School Discipline: Students with Disabilities and Ethnic Minorities

1
School Discipline Students with Disabilities and
Ethnic Minorities

• Stefan M. Rosenzweig
• Scholar in Residence, Center for Language
  Minority Education and Research,CSULB
• April 25, 2005

2
Brown v. Board of Education of Topeka, 347
U.S.483 (1954)

• Ch.J.Warren the question presented Does
  segregation of children in public schools solely
  on the basis of race, even though the physical
  facilities and other tangible factors may be
  equal, deprive the children of the minority group
  of equal educational opportunities? We believe
  that it does.

3
Brown Reasoning

• Today, education is perhaps the most important
  function of state and local government.
  Compulsory school attendance laws and the great
  expenditures for education both demonstrate our
  recognition of the importance of education to our
  democratic society.It is the very foundation of
  good citizenship.In these days, it is doubtful
  that any child may reasonably be expected to
  succeed in life if he is denied the opportunity
  of an education. Such an opportunity, where the
  state has undertaken to provide it , is a right
  which must be made available to all on equal
  terms.

4
Milliken v. Bradley, 418 U.S. 717 (1974)

• United States Supreme Court overturns ruling that
  would have abolished city-suburban school
  districts surrounding Detroit Michigan.
• The ruling would impact fifty-three suburban
  school districts and over 300,000 students.

5
Milliken holding

• C.J.Burger The controlling principle
  consistently expounded in our holdings is that
  the scope of the remedy is determined by the
  nature and extent of the constitutional
  violation. Swann, Before the boundaries of
  separate and autonomous school districts may be
  set aside by consolidating the separate units for
  remedial purposes or by imposing a cross-district
  remedy, it must   first be shown that there has
  been a constitutional violation within one
  district that produces a significant segregative
  effect in another district. Specifically, it must
  be shown that racially discriminatory acts of the
  state or local school districts, or of a single
  school district have been a substantial cause of
  interdistrict segregation. Thus an interdistrict
  remedy might be in order where the racially
  discriminatory acts of one or more school
  districts caused racial segregation in an
  adjacent district, or where district lines have
  been deliberately drawn on the basis of race. In
  such circumstances an interdistrict remedy would
  be appropriate to eliminate the interdistrict
  segregation directly caused by the constitutional
  violation. Conversely, without an interdistrict
  violation and interdistrict effect, there is no
  constitutional wrong calling for an interdistrict
  remedy.

6
(Last Class) Misclassification Retarded

• Diana v. California Bd. Of Education (U.S.Dist.
  Ct. N.D. of Ca. 1970) Linguistic Bias
  Mexican-American Spanish Speaking students
  diagnosed with English IQ tests over represented
  in classes for the educable mentally retarded
  (EMR) throughout California. Tests and EMR
  curriculum not reflective of students culture or
  language. Suit settled by state It is the
  intent of the State Board of Education that all
  children who came from homes in which the primary
  spoken language is other than English shall be
  interviewed, and examined, both in English and in
  the primary language used in his home. The
  examiner should take cognizance of the childs
  differential language facility. Any assessment of
  the childs intellectual functioning should be
  made on the basis of the spoken language most
  familiar to the child. In determining the
  intellectual functioning of a child whose primary
  language is other than English, it is recommended
  that the examiner utilize more than one
  instrument and include, tests with performance
  scales.

7
Misclassification Retarded

• Larry P. v. Riles,495 F. Supp.926 (U.S. Dist. Ct.
  N.D., Ca 1979), Racial and Cultural Bias Judge
  Robert Peckham reviews history of IQ testing and
  finds its historical linkage to genetic notions
  of racial differences in intelligence. Holds that
  standardized intelligence tests are racially and
  culturally biased, have a discriminatory impact
  against black children, and have not been
  validated for the purpose of essentially
  permanent placements of black children into
  educationally dead-end classes for the so-called
  educable mentally retarded.
• Prohibition on IQ testing on African-American
  school children still enforced by CA Dept of
  Education.

8
School Suspensions long criticized

• From School Suspensions Are They Helping
  Children?, Childrens Defense Fund 1975, p.49
• Suspensions (1) take away educational time that
  may cause marginal, weak or poorly motivated
  students to drop out permanently (2) label
  children as troublemakers,thereby making
  repeated behavior problems more likely (3) deny
  children needed helpand (4) contribute to
  juvenile delinquency by putting unsupervised
  children and those with problems into the
  streets.
• Finally, additional harm accrues to children who
  are mistakenly suspended, suspended arbitrarily
  or by unfair means. For the black and other
  minority and poor children who are suspended by
  officials with double standards for behavior and
  punishment, the repeated reinforcement of
  discrimination will leave bitter scars.

