemic began.

 

More than half of the school leaders reported an increase in classroom disruptions from student misconduct that they believed were brought on by the effects of the pandemic. Moreover, according to the National Center survey, (a) 70% of the schools reported increased chronic student absenteeism—starting from the beginning of the Pandemic; (b) 80% of the schools reported that the Pandemic had taken a toll on students’ social-emotional development; and (c) about 1 in 3 school leaders noticed an uptick in student fights or physical attacks this past school year.

 

Notably, the responses were decidedly mixed. A sizable share of principals reported no change in these latter types of behavior. About 4 in 10 school leaders said the number of student fights remained about the same as in a typical year prior to the pandemic, while just under a third of school leaders saw about the same levels of classroom disruptions.

   Clearly, there are many factors embedded in the differences in the number of social, emotional, or behavioral problems noted in the Education Week and Chalkbeat surveys above. But many of the educational leaders responding to the surveys pointed to the importance of a high-quality multi-tiered continuum of social-emotional services and supports for their students.

   This continuum typically ranges from:

·       Supportive student-staff, student-student, and staff-staff relationships that are anchored by an empathic understanding of and response to the pressures that everyone is feeling;

·       Clear behavioral expectations anchored by the fair and equitable use of incentives, consequences, and administrative responses; 

·       Preschool through high school social skills training, focusing on enhancing students’ interpersonal, social problem-solving, conflict prevention and resolution, and emotional awareness, control, communication, and coping skills; and 

·       Strategic and/or intensive interventions for students demonstrating significant challenges as provided by skilled mental health staff and support professionals.

   Parenthetically, relative to the latter point immediately above, the National Center for Educational Statistics’ survey also noted that at least 70% of public schools across the country reported an increase in the number of students seeking mental health services since the start of the Pandemic.

   During the school year that just ended, the most common mental health service was individual therapy or intervention—at 84% of our nation’s public schools. While this seems positive, 88% of the schools did not “strongly agree” that they could effectively provide mental health services to all of their students in need. Instead, many schools were providing “case management.”

   The three primary reasons for this gap were: (a) insufficient numbers of mental health professionals to meet the caseload; (b) inadequate access to licensed mental health professionals; and (c) inadequate funding. Parenthetically, relative to the latter, there really should not be a funding issue given the federal funds already available to address the Pandemic, as well as the mental health funds in the recently-passed school safety/gun control bill.

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Discipline, Disproportionality, and Racial Inequity

   The final layer to today’s triangulated discussion comes from a third study, published on July 7, 2022, “New Study: Black, Special Ed Students Punished at Greater Rate Through Pandemic” in the75million.

   Confirming that students’ school behavior was more challenging this year, the study found that—even though school suspensions declined overall—the historical trend where Black students and students with disabilities disproportionately received those suspensions continued.

   This outcome was based on the already-existing pre-Pandemic data, as well as new longitudinal data— up to and including 2022—from the Atlanta Public Schools. This was supplemented by information and interviews with administrators in other school districts across the country.

   In addition to the persistent disproportionality results, the article also noted that:

·        Schools must factor in Pandemic-related trauma when evaluating student behavior: Educators must remember that many of these children lost loved ones, survived food and housing insecurity, and endured unprecedented levels of isolation—and, in some cases, abuse—prior to returning to the classroom. 

_ _ _ _ _

 

·        Nearly everyone who returned to the classroom this past school year was at a disadvantage. Many experienced teachers started the year still burned out from the virtual/hybrid year before. And many of those new to the profession did their “practice” teaching in the same atypical virtual/hybrid mode or under circumstances (e.g., small group pods) where the classroom management conditions were more controlled and unique.

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·        This past year’s school “re-entry process” was “botched.” While students needed greater flexibility and compassion, the academic and discipline “return-to-normal” mindset won out.

 

According to one administrator, “There is some lip service to social-emotional learning, but the investments don’t meet the needs.”

_ _ _ _ _

 

·        Teachers who had continuous training on how to handle student meltdowns felt less discontented than those did not have this support. 

 

Some teachers were frustrated when they were told what they were supposed to be doing, but were not given the training on how to do it, and the resources to do it well.

_ _ _ _ _

 

·        Some schools reimplemented zero tolerance practices, pushing out students at high rates.

 

Consistent with the disproportionality data, more Black students and students with disabilities therefore disproportionately missed many more days of instruction at a time when schools were especially focused on catching students up academically.

 

This added even more stress to these students’ lives—even as many of them had, disproportionately, experienced more negative social, emotional, medical, socio-economic, and home-related adversities due to the Pandemic. 

_ _ _ _ _

   The disproportionality problem is not new.

