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Will Covid-19 Permanently Undermine Special Education?

The author, Juliet Hiznay, is a civil rights advocate and Virginia licensed attorney.

Will Covid-19 Permanently Undermine Special Education?

Special Education – The Lifeline

Special education is a lifeline for families across the country. Incredibly dedicated teachers, therapists and administrators dedicate their lives to educating children across the United States. They believe in access in education. The work is challenging and it is fulfilling. They help families understand the needs of their children. When it works the way intended, the outcomes are remarkable. Those who benefit from special education achieve more independence and success as adults.

How Do We Cope When Schools Are Closed?

What does special education mean, though, if educators can no longer be physically present? This really depends on the needs of each child. Non-verbal communication and physical accommodations are important to many children. Educators will also tell you that children behave differently at school than at home. They will share that they benefit from the structure.

Families are facing the need to create that structure. Most are doing so without the background. Some are doing so without the time, the energy, the social emotional resiliency or the skill. Some are doing so while coping with disability and other family obligations. Some are doing so while food insecure or unhoused. Some are doing so while sick.

What Are the Consequences of a Year of Profound Changes in Public Education?

These circumstances raise a question. Has the physical distancing required by the pandemic caused permanent damage to special education?

One possible outcome is that families will appreciate more the rights students gained since the 1980s. Another outcome is that staff workload being put off now will greatly strain the educational system as schools reopen. Advocates worry that the strain on schools will lead to special education rights being removed. This worry does not exist in a vacuum.

It is true that we need pragmatic solutions for schools. However, special education law is meant to be individualized. In the coming months as more and more schools offer in-person learning, it will become evident just how much long-term virtual learning has impacted students. Schools will need to make decisions on a case-by-case basis whether to provide compensatory education. There are practical limits to what can be provided, but the recent federal stimulus funds should help. The bigger resource issue might not be money, but rather trained educators.

When Does Being Flexible Mean Delivering Nothing?

On March 21, 2020, the US Department of Education provided the following guidance in a joint memo from the Office of Civil Rights and the Office of Special Education and Rehabilitative Services.

“To be clear: ensuring compliance with the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act (Section 504), and Title II of the Americans with Disabilities Act should not prevent any school from offering educational programs through distance instruction.”

In response to the CARES Act waiver language, the Council of Administrators of Special Education (CASE) and the National Association of State Directors of Special Education (NASDSE) advocated for broad waivers. In essence, they argued that none of major procedural protections, reporting requirements or funding restrictions under IDEA should be in effect during this crisis. This amounts to a waiver of their duties relating to transitions from preschool, state complaints, maintenance of effort, initial evaluations, reevaluations, develop, review and revision of IEPs, resolution process, timelines and convenience of hearings and reviews, and state monitoring and enforcement. Instead of IEP amendments, CASE and NASD propose the creation of “distance/continual learning plan(s).” Such plans would not be part of any IEP, and therefore would not be binding on the school district. However, this approach was not approved by the federal government. It is unclear how the new Secretary of Education will approach this issue.

Some states are strictly enforcing IDEA, even providing in-person instruction to children based upon need when it has not been deemed safe for the general education students to attend school in person. Others are offering “recovery services” for remediation based on skills lost by students during Covid-19. Such recovery services are not legally mandated in the same way that compensatory education services are required under federal law.

Some might say flexibility is necessary, but advocates are concerned about the severity of the impact of lost services, particularly for those students who require in-person support. One-size-fits-all solutions would undermine the public policy goals of IDEA to provide individualized support.

There are several possibilities that schools can explore short of total physical isolation. For example, home services can be provided even if schools are not fully reopened. In fact, these might become extremely important to protect the health and well-being of children who are medically fragile or have other high needs. Direct service should always be documented in IEPs. We do not know now if there will need to be repeated periods of adjustment to full participation in school, to varying degrees in different localities.

There is a mechanism for documenting changes to IEPs during interim periods. This is possible and should be attempted. Individualized education plan should never have been placed on hold. Instead, school districts have a duty to deliver services and accommodations in the interim to provide a free appropriate public education. Any changes to plans must be documented, and in Virginia any changes requires the parents written consent.

Published March 23, 2021

Answering Your Questions: Will My Child Have Enough Verified Credits to Graduate?

By Juliet D. Hiznay

May 2019

A flurry of online discussions suggest that Virginia high school students and their families are confused about what verified credits are required to graduate with a Standard or an Advanced Studies Diploma in Virginia. This is partly due to legislative efforts to reduce the burdens of testing on public school teachers and students. Unfortunately, implementation of those legislative fixes will not help students who are currently in grades 10-12.

Hopefully this blog will clear the fog.

Dr. Sarah Susbury, Director of the Office of Student Assessment with the Virginia Department of Education was kind enough to share some information with me, which I will share here since parents and students still seem to be relatively “in the dark” and some staff as well.

For all students: Federal standards require that all students obtain a verified credit in mathematics during high school. This means that even if you passed an Algebra I course and the associated standards of learning test (SOL) during middle school, with our without credit accommodations, you must still take and pass an approved mathematics course and its associated SOL during high school.

For current 10-12 grade students seeking the Advanced Studies Diploma: Despite the fact that the Virginia General Assembly sought to reduce testing burdens on staff and students, the number of verified credits for an advanced studies diploma remains 9. This is truly unfortunate for many students who are on the cusp of obtaining such a diploma, but who have been unable to obtain verified credit. This seems contrary to the intent of the Virginia General Assembly. However, an effort to reduce these requirements would require the VDOE to pass regulations, an arduous process.

For all students seeking a Standard Diploma and those entering high school in 2018-19 or later seeking and Advanced Studies Diploma: The number of verified credits required to graduate from high school is 5. These include: one verified credit each in history, science, English 11, English 12 as well as one verified credit for an approved math course taken during high school.

Other graduation requirements include completion of two years of physical education, economics and personal finance, one virtual learning course and CPR, in addition to core courses and 3 electives. The Advanced Studies Diploma also has a specific foreign language requirement.

Students who qualify for special education services or 504 plans can seek credit accommodations in any subject they do not pass, as long as that credit accommodation is included in the individualized education program (IEP) or 504 Plan for the student. The process for obtaining approval for credit accommodations varies by school district, but requires the school district to provide remediation and the student to retake the SOL in question. In Alexandria and in Fairfax County, the IEP team is empowered to make the decision. In Arlington, the process is more cumbersome, since award of verified credits is reviewed by a committee including curriculum specialists. There are numerous avenues to obtain verified credit.

The Applied Studies Diploma does not require verified credits because the diploma does not require completion of grade level courses recognized by institutions of higher learning. This diploma is available only to students who receive special education services. Under the Individuals with Disabilities Education Act, any student who has not yet obtained a standard diploma has a legal right to continued high school education past their senior year, up to four additional years after the student turns 18. Once a student is 18, they are empowered to decide whether or not to continue their public school education and whether to continue special education services or 504 accommodations. The only exception is if a parent obtains legal guardianship over the adult student through a court order.

