Was a First Grade Virginia Teacher Shot Because Her Student was Denied Special Education Services?

Was a First Grade Virginia Teacher Shot Because Her Student was Denied Special Education Services?

What School Administrators Face that State Departments of Education Ignore

Dear Colleagues,

Introduction: The Regional Educational Resource Network in Many States

   I have spent a lot of time in Michigan over the past ten years. This is largely because I was the lead writer on two successful grant proposals whereby four districts in the “Thumb” of Michigan received five-year federal School Climate Transformation Grants worth almost $4 million each.

   These Grants fund up to 40 days per year of work with these Districts. . . . beginning in 2014 to the present.

   Michigan has an interesting multi-tiered system of supports for its districts—especially relative to special education services. Beyond what the districts fund themselves, there are 57 regional Intermediate School Districts (ISDs) across Michigan that provide additional educational services for the districts in their respective catchment areas.

   In 2017, Ben DeGrow, writing for the Mackinac Center for Public Policy, described the ISDs as follows:

ISD responsibilities vary and their statutory role is broadly defined. Nevertheless, there are some common functions that ISDs perform across the state. Most ISDs, for instance, provide back-office support for local school districts, deliver or finance special education services and operate alternative and career education programs. Many also facilitate shared services among districts, such as technological needs, transportation, professional development and more.

ISDs are funded differently than local school districts and public charter schools. The primary difference is that ISDs do not receive the normal foundation allowance, the main per-pupil funding mechanism used to distribute revenues to school districts. Instead, ISDs are funded by a combination of local property taxes, a per-pupil special education foundation allowance, state categorical funds and federal grants.

(A) significant source of ISD revenue — amounting to about 30 percent of all their revenues — comes from the state treasury. While some of the dollars are distributed within various state budget line items, several distinct pieces are set aside for the 56 regional educational agencies.

First, the state supplements ISD revenue for special and vocational education in an effort to create more funding parity among ISDs. Using complex formulas, this money benefits ISDs that raise the least amount of revenue from their local property base. These “equalization” dollars guarantee that all ISDs will receive a minimum amount of revenue to fund these services—at least 75 percent of what they had received the previous year. These payments cost the state almost $50 million annually.

A large chunk of state revenue for ISDs is a reimbursement for approved costs for special education services. This revenue is court-ordered: the Michigan Supreme Court ruled that the state needs to provide a certain portion of the funding for the mandates it creates for school districts to educate special needs students. ISDs collected more than $270 million for this purpose in 2016.

   To be sure, from a national perspective, Michigan’s regional system of educational service centers is not unique.

   For example, New York has regional Boards of Cooperative Educational Services (BOCES), Arkansas has state-wide Education Service Cooperatives (ESCs), Kansas has Educational Service Centers, Montana has Cooperative Services, California has County School Offices with Special Education Local Plan Areas (SELPAs) . . . and so on.

Michigan’s ISDs and the Delivery and Funding of Quality Special Education Services

   Significantly, most of these regional entities are responsible for delivering part of the multi-tiered system of supports required by the federal Elementary and Secondary Education Act (ESEA) and the Individuals with Disabilities Education Act (IDEA), respectively. In fact, these state-wide cooperatives often are tasked to provide the programs or services for the students with disabilities who have the most significant educational and related service needs.

   According to an October 2022 Michigan Department of Education Guidance:

Section 380.1711(1)(a) of the Revised School Code requires each intermediate school district (ISD) school board to develop and maintain an ISD Plan for the Delivery of Special Education Programs and Services.

ISD Plans document information about the delivery system of special education programs and services within the ISD and each constituent district, which includes local school districts and public school academies (PSAs). . . The ISD Plan must be updated, as needed, to ensure accuracy. . .

