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Friday, February 28, 2014

Developments in Discipline: A Federal Alert on Discrimination and A New Massachusetts Statute

From Special Education Today
A Special Education Law Blog from

the Attorneys at Kotin, Crabtree & Strong, LLP

By Robert K. Crabtree, Esq.
February 27, 2014

Parents and advocates should take note of several important recent developments concerning how schools manage students’ behavior. We post this note to direct attention to some of the more important developments, each of which involves complex and detailed information worthy of more extensive study and discussion as their consequences unfold.

Of most immediate concern is the third item discussed in this post, since it invites readers to consider submitting comments to DESE by March 7 on proposed regulations to govern school discipline policies and practice. We begin, though, by describing a federal publication that highlights the context within which those policies will be applied, noting some of the issues and concerns that give rise to the need for thoughtful and systematic attention to the way in which students, with or without disabilities, are handled when they misbehave.
First, the U.S. Department of Education and the U.S. Department of Justice have jointly issued an eloquent and well-supported memorandum concerning elementary and secondary school discrimination based on race or ethnicity in a “Dear Colleague” letter advising public schools how to “identify, avoid, and remedy discriminatory discipline.” The memo cites data collected by the Office for Civil Rights showing that students from some racial and ethnic groups are disciplined both more frequently and more severely than white students – far more than can be explained by non-discriminatory factors.

For example, African-American students without disabilities are more than three times as likely as their white non-disabled peers to be expelled or suspended. The memo examines the entire disciplinary process, from the response to misconduct in the classroom to long-term suspension and expulsion, noting that even the mildest forms of exclusion from the classroom (for example, being sent to the principal’s office) and even those that do not result in further discipline nevertheless create negative consequences for the student. Those consequences may include reduced academic instruction, possible enhancement of the penalty for any later misconduct, and a cumulative effect on the attitudes of school staff toward the student, potentially throughout the student’s academic career.

The memo points to further possible negative consequences such as a decline in the student’s attitude toward him or herself as a competent learner, and reduction in his or her interest in, hopes for, and ability to stay committed to a positive educational track; these, in turn, can create a downward spiral, leading the student to misbehave more frequently and face discipline again. The potentially serious consequences heighten the importance of a school’s scrupulous avoidance and prevention of discrimination in the exercise of its disciplinary policies. The Dear Colleague letter deserves a full and careful reading.
Second, though the Dear Colleague letter does not focus specifically on discriminatory disciplinary practices against students with disabilities, parents and advocates should note the letter’s reference to some very troubling data on that subject. As the Departments state in footnote 6 of the letter:
While this document addresses race discrimination against all students, including students with disabilities, evidence of significant disparities in the use of discipline and aversive techniques for students with disabilities raises particular concern for the Departments. For example, although students served by IDEA represent 12% of students in the country, they make up 19% of students suspended in school, 20% of students receiving out-of-school suspension once, 25% of students receiving multiple out-of-school suspensions, 19% of students expelled, 23% of students referred to law enforcement, and 23% of students receiving a school-related arrest. Additionally, students with disabilities (under the IDEA and Section 504 statutes) represent 14% of students, but nearly 76% of the students who are physically restrained by adults in their schools.
Third, and of most immediate concern, parents and advocates should educate themselves about a major new Massachusetts law governing exclusion of students from school for misconduct. Chapter 222 of the Acts of 2012, signed into law in August 2012, will take effect on July 1, 2014. Chapter 222 breaks new ground in this state by requiring that all students who are excluded from school, whether the exclusion is long-term or short-term and whether the student is disabled or not, must be afforded the opportunity to continue to make progress while they are suspended, expelled, or otherwise excluded from school.

As Chapter 222’s major progenitors, staff of the Massachusetts Advocates for Children, describe it: “This law will allow students who are excluded from school or facing exclusion to make academic progress during the period of their exclusion through alternative education programs and services provided by the school district. This law will also improve the fairness of the discipline process, and reduce the number and duration of school exclusions.”
The ultimate goal of the new law is to make exclusion the very last resort and to emphasize instead alternative interventions that support students by positive and educational means. Alternative approaches might, for example, involve the principles of restorative justice, or Collaborative Problem Solving (a methodology developed by a group at MGH called Think:Kids).

To the extent that the policies and practices governing school discipline can be successfully oriented away from suspensions and expulsions, the hope is that the typical downward spiral of students caught up in such issues can be interrupted. Where exclusion is the default response, students all too often wind up being held back, dropping out, and becoming prime candidates for the attention of the juvenile courts.
The provisions of this law and their interaction with protections already in place under IDEA are complex, and many of the ramifications for students with or without disabilities will likely only become clear as the law is implemented over the next school years. Right now, though, with only a short time left, there is an opportunity for parents and advocates to have a say as to how the law will be interpreted through the detailed regulations that the MA Department of Elementary and Secondary Education will issue over the next few months.

The draft regulations are subject to public comment only through Friday, March 7, 2014. Comments should be sent to Elizabeth Harris at the Department of Elementary and Secondary Education, by mail to 75 Pleasant Street, Malden, MA 02148, by fax to 781-338-3399, or by e-mail to eharris@doe.mass.edu.
While for the most part the proposed regulations fairly track the language, spirit and purposes of Chapter 222, leaders among disability advocates have raised concerns about certain critical matters. These include a provision intended to address what the DESE calls “emergency removal” conditions (proposed section 603 CMR 53.07). Immediate removal from school in certain serious situations (possession of dangerous weapons or controlled substances, assault on school staff members, being charged with or convicted of felony) is already permitted under other state laws. No provision in Chapter 222 specifically permits the “emergency removal” of students who commit other offenses.

Proposed 603 CMR 53.07, however, states that the principal may remove such a student for up to 5 school days if s/he decides that the “continued presence of the student poses a danger to persons or property, or materially disrupts the order of the school.” The concerns of parent advocates about the proposed regulation focus on the potential for excessively punitive actions by school administrators, to whom the proposed regulations give wide discretion in the exercise of their authority.

Specific concerns include: (1) the length of time – up to a proposed 5 school days – for which a student can be excluded from school on an “emergency” basis (the length of time should be no more than a day or two, depending on the nature of the “emergency”); and (2) the amount of discretion that is left to individuals in authority – primarily school principals – in characterizing incidents of misconduct as warranting “emergency removal” from school.

We also note that proposed section 603 CMR 53.05, concerning the use of exclusion and suspension as only a last resort, presently affords overly broad discretion to school principals to determine when attempts to re-engage the student in learning after an incident of misconduct have been exhausted and suspension is warranted.
Additionally, in section 603 CMR 53.14, some are concerned that the proposed reporting regulation omits mention of certain specifics required by Chapter 222 for school reports to DESE regarding suspensions and expulsions. Whereas the new statute requires that districts collect and report the specific reasons for all exclusions, regardless of duration or type, the proposed regulation simply states that DESE will determine the manner and form of reporting. While the statutory requirement for the specifics still apply and while the actual reporting forms may address this omission, advocates would like to see this requirement for specificity included explicitly in the regulation to emphasize the importance of this critical data.

In light of the ultimate aims of the statute, the regulations ought also to add a requirement to include information about a district’s development and use of non-exclusionary disciplinary alternatives in their reports.
As you can see, we are at the start of what could be a very promising change in the culture of schools around discipline. There will be much more to say about Chapter 222 as its effective date approaches, and then as it begins to be implemented.

We will keep an eye on the developments, and we urge our readers to do the same. Watch this space for additional analysis and updates!

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Robert Crabtree is a partner in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, Massachusetts.

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