Long-term planning is recommended: Parents are well advised to begin thinking about the issue of high school graduation during elementary school. The less access a student has to the regular classroom and grade level or advanced content, the less likely they will complete high school with an Advanced Studies or Standard Diploma. This is true for students at risk of school discipline or court involvement, as well as for students with disabilities. During third grade, parents of students with disabilities might be asked to consent to the Virginia Alternative Assessment Program (VAAP). This is a very serious decision, the consequences of which are difficult to reverse. In theory, the VAAP does not prevent graduating with a real diploma. However, it is not a path to graduation with an Advanced Studies or Standard Diploma because it is not based upon grade level expectations. Typically students who are on the VAAP are not included in any general education core courses. It is reserved for students with significant cognitive deficits. Most students can access the general education curriculum with the support of special education services, related services and accommodations, so removal from the general education setting places students at significant risk of not graduating. Students who can perform at or near grade level in any subject should never be on the VAAP. Being on the VAAP means who cannot sit for any SOLs.

Creating a plan for graduation is essential. All parents should work with their children to lay out a plan for graduation during Middle School. They should also track verified credits beginning in 9th grade to ensure that students graduate on time or as soon as possible thereafter, with the diploma of their choice. When parents and students run into a road block, it never hurts to call VDOE to find out whether there are solutions that the local team has not considered.

Juliet Hiznay is an education attorney serving families in Northern Virginia. More information about her practice is available at jdhiznay.com.

This blog is for your general information only, and is not meant to be legal advice. Graduation requirements are highly fact dependent. For legal advice, consult an attorney.

Fairfax Students Traumatized by Restraint and Seclusion, Say Advocates

Today, a newly formed Coalition for Trauma-Informed Schools issued a statement to Fairfax County Schools regarding the crisis in restraint and seclusion in the school district. Below is the text of the statement from the Coalition which is made up of several prominent organizations, disability and mental health advocates, clinicians and special education attorneys who serve children in Fairfax County Public Schools.

***

March 29, 2019

Public Statement to Fairfax County School Board and Fairfax County Public Schools

from Coalition for Trauma-Informed Schools

The undersigned are special education attorneys, disability and mental health advocates, and clinicians who serve children enrolled in Fairfax County Public Schools (FCPS). FCPS has amazing resources and dedicated teachers, administrators, and staff. We seek not to criticize staff, but to highlight our concerns about the use of restraint and seclusion in the school district. Our greatest desire is to see improved outcomes for children, and we know that the current practice of restraint and seclusion in FCPS is resulting in trauma. We know this because we serve children who have been restrained and secluded in FCPS, many of whom are elementary school-aged. We hope that by bringing our concerns to your attention, the Fairfax County School Board, the Fairfax Advisory Committee for Students with Disabilities, and the Fairfax Board of Supervisors will take all steps necessary to define the scope of this problem and take measures to minimize, to the fullest extent possible, the psychological and physical harm to students, families, and staff.

We know from our clients that the repeated use of seclusion of children with disabilities is a widespread problem in FCPS, particularly at “Comprehensive Services Site” programs and other locations that have seclusion rooms. And we are concerned that children in Fairfax, with and without disabilities, are being restrained and secluded for behaviors that do not create an imminent danger of serious physical harm to themselves or others (e.g. non-compliance, breaking pencils, tearing paper, swearing, or verbal threats). Another concern is for children who are not receiving services and accommodations individualized to their unique needs. This places them at a higher risk of restraint and seclusion. We seek a greater focus on creating a positive school climate so that all students feel accepted and included. Towards that end, we want to ensure that FCPS is following the guidance of the U.S. Department of Education (See: The Fifteen Principles Regarding the Use of Restraint and Seclusion; https://www2.ed.gov/policy/seclusion/index.html).

Experts have documented the harmful effects of restraint and seclusion. For example, the National Association of State Mental Health Program Directors has taken a formal position that the practice of restraint and seclusion serves no therapeutic function. Indeed, they state that, “[t]he use of seclusion and restraint creates significant risks for all individuals involved. These risks include serious injury and death, re-traumatization of people who have a history of trauma, and loss of dignity and other psychological harm.” We note that vicarious trauma to staff and other students is also a serious risk. Moreover, the existence of dedicated seclusion rooms in many public schools within FCPS is distressing on many levels. Although the rooms might be called “reflection rooms” or “support rooms” or “safe rooms,” all of these rooms are seclusion rooms when they are used to isolate a student and prevent them from leaving. Parents and advocates see that the fear of being placed in such locations plays a major role in the response of children, and that response often appears to be a response to trauma. Clearly, feeling safe is critical to a child’s sense of love and belonging, self-esteem and resilience, which all people need to thrive. Furthermore, many taxpayers who have indirectly funded these seclusion rooms have been shocked to learn that they exist.

If FCPS values transparency and accountability, the necessary steps must include standardization and reporting of data, including data disaggregated by sub-group (race, ethnicity, gender, socio-economic status and disability). The decision not to report incidents of restraint and seclusion to the Virginia Department of Education or to the United States Department of Education, as reported by WAMU 88.5, may have kept the problem out of view, but it has been well-known to advocates for children, who have been raising concerns about such incidents to FCPS administrators and attorneys representing FCPS. The recently announced superintendent’s review of restraint and seclusion procedures is appreciated, but we encourage FCPS to conduct an open process that is transparent to the entire Fairfax County community. In addition, we ask FCPS to correct the public record in its filings with state and federal governments.

We note that a longitudinal study of FCPS outcomes associated with past restraint and seclusion could be an invaluable source of information to inform public policy and practice on this matter. That study would not require parents to come forward. Instead, existing FCPS data could be used to identify whether students have been referred to law enforcement, dropped out, left the district for private school or to be home-schooled, have been transferred to more restrictive school environments, graduated on time or at any time ended up in juvenile or adult detention.

Finally, we believe that there are effective methods of preventing the use of restraint and seclusion in almost all cases, and that working toward a restraint-free and seclusion-free school-system is important. We know that much more attention must be paid to preventing the escalation of behavior. We want to work with FCPS to help identify the complex considerations at play. Accordingly, we invite FCPS to meet with a small group of advocates and clinicians to work collaboratively toward better solutions for students in FCPS. Please contact Nancy Tubbs at ntubbs@lsnv.org or Juliet Hiznay at 202-352-8982 to discuss this opportunity to work together.

Sincerely yours,

Juliet Hiznay, Attorney at Law, J.D. Hiznay, PLLC

Nancy Tubbs, Staff Attorney and Coordinator, Education Law Project, Legal Services of Northern Virginia

Rikki Epstein, Executive Director, The Arc of Northern Virginia

Dr. Jennifer Shaw, Founding Partner, Gil Institute for Trauma Recovery and Education

Grace Kim, Attorney at Law, the Law Office of Grace E. Kim, P.C.

James P. Atkinson, Of-Counsel Attorney, the Law Office of Grace E. Kim, PC.