ISDs will develop the ISD Plan in cooperation with its constituent districts and Parent Advisory Committee (PAC). . . Each district will submit the necessary information about the special education programs and services available in the district . . . The ISD submits the ISD Plan to the Michigan Department of Education (MDE) Office of Special Education (OSE) for review. The ISD Plan may be returned to the ISD when further information or clarification is needed. The OSE reviews the ISD Plans to ensure compliance with state rules and federal requirements, and as a reference for resolving special education complaints and compliance monitoring.

   Critically, the Michigan ISDs’ special education responsibilities are so significant that—just like their brethren school districts—they are independently evaluated on an annual basis by the Michigan Department of Education on seventeen national Special Education Indicators that assess the quality of and the student outcomes accomplished by their programs and staff.

   These Indicators are required by and reported to the U.S. Department of Education’s Office of Special Education Programs (OSEP) annually. OSEP evaluates the efficacy data submitted against the mandates written into IDEA and takes action if a state, district, or ISD is not meeting its responsibilities.

   But there is circular point here:

   If the Michigan Department of Education is holding the ISDs responsible for quality special education services, the Michigan Department of Education must insure that the ISDs have the funding needed to accomplish this goal.

   But historically, this has not been the case in Michigan.

   On June 10, 1997 in Durant v. State, the Michigan Supreme Court ruled that special education is an “activity or service” that is bound by the State Constitution’s “maintenance-of-support clause,” and that the State (is) “required to maintain the state financed proportion of the necessary costs of special education and special education transportation.”

   The Supreme Court eventually ordered the State to pay school districts the full amount of State underfunding during the three years at issue in the lawsuit. The Court Order required the state to pay local districts and ISDs about 70% of transportation-related expenses and 29% of all other approved, special education expenses (about $910 million).

   This ruling is in force to this day. Reiterating again, according to DeGrow’s 2017 Mackinac Center for Public Policy report:

A large chunk of state revenue for ISDs is a reimbursement for approved costs for special education services. This revenue is court-ordered: the Michigan Supreme Court ruled that the state needs to provide a certain portion of the funding for the mandates it creates for school districts to educate special needs students. ISDs collected more than $270 million for this purpose in 2016.

   And yet, the special education (under-)funding problem continues. According to a July 1, 2022 Detroit Free Press article:

Michigan's budget, passed early Friday, includes a major overhaul of how the state funds special education, a change lawmakers said is meant to stem chronic underfunding of special education services.

For years, school leaders have said underfunding of special education led them to take money away from their general education budget to cover special education costs. A 2017 report commissioned by then-Lt. Gov. Brian Calley found that special education was underfunded by $700 million.

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   So. . . what are the conclusions thus far:

  • In collaboration with their local school districts, the ISDs are responsible for planning and implementing the federally- and state-required multi-tiered continuum of special education services, supports, and interventions based on the needs of all of the students with disabilities in their respective catchment areas—including those students with the most intensive needs.

Said a different way: The availability of special education services, supports, and programs in a district or ISD should be based on individual students’ needs each year. In contrast, these students’ needs should not be force-fit into existing programs (or no program at all).

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  • The funding and delivery of these individualized, student-determined needs-based services are guided by a state-approved ISD Plan for the Delivery of Special Education Programs and Services that is (a) collaboratively developed with the school districts (and Parent Advisory Committee) based (once again) on (b) their exceptional students’ services and needs, and (c) the Plan must be updated, as needed, to ensure accuracy.

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  • Some of this Plan is funded by state funds that are required by a standing order of the Michigan Supreme Court based on a lawsuit lost in 1997 by the State.

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   Now, let’s add two additional facts.

   First: Many states have a state-level budget line—typically called the “Special Education Catastrophic Fund”—which can reimburse school districts when the services needed by a student on an Individualized (Special) Education Plan (IEP) exceed a specific price-point.

   This fund is often used to support students with (a) serious medical, social-emotional, or other significant learning or educational conditions, (b) who need expensive specialized services or supports, or (c) who need residential or highly personalized day treatment programs.

