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Protecting Children’s Rights in School Discipline

Johanna E. Miller

During the 2011–2012 school year, more than 3 million students were suspended from school across the United States, including more than 720,000 students with diagnosed disabilities. The majority of students are suspended from school for vague and subjective offenses such as insubordination, not for dangerous behavior.

The overuse of suspensions is a serious and urgent issue for the entire nation. Students who are suspended are twice as likely to drop out of high school as their peers (tinyurl.com/jo8yekd) and are four times more likely to be involved with the criminal justice system (tinyurl.com/hosl6pe). Researchers and advocates refer to this problem as the “school-to-prison pipeline.”

Why are students being suspended at such astronomical rates? Many school districts have adopted discipline policies that take a “zero tolerance” approach to misbehavior. While that may sound appealing on paper—reducing subjectivity in school discipline and “cracking down” on disruptions—experience has demonstrated that these policies lead to discriminatory outcomes and rarely improve educational results (tinyurl.com/hr2nyna). The only thing zero tolerance policies consistently result in is more suspensions.

Often, the students who are suspended—because they struggle to keep up, to focus, or to manage their emotions—are those who most need educational support. This means that millions of children who are already struggling in class end up spending the most time out of an academic setting or in an alternative placement where supports can be inconsistent. The length of a suspension varies widely from state to state: In California the maximum suspension is five consecutive school days, except in rare cases, but in New York students can be suspended for an entire school year. Students who are pushed out of classrooms because they are struggling may literally end up in jailhouses.

Students with Disabilities Are at Risk

Statistics from the U.S. Department of Education show that suspensions are enforced at disproportionately high rates against students of color and students with disabilities. There are many reasons to be concerned about this disproportionality: It contributes to the “achievement gap,” it impacts graduation rates, and, as disparate treatment under the law, it may be a violation of students’ civil rights.

In New York City, the nation’s largest school district, African-American students represent a third of enrollment but more than half of suspensions; students with disabilities represent just over 10 percent of enrollment and about 30 percent of suspensions.

New York City is not an outlier, nor is this problem restricted to urban school districts. Nationally, students with disabilities are more than twice as likely as their peers to receive a suspension (tinyurl.com/je5ga43). A 2012 study found that nearly 20 percent of all students with disabilities in the State of Illinois had been subject to a suspension. In 2011–2012, the Miami-Dade (Florida) school district, home to more than 350,000 students, suspended more than a quarter of all students with disabilities. Even as overall suspension rates have dropped across the country, disparities by race and disability have gotten worse.

For any student, significant time away from the classroom environment can impact educational achievement. For a student with a diagnosed disability, a long-term disruption in access to education and support services can completely derail educational progress. Fortunately, federal disability law provides protections for students in these situations. Unfortunately, many parents and even attorneys don’t understand students’ rights, and school districts often disregard or ignore them. It is essential that attorneys and parents know the law and understand how to use it to keep kids in school.

Due Process and Other Protections

In Goss v. Lopez, 419 U.S. 565 (1975), the U.S. Supreme Court recognized that public school students have a property interest in their education, protected by the Due Process Clause of the U.S. Constitution. While the laws governing school suspensions are different in each state, most permit students to be removed from their regular classes for a few days at a time with relatively minimal due process requirements. For longer suspensions, students are generally entitled to formal, detailed notice of the allegations, along with the opportunity to tell their side of the story to a neutral fact finder.

While students do not have a constitutional right to assigned counsel in the suspension process (as they would in a criminal proceeding), they are usually permitted to have an advocate (often a parent or a non-attorney advocate). The advocate for the student may be able to call witnesses and cross-examine the school’s witnesses. School districts should provide access to the written rules for suspensions upon request; some districts even publish the rules in their student code of conduct.

Protections for Special-Education Students

The federal Individuals with Disabilities Education Act (IDEA) provides important safeguards before students with disabilities can be removed from school. Unfortunately, it often requires a very savvy parent or informed attorney to ensure these processes are followed.

Imagine a sixth-grade student with an anxiety disorder that causes him to have panic attacks. We’ll call him Alex. Alex is academically on pace with his sixth-grade classmates, but he has trouble regulating his emotions and calming himself down. During panic attacks he has been known to hurt himself, and he has trouble in high-stress situations, often “freezing up” during a test or when called on in class. Alex has an Individualized Education Program (IEP) to ensure the school addresses his disability in a way that will not limit his educational achievement. The IEP provides him extra time to take tests and permits him to turn in written instead of oral assignments. It also provides a permanent hall pass so Alex can go to his counselor’s office anytime he needs a safe space to calm down. These accommodations have served him well.