   It existed well before the Pandemic, and before this past year’s increase in students’ social, emotional, and behavioral challenges. It existed before this past year’s wide variety of student misconduct reports. And it existed before the uptick in school shootings.

   But a great present concern is that the current social and political climate may actually exacerbate the disproportionality problem—especially for Black students.

   At a time when many educators are hesitant to discuss even legally-legitimate racial issues, inequities, and history, this is exactly what they should be doing—because race and socio-economic conditions are embedded in the three studies described above.

   The events involving George Floyd, Breonna Taylor, Ahmaud Arbery—symbolically and in reality—paralleled the events of the Pandemic. And yet, many schools are not just providing lip service to their social-emotional learning responses to the Pandemic, their lips are closed—avoiding discussions of the racial root causes of disproportionality.

_ _ _ _ _

   In the end, the solutions to disproportionality are ecological and multi-faceted in nature.

   But many of these solutions necessarily must occur in the classroom supported by policy, training, coaching, and accountability. For too long, we have ignored the classroom—trying to address disproportionality only at the policy level.

   And it has not worked.

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Summary

   As usual, I am writing this Blog while in a plane traveling to a week-long consultation on the West Coast.

   I am looking forward to this week because I completed a social-emotional learning/positive behavioral support Needs Assessment with this District a few months ago, and we are taking the “next steps” toward building an infrastructure to address their needs.

   Critically, their needs parallel many of the conditions and outcomes reflected in the three studies above.

   The District is a high poverty, majority minority district. The different peer groups in the District are at war with one another. And, the schools are desperately trying to “do” social-emotional learning—without fully understanding that they are unintentionally giving lip service to it.

   To build the infrastructure, we are spending a full day with different, strategically-selected district and school staff groups with the following intended outcomes:

Day 1 Theme and Outcomes: Shared Leadership. 

 

The primary outcome, for each school, will be a draft of a school-wide shared leadership Committee Structure involving (up to) six Committees (School Leadership, Curriculum & Instruction, Discipline/School Climate/PBIS/SEL, Professional Development/ Collegial Support, Community/Family Outreach, Multi-Tiered Services) with Committee Co-Chairs and Representative Committee Members that involves all staff in the school and planned monthly meetings.

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Day 2 Theme and Outcomes: Classroom Behavior Accountability System. 

 

The primary outcome, at the Elementary, Middle School, and High School levels, respectively, will be an integration of all of the District’s current definitions and responses to different student disciplinary infractions into a research-based and developmentally-sensitive blueprint to guide both staff prevention and response—with the goal of facilitating or changing students’ interpersonal, social problem-solving, conflict prevention and response, and emotional awareness, communication, and coping skills. . . and of decreasing inappropriate and disproportionate discipline referrals to the office and school suspensions.

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Day 3 Theme and Outcomes: Beginning-of-School-Year Social-Emotional and Behavioral Self-Management/Relationship-Building Activities. 

 

The primary outcome, for each school, will be a calendar with specific activities and responsibilities—focused especially on the first three weeks of the new school year (2022-2023)—that will (begin) (a) to teach students the school/common area and classroom expectations and staff responses; (b) to alert students to the school/district’s academic and social, emotional, and behavioral health resources available to them and how to access them; (c) to build positive and prosocial student-staff-peer relationships—including the prevention and response to teasing, taunting, and bullying (including on social media); and (d) to prepare students for the implementation of the chosen school-wide social skills training processes and/or curricula along a classroom instruction (in their general education classrooms), related services support, and related services involvement continuum.

_ _ _ _ _

 

Day 4 Theme and Outcomes: Multi-Tiered Services Procedural Blueprint. 

 

The primary outcome, for the Elementary and Secondary levels, respectively, will be a draft of a functional flow-chart to explicitly guide staff (teacher, related services and support staff, and administrators’) activities, actions, and decisions—from general education to early intervention to compensatory education to special education to school-based or linked community services—relative to a student-focused prevention, strategic intervention, and intensive need service, support, strategy, and intervention continuum.

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Day 5 Theme and Outcomes: Administrative Leadership Strategic Planning. 

 

The primary outcome will be a debriefing and fine-tuning of the week’s different outcomes, action plans, and commitments that will facilitate the implementation of the “next steps” in those respective plans.

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   While I know that some (many) of you are “on vacation,” I still believe that this break is the best time to spend some time thinking about your schools, classrooms, or educational settings. . . and what’s working, what’s not working, and what needs to change during the new school year.

   While it may be too late to organize a week-long “summit” this summer as described above, these summits can be done at any time.

   If I can help you to toss some ideas around or to flesh out the particulars, feel free to give me a call, or drop me an e-mail. If today’s Blog simply provides you with needed perspective and motivation. . . go for it! and best of luck!

Best,

Howie

 

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