   Second: For students with intensive social, emotional, behavioral, or mental health needs, most state departments of education work with their state mental or behavioral health departments to integrate and fund any needed student treatment plans, professionals, and settings.

   The mental health services are typically represented as a “System of Care,” and they often receive federal funding to assist with the state and local funding.

   To be honest, though, many states’ systems of care have been hopelessly broken for decades.

Implication 1: The Lack of ISD Services for the Most Behaviorally Challenging Students is Illegal

   After working with four different districts in two different ISD catchment areas for the past almost-ten years, I can tell you that—for students with significant social, emotional, behavioral, and mental health needs—the two ISDs either (a) are not spending their special education funds to provide programs for the most-challenging students, and/or (b) they still do not have enough funds (especially from the State).

   Quite honestly, I believe it is more the former than the latter.

   This is because both ISDs in question have the funds for staffing, resources, professional development, and administrators when it comes to providing consultative and special education support services within the schools in their respective districts.

   This includes the assignment of related services personnel, the assessment services to determine if specific students have disabilities and are eligible for IEPs, and even providing some special education instructional services—as long as they are housed in district schools.

   But when a student has significant social, emotional, behavioral, or mental health needs that require an out-of-district self-contained classroom or day treatment program, the ISDs abdicate—telling the district, in essence, that you “are on your own.”

   In fact, neither of the ISDs has any special education classrooms or (Tier III) programs on their ISD campus for these challenging students, and they have no plans to ever start one.

   Moreover, even if a district offered the space for such a classroom or program, the ISDs are not willing to provide the funds for the teachers, instructional and intervention materials, and mental health staff so that the students receive “a free and appropriate education”—as required by law (IDEA).

   Even worse. . . for students who need a residential treatment center, there is virtually nothing in the state. I know this because I had to look at residential programs outside of Michigan for one of the students in one of my Michigan School Climate Transformation Grant districts.

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   Indeed, during the past ten years of consulting on Grants in Michigan—and as a licensed psychologist and nationally certified school psychologist—I have worked on three or four student cases where an out-of-district self-contained classroom, a day treatment program, or a residential setting was clearly warranted.

   Collectively, these cases involved situations where:

  • Students, on almost a daily basis, totally disrupted the learning environment for other students in their classrooms.
  • Administrators and related services professionals, on a daily basis, had to address the challenging students’ needs—often taking them out of their classrooms, “remediating” their inappropriate behavior, also attending to the related social-emotional damage to other students and staff, and ultimately pulling them away from their roles as educational and mental health leaders, respectively.
  • Relationships with these students’ parents (and other parents) became strained due to the constant (negative) interactions as administrators communicated. . . on an almost daily basis. . . “what the student did now.”
  • Students and staff were physically attacked, and/or were subject to ongoing taunts, bullying, harassment, or verbal threats of physical assault or the desire to “kill you.”
  • Classroom and school environments were tense and toxic every day as everyone waited for when the next (almost daily) upset would occur.
  • The district resorted to a Home-bound placement with two hours of educational services per week.
  • The schools involved Law Enforcement and the Juvenile Justice system.

Indeed, on one occasion, the school referred a student (and his parents) to the local Court for Court for supervision and intervention. Because the student was underaged, a juvenile placement did not occur (not that it would have been appropriate), and the Court was reticent to order a residential placement.

  • On other occasions, the schools put the students on a Homebound program where they received 2 hours of educational instruction per week (!!!!). Moreover, these students never received the appropriate behavioral intervention or mental health services needed to prepare them for a return to even a self-contained special education school setting.

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   In each case, the ISDs refused to assist. . . sometimes even refusing to do the special education eligibility assessments needed, because they did not have a program available if the student qualified.

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   The Bottom Line?

   Beyond the collateral damage described above, and the fact that school and district personnel were forced (due to the ISD’s “negligence”) to expend time, money, resources, and emotional energy on student situations that diverted them from their broader education missions. . .

