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September 04, 2015 Practice Points

Children with Disabilities Found to Be Disciplined at Much Higher Rate than Other Students

By Jessalyn Schwartz

As the United States marks the 25-year anniversary of the Americans with Disabilities Act, data has been released showing the large discrepancies in punishment, suspension, and expulsion of children with disabilities in the nation's schools. UCLA's Civil Rights Project released a report earlier in 2015 which studied suspension rates of children with disabilities and children without disabilities over the 2011–2012 school year. The study found clear evidence of the "discipline gap," showing that the percentage of children with disabilities who were suspended was significantly higher than those without disabilities and that a third of all children in grades K–12 with emotional disabilities were suspended at least once. When race becomes a part of the equation, the disparity worsens, with one in four black boys and one in five black girls with disabilities being suspended in any one school year.

Other disciplinary measures, such as sending a child to the principal's office, withholding recess or other activities, and verbal admonishment have negative effects on children with disabilities. In many situations involving children with severe behavioral issues, educators are not properly trained and instinctively turn to punishment and even restraint and seclusion methods, such as tying children up with cords and duct tape, to control these children. A 2014 Propublica investigation of government data showed that restraint and seclusion was used more than 267,000 times in 2012 across the U.S. and that three-fourths of the students had physical, emotional, or intellectual disabilities. Many injuries have been reported, and as many as 20 deaths through 2009 have occurred. About 50 percent of states have laws prohibiting the use of some of these tactics.

The White House put this issue under a microscope at an event with educators, policymakers, and nonprofit leaders. The increase in negative outcomes, such as delinquency, substance abuse, gang involvement, dropping out, and the "school-to-prison pipeline" was highlighted at the gathering. Last January, the administration released guidelines on educational disparities based on race, and now, the New York state education department is developing similar guidelines on disabilities.

Education reformers are pushing for new disciplinary protocols that vary depending on the district. The commonality is that educators are taught to look beyond the behavior to pinpoint and address the underlying problem, whether it is a diagnosed disability, an educational issue, or an undiagnosed condition. In California, one high school has implemented a "positive behavioral intervention and support" (PBIS) program that provides similar acceptance and support that many students were previously seeking from gangs and other negative influences. Children are taught consequences for bad behavior and are rewarded for appropriate behavior. Broward County Schools in Florida have seen a large drop in arrests and suspensions after putting a program in place to support students through caseworkers following a suspension. More than 90 percent of students did not commit a second offense under this program. Other states have seen similar results and some have also found that it costs significantly less to implement new programs to address discipline than to incarcerate youth for their actions in or out of school. There is now a strong call for changing educational cultures and belief systems of all involved in teaching America's youth.

Keywords: children's rights, litigation, student, discipline, disabilities, PBIS, Propublica, behavioral issues, emotional issues

Jessalyn Schwartz is a member of the ABA Children and the Law Advisory Task Force in Boston, Massachusetts.

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