After December break, Alex’s school changes all sixth-graders’ schedules, and Alex has a new math teacher. The school neglects to inform her of Alex’s IEP, and on the very first day, she calls on Alex in class and asks him to work out some problems on the board. Alex feels himself start to panic. He follows the requirements of his IEP and starts to leave for his counselor’s office. The teacher sees Alex walking out of a classroom in the middle of an oral quiz, and starts yelling at him. Alex takes off running, shoving another student who was standing by the door. The next morning, the school calls Alex’s father and tells him Alex is suspended for ten school days for insubordination and a physical altercation. What are his options?

First, Alex should not be suspended for behavior that is out of his control. For a student with an IEP, federal law provides for an additional review of his case to consider just this question. While there may be a fact-finding hearing to determine Alex’s guilt or innocence on the allegations of misbehavior, if he is found guilty, Alex’s IEP entitles him to a separate review to examine the underlying cause. This review is called a manifestation determination.

For infractions not involving drugs or weapons, a ten-day suspension of a student with an IEP entitles the student to a manifestation determination. Non-consecutive school removals that add up to ten days also entitle the student to a manifestation determination, if the behavior was substantially similar each time, so a school cannot defeat this rule by suspending the student for a few days at a time. If the allegations against Alex are substantiated at the fact-finding hearing, his parents should request a manifestation determination.

In the manifestation determination, Alex’s IEP team meets to determine if his misbehavior was caused by his disability or by the school’s failure to meet the requirements of the IEP (the IEP team includes teachers, specialists, and parents). In this case, the behavior was clearly a manifestation of the school’s failure to inform Alex’s new teacher about his IEP.

Even if Alex did not have an IEP, he may still have been entitled to a manifestation determination if the school had constructive notice of his disability (for example, if an evaluation had been completed but an IEP was not yet developed).

If it is determined that Alex’s misbehavior was caused by his disability, the school cannot suspend him, and the IEP must be adjusted to prevent the same thing from happening again.

Restorative and Educational Approaches to Discipline

Schools don’t have to give up on maintaining discipline in order to protect students’ rights. Advocates and educators across the country are promoting alternatives to suspensions that can keep kids in the classroom and help them learn from misbehavior. One method that has a dedicated following is known as “restorative discipline.”

The concept behind restorative discipline is that the restorative process helps students understand the impact their behavior had on the school community—classmates, teachers, and others—and identify ways for them to repair the harm. Through this process, students learn to take responsibility for their actions, they gain a deeper understanding of other people’s needs and experiences, and they experience a close community of care. Restorative practices can improve young people’s communication, empathy, patience, and problem-solving skills, all while keeping them in school. Instead of testifying against the student, teachers coach him or her through correcting the behavior. Because restorative discipline does not involve removing students from their regular classroom or services, it is less burdensome on the school and less disruptive to the students.

While educators need training to facilitate emotionally safe and effective restorative practices, the cost to schools is relatively low. Many organizations across the country offer free or low-cost trainings for educators and support staff. Trained educators can also help students learn how to facilitate restorative procedures.

Special Considerations for Attorneys

Representing students in school disciplinary proceedings can be emotionally taxing. Students are often confused by the process and may feel that trusted adults from their school are betraying them. Attorneys working on school discipline matters should spend extra time to make sure the young person feels included in his or her own defense and understands what’s going on. If the student has a disability that impacts communication or cognitive abilities, the attorney will need to make accommodations to ensure that both student and parents feel supported, are active participants, and understand their options.

Finally, because many schools overly rely on police or “school resource officers” to maintain order and discipline, a student facing a suspension—even for a relatively minor incident—may have been arrested at school. If so, it is essential for the education attorney to communicate with the defense attorney, as anything the student says on record in a discipline proceeding can be used against him or her in criminal court. The defense attorney may advise the student to waive the suspension hearing in order to avoid creating a record or may ask the attorney to adjourn a discipline hearing until the criminal matter is resolved.

Unfortunately, the special-education protections that apply in school discipline procedures do not extend to criminal law matters. Police who are assigned to schools likely have no idea that a student has a diagnosed disability. Any student could feel traumatized after a police encounter in school, but this is especially true for students with emotional or cognitive disabilities; if the student is afraid to return to school, the attorney can help explore options for transferring to a new school. It is important that the student and parents are informed of their rights and options in these situations.

Attorneys who understand how to defend a young person in a school suspension hearing can significantly limit the impact of the school-to-prison pipeline. While some school districts view students’ due process rights as overly burdensome, these procedures are often a student’s best chance to stay in school. Especially for students with disabilities, a good attorney or advocate can make all the difference.

Johanna E. Miller

Johanna E. Miller, Esq., is advocacy director for the New York Civil Liberties Union.