   The absence of the (ISD) self-contained classrooms, day treatment programs, and residential placement options violate IDEA’s requirement that school districts (and ISDs) have a continuum of special education services and placements available.

   Moreover, this absence creates the potential that the districts involved can be sued and held legally responsible for the service and placement gaps.

   The Related Question is: To what degree is this happening in other states with geographically-distributed educational service cooperatives across the country?

Implication 2: Could a Lack of Special Education Services Become the Next Behaviorally Challenged Student’s School Shooting?

   On January 6 of this year, a 6-year-old first grader brought his mother’s gun to school and shot his teacher once in the chest (the same bullet also passed through one of her hands) in his classroom in Newport News, Virginia. Thankfully, she survived.

   Witnessed by his classmates, the incident occurred during a classroom lesson, there were reports that day that the student was armed, and the shooting was not accidental. While wounded, the teacher immediately alerted her students to evacuate into another classroom across the hall.

   This student had a clear history of behavioral incidents at the school—including some violent acts, and his teacher had filed a number of requests with her administrators for assistance—including on the day of the shooting.

   According to a legal notice sent to the School Board after the shooting, there were previous incidents of the student cursing at staff members, trying to whip students with his belt, and choking a teacher. Two days before the shooting, the student received a one-day suspension for allegedly slamming and breaking his teacher’s cell phone.

   The shooting occurred after that suspension when, according to his teacher, the student returned in a “violent mood,” threatened to beat up a kindergartner, and “angrily stared down the security officer.” In the hours before the shooting, at least three teachers and staff members warned school administrators about the suspected gun, the student’s backpack was searched (no gun obviously was found), and the boy was allowed to stay in his class.

   While the school’s Assistant Principal did not follow protocol in investigating the reports that the student was armed (she resigned three weeks after the shooting), a legal notice reported that the student “spent his entire recess with a gun in his pocket. . . with his hand in that pocket while lots of first grade students played.”

   After being called immediately after the shooting, police officers entered the classroom as the boy was being restrained by a school employee. Reports noted that the First Grader was combative and struck the employee who was restraining him.

   Significantly, in a public statement, the parents expressed their sorrow regarding the incident, noting that their 6-year-old son “suffers from an acute disability and was under a care plan at the school that included his mother or father attending school with him and accompanying him to Class every day.”

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   The Bottom Line?

   There have been no public reports clarifying the student’s status relative to having “an acute disability and (being) under a care plan at the school.”

   Nonetheless, enough history has been reported here whereby—if it had not already occurred—the student should have been referred either (a) into the school’s mandated (under ESEA) multi-tiered system of supports for early intervention; or (b) for assessments (under IDEA) to determine if he was eligible for services and interventions as a student with a disability.

   Critically, if an assessment for special education eligibility had not occurred, the fact that the parents saw their child as having “an acute disability” means that the school was in violation of IDEA where such assessments are required “if it is suspected that a student has a disability.”

   Moreover, if the “care plan” was a multi-tiered services early intervention plan, it was not working, and it should have been reworked or resulted in a special education eligibility referral.

   Or, if the care plan was part of an IEP, it (once again) clearly was not working, and the school should have reconvened the IEP team to either investigate more effective interventions and/or a more restrictive classroom (special education) placement.

   These are/were the federally-mandated responsibilities of the School District.

   As Virginia has no regional education service centers regional (as in Michigan), the questions (if this Newport News, VA student had not been referred either into the District’s early intervention or special education systems—as in our Michigan discussion above) include the following.

   Did this District avoid these referrals due to:

  • Inadequate funding or the poor allocation of available funds?
  • The absence of effective multi-tiered system of supports and/or special education procedures, staff, training, or supervision?
  • The absence of an effective continuum of services, supports, interventions, classrooms, and/or programs—including access to self-contained, day treatment, or residential programs as needed?
  • The lack of coordination with (or the lack of an effective) community mental health and state System of Care, and/or Court and juvenile justice system?

