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In an effort to help the community
understand current basic concerns about civil rights, we have published
the following Civil Rights in Brief which summarize
these issues and can help you learn what you can do to protect them.
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.
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.
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 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.
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
- 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.
Center for Effective Collaboration and Practice
American Institutes for Research
1000 Thomas Jefferson St., NW
Suite 400
Washington, DC 20007
(202) 944-5400
http://cecp.air.org
Hamilton Fish Institute
2121 K Street NW, #200,
Washington, DC 20037-1830
(202) 496-2200
http://hamfish.org
National Parent Network on Disabilities
1130 - 17th Street, NW, Suite 400
Washington, DC 20036
(202) 463-2299
http://www.npnd.org
Parent Advocacy Coalition for Educational Rights Center
(PACER)
4826 Chicago Avenue South
Minneapolis, MN 55417-1098
(612) 827-2966
http://www.pacer.org
National Coalition of Advocates for Students
100 Boylston Street, Suite 737
Boston, MA 02116
(617) 357-8507
http://www.ncas1.org
Center for Law & Education
1875 Connecticut Avenue, N.W.,
Suite 510
Washington, DC 20009
(202) 986-3000
http://www.cleweb.org
NAACP
4805 Mt. Hope Drive
Baltimore, MD 21215
(410) 486-9169
http://www.naacp.org
For attorney representation go to http://www.abanet.org.
Click on: Litigation èCommittee èChildren’s
Law èDirectory of Pro Bono Children’s Programs.
You may also download "Zero
Tolerance and School Discipline" in PDF Format. 
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