Joan Proper, Attorney at Law, Law Office of Joan H. Proper, PC

Bhavin Dave, M.D., Board Certified, Psychiatry/Neurology-Child Psych

Susan Edgerton, President, Parents of Autistic Children of Northern Virginia

Amy Peterson, LCSW, Center for Attachment & Trauma Services, Inc.

Kelly Henderson, Executive Director, Formed Families Forward

Kimberly Greenspan, Managing Member, Education Advocates of Northern Virginia

Teresa L. Champion, Virginia Autism Project

James Jarrett, Executive Director, ENDependence Center of Northern Virginia

Rhonda Thissen, Executive Director, NAMI Virginia

Media inquiries: Call Juliet Hiznay at (202) 352-8982

Richmond Advocacy Alone Cannot Fix Arlington’s Handling of Criminal Justice

By Juliet D. Hiznay, Attorney at Law

Published March 2019

There is a broad consensus among parents of children with disabilities, child advocates and attorneys that we need to transform Arlington’s approach to charging children and adults with crimes, particularly those with disabilities. In 2015, the Center for Public Integrity ranked Virginia as number 1 out of 50 states in referring students to law enforcement. The cited referral rate of 16 referrals per 1,000 children was reported as three times the national rate. According to Legal Aid Justice Center, a Virginia non-profit, this reflects “an over-reliance on law enforcement and harsh discipline policies that too often criminalize students for minor offenses.” Without a purposeful effort by local officials to avoid the worst of Virginia “justice,” our children will continue to be subjected to a system that ignores developmental considerations. Children in Arlington will continue to be at the mercy of a system of laws that criminalizes disability, mental health and addiction.

At this time, we cannot even quantify the problem in Arlington. This is because the data is not being collected in a way that can yield analysis. However, we do know that in Arlington today, students can become court involved for matters as minor as vaping. We know that students who are bullied can be charged with assault and battery when they are victimized and it leads to a fight in school. We know that students who need prescription medication to treat AD/HD and share the medication with a friend are likely to face a felony drug distribution charge. If there is any injury that breaks that skin during a physical altercation, that can be charged as felony malicious wounding. We also know that if a disabled person becomes upset when communication breaks down, or a person becomes dissociative as the result of psychosis or PTSD, and in the course of the incident a family member is injured, that person is likely to be charged and detained even if the family member does not want to pursue charges.

I raise these issues because Virginia law is so incredibly punitive. The truth is that it does not treat children much differently from the way it treats adults, and in some ways treats them worse. Part of the problem is that many prosecutors have no understanding of psychology or childhood development. Children age 8 and older are deemed criminally responsible, regardless of whether they have a disability. In fact, any felony conviction as a juvenile means having a record for life. Prosecutorial discretion is a key protection from a system designed for punishment alone. It can be employed to make Arlington safer for everyone.

For anyone, it can be scary to go to court or to be confronted by an armed person in uniform. Consider if you are a child who does not have adult judgment. Commonplace interrogation techniques place young people at an extreme disadvantage. In Arlington today, a student of color and a student with disabilities is far more likely to be disciplined by a school and charged with a criminal offense. Frequently there is a connection between lack of appropriate services and these outcomes. When I work on a special education or 504 case, tailoring services and accommodations to needs is my primary focus. A carefully designed and implemented individualized education plan or 504 Plan can help students avoid these terrible outcomes. In fact, federal special education law is specifically designed to help avoid such consequences.

Arresting and charging those with disabilities serves to exacerbate and accelerate existing behavioral problems, and will not solve them. Imagine for a moment that you have a disability and it interferes with your ability to communicate effectively. A person with a disability is likely to deteriorate when charged with a crime or incarcerated, not get better. If the behavior is related to the disability, it should be carefully assessed to determine if it is purposeful or simply a symptom of the disability. When incarcerated, a person with a disability loses access to their caregivers and loved ones, as well as their treatment providers. For all of these reasons, there needs to be a very significant public safety reason to charge and detain someone whose behavior is linked to disability.

The “reforms” in place are woefully inadequate. The extremely limited “Second Chance” program is available only for first offense vaping, alcohol and marijuana offenses, the narrowly defined “Drug Court” – which children cannot access – and “Detention Diversion” are simply not enough. Also, Second Chance does not offer any nicotine cessation or other treatment; it is merely an education program.

A decision needs to be made on the front end, with proper assessment, of how best to address public safety concerns. More often than not, linking an individual to human services is a far better solution, with improved outcomes. Families who are providing care to loved ones with disabilities bear significant economic burdens and time constraints. A court case can be extremely damaging to the entire family.

It is of great concern to me and to other advocates in the community that the Commonwealth’s Attorney’s Office continues to pursue cases without regard to disability, mental illness or the effects of addiction, continues to aggressively pursue the maximum charges possible to extract guilty pleas, and continues to count the number of convictions as the determining factor of whether the office is a success.

The severity of the situation came to my attention in 2015. At that time, I made a direct request to our local prosecutor Theo Stamos to drop a charge that criminalized extremely minor behavior of a disabled child. Ms. Stamos was relying on a vague and overly broad provision of law that makes any interruption of instruction in school a crime. Subsection C of the disorderly conduct statute is a disaster for children with autism and AD/HD who might have distracting behaviors such as speaking when not asked, fidgeting or “stimming”, vocalizing, or wandering around the classroom. I continue to advocate that the statute be amended to eliminate that subsection. However, prosecutors should never enforce a law in such a way that it is unconstitutional. In fact, the duty of a prosecutor is to ensure that laws do not exceed constitutional bounds.

When Ms. Stamos refused to drop the case and informed me that there was no diminished capacity in Virginia, I decided I had to do something. I drafted a bill which took effect on July 1, 2016. It is now on the books as Va. Code § 16.1-274.2. It creates a diminished capacity defense in narrow circumstances. It addresses minor school-based offenses, such as disorderly conduct. What it does not do is prevent decision making by our local prosecutors that criminalizes disability.

Turning a blind eye to the needs of those with disabilities and other injustices did not begin or end with the incident that inspired me to get a law passed.

In 2014, Arlington arrested Abreham Zemedagegehu, a deaf man who was homeless at the time, and charged him with a felony for stealing an IPAD. According to news reports he was actually innocent, as the person who reported the theft later found the IPAD in question and recanted his statement. Arlington County settled a related federal lawsuit under the Americans with Disabilities Act for $250,000. Zemedageghu was reportedly “held for more than 24 hours before he knew why he had been arrested. He was administered a tuberculosis shot without his consent, often went hungry because he couldn’t hear alerts for mealtime and was unable to call friends or an attorney because of inadequate technology in the jail — all of which violated the Americans with Disabilities Act.”

The systemic problems we have can be addressed and they need to be.

First, prosecutors have a duty to ensure they are not locking up innocent people.

Second, when a person with a disability is involved in a case, there should be an extra sensitivity to whether that individual can effectively communicate.

