Saturday, March 8, 2025

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

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

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Dear Colleagues,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Race-Based Discrimination and DEI in Schools

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

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

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

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

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

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

   K-12 Dive (March 3, 2025) stated:

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

 

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

 

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

 

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

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

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

   Hopefully, we can all learn from this situation.

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

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

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

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

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

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

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

 

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

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

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

 

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

 

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

 

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

 

School districts can also appeal funding termination decisions.

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

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

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

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   Our Advice:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   And then act!

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A Charlie Brown Post-Script

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

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

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

   In the article, Schulmiller writes:

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

But the story goes even deeper.

 

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

 

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

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

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

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

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

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

   Let’s live beyond the game.

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

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Summary

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

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

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

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

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

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

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

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

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

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

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

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

Improving Education Today: The Deep Dive 

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

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

Improving Education Today: The Deep Dive | Podcast on Spotify

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

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

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

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

   I hope to hear from you soon.

Best,

Howie

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

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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]

Saturday, February 22, 2025

Repelling a Wolf Attack on Section 504 of the Rehabilitation Act of 1973

Protecting Everyone When Chance Events Result in Life-Defining Disabilities

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Listen to a summary and analysis of this Blog on the Improving Education Today: The Deep Dive podcast on Spotify.

     Hosted by popular AI Educators Angela Jones and Davey Johnson, they provide enlightening perspectives on the implications of this Blog for all of Education.

[CLICK HERE to Listen to this Popular Podcast]

(Follow this bi-monthly Podcast to receive automatic e-mail notices with each NEW episode!)

 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

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

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Dear Colleagues,

Introduction: The Pervasive Impact of Chance

   One of my bigger professional roles lately has been as an Expert Witness on federal and other court cases involving school law, special education and disability rights, Title IX and harassment, and situations related to child and adolescent development and mental health.

   I have also supported clients whose children have been involved in car accidents or medical procedures that have gone wrong. . . connecting these events to their impact on the children’s learning, social interactions, intervention needs, and post-graduation futures.

   As the facts emerge in these latter cases, you realize how “chance events” can significantly impact children and adolescents, and how their entire lives can be dictated by situations that they did not ask for or that were out of control.

   I have also been confronted by:

·        The limits of my, and others’, expertise;

·        The fact that no medical treatment is guaranteed to be successful; and 

·        That no one can perfectly predict what a child will actually be capable of— for example, socially, academically, or vocationally—in ten or more years when they enter their early-adult lives.

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   Significantly, the impact of chance is pervasive.

   For example, I have testified in cases where:

·        A collision reconstruction expert demonstrated that if—by chance—one of the drivers in a horrific collision had braked instead of unsuccessfully turning to avoid the other car, the accident would not have occurred. . . and the occupants would not have been harmed.

·        A student with significant academic needs “lost” another year of quality instruction (the first was during the pandemic) when his certified teacher resigned—by chance—in October, leaving him to be “taught’ by a series of unqualified substitute teachers for the rest of the school year.

·        A medical condition. . . that most children recover from with no long-term impact. . . conjoined—by chance—with a child’s hidden genetic predisposition, resulting in an intensification of the condition and devastating academic and mental health outcomes. 

·        A poor parent decision. . . largely due to her limited educational background and—by chance—life in poverty. . . resulted in her child missing critical early intervention services that could have significantly resolved many of his school and schooling needs (and the legal claims).

   Two extended themes, here, are apparent.

   First: Life is a probability. Unpredictable events happen in all of our lives, and some events negatively affect our lives for the rest of our lives.

   You have the right to blame someone who was present when an unpredictable event occurred (e.g., a doctor or the “other” driver in a car crash), and sue them. . . but “bad things sometimes happen to good people.”

   Second: When litigating a case in Court, many of the rules that we live our “regular” lives by do not apply.

   Critically, in a court case about education and law, decisions are based on law, and not about education. Court cases involving schools are tried in court. . . the Court retains a procedural “home court” advantage throughout; and the Judge is a judge, not a Principal or Superintendent.

   Moreover, the legal system is not about fairness or empathy or what “should have logically happened”. . . it is about (a) lawyers’ legal knowledge and strategies; (b) the application of case law and previous legal decisions and precedents; and (c) judges’ or juries’ analyses of the case and interpretation of law.

   Said a different way, any Plaintiff bringing a case to court is taking a calculated risk.