   . . . or, like the school’s Assistant Principal, was this simply a case of indifference and neglect, insubordination and callousness, or incompetence and a breach of the public’s trust?

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   Getting back to Michigan (and my other consultations across the country), I will tell you that there are far too many students—in different schools and at different ages—who have the same history as the Virginia first grader.

   And there are far too many districts—with or without the presence of a regional education service center—that do not have the funds to support an appropriate continuum of services, supports, interventions, classrooms, and/or programs, and they do not have access to needed self-contained, day treatment, or residential programs as needed.

   This is a regional (as present, educational service center), state, and federal travesty.

   And it forces schools to “hope and pray” that—every day—their students with social, emotional, behavioral, and mental health challenges do not come to school with a gun (or even something lesser in magnitude).

   Every school administrator in this country knows this dilemma, and knows that what I am saying is true.

   Any every state education department in this country knows this dilemma, and knows that what I am saying is true.

   Let’s recognize that (as in the title of this piece) the Virginia school shooting—while tragic and horrifying—was inevitable. It could have happened anywhere in the country, and it is likely to happen again.

   Think about the past school shootings, and how many of them occurred directly due to the assailant’s social, emotional, behavioral, or mental health status.

   And think about how many of the shooters were known, ahead of time, to be experiencing these issues, and how many schools were not providing them the needed services, supports, or interventions.

   Whether these students intended to kill as many as possible before committing suicide. . . whether they just wanted to vengefully “waste” as many in the school as possible. . . or whether they were angry about something in their life, smashed a teacher’s cellphone, and received a one-day suspension. . .

   . . . as educators, we are all implicated and we are all at-fault.


   This Blog began by describing the presence and statutorily-mandated special education responsibilities of Michigan’s 57 regional Intermediate School Districts (ISDs)—especially as they relate to providing an appropriate continuum of services, supports, interventions, and programs for the school districts in their respective catchment areas.

   Based on our ten years of School Climate Transformation Grant work in one large area of Michigan with two different ISDs and investigative reports from the Mackinac Center for Public Policy, we noted how neither ISD has or is funding self-contained classrooms or day treatment programs for students with significant social, emotional, behavioral, or mental health challenges. In addition, there is a state-wide gap in needed System of Care and residential programs for these students.

   This represents a violation of IDEA. The lack of ISD programming also (a) leaves their districts responsible for doing “something” for students who should not be walking their hallways, and (b) puts the districts at risk for lawsuits relative to their inability to provide students with disabilities “a free and appropriate education.”

   The discussion continued as we overviewed the known facts related to the early-January shooting of a First Grade Teacher in Newport News, VA by one of her students. The student had a history of serious social and behavioral incidents, and his parents stated that he has an “acute disability” and was on a “care plan” at school.

   Wondering if and why this student was not receiving appropriate early intervention or special education services, we noted our experience that many districts across the country have similar students with significant behavioral challenges who are not in the self-contained, day treatment, or even residential programs they need.

   Is this—as with the Michigan ISDs—because districts either cannot or will not assess these students for special education eligibility due to funding limitations or (full circle) the refusal of their regional education service centers to meet their mandated responsibilities.

   Noting that a number of school shootings have involved students with significant social, emotional, behavioral, or mental health issues, why are these students not receiving the appropriate intensity of services in more specialized special educational settings?

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   If you would like to hear more on this subject, below is an Education Talk Radio interview that I did with host Larry Jacobs that provides expanding discussion, information, and implications.

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   I appreciate your willingness to read our Blogs, reflect on the educational settings where you work, and evaluate the efficacy of your work and your impact on students, colleagues, and programs.

   Know that I am working with many schools right now on the Needs Assessments they need to map out their academic and instruction, discipline and behavior management, multi-tiered system of support, and school improvement initiatives for next year.

   If I can help you in any of these areas, my first consultative contact with you and your team is free. Just give me a call, or drop me an e-mail.