Third, prosecutors should exercise their discretion and not criminalize a disability when connecting the individual to services will result in better outcomes. When I talk about outcomes, I mean for both the individual and for the public at large. In my special education legal practice, I have seen that aggression and other inappropriate behavior are linked to two things: An inability to effective communicate – i.e. understand what is happening or communicate needs – and a failure to provide adequate services to address underlying needs.

If we can target services to the needs of individuals, concerning behaviors often stop altogether or can be significantly reduced. By contrast, if you criminalize behavior such as impulsive or hyperactive behaviors in school, the stress of court involvement will simply make behavior more erratic and extreme. Trauma and fear pay a very significant role in behavior. Being prosecuted and detained is an experience that even the most mature and resourceful person will find extremely stressful.

We need a transformation. To achieve that transformation we need leadership that can offer a self-critical eye. Only by openly and honestly identifying the problems with our system can we design a systems change in order to reform it. Instead, what we see in the public discourse on prosecutorial discretion is an effort to deny, to sidestep, to exaggerate progress and to shift blame.

The opinions offered here are those of the author, Juliet Hiznay, and do not reflect the position any other individual or entity.

A Democratic primary will be held on June 11, 2019 to determine who will be the party candidate for Commonwealth’s Attorney for Arlington and Falls Church. The candidates are Theo Stamos, the incumbent, and Parisa Dehghani-Tafti.

Public Comment on Virginia’s Proposed Restraint and Seclusion Regulations

The following is a public comment written by Juliet D. Hiznay, Esq., and submitted to the Virginia Board of Education on November 15, 2016.

***

I write to you as the parent of a Virginia public school student and as an attorney who represents children experiencing the devastating effects of restraint and seclusion. Virginia schools have been unregulated in the use of restraint and seclusion. Due to sovereign immunity and staff immunity under state law, parents have found it difficult if not impossible to protect their children from the traumatizing effects of these practices, absent the extraordinary step of removing them from school.

As a special education advocate, it has been my privilege to represent families who are seeking appropriate special education services and placement pursuant to the Virginia implementing regulations under the Individuals with Disabilities Education Act (IDEA). In my own practice, which is primarily collaborative in nature, it is apparent that the use of restraint and seclusion leads to children with disabilities requiring a more restrictive (and therefore a more expensive) placement in either private day school or in residential in order to receive the educational benefit mandated under IDEA.

The truth is that long-term outcomes associated with the unregulated use of restraint and seclusion are extremely poor. I have observed in my practice the practical application of the use of these practices and I have reviewed data in individual cases. In my experience, when school staff find themselves at a loss for how to otherwise address a problem behavior it is typically the case that at least one, if not all, of the following factors are at play (1) school staff do not understand why the child is behaving as they are, or how their own conduct is contributing to the problem, (2) the school district has failed to address the child’s underlying educational needs, (3) children are experiencing a hostile school environment, (4) children lose significant instructional time as a result of parents picking them up from school regularly or seeking homebound services because of the unacceptable mental health impacts of exposing their children to these techniques, (5) use of the practices escalates the behavior of the child and the staff, leading to more dangerous conditions for staff and students, (6) children who observe the use of restraint and seclusion on students are fearful of it being used on themselves, (7) use of these practices has a negative impact on staff morale, (8) use of restraint and seclusion results in the child being socially ostracized by peers, and (9) children who have experienced restraint and seclusion lose trust in school staff and are unable to reintegrate back into the same public school setting, leading to administrative transfers and more restrictive special education placements. These more restrictive special education placements represent a significant drain on the budget of schools, Medicaid funds and funds available under the Virginia Children’s Services Act. Reducing the use of restraint and seclusion would permit those funds to be redirected, and therefore meet the needs of more children in the public school setting with better individual outcomes and lower dropout rates.

Schools in Virginia are rife with examples of restraint and seclusion being used where there is no imminent risk of physical bodily harm. Therefore, it is imperative that the Board of Education issue regulations that comply with the plain language of Virginia Code §22.1-279.1:1. The General Assembly has directed the Board of Education to draft regulations consistent with the U.S. Department of Education’s Fifteen Principles and Virginia’s 2009 Guidelines for the Development of Policies and Procedures for Managing Student Behavior in Emergency Situations. (Attached). The Fifteen Principles limit restraint and seclusion to emergencies to protect someone from serious physical harm; require 24-hour parental notice; emphasize positive behavioral supports; and more.

Allowing schools to use restraint and seclusion for tantrums, not obeying instructions or paying attention, violating any student conduct codes, breaking pencils, tearing paper, and other behaviors that endanger no one, as the current proposed regulations do, would be contrary to Virginia Code §22.1-279.1:1. Further, the regulations define restraint and seclusion in very narrow strained ways. The provisions as currently drafted could result in restraint and seclusion not being regulated or monitored at all, and then no one will be accountable for the harm being done to our children or the associated poor outcomes.

For the foregoing reasons, I urge you to amend the draft regulations consistent with the recommendations of the Coalition for Improving School Safety.

Additionally, in my professional opinion, seclusion should not be permitted at all in the public school setting. My local school division, Arlington Public Schools, does not permit seclusion. There are no seclusion rooms in the district. Arlington Public Schools is able to function just fine and has better outcomes than many other school districts as a result of this very sound policy. In my practice, I have noticed that seclusion appears to have the most dangerous psychological impact on students, including the potential to cause psychiatric hospitalization in the short-term and Post Traumatic Stress Disorder in the long-term. Simply put, there is no justification for its use in the public school setting. Banning seclusion in public school would result in better problem solving at the school level.

In closing, I want to commend the hard work and dedication of the Virginia Department of Education staff who worked to develop these regulations. Please accept my deepest thanks for your commitment to the well-being of Virginia’s public school students

Project Save Childhood: The Need to Improve School Climate in Virginia

The author, Juliet Hiznay, is a special education advocate and attorney in private practice in Northern Virginia. For information about her practice, visit http://jdhiznay.com/

The 2016 session of the Virginia General Assembly may prove to be a watershed moment for the rights of all children in Virginia schools, and particularly those with disabilities.

Advocates and educators across the state are tired of seeing children suffer from a number of different indignities in school. Nationwide our children are being subjected to an onslaught of unpleasant experiences at school where they spend the majority of their waking hours between September and June, including:

Lack of access to physical exercise even though studies show it improves learning
Bullying and disability harassment
Excessive and unnecessary school disciplinary action
Use of physical or mechanical restraint and placement in seclusion
High rates of suspension and expulsion
Entanglements with law enforcement for developmentally expected behavior

Data collected from states by the federal government shows that two groups of school children experience this unpleasantness at a much higher rate than the total student population: minorities (specifically Black and Latino students) and children with disabilities.

The truth is, despite the many improvements to educational services for children with special needs under the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act, these federal laws have not necessarily resulted in an improvement to overall school environment. A combination of parental protectiveness, “tough on crime” policies that affect children as well as adults, excessive testing, the paperwork burden on educators and an obsessive focus on academics to the exclusion of play time and exercise have combined to make school a far less welcoming place. For children with disabilities who have a much higher rate of anxiety and need for movement, this is very bad news. Unfortunately, the data on Virginia is bad.

