Protecting Kids from the Upcoming Exclusion Epidemic

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The COVID-19 pandemic has been a significant trauma for many children. This Fall, children who have experienced this trauma may exhibit behaviors that lead to them being excluded or suspended from school, thus leading to overall higher rates of exclusion. Some children’s symptoms may worsen from existing mental health conditions like depression and anxiety, while other children may be showing mental health issues for the first time. The Individuals with Disabilities Education Act (IDEA) provides due process protections for children with social emotional needs, and children may be eligible for special education services on the basis of a social emotional disability. Advocates should be aware that children of color are disproportionately disciplined and excluded from school compared to their White peers.

The stress of the COVID-19 global public health crisis has worsened mental health symptoms and increased behavioral health concerns among school-aged children. Families have experienced death or illness of loved ones to the pandemic along with loss of housing, income, and childcare. The social isolation, absence of support networks, and the inability to participate in developmentally appropriate activities may lead to childhood trauma. The data shows that communities with lower incomes have been disproportionately impacted by the coronavirus.

Existing racial, ethnic, and income disparities . . . are being further exacerbated by this pandemic, and the current pandemic-related trauma is compounding the high levels of trauma many children and families in these communities were already experiencing. For example, children living in communities that have experienced significant trauma pre-Covid-19 (such as communities highly impacted by the opioid crisis, high rates of crime, or who have large immigrant and refugee populations) are at a heightened risk of experiencing cumulative and complex trauma.

Protecting our Children’s Well-Being During Covid-19: Recommendations for Supporting Children and Families Who Have Experienced Trauma and Stress During the Pandemic, [PDF] Children’s Trauma Task Force, June 2020.

Some children, impacted by the stress of the public health crisis, may exhibit behaviors that violate school discipline codes. As a result, advocates should prepare for a rise in suspensions, exclusions, and school-based arrests. Even before the COVID-19 pandemic, data shows that 70 percent of children in the juvenile justice system meet the criteria for at least one mental health diagnosis.

Throughout the pandemic, The Mental Health Advocacy Program for Kids [PDF] (MHAP for Kids) surveyed parents receiving legal services from MHAP and found that behavioral health concerns have been increasing for months among school aged children. Parents indicated that they observed an average of four behavioral concerns per week, with some parents observing as many as 10 behavioral concerns each week. Behavioral concerns included anxiety and depression as well as verbal aggression, work refusal, refusal to get out of bed, physical aggression, property destruction, profanity, screaming, and leaving the home without permission. Many of the behaviors described by parents are actions that could cause a child to be disciplined by school officials, and perhaps result in juvenile court involvement.

Despite the increasing need for community mental health services, families often struggle to find therapists, psychiatrists, mentors, and other community-based supports for children. Data collected during the MHAP for Kids intake process reveal that 96 percent of families who reach out to MHAP for Kids are seeking help with accessing community based mental health services. Ninety-eight percent of MHAP families report that they experience multiple barriers to receiving mental health care. Parents report that access to life-saving mental health treatment is inequitable and burdened by “bureaucratic delay.” Ninety-seven percent of families served by MHAP for Kids seek some type of mental health services through the special education process.

A student with new or existing mental health needs may be eligible for special education supports under the category of “emotional disability,” even if intelligence and academic testing indicates the student has average or above-average cognitive skills. IDEA defines an emotional disability as a student exhibiting

one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance: an inability to learn that cannot be explained by intellectual, sensory, or health factors; an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; inappropriate types of behavior or feelings under normal circumstances; a general pervasive mood of unhappiness or depression; a tendency to develop physical symptoms or fears associated with personal or school problems.

34 C.F.R. § 300.8(c)(4).

The IDEA does not require a student to have a mental health diagnosis in order to meet the criteria for an emotional disability. Rather, the special education team meeting to discuss the student’s eligibility for special education should review the results of school evaluations as well as data from teachers, family, and outside providers, to determine if the student can be considered to have an emotional disability.

