|
BACKGROUND
Numerous stories about “zero
tolerance” school discipline policies have
surfaced across the country. They are stories
about students of all races and as young as four,
who have had their educational opportunities taken
away for offenses ranging from bringing a nail
clipper to school to throwing peanuts on a school
bus.
Some school officials argue that
having “zero tolerance” for not only
violent behavior, but also disruptive behavior
is necessary for school safety. Parents argue
that children who engage in typical adolescent
behavior are not a threat to safety and excluding
these children from the classroom is not an appropriate
solution.
Under zero tolerance, school officials
often:
- require automatic suspension
or expulsion for particular conduct (such as
guns, drugs, alcohol or fights); or
- use punishments that do not
fit, or correct, the behavior in question. The
punishment may be too harsh and ultimately not
help the student. For example, using a zero
tolerance approach, a student may be suspended
for cursing because the school does not tolerate
the use of profanity. Or a school may expel
a student who engaged in a fight, although no
one was hurt. Schools may also suspend or expel
students for other conduct that creates no threat
to safety (such as disobedience, insubordination,
or disruptive behavior).
Zero tolerance policies may be in
school district or school student codes of conduct,
but they are also found in the way that school
officials practice discipline. Thus, a code of
conduct may give school officials choices of punishments,
but where school officials choose the harshest
punishments, they are applying zero tolerance.
School disciplinary decisions should take into
account circumstances and should ultimately seek
to modify behavior, but above all, should not
punish a child by denying them an education.
NATIONAL TRENDS
Schools are safe places: zero tolerance
policies are an unnecessary means to correct student
misconduct. Since 1993, public schools nationwide
have experienced a decrease in both violent and
non-violent crimes. Despite this, suspensions
and expulsions of students nationwide have increased.
In 1997-98,
more than 3.2 million students were suspended
and 87,000 were expelled.
School safety is critical, but a
majority of the students suspended are not a threat
to safety.
Suspending & Expelling Students
Has Devastating Consequences: Students suspended
or expelled from schools are:
- most often, sitting at home, or are on the
streets, with no educational alternatives;
- likely to be labeled a “trouble maker;”
- likely to fail academically;
- likely to drop out;
- likely to be sent to the juvenile justice
system.
Suspensions and expulsions, regardless
of length of time, stay on a child’s academic
record and may negatively affect chances of admission
to college.
Many school districts use law enforcement
agencies to assist in discipline issues. In fact,
many States require that students be arrested
for certain offenses, including assaults, which
school officials may interpret to include minor
schoolyard scuffles. Also, depending on
State law, a student breaking school rules may
be charged with juvenile delinquency or as a “child
in need of supervision,” which could lead
to detention in a juvenile facility or termination
of parental rights.
CIVIL RIGHTS TRENDS
Students of color are disproportionately
suspended:
- African-American children only represent
17% of public school enrollment, but 33% of
out-of-school suspensions. White students, 63%
of public school enrollment, represent only
50% of suspensions.
- In Minnesota, for example, 25% of African-American
students were suspended.
- Latino students are also singled out for discipline;
in Tennessee, more than 38% of Latino students
have been suspended.
- Research shows that these disparities are
not due to poverty or inherently bad behavior.
Students of color are more likely to be suspended
for non-violent, minor misconduct such as disobedience,
disruption, and disrespect of authority.
WHAT DOES THE LAW SAY?
What are the rights of children
who are unfairly suspended or expelled from school?
1) Right to a School Hearing:
School administrators must provide
students:
- notice of the charges against them;
- the basis of the accusation; and
- an opportunity to tell his/her side of
the story.
Depending on the type of punishment
or length of suspension, this can occur in an
informal meeting with the school’s disciplinarian
or principal or as part of a more formal hearing
process. Parents may appeal decisions to the School
Board. (éIn most School Districts, there
is a limited time period for requesting an appeal.)
In many cases, a child has served out a suspension
before an appeal has been granted. If you believe
the decision is unfair, you should appeal the
decision any way. Otherwise, the punishment will
continue to be a mark on the student’s record.