How Bad Is Bad? Three Times as Bad.

The data raises a number of civil rights concerns. As bad as many of the statistics are nationwide, Virginia’s statistics are consistently far worse in key indicators. Based upon the most recent US Department of Education single school year data collected from states, Virginia leads the nation in referral of students to law enforcement with 16 students referred per 1000, which is nearly 3 times the national average. This is getting a lot of attention and led to Virginia Governor Terry McAuliffe to announce a “Classrooms Not Courtrooms” initiative last fall. Disciplinary action and referrals to law enforcement are both known to increase the likelihood of delinquency in children. If you think about it, this is common sense. Once you tell kids they are bad and that they are criminals, and they will fulfill your expectation. Instead of teaching and modeling positive behaviors, we are sidelining children into the criminal justice system. The opportunity to learn from a serious mistake at school without life altering consequences has all but vanished for our youth.

Eliminating Excessive Restraint and Seclusion Practices

Restraint and seclusion rates in the nation are similarly alarming. Data on students with disabilities show that the practices of concern are affecting school children with disabilities at far higher rates in Virginia than the national average. While approximately 14% of Virginia students have disabilities and are served under both IDEA and Section 504 of the Rehabilitation Act, they represent:

-83.3% of students subjected to seclusion (compare US rate 56.7%)

-81.1% of students subjected to physical restraint (compare US rate 75.7%)

-58.3% of students subjected to mechanical restraint (compare US rate 31.8%)

These rates matter because restraint and seclusion practices cause trauma to children, resulting in poor academic and functional outcomes over the short- and long-term. Sometimes restraint and seclusion can even result in death. Children with disabilities subjected to restraint and seclusion tend to require more services after these experiences rather than less, which is more expensive for states and localities. Children subjected to restraint and seclusion also become more aggressive. School becomes an unsafe place when children lose control over their own bodies. In 2015, the General Assembly mandated that new state regulations be issued to reduce the rates of restraint and seclusion in public schools. This effort has not yet been completed, but regulations issued in 2015 that apply to private day schools serving children with disabilities enacted sweeping reforms. The regulatory process needs to be followed carefully to ensure that the new regulations are effective in reducing or, in the case of seclusion, prohibiting these disfavored practices in the public school setting. No one’s child should be getting locked in a room by themselves in any public school in America.

What Price Disorderly Conduct?

Virginia’s disorderly conduct statute explicitly makes it a crime for a student to disrupt instruction during school by causing “inconvenience or annoyance.” Children of all ages and abilities are known to cause inconvenience and annoyance, so this law would make a sensible person laugh if it were not so sad. The language in this statute is so broad that nearly any inappropriate or annoying act could qualify. Of particular concern, children with disabilities regularly exhibit behaviors that are distracting or annoying to others in the school environment. This is especially true when the quality of special education support is low or services are not tailored to meet the student’s needs. It is embarrassing but true, in Virginia many children are being charged under the disorderly conduct statute for behaviors caused by their disability. Incidents in school can also be caused by adults unintentionally escalating situations due to insensitivity or lack of training. Because Virginia law treats a child with a developmental disability as equally responsible as a child without any disability, a child can be charged and adjudicated a juvenile delinquent even if the behavior at issue is clearly caused by the disability itself. Adults do not refrain entirely from acts that cause inconvenience or annoyance, so why are we expecting this type of perfection from children?

Reducing the scope of the disorderly conduct statute and redefining the offense would go a long way toward reducing Virginia’s very high rates of school referral to law enforcement. To be clear, this would have no effect on other crimes. Disorderly conduct is not assault, battery, larceny, property destruction, weapons offenses and drug offenses. All those crimes are still fair game if we stop pursing school children for disorderly conduct. Of course, school disciplinary action can always be meted out for minor behaviors like being fidgety, getting out of your seat, being noisy, not following directions, leaving class without permission, or misusing school materials. School Resource Officers would still have broad authority to maintain safety at school if indeed there is a safety issue.

What makes advocates so sure that targeting the disorderly conduct statute will make a difference? Because Texas recently eliminated the charge in the school context for enrolled students, which resulted in a dramatic drop in criminal charges against students in all categories. We need to do the same in Virginia.

School Climate Bills Aimed at Reform

Several bills being pursued in the Virginia General Assembly attempt to address school climate. These efforts include eliminating school referral mandates to law enforcement, exploring alternatives to suspension and expulsion, and addressing the number one criminal law resulting in referral of students to law enforcement: the disorderly conduct statute.

Will this year’s efforts in the Virginia General Assembly be successful? That is unclear. In a political environment with such wide chasms, success can seem remote. However, each incremental step in Virginia offers the opportunity to educate legislators in both parties. We need to develop child friendly policies that are grounded in an understanding of child development. The price if we do not? Miserable kids, the criminalization of childhood and the continuation of a system that is absurdly unfair to the most vulnerable among us.

VIRGINIA 2016 SCHOOL CLIMATE BILLS

The following bills were introduced in the 2016 General Assembly and can be tracked at https://lis.virginia.gov/lis.htm. As of the date of this blog, the bills in bold are still alive, but require support from the public. If you support these bills, tell your legislator, which you can find here:

http://virginiageneralassembly.gov/membersAndSession.php?secid=1#!hb=1&mainContentTabs=0

HB1213 (Del. Albo-R) Allowing minors prosecuted for misdemeanos in school to present educational plans and behavioral assessments, under seal by the court, as evidence that the minor did not act willfully
HB1200 (Del. Collins-R) Prohibiting students with individualized education programs (IEPs) from being found guilty of battery against a school employee if the offense occurred on school property or a school bus or at a school-sponsored activity
HB1132 (Del. LaRock-R) Eliminating requirement that school principals report numerous misdemeanors and non-crimes to law enforcement
HB1134 (Del. LaRock-R) Eliminating “disorderly conduct” as a possible delinquency or criminal charge for school students 14 and younger if the conduct occurred during school hours and on school property.
HB487 (Del. McClellan-D) Eliminating requirement that School Resource Officers (SROs) “enforce school board rules and codes of student conduct,” to avoid compelling SROs to intervene in disciplinary issues
HB488 (Del. McClellan-D) Eliminating secure placement (e.g., detention) as an option for children who violate a court order or probation agreement to attend school
SB458 (Sen. McEachin-D) Prohibiting out-of-school suspensions unless all feasible alternatives to suspension have been considered
HB486 (Del. McClellan-D) Eliminating requirement that Commonwealth’s Attorneys prosecute all truancy cases
SB587 (Sen. Sturtevant-R) Same as HB486

SOURCES

U.S. Government Accountability Office, Ending the School to Prison Pipeline, Testimony before the Judiciary Committee, Senate, Washington D.C., December 12, 2012.