If the special education team determines that the student does have an emotional disability, they then must discuss whether the student is making effective progress in school, and if the student is not, whether the lack of progress a result of the student’s disability. If the lack of progress is due to the student’s disability, the team then considers whether the student requires specially designed instruction—meaning, modifications to the “content, methodology, or delivery of instruction”—to access the general curriculum. In some states, a student can qualify for special education because they need specially designed instruction or “related services” such as counseling. In other states, a student will only be found eligible if they require specially designed instruction and related services. If the student does require specially designed instruction, the team will then develop an Individualized Education Program (IEP) for the student that identifies accommodations, goals, and services tailored to the student’s unique needs resulting from the student’s disability.

If a student with mental health needs meets the criteria for an emotional disability but the special education team determines the student does not require specially designed instruction, the student may still qualify for accommodations by being found eligible for a 504 Plan. A 504 Plan helps a student access the curriculum through accommodations such as extra time on testing, movement breaks, taking tests in a smaller setting, etc., rather than modifying the content of the curriculum or how it is delivered.

There are legal protections in place regarding discipline of students with IEPs and 504 Plans in order to prevent students from being disciplined for behavior that results from their disability. If a school district wants to suspend a student with an IEP or on a 504 Plan for 10 or more school days (either 10 or more days in a row or adding up over a school year if the discipline is for a pattern of similar behavior), the school must convene a manifestation determination review (MDR) meeting to discuss whether the discipline is a manifestation of the student’s disability. If the team determines the behavior is a manifestation of the student’s disability, the school cannot discipline the student and must look for ways to improve the student’s IEP or 504 Plan.

This information is important to know for all students, but advocates should pay particular attention to Black and Latino children in their school discipline cases. Historically, Black and Latino children, especially boys, have been over-policed in schools. In June of 2021, the U.S. Department of Education Office of Civil Rights (OCR) Civil Rights Data Collection (CRDC) reported [PDF] that “[i]n 2017-18, Black students received one or more in-school suspensions (31.4%) and one or more out-of-school suspensions (38.2%) at rates that were more than twice their share of total student enrollment (15.1%).” These students are more likely to have contact with school resource officers and police officers. OCR CRDC found that “[i]n 2017-18, Black students accounted for 28.7% of all students referred to law enforcement and 31.6% of all students arrested at school or during a school-related activity”—again at a rate double their share of student enrollment. These police interactions may increase mental health symptoms, such as depression, anxiety, and post-traumatic stress disorder.

Due to implicit bias, what is a manifestation of an emotional disability might be seen as “delinquent” behavior when exhibited by a Black or Latino student. Advocates should discuss special education and 504 eligibility options with clients and zealously pursue these services for Black and Latino children who meet the criteria for having an emotional disability. By ensuring children most at risk for exclusion have appropriate school supports in place and are protected from discrimination based on disability under the IDEA or Section 504, advocates can empower families of children with mental health needs and disrupt the school-to-prison pipeline. 

Marisol Garcia is the senior director of and Lisa Morrow is senior supervising attorney in the Mental Health Advocacy Program for Kids at Health Law Advocates in Boston, Massachusetts.

Special thanks to Joan Steffen, JD expected 2022, who created the materials on school policing based on race

Materials

• School Supports for Children with Mental Health Needs: Explains what an emotional disability is and provides step-by-step guidance on requesting special education testing for a child with a suspected emotional disability. This handout also includes advocacy tips and can be shared with advocates, caretakers, and providers.
• Manifestation Determination Review Checklist: A checklist to help advocates prepare for and advocate during a manifestation determination review (MDR) meeting.
• Sample Provider Letter for Manifestation Determination Review: A template to assist mental health providers when writing a letter on a student’s behalf for a MDR meeting.
• Policing Trauma Template Letter: A template to assist advocates documenting in writing the disparate impact of school policing on students of color and their mental health. Also includes language regarding an MDR to use, if relevant to case facts.
• Impact of Policing on Children with Mental Health Needs: An overview of how school policing impacts children’s mental health and how Black and Latino students are disproportionately impacted.

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