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Disability Law: The Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973

   Two federal laws protect virtually all Americans from chance. . .

. . . specifically, from the chance of being born with, acquiring, or experiencing a disability.

   These “birth to death” civil rights laws are Section 504 of the Rehabilitation Act of 1973 (Section 504), and the Americans with Disabilities Act (ADA; 1990).

   Signed into law on September 26, 1973 by President Richard Nixon, Section 504 prohibits discrimination on the basis of a disability by public or private programs that receive federal funds. This includes public schools, colleges, and universities.

   As such, the law ensures that students with disabilities have equal access to education, providing—as needed—accommodations, modifications, and supports.

   Section 504 also covers employment, focusing again on employers who receive federal funds—requiring them to provide reasonable accommodations to employees with disabilities.

   Signed into law on July 26, 1990 by President George H.W. Bush, the ADA has a broader scope than Section 504. It applies to all aspects of life in both the public and private sectors.

   Covering employment, transportation, public services and access, state and local government services, and telecommunications, the ADA makes it unlawful to discriminate against a qualified individual with a disability.

   Title I of the ADA addresses employment, requiring employers with 15 or more employees to provide reasonable accommodations to qualified employees with disabilities, unless it causes undue hardship.

   Title III of the ADA covers public accommodations and services operated by private entities, such as restaurants, hotels, and theaters, ensuring access and non-discrimination.

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Using Section 504 as an Expert Witness

   Relative to my Kindergarten through Grade 12 Expert Witness cases, I—along with most K through 12 districts—have a much higher probability of using Section 504 than ADA.

   So, let’s do a deep dive and provide some additional information on this law.

Section 504 of the Rehabilitation Act of 1973, as noted, is a civil rights law that prohibits discrimination against individuals with disabilities in programs and activities that receive federal financial assistance. This includes schools, hospitals, and other public services that receive federal funds.

 

The law ensures that people with disabilities have equal access to education, healthcare, and other services, and that they are not excluded from or denied the benefits (such as access to learning) of any program or activity that, as noted earlier, receives federal funding.


In May 2024 (implemented in July 2024), the U.S. Department of Health and Human Services (HHS) updated the rules under Section 504 to provide stronger protections. For example, they now include requirements for schools to provide students with disabilities accessible websites, mobile applications, and other digital platforms; and for hospitals to provide sign language interpreters and accessible medical equipment.

 

These updates also better aligned Section 504 with the ADA.

 

Significantly, Section 504 adopted—with the addition of long COVID and a broader range of impairments—the ADA’s 2008 amended definition of “disability.” Impairments include those that are both chronic and temporary.

 

Section 504’s definition of a disability continues to be broad as its goal is to ensure that individuals with disabilities receive the protections they need.

 

Section 504 defines disability as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.”

 

The May 2024 update continues to define “major life activities” as in previous versions, but some clarifications and expansions were made to ensure consistency with the ADA. The Life Activities that apply—regardless of age—include: Caring for oneself, Walking, Seeing, Hearing, Speaking, Breathing, Working, Performing manual tasks, Learning, Concentrating, and Eating.

 

For school-aged students, Section 504’s major life activities include those listed above, as well as those essential for daily functioning and participation in the school and schooling process and environment. Additional activities, therefore, include: Thinking, Reading, Writing, and Communicating.

 

Eligibility assessments determine if a student has a disability that substantially limits one or more of these functions and needs accommodations or supports under Section 504.

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Moving On: For students, Section 504 ensures that individuals with disabilities receive equal access to education and other services. Some examples of disabilities that qualify under Section 504:

 

·     Learning disabilities (e.g., dyslexia, ADHD)

·     Mental health conditions (e.g., anxiety, depression)

·     Chronic illnesses (e.g., asthma, diabetes, epilepsy)

·     Physical impairments (e.g., mobility impairments, missing limbs)

·     Sensory impairments (e.g., vision or hearing problems)

 

These conditions must significantly limit one or more major life activities, such as learning, working, or communicating.

 

For adults, some Section 504 disabilities might include: 

·        Mental Health Conditions: Conditions such as anxiety disorders, depression, bipolar disorder, and PTSD.

·        Chronic Illnesses: Conditions like diabetes, arthritis, multiple sclerosis, and chronic fatigue syndrome.

·        Physical Impairments: Mobility impairments, arthritis, spinal cord injuries, or missing limbs.

