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Saturday, December 22, 2018

The School to Prison Pipeline

From the Federation for Children with Special Needs

By Daniel T.S. Heffernan, Esq.
Kotin, Crabtree & Strong, LLP

Winter, 2019


American students are increasingly funneled from public schools into the criminal justice system. Inadequate public education programs, zero tolerance policies, “tough on crime” attitudes, and the presence of law enforcement personnel (often termed “resource officers”) in public schools provide evidence of the significant change in how public schools have been addressing behavior issues in the classroom.


A student’s first step into the criminal justice system is often suspension.

Since the 1970s, suspension rates for all students have doubled. During the 2016-2017 school year, over 44,000 students in Massachusetts were suspended, with numerous school districts suspending between 10 and 20% of the entire student population.
A disproportionate number of these suspensions affect students of color and students with disabilities. Students with disabilities are disciplined at twice the rate of their enrollment. In Massachusetts, 17% of all suspensions involved low-income Black or Latino students receiving special education – a rate ten times greater their enrollment.
The vast majority of these exclusions were for non-violent, non-criminal, non-drug-related behaviors.

In the context of these alarming numbers, it is critical to know the federal and state laws which help ensure that children with special needs are not punished for their disabilities and that inappropriate behaviors are properly addressed.
Which students are entitled to protection?

The federal Individuals with Disabilities Education Act (“IDEA”) provides students with special needs protective rights around discipline. Students on IEPs and 504 plans are unequivocally entitled to IDEA’s protection.

In addition, students who are not yet eligible for special education services are covered “if the school district had knowledge that the child was a child with a disability” before the behavior precipitating the disciplinary action occurred. 34 CFR §300.534.

A two-part article that I and Sherry Rajaniemi-Gregg wrote for the spring and fall 2013 Newsline issues detail the protections students with special needs have in discipline cases and some practical tips on dealing with discipline issues involving students with special needs. See www.kcslegal.com.

For students who do not qualify for IDEA’s protective rights, there are also significant safeguards. Prior to 2012, public schools were empowered to permanently exclude students from public school and to withhold educational services. During the 2010-2011 school year, 200 students were permanently excluded from school.

In 2012, Massachusetts enacted General Law chapter 71, §37H ¾ to address the high rates of exclusions and provide education services for excluded students.

Under 37H ¾:
  • Notice of the charges and reasons for suspension or exclusion must be given in the family’s language.
  • The student has a formal right to be heard on the charges, including the right to meet with the principal. Except in exceptional circumstances, described below, this must occur before the exclusion.
  • The parent/guardian must be at the meeting unless the school demonstrates that they had made reasonable but unsuccessful efforts to ensure their attendance.
  • The principal must use his/her discretion on deciding on exclusion and must consider ways to re-engage students in the learning process.
  • Students are not to receive a long-term suspension (more than 10 days) until other non-exclusionary methods have been tried, such as mediation, probation, loss of privileges, detention, and Saturday school. Students cannot be excluded from school for a cumulative total of more than 90 days.
  • Students excluded for more than 10 cumulative days may appeal to the superintendent and must receive written notice of this right.
  • The request for an appeal hearing must be made within 5 days, with the appeal hearing occurring within 3 days thereafter.
  • The superintendent’s decision must be made within 5 calendar days.

Principals can exclude a student prior to a hearing only if there is a disciplinary offense and the continued presence of the student poses a danger to persons or materially and substantially disrupts the order of the school and, in the principal’s judgment, there is no alternative available to avoid the danger or disruption. Under these limited circumstances, this pre-hearing exclusion may not exceed two school days.

One of the most significant changes brought about by 37H ¾ is the requirement that all students who are serving any type of suspension or expulsion must have the opportunity to earn credits and make up work and academic progress. If the exclusion is longer than 10 consecutive days, schools must create a school-wide education service plan to address these needs. Students must be given at least two options for their plan.

Since this law has taken effect there has been some lowering in the rates of suspension but the decrease has plateaued and exclusions remain at very high rates.

There are many resources for students facing these disciplinary proceedings:
  • The EdLaw Project is a statewide education advocacy initiative that includes a coalition providing legal representation to students in disciplinary proceedings. https://www.publiccounsel.net/edlaw/.
  • Three publications by the Lawyers Committee for Civil Rights and Economic Justice: Measuring Up (a guidebook for school discipline rights and procedures), Not Measuring Up (2014), and Unfinished Business (2018). https://www.lawyerscom.org/.

Daniel T.S. Heffernan is longstanding FCSN board member and a partner with Kotin, Crabtree & Strong, where he concentrates on special education and civil rights law. He has represented numerous families with children with special needs in abuse, civil rights and negligence actions. More information on special education can be found on their website (www.kcslegal.com) and special education blog (www.kcsspecialeducationlaw.com

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