Parents are advised to check local
school board policies for more information.
2) The U.S. Constitution
and Federal Law Protect Children from Discrimination:
Racial discrimination in education
is prohibited under both the Equal Protection
Clause of the Fourteenth Amendment of the United
States Constitution, and Title VI of the Civil
Rights Act of 1964. (State laws may also apply.)
The Equal Protection Clause can
be used to challenge school disciplinary actions
or policies where treatment can be traced to racial
hostility of school officials.
Title VI prohibits discrimination
on the basis of race, color, or national origin
in school programs and activities receiving federal
funds. It may be used where racial differences
in school discipline are due to intentional discrimination
or to a school discipline policy that has a different
and harmful impact on minority students when compared
to whites.
3) Federal Law Protects Students With
Disabilities Who are Suspended or Otherwise Removed
from School:
Under the Individuals with Disabilities
Education Act of 1997 (IDEA), students with disabilities
have a right to a “free and appropriate
public education,” that will meet the child’s
special needs. Also, students with disabilities
who are disciplined have the following protections:
Students with Disabilities may
be Removed from School for Up to 10 Consecutive
School Days
Students with disabilities may NOT
be suspended for more than 10 consecutive
school days for one incident of misconduct,
unless students without disabilities would receive
the same punishment. During this 10-day period,
school systems are permitted to deny education
services to students with disabilities only if
services are not provided to students without
disabilities under similar circumstances.
Longer Removals from School
Trigger More Protections
Schools may also order additional
removals of not more than 10 consecutive
school days in the same school year for separate
acts of misconduct, so long as the removals
are not considered a “change in placement.”
A disciplinary removal is a “change in placement”
if the removal:
- is for more than 10 consecutive school days;
OR
- there is a pattern of removals that add up
to more than 10 days or there is a pattern in
the length of each removal, the total amount
of time the child is removed, and the closeness
of the removals to one another.
A student with disabilities who
has been removed from school for more than 10
days in the same school year MUST receive educational
services that will enable her/him to progress
in the general curriculum and achieve the goals
in the student’s Individualized Education
Program (IEP).
Students Removed from School
for More than Ten School Days are Entitled to
a “Functional Behavioral Assessment”
and a “Behavioral Intervention Plan”
A student with disabilities who
is removed for more than 10 school days in a school
year, or is beginning a “change in placement,”
has a right to an IEP Team meeting to develop
a “functional behavioral assessment”
if one has not already occurred. This assessment
ensures that behavior problems are identified,
addressed and needed supports are provided. This
IEP Team meeting must be done no later than 10
business days after the removal from school.
The IEP Team must follow-up by developing
and implementing (or changing) a behavioral intervention
program for the child. Parents have the right
to participate in all IEP Team meetings. Parents
who do not speak English MUST
be given translation assistance.
A Student has a Right to a “Manifestation
Determination Review” if There is a “Change
in Placement” Due to Discipline
Parents must be immediately notified,
if a school decides to remove a child from school
for a period that constitutes a “change
in placement.” The IEP Team MUST conduct
a “manifestation determination review”
to determine whether the behavior that led to
the disciplinary action is related to the child’s
disability. This review must occur within 10 school
days of the removal.
If the IEP Team finds that the student’s
behavior is related to the disability, the student
must be readmitted to school right away, and his/her
IEP should be changed to include services that
address the behavioral problem.
If the child’s behavior is
not caused by the disability, then the school
may follow its discipline policies. However, special
education services must be provided.
In Some Cases, Students with
Disabilities may be Placed in Alternative Schools
or Classes for Up to 45 days, but in Some States,
Special Educational Services Must Still be Provided
Schools may order a change in a
child’s placement to an “appropriate
interim alternative educational setting”
for the same amount of time that a student without
disabilities would be subject to discipline, but
not more than 45 days if:
- the child carries a weapon to school or to
a school function; OR
- the child knowingly has, uses, sells or solicits
illegal drugs on school grounds or at a school
function.