9
Goss v. Lopez,419 U.S.565 (1975)

• Facts Altercation at a public high school result
  in several students being suspended. None was
  given a hearing to determine the operative facts
  underlying the suspension, but each, together
  with his or her parents, was offered the
  opportunity to attend a conference, subsequent to
  the effective date of the suspension, to discuss
  the students future. As a consequencethe
  record does not disclose how the principal went
  about making the decision to suspend, nor does
  it disclose on what information the decision was
  based. It is clear from the record that no
  hearing was ever held.
• Court holds A 10-day suspension from school is
  not de minimis in our view and may not be imposed
  in complete disregard of the Due Process Clause.
  education is perhaps the most important function
  of state and local governments,and the total
  exclusion from the educational process for more
  than a trivial periodis a serious event in the
  life of the suspended child. Neither the property
  interest in educational benefits temporarily
  denied nor the liberty interest in reputation,
  which is also implicated, is so insubstantial
  that suspensions may constitutionally be imposed
  by any procedure the school chooses, no matter
  how arbitrary.

10
What Process is Due (Goss)

• We stop short of construing the Due Process
  Clause to require, countrywide, that hearings in
  connection with short suspensions must afford the
  student the opportunity to secure counsel, to
  confront and cross-examine witnesses supporting
  the charge, or to call his own witnesses to
  verify his version of the incidentOn the other
  hand, requiring effective notice and informal
  hearing permitting the student to give his
  version of the events will provide a meaningful
  hedge against erroneous action in the short
  suspension not exceeding 10 days.

11
Racially Disparate School Discipline

• School prevails Tasby v. Estes, 643 F.2d 1103
  (5th Cir 1981)
• Court assumes arguendo that there was a
  significant disparity in the disciplinary
  treatment of black students and those of other
  races.
• But, to prevail court finds that plaintiffs
  cannot prove a discriminatory purpose reasoning
  that decisions regarding discipline involve too
  many legitimate, non-racial factors to infer
  discriminatory purpose even in the context of
  desegregation efforts. Discriminatory purpose
  would not be found absent a showing of arbitrary
  disciplinary practices, undeserved or
  unreasonable punishment of black students, or
  failure to discipline white students for similar
  conduct.

12
Defendants prevail through settlement

• Ross v. Saltmarsh, 520 F.Supp. 935 (S.D.N.Y.
  1980)
• Consent Decree to eliminate disparities in
  suspension rates by reducing number of
  suspensions, simplifying discipline code to make
  it more understandable to students, development
  of in-school alternatives to suspension, greater
  involvement of tutors and psychologists in
  disciplinary
• processes, less racial tracking, training in
  race relations and affirmative steps to hire
  minority teachers.
• Florida Dept. of Education, Technical Assistance
  Paper, No. 013-DP-92
• See LULAC v. FLA. Bd of Education,
  www//firn.edu/doe/omsle
• Student conduct may be influenced by cultural
  values which are not adequately understood by
  school personnel and may be mistaken for
  insubordination, insolence or disrespect.

13
STUDENTS WITH DISABILITIES

• PRIMARY AND SECONDARY EDUCATION

14
Disparate Discipline

• Among children with disabilities, Latino, Native
  American, and African American children are
  substantially more likely than whites to be
  suspended, removed by school personnel, or
  removed by a hearing officer. For example,
  according to national OSEP data from the
  1999-2000 academic year, African American
  students with disabilities are more likely that
  three times as likely as Whites to be given
  short-term suspensions. Racial disparities are
  nearly as great for long-term suspensions with
  both American Indians (2.72 times) and African
  Americans (2.6 times) more likely to be removed
  for more than ten days. Moreover,
  African-American, Latino, and American Indian
  children with disabilities are each 67 more
  likely than Whites to be removed on grounds of
  dangerousness by a hearing officer.
• The Civil Rights Project, Harvard U., Civil
  Rights Alerts, Minority Children with
  Disabilities will be harmed in disproportionate
  numbers if Idea's discipline safeguards are
  reduced or eliminated
• (January 30,2003)