·        Sensory Impairments: Vision impairments (including blindness), hearing impairments (including deafness), or speech impairments.

·        Neurological Disorders: Conditions like epilepsy, migraine headaches, or traumatic brain injury (TBI).

These conditions must significantly limit one or more major life activities, such as working, walking, seeing, hearing, or caring for oneself.

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Section 504 provides several key protections for individuals with disabilities.

Among the main protections for students are:

 

Reasonable Accommodations: Schools and other entities must provide reasonable accommodations to ensure that individuals with disabilities have equal access to their programs and activities. This can include things like providing extra time on tests, offering sign language interpreters, or making buildings accessible. Past “model” 504 Accommodation manuals included those from the Colorado and Ohio State Departments of Education, and from the Council of the Chief State School Officers (CSSO).

 

504 Plans: For students with disabilities, Section 504 requires the development of 504 Plans that outline the specific accommodations and support services needed to help them succeed in school. For students with special education IEPs, needed accommodations are written into these Individual Education Plans.

 

Accessibility: Entities must ensure that their facilities and services are accessible to individuals with disabilities. This can include making physical modifications to buildings, providing accessible medical equipment, and ensuring that websites and digital content are accessible.

 

Equal Opportunity: Section 504 ensures that individuals with disabilities have the same opportunities to participate in programs and activities as those without disabilities. Accommodations are the primary vehicle toward ensuring that students with disabilities have equal access to educational programs, learning opportunities, and extracurricular activities.

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Section 504 provides protections for adults in various settings, including employment, education, and access to public services. These protections ensure that adults with disabilities are not discriminated against, and have equal opportunities to participate in programs and activities that receive federal funds.

 

Among the main 504 protections for adults are:

 

Employment: At their employment sites, adults with qualifying disabilities must receive reasonable accommodations from their employers to include modifications to the work environment, flexible work schedules, or assistive technology.

 

Education: Adults with disabilities have the right to access educational programs and services. This includes accommodations in higher education institutions and vocational training programs.

 

Public Services: Public services, such as transportation and healthcare, must be accessible to individuals with disabilities. This can include providing accessible medical equipment, sign language interpreters, and ensuring that facilities are physically accessible.

 

These protections help ensure that adults with disabilities can fully participate in society and access the same opportunities as those without disabilities.

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A Current Legal Wolf Attack on Section 504

   In September 2024, just months after the July 2024 implementation of the revised Section 504 rules, the Attorney General of Texas Ken Paxton filed a lawsuit in the United States District Court (Northern District of Texas, Lubbock Division) against then-Secretary of the U.S. Department of Health and Human Services Xavier Becerra.

   This lawsuit now includes 16 other State Attorney Generals, and its focus is on Section 504.

   The “surface level” concern is the inclusion of “gender dysphoria” as “a physical or mental impairment” in the May 2024 updating of the Section 504 definition of “disability.” In fact, the legal brief filed by Paxton (Texas v. Becerra) spends over 30 pages legally contesting the main argument that the “HHS has no authority to unilaterally rewrite statutory definitions and classify 'gender dysphoria' as a disability."

   My issue here is not to debate the definition of “gender dysphoria,” the legal cases used by the Biden Administration to defend its inclusion in the Section 504 update, or its designation as a disability.

   My issue here is that, in his legal brief, Paxton included not only the striking of gender dysphoria as a disability, but an additional claim (Count III on Page 37) also arguing for the entire elimination of Section 504.

   Here, the lawsuit argues that Section 504 is “coercive, untethered to the federal interest in disability, and unfairly retroactive” and therefore is unconstitutional

   Regardless of the recent public appeasements from several of the Attorney Generals who officially included their states in this lawsuit (Texas, Alaska, Alabama, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, South Carolina, South Dakota, Utah, and West Virginia), the goal is clearly delineated in the lawsuit.

   Specifically, the fourth item in the lawsuit’s “Demand for Relief” says, “Declare Section 504, 29 U.S.C. § 794, unconstitutional.” This is followed by: “Issue permanent injunctive relief against Defendants enjoining them from enforcing Section 504.”

   Talk about a “Wolf in Sheep’s Clothing.”

   If this lawsuit is successful—legal briefs are due in Court by February 25—Section 504, and all of its protections and equal access civil rights protections, would cease to legally exist for individuals with disabilities. This would eliminate the civil rights of students with eligible disabilities to receive 504 Plans with the accommodations that give them equal access to the same educational settings and opportunities as any non-disabled student.