http://www.thomasjeffersoninst.org/files/3/Juve%20justice%20sept%202015%20white%20paper.pdf

http://www.huffingtonpost.com/2015/03/14/texas-school-discipline-tickets_n_6867162.html

http://www.publicintegrity.org/2016/01/06/19106/report-says-virginia-should-require-school-police-training-and-alter-laws-reduce

Civil Rights Data Collection 2011-2012 http://ocrdata.ed.gov/; U.S. Department of Education Office for Civil Rights Data Collection: Data Snapshot (School Discipline) March 21, 2014; U.S. Government Accountability Office, Seclusions and Restraints: Selected Cases of Death and Abuse at Public and Private Schools and Treatment Centers. Testimony before the Committee on Education and Labor, House of Representatives, Washington, D.C., May 19, 2009; Council of Parent Attorneys & Advocates, Inc., Unsafe in the Schoolhouse: Abuse of Children with Disabilities (May 27, 2009); Congressional Research Service, The Use of Seclusion and Restraint in Public Schools: The Legal Issues (April 14, 2009); National Disability Rights Network, School is Not Supposed to Hurt: Investigative Report on Abusive Restraint and Seclusion in Schools (January 2009); National Alliance on Mental Illness, Cries of Anguish: A Summary of Reports of Restraint & Seclusion Abuse Received Since The October 1998 Investigation By the Hartford Courant (March 2000); U.S. Government Accountability Office, Improper Restraint and Seclusion Place People at Risk. Report to Congress, September 1999; Weiss, E.M. et al., Deadly restraint: A Hartford Courant Investigative Report 1998, October 11-15.

Getting Unstuck: Tips to Avoid the Endless IEP Process

The author, Juliet Hiznay, is a special education advocate and attorney in private practice in Northern Virginia. For information about her practice, visit http://jdhiznay.com/

There is an exhaustion factor to being a parent or guardian of a child who requires special education services. Getting the proper plan in place is not a single event. In fact, continuous adjustments need to be made every year, and often more frequently, based upon the child’s development, the changing demands of school and the classroom placement. The process feels like an endless grind of revisions to the individualized education program (IEP), which creates tension. School staff are under considerable pressure to meet regulatory requirements while serving children. Parents see the clock ticking and fear that the opportunity to address their child’s needs is slipping away with each passing school year. In this environment, members of the IEP team commonly have trouble agreeing to revisions, and this can lead to a failure to get in place a plan that will best serve the needs of the student. Most parents are not interested in pursuing legal action because it tends to seriously compromise cooperation with school serving the student.

So, short of bringing a legal challenge when the IEP team gets stuck, how can parents move forward? As with any other difficult situation, the answer is usually to examine why the team is stuck and then problem solve. The inability to agree in an IEP process often stems from communication problems among members of the IEP team. There are three common communication problems which, if solved, can get the IEP team to come to agreement:

(1) School staff and parents disagree that the child has a particular need. Rather than argue about who is right, the professional approach would be to collect data (school work, observations, school assessments) and openly share what is happening at home and school, thus ensuring that all team members have updated information about the needs of the child. The Individuals with Disabilities Education Act (“IDEA”) explicitly permits annual assessments of children. Parents do not need to wait for a triennial evaluation to pursue formal testing. Sharing new information, even if it is only anecdotal, provides the benefit of giving everyone the opportunity to “save face,” meaning they do not have to admit to being wrong, they can simply change their minds based upon new information.

(2) Attitudes among school staff and parents creates divisions on the team. Sometimes team members fail to demonstrate respect for one another. Working to maintain respectful interactions maximizes the opportunity to exchange information. Even if respect cannot be there, the appearance of it (courtesy) is a requirement for repairing interactions. Reminding the team how stressful and emotional the process is can help prevent communication breakdowns. Sometimes one individual takes over the direction of the meeting. When this happens, team members may no longer feel comfortable sharing their ideas. Asking individual members of the team questions can help break this type of dynamic. A more drastic work around can also be required, such as asking that a new case manager or liaison be assigned. Apologies for negative attitudes, criticism or outbursts can become necessary. However, if the relationships are damaged beyond repair, it may be time to put together a new team.

(3) Parents’ fear of situations or distrust of school staff stymies decision making. School staff rarely have a full picture of the pressures on parents of children with high needs. Such parents’ concerns are both immediate (e.g., My child is not meeting benchmarks in reading.) and longer term (e.g., Will my child be an independent adult?), with unpredictable outcomes. The desire to protect privacy can lead to many misunderstandings of the issues that families face. Being fearful and mistrusting of school staff most often stems from a parent’s lack of information of what is happening at school. In this type of situation, it is important for parents to have the opportunity and take the time to observe their children in the school setting and to gather information from school. Obtaining information will either alleviate parent concerns or, if the support is inadequate, it will clarify what additional work must be done by school staff to meet the child’s needs. Generally parents know their child best, so observation is a powerful tool. Sometimes what a parent makes the wrong assumptions about what is happening. A parent observation can shift members of the team to problem solving. Whatever approach is required, it is crucial that the parent is given the tools to help the staff serve the student. Knowledge is power.

The IEP process is designed to be a collaborative process. When it is working at its best, the opportunity to achieve the individualized service envisioned under the IDEA can be miraculous for students. The never ending work within the team process is exhausting, however, and it is easy to get stuck. Communication problems can be simple to identify and solve, particularly if there is a participant who can take a fresh look at the issues and help remove roadblocks. That is why experienced veterans of the IEP process recommend that parents attend meetings with an advocate or, if that is not possible, with a friend. When the IEP team gets stuck, a fresh perspective can be a godsend.

Ready or Not: Massive Diploma Changes Are Here for Virginia Students

The author, Juliet Hiznay, is a special education advocate and attorney in private practice in Northern Virginia. For information about her practice, visit http://jdhiznay.com/

A glutton for punishment, I spent most of today watching a live stream of a Virginia Department of Education (VDOE) meeting about the Standard Diploma in Virginia with “by invitation only” stakeholders. Listening to state educators brainstorm about diploma standards and accommodations for children with special needs may seem boring, but these changes should be important to you. Massive diploma changes are here, VDOE is charged with issuing the regulations, changes are effective next year, and the regulations are nowhere near ready.

Virginia has been making a lot of changes to diploma standards and this year’s is a doozy. In 2012, the Virginia General Assembly eliminated the “Modified Standard Diploma” (effective next year for rising 9^th graders) and declared that the “Advanced Studies Diploma shall be the recommended diploma for students pursuing baccalaureate study.” Virginia Code § 22.1-253.13:4(D)(2). These two changes have implications for all Virginia students. Nevertheless, today’s discussion focused primarily on what “credit accommodations” should be made for students with disabilities to obtain the Standard Diploma. What is clear from this brainstorming session?

Students entering 9^th grade for the first time next year will be affected and there are no regulations. IEP teams are drafting the education plans for students who require a plan that meets their needs, but have no idea what tools will be available. Those tools will have to be identified in the IEP to be affective. Does this seem timely?