15
FEDERAL LAW

• Before 1975 many children with disabilities were
  denied any education at all. In 1975, Congress
  passed a law, the Education for the Handicapped
  Act, which confirmed the right of a child with a
  disability to a free, appropriate education. The
  Act was later amended and is now called the
  Individuals with Disabilities Education Act, or
  the IDEA.Other federal statutes, such as the
  Rehabilitation Act and The ADA, also protect the
  right of a child with a disability to an
  education free from discrimination based on
  disabilities.
• Education is primarily the responsibility of
  states and local communities, rather than the
  federal government. For this reason, the federal
  statutes do not require the states to educate any
  children. The Rehabilitation Act instead
  prohibits discrimination against anyone on the
  basis of a disability in any program supported by
  federal funding. Since every state accepts
  federal money for its general education programs,
  every state is forbidden to discriminate against
  a child with a disability in education.
• California Dept of Justice, Legal Rights of
  Persons with Disabilities (Nov.03) (hereafter
  DOJ)

16
State Law

• California accepts federal money and is required
  to provide a FAPE. California has also enacted
  statutes which sometimes provide greater
  benefits than federal law. (Ed. Code, Sec. 5600
  et seq.)

17
School Districts May NOT CHANGE a Child's
PLACEMENT Without Parental Notice.

• A change in placement is a fundamental change in
  the type of special education or related services
  provided to a child with a disability and
  parents are entitled to detailed advance
  notice. (DOJ)
• Should parents believe that their child is being
  denied a FAPE they are entitled to a hearing
  before an independent hearing officer provided by
  the Ca. Dept of Ed..
• The U. S. Dept of Ed, Office for Civil Rights,
  OCR, enforces the ADA and Section 504. The
  typical OCR complaint involves an alleged
  violation of FAPE.
• wwwed.gov/ocr
• For the differences between IDEA and the
  disability laws enforced by OCR see
• Anderle, Helping Schools Make the Grade,
  http//www.michbar.org/journal/home.cfm?viewtypea
  rchivevolumeid16

18
A Child with a Disability MAY NOT Be Expelled

• A short suspension of a child with a disability
  for misbehavior is not a change in placement
  necessitating detailed advance notice. Expulsion,
  however, is a change in placement. Therefore, a
  school district cannot use the procedures used in
  expelling other children in expelling students
  with disabilities. Although a school district can
  change a child with a disabilitys placement if
  the child is disruptive, the school district
  cannot expel a child whose misbehavior is a
  manifestation of , or is caused by, his or her
  disability. Even when a child with a disability
  may properly be expelled, the school district
  cannot refuse to offer some form of education to
  the child. (DOJ)
• Note that If suspensions are repeated and the
  cumulative amount of time suspended approaches 10
  days, it may constitute a change in placement and
  require complete due process proceedings.

19
Honig v. Doe, 484 U.S. 305 (1988)

• The present dispute grows out of the efforts of
  certain officials of the SFUSD to expel two
  emotionally disturbed children from school
  indefinitely for violent and disruptive conduct
  related to their disabilities.
• The language of 1415(e)(3) is unequivocal. It
  states plainly that during the pendency of any
  proceedings initiated under the Act, unless the
  state or local educational agency and the parents
  or guardian of a disabled child agree, the child
  SHALL remain in the then current educational
  placement...Faced with this clear directive,
  petitioner asks us to read a dangerousness
  exception into the stay-put provision on the
  basis of either two essentially inconsistent
  assumptions first, that Congress thought the
  residual authority of school officials to exclude
  dangerous students from the classroom too obvious
  for comment or second, that Congress
  inadvertently failed to provide such authority
  and this Court must therefore remedy the
  oversight. Because we cannot accept either
  premise, we decline petitioners
• invitation to re-write the statute.

20
Stay Put Under Attack in IDEA Reauthorization

• Thomas B. Fordham Foundation Report, www
  edexcellence.net
• Presidents Commission on Educational Excellence
• IDEA Reauthorized 2004
• Stay Put provision essentially unchanged

21
Major Changes in IDEA Discipline (see www.
cec.sped.org)

• IDEA 1997 established the parameters for removing
  disabled students from school when they have
  behavior problems.
• When disciplining disabled students, a school
  must determine if the behavior was a result of
  the disability before removing them from school.
• If students are removed from school, their
  services do not cease.

• 2004
• Maintained requirement
• Maintained requirement

22
1997 2004

• When it was found that the childs behavior was
  not a result of their disability, the educational
  placement didnt change, and services continued.
  The burden was on the school to sure for a change
  of placement.
• Schools can remove student days for 45 days, no
  questions asked, if they bring a gun, bomb, or
  drugs to schools.

• When it is found that the childs behavior was
  not a result of their disability, services
  continue, but the educational placement may be
  change. The burden is on the parent to appeal the
  decision.
• In addition to removal for guns, bombs, and
  drugs. Students can be removed for committing
  serious bodily injury.