Parents must be notified immediately
about this decision and an IEP Team must determine
an appropriate interim alternative educational
setting. In addition, a school may seek an order
from a hearing officer to place a student in an
“appropriate interim alternative educational
setting” for up to 45 days if the hearing
officer undertakes the following four actions:
- determines that the school system has shown,
by substantial evidence, that keeping the student
in the current placement is substantially likely
to result in injury to the child or others;
- considers the appropriateness of the student’s
placement;
- considers whether the school system has made
reasonable efforts to minimize the risk or harm
in the student’s current placement, including
the use of supplementary aids and services;
- determines that the interim alternative educational
setting allows the student to participate in
the general curriculum, continue to receive
the services that will enable the student to
meet the IEP goals, and addresses the child’s
behavior so that it does not happen again.
Children Have a Right to “STAY
PUT” if Their Parents Dispute School Decisions
Students with disabilities have
a right to “stay put” in their current
placement until disputes and appeals about disciplinary
and other school actions are resolved. This rule
does not apply to cases involving weapons, drugs
or injury to self or others.
RESPONDING TO ZERO TOLERANCE
POLICIES
Alternatives to Harsh Punishments
Safe and responsible schools have
the following characteristics:
- A shift away from disciplinary practices designed
to rid schools of “the problem”
toward a more inclusive school.
- Specific strategies are devised for providing
students and teachers with opportunities to
develop strong bonds.
- Teacher and staff training is focused on
positive classroom management techniques, conflict
resolution and helping them to understand the
causes of disruptive behavior and cultural differences.
- A school-wide code of conduct and expectations
for student behaviors is widely promoted and
understood.
- Student sanctions are considered on a case-by-case
basis with input from students and parents.
- Programs that assist in changing disruptive
behaviors, keep students on track academically,
and in school, are used as alternatives to suspension.
If Your Child has been Unfairly
Disciplined You May:
- Appeal a school decision by requesting a due
process hearing (the school must make arrangements
for this hearing), and if necessary, go to court.
- File a complaint of discrimination with the
Office for Civil Rights of the U.S. Department
of Education. You must file with OCR within
180 calendar days of the discriminatory act.
A complaint may be based upon different treatment
and/or impact (where one race is impacted by
discipline more than another).
Contact the OCR at:
Office for Civil Rights
US Department of Education
600 Independence Avenue, S.W.
Washington, DC 20202-1100
(202)205-5413 (phone)
(800)421-3481 (toll free)
(202)205-5166 (TTY)
www.ed.gov/offices/OCR/howto.html
WHAT CAN YOUR COMMUNITY
DO TO KEEP STUDENTS IN SCHOOL?
- Organize parents and students for change.
- Assist in developing Student Codes of Conduct
for the School District, individual schools
and for classrooms. Students and parents should
be involved in setting these policies and standards
for behavior.
- Hold parent and student trainings on the
Student Codes of Conduct to ensure that everyone
understands their rights and responsibilities.
- Request that the School District establish
programs that are alternatives to out-of-school
suspension, which keep students in school and
provide them with counseling and academics.
- Request that the schools provide conflict
resolution and peer mediation training to students.
- Collect data on suspensions and expulsions
from your State Department of Education and
School District. (Very few keep race and gender
data.) Publicize the data in your community
and in the media. (Applied Research Center in
Oakland, CA has a CD-Rom for data collection;
www.arc.org)
- If your State does not keep data, request
that your State Department require data collection
by race, gender, age, and type of punishment
and conduct.
- Request that the School District establish
Disciplinary Committees at each school that
include parents, students, and other community
members of color. These Committees review disciplinary
decisions and may hold hearings and overrule
a decision.
- Request that the School District permit advocates
to represent students in disciplinary hearings.
Advocates are trained community members who
understand the code of conduct and hearing procedures.
- Work with your School District to develop
a policy limiting circumstances under which
police may be called to school to deal with
disciplinary issues. (San Francisco, CA has
such a policy.) Include that the school must
call a parent immediately if a child is to be
arrested.
- Establish a community-school for suspended
children to attend during their days out-of-school,
where students keep up with school work and
receive counseling and conflict resolution training.
|