Educators have a lot of ideas but lack consensus even about basic issues, such as, should credit accommodations be available to students who are not identified as having a disability? There are plenty of at risk students, including those for whom English is not their first language, who could benefit from credit accommodations but won’t qualify. Not everyone agrees that is okay. In fact, there are concerns even about “transient” students, such as students in foster care, who move from place to place where local diploma policies may differ.

Other major themes today included: not watering down the Standard Diploma and not leaving behind students who cannot meet the challenges of the Standard Diploma. Does it strike anyone else that these two goals may be at odds? Some participants seemed to object to the narrow goal of the meeting, indicating that the group was drafting an “invisible modified standard diploma” when they ought to be drafting a standard diploma that will work for all kinds of students, including students who do not receive special education services.

Statistics shared with the group suggest that tens of thousands of Virginia special education students could be forced into the “special diploma,” a diploma that is totally worthless, if the credit accommodations selected by VDOE are not sufficiently robust. If they are robust, that may make post-secondary education programs wary of accepting students who have achieved only a “Standard Diploma” from Virginia. This in turn may make the “Advanced Studies Diploma” a prerequisite for post-secondary education, and yet at this time no credit accommodations are being considered for that Diploma, despite the fact that twice-exceptional students may have great difficulty meeting the standards in some narrow areas of study. If you are a single course short, or a single verified credit short, you don’t get it.

I applaud any effort that reflects high standards for our children. I applaud the effort to provide more incentives to open mainstream classrooms to children with disabilities. I certainly applaud the creative brainstorming I heard today, such as allowing internships. Unfortunately, the discussion today reveals that brainstorming is still at the policy level. Can VDOE be ready for the rising 9^th graders in 2013-14? The train is leaving the station, but neither school districts nor parents nor high school students know where it’s headed.

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More Due Process for a Traffic Ticket? Why Schools Make Bad Courts

The author, Juliet Hiznay, is a special education advocate and attorney in private practice in Northern Virginia. For information about her practice, visit http://jdhiznay.com/

Submitted as a comment to the Senate Judiciary Subcommittee on the Constitution, Human Rights & Civil Rights for its December 12, 2012 hearing on “Ending the School to Prison Pipeline”

As an attorney, special education advocate, and parent of a child with a disability, I commend the Committee for taking up this important issue. There are a number of questionable disciplinary practices in our public schools, some of which I have seen firsthand and some of which I read about all too often in the press. Unfortunately, disparities are clear from disciplinary referral data, including referrals to (or from) the juvenile justice system. The data show that discipline referrals disproportionately impact students with disabilities, minorities and the economically disadvantaged. My comments focus on students with disabilities.

Behavior & Disability: The Nexus that Drives Discipline Referrals by Administrators

Whether in or out of the classroom, the behavior of students with disabilities is frequently misunderstood, leading to a high number of discipline referrals.[i] Many families I serve have children with an autism spectrum disorder (ASD) or AD/HD. Teachers frequently find their behavior in class, such as fidgetiness, distractibility, off-topic or socially inappropriate comments, failure to demonstrate active listening, and lack of impulse control, unacceptable. The failure to take a “disability perspective” in such cases will frequently lead teachers to believe that the behavior is purposefully disrespectful. For those students with an autism spectrum disorder, and for some with AD/HD too, the nature of the disability can significantly affect whether the student can recognize and adapt to classroom norms (sit down, stay still, do not interrupt, look like you are paying attention by tracking the teacher with your eyes, do not fiddle with your pencil, etc.).

Rather than addressing the underlying need, or ignoring the offending behavior, some teachers refer for discipline and repeatedly chastise students in front of their peers. This can have a terrible impact on the student. School can become a hostile environment for those facing challenges posed by a disability. Removal from school often feels like a relief to such a student. From the behavioral analysis perspective, this is called a positive reinforcement of a negative behavior. It’s a big “no-no” because it is ineffective and can cause undesirable behaviors to increase rather than decrease.

Outside of the classroom setting, students with ASD or AD/HD may find it difficult to judge whether other students are being friendly or if their peers are actually messing with them. In an effort to fit in, such students are particularly prone to pressure from their peers and may be less savvy in their explanations to administrators. In this way, social deficits can contribute in significant ways to students with disabilities exercising poor judgment and can lead to negative perceptions of them.

Positive Behavior Intervention Support

It does not have to be this way. In Virginia and in many other states, training projects supported at the state level are underway to provide “Positive Behavior Intervention Support”[ii] or PBIS at the school (and sometimes district) level to provide positive and effective interventions school wide, with buy in from students, teachers and administrators. The reach of these projects has been limited, however, and it requires the schools to “get on board” with a significant commitment. Some school districts have been resistant to participating in these state programs in spite of demonstrated results. Among these are highly regarded school systems in Northern Virginia whose discipline disparities for students with disabilities are notable.

Practices of Concern

School districts have their own policies which may vary in implementation at individual schools. Some administrators may opt not to make formal referrals. Problems tend to concentrate in particular schools. There are numerous disciplinary practices known by special education advocates to be used on students with disabilities in school districts in Northern Virginia. Among these are seclusion (being kept in a room alone isolated from other students), restraint (being physically restrained by school personnel or school resource officers). This issue was recently highlighted in a Washington Post article printed on December 7, 2012, about a civil rights lawsuit filed on behalf of a student in the Prince William County Public Schools. Students with disabilities are also suspended for long terms or reassigned to “alternative” school programs frequently for behaviors relating to the student’s disability. The behavior frequently reflects the school’s failure to recognize or meet the needs of the student. Students with disabilities who are victims of bullying often get disciplined for reacting to the bullying. Schools have a difficult time sorting out victims from bullies, and being less socially savvy does not help a bullying victim make his case. Zero tolerance policies can result in absurd outcomes, such as expulsion of elementary students for bringing a toy gun to school.

It should be a concern to everyone that this is happening to students with disabilities at a much higher rate than the rest of the public school population. For example, based upon the most recent Arlington County Public Schools data available on the United States Department of Justice Office of Civil Rights (2004)[iii], 60% of long term suspension or expulsion cases were for students with disabilities, although students with disabilities made up less than 15% of the school population in 2004. A school administrator is ill equipped to function as investigator, judge, jury and executioner – and yet it is at the school level that all this is determined. In cases of physical aggression, all too often any involved students, including victims, are punished. Thus a victim of aggression is victimized twice: once by the bully and again by a school system that does not allow victims to defend themselves from violence.

Even when facts are not clear, school systems still proceed with expulsion proceedings. The evidentiary standard for school discipline is a lower standard. The due process offered does not afford much legal protection. In fact, the school discipline process seems to undermine the rights of minors in a myriad of ways. For example, schools take student statements without a parent present even when it is known they will most likely face a criminal charge. Students are expected to show remorse if they want a better outcome from a hearing officer, but expressions of remorse can be taken as admissions of wrongdoing.