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Any Chance Event Can Result in a Disability: Protecting Everyone’s Best Interests

   During the 2020 to 2021 school year (using the most-current data from the Civil Rights Data Collection bank), there were 1.6 million students with disabilities—ages 3 to 21—served only by Section 504. (This number does not include students with disabilities who did not have 504 plans yet were receiving accommodations on their IEPs.)

   Coincidentally, upwards of 1.6 million Americans have died, to date, from COVID-19.

   Doubling back to the beginning of this Blog, these students are disabled largely due to chance events. They did not ask to be born with a disability, or to experience some tragic, chance event such that they became disabled.

   But critically, in some of my Expert Witness cases, the children involved were not the only ones to be harmed.

   Indeed, the parents involved in the chance events also incurred physical and other disabilities that impacted their employability and quality of life.

   But they are all protected by the ADA and Section 504.

   And so, if by some awful chance occurrence, you (or, your children) were disabled tomorrow, you too would be protected by the ADA and Section 504.

   Closing Points:

·        As discussed earlier, Section 504 provides some protections that the ADA does not. 

·        If Texas v. Becerra fully succeeds, after more than 50 years in existence, 1.6 million current students. . . innumerable future students. . . and potentially, you and your children. . . would lose Section 504’s civil rights guarantees.

·        If the inclusion of “gender dysphoria” in the current rules was a legal over-reach, then the 17 Attorney Generals have the right to petition the Court to correct that mis-step. 

·        But this inclusion does not warrant 17 Attorney Generals to “take off their sheep’s clothing” to artificially link gender dysphoria with a conscious scheme to totally eliminate Section 504 because, in their opinion, it is suddenly unconstitutional.

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Post-Script

   On January 9, 2025, a federal judge in Kentucky stuck down the Biden administration’s Title IX rules expanding protections for LGBTQ+ students because, according to the ruling, the President overstepped his authority.

   In taking this action, the Judge took down the entire 1,500-page updated 2024 regulation in a ruling that (a) will impact all schools nationwide, because (b) it will not be contested given the new Administration in Washington, D.C.

   But, critically, this still leaves the previous 2020 version of Title IX in force.

   If the inclusion of gender dysphoria in Section 504 was a similar overstep, then strike it down.

   But, in parallel, leave the rest of Section 504 intact.

   This is only right. . . it is a legal, civil rights, and quality of life necessity. . . to protect all of us from chance events.

   Taking Action:

   If you agree and want to take action, I suggest that you contact your Governor and State Attorney General right now to express your opinion.

   If you live in one of the 17 states that filed the legal brief, perhaps your Attorney General will withdraw the Fourth Plea in the lawsuit.

   If you live in a different state, perhaps your Attorney General will join with others to contest this Plea.

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Summary

   This Blog began by discussing the realization that, as an Expert Witness in school-related court cases nationwide, some cases involve chance events that impact students’ lives for the rest of their lives. These events—for example, birth traumas, accidents, medical errors, sports injuries—have left the students disabled, and these disabilities impact their ability to concentrate, read, write, communicate, and learn.

   We then discussed two relevant civil rights laws: Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act. We focused especially on Section 504 and how it prohibits discrimination on the basis of a disability by public or private programs receiving federal funds. We described Section 504’s definition of a disability, examples of the life events the disability must impact, and the accommodations required so that students (and adults) have equal access to educational programs, learning opportunities, and extracurricular activities.

   We next discussed a current federal court case Texas v. Becerra, filed in Texas by 17 State Attorney Generals, which is contesting the Biden Administration’s 2024 revision of the Section 504 rules to include “gender dysphoria” as a disability. The critical issue is that the lawsuit seeks not only to eliminate gender dysphoria, but to find the entire Section 504 law unconstitutional.

   Noting that Section 504 protects all Americans from chance life events that result in a disability, we issued a Call to Action to have the unconstitutionality plea in the lawsuit stricken so that students (and others) with disabilities will continue to receive 504’s accommodations and other related protections.

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

   At the beginning of January, we announced a new partnership and resource for you.

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

Improving Education Today: The Deep Dive 

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

   You can find the Podcast at the following link:

Improving Education Today: The Deep Dive | Podcast on Spotify

   Davey and Angela have also created a Podcast Archive of more than 35 additional and separate podcasts 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.

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

   I hope to hear from you soon.

Best,

Howie

 

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

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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]