Parallel Systems of Justice?: Why Schools Make Bad Courts

One of the most disturbing trends we are seeing in Virginia is the way in which schools have created a parallel justice system by exercising their authority under state law. This is happening in two different contexts: through the criminalization of rule breaking in school, resulting in increasing numbers of referrals to law enforcement, and through the exercise of school jurisdiction for “crimes in the community” which are referred to schools by law enforcement. Mandatory coordination between law enforcement and schools can be disadvantageous in a number of ways. Mostly, it “ups the ante” so that schools do not feel free to use misbehavior as an opportunity to counsel students on their choices or give second chances to students.

“Zero tolerance” attitudes have spread around the country with states authorizing courts to try juveniles as adults, eliminating probation and parole, and passing three strikes laws. This environment has contributed to the increase in school discipline cases. Cases that would never be pursued by police are being pursued by schools. Children are treated as if they are lost causes, removed from the regular education setting, reassigned to “alternative schools” or expelled altogether.

Adults Get More Due Process Defending A Speeding Ticket

When school offenses cross over into the criminal universe, the stakes are high. Adults have more due process defending a speeding ticket than public school students do when a school investigates a student accused of a crime. In cases where criminal charges have been filed, students facing expulsion find their legal rights squeezed between two parallel systems. If they cooperate with the school system to improve their chances of avoiding expulsion, students may place themselves at additional risk in a pending criminal case.

Schools make very poor courts. The school discipline process provides extremely limited due process. For example, in Fairfax County expulsion hearings, students have no opportunity to bring their own witnesses or to confront witnesses against them, or even to know the identity of the person who has provided evidence against them. If witness statements are provided, they are heavily redacted. Witness statements are taken by administrators and redacted to remove the names of witnesses or other involved students. There is no opportunity to challenge the reliability of witness statements or to elicit exculpatory evidence. In short, school officials conclude what happened and students have a very limited opportunity to contest their version of the facts.

An “appeal” to the School Board is a closed proceeding, such that the student and their advocate or parent is not permitted to attend, and the decision is made “on the administrative record.” This is the same “record” that precludes the confrontation of witnesses, a constitutional protection in criminal cases. Even typical legal arguments, such as whether the facts offered actually meet the criteria of a school policy violation is often skipped in the typical school hearing case.

Meanwhile, the school presents their version of facts, based upon their internal investigation. The school also presents a disciplinary record, which, when listing every minor offense, can look like a long rap sheet. Offenses as minor as making an inappropriate comment, interrupting, or repeatedly tapping your pencil on a desk may be listed on discipline records as “insubordination” or “showing disrespect to a teacher” or “causing a disruption in class.”

Again, schools make poor courts. Even serious offenses that result in recommendations for expulsion do not result in juvenile detention for many students, especially if there is no past criminal history. However, they often result in the student being expelled from school, making it far more likely they will avoid authority figures, instead gravitating toward people who may not make good role models.

Some Virginia school districts are now opting to pursue disciplinary action for offenses occurring away from school and which also have no connection to school.[iv] These cases are reported to schools by law enforcement, as mandated by state law, and can result in expulsion or reassignment to a “non-traditional school.” Although reassignment to such a school means the student with a disability will continue to receive their education, they most likely will not receive the special education services they require or complete the classes in which they are enrolled. These facts alone place them at risk of not graduating on time or obtaining a standard or advanced diploma.

School board authority to expel students is so broad that children can forfeit their right to attend school at any time. The consequences of these policies are significant. One could argue that for a young person expulsion from school or school “reassignment” is more life altering than anything else that could happen to them as a kid. Students who are removed from school are essentially discarded by our society at a very young age. When a person is treated in this manner, should it surprise us when they decide that they do not care to conform to social norms?

By passing the Americans with Disabilities Act[v] and the Individuals with Disabilities Education Act[vi], Congress took a strong stand: that we would not hide those who fall outside of the comfortable norm, that we would not force them behind closed doors and away from others, that we would not segregate them from the rest of the school population. The education policy of the United States is to include students with disabilities, to place them in the least restrictive environment. Disciplinary practices in our schools are seriously undermining this policy.

What action can be taken to reverse this trend?

Public schools should limit the types of offenses that can lead to expulsion.
All “zero tolerance” policies in school should be reevaluated to determine if outcomes justify their use.
School districts should report data on discipline by school and by all disability categories that exist under the state law so that schools can identify the need for training.
Schools should pursue Positive Behavior Intervention Support training so that teachers are better prepared to handle behaviors that are interfering with instruction in the classroom.
With regard to students with disabilities, Congress should revise the provisions for “Manifestation Determination Review[vii]” (MDR) under the Individuals with Disabilities Education Act so that the review is meaningful. The MDR hearing is often a rubber stamp. It is extremely difficult to meet the current standard for an MDR. Students with disabilities are being expelled even when it is clear that their disabilities contributed directly to the actions for which they are being disciplined. This means that children are removed from the school system and placed in alternative settings where they are less likely to be successful, where they will not receive the same of services or an equivalent education, at a higher cost to the school system.
Reassignment should require a finding by the school that the student poses a direct danger to other students based upon factual information in the school’s possession. A mere charge pending in a criminal matter should not be enough to conclude that the student is dangerous to others.
Schools need to take real steps to eliminate bullying by teachers, administrators, parents and students alike.

We as a society need to be more inclusive so that individuals who stand out or have eccentricities are not victimized. Congress should act to end the School to Prison Pipeline. It all starts with how discipline is handled in our schools. Students with disabilities make up a disproportionate number of discipline referrals. The behavior resulting in discipline is often caused by the failure of schools to identify and address the needs of a student with special needs. Congress should consider what revisions to federal law may be needed to ensure that this disparity is eliminated.

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[i] Discipline referrals data broken out by special educations students is often collected by school districts, but the data is not always publicly available. In Northern Virginia, it is known that special education students make up more than 40% of discipline referrals in some school districts although students with disabilities make up 15% or less of the student body. This data should be collected and made available to the public, preferably broken out by subgroup and disability. If this is done states and districts will be in a better position to identify where positive behavior training support is most needed.

[ii] Virginia’s PBIS training support is described at http://ttac.odu.edu/pbisva

[iii] Source: http://ocrdata.ed.gov/DistrictSchoolSearch (see custom charts and detailed data tables).

[iv] VA Code Section 22.1-277.2:1 (2009)

[v] 42 U.S.C. § 12102 et seq. (2008)

[vi] 20 USC § 1415(k)(1)(E)

[vii] C20 USC § 1415(k)(1)(E)

A Rationing System: Waiting Lists for Medicaid Waiver Services in Virginia

The author, Juliet Hiznay, is a special education advocate and attorney in private practice in Northern Virginia. For information about her practice, visit http://jdhiznay.com/

All this talk in the national press about Medicare and Medicaid has me thinking about the state of things in Virginia for children with disabilities as it stands today. A short preview is: the state of things is appalling. We don’t have a rational system in the Commonwealth of Virginia, we have a rationing system. Yes, we are rationing care today. Continue reading “A Rationing System: Waiting Lists for Medicaid Waiver Services in Virginia”