More Due Process for a Traffic Ticket? Why Schools Make Bad Courts

The author, Juliet Hiznay, is a special education advocate and attorney in private practice in Northern Virginia. For information about her practice, visit http://jdhiznay.com/ 

Submitted as a comment to the Senate Judiciary Subcommittee on the Constitution, Human Rights & Civil Rights for its December 12, 2012 hearing on “Ending the School to Prison Pipeline”

As an attorney, special education advocate, and parent of a child with a disability, I commend the Committee for taking up this important issue.  There are a number of questionable disciplinary practices in our public schools, some of which I have seen firsthand and some of which I read about all too often in the press. Unfortunately, disparities are clear from disciplinary referral data, including referrals to (or from) the juvenile justice system.  The data show that discipline referrals disproportionately impact students with disabilities, minorities and the economically disadvantaged.  My comments focus on students with disabilities.

Behavior & Disability:  The Nexus that Drives Discipline Referrals by Administrators

Whether in or out of the classroom, the behavior of students with disabilities is frequently misunderstood, leading to a high number of discipline referrals.[i]  Many families I serve have children with an autism spectrum disorder (ASD) or AD/HD.  Teachers frequently find their behavior in class, such as fidgetiness, distractibility, off-topic or socially inappropriate comments, failure to demonstrate active listening, and lack of impulse control, unacceptable. The failure to take a “disability perspective” in such cases will frequently lead teachers to believe that the behavior is purposefully disrespectful.  For those students with an autism spectrum disorder, and for some with AD/HD too, the nature of the disability can significantly affect whether the student can recognize and adapt to classroom norms (sit down, stay still, do not interrupt, look like you are paying attention by tracking the teacher with your eyes, do not fiddle with your pencil, etc.).

Rather than addressing the underlying need, or ignoring the offending behavior, some teachers refer for discipline and repeatedly chastise students in front of their peers.  This can have a terrible impact on the student. School can become a hostile environment for those facing challenges posed by a disability. Removal from school often feels like a relief to such a student.  From the behavioral analysis perspective, this is called a positive reinforcement of a negative behavior.  It’s a big “no-no” because it is ineffective and can cause undesirable behaviors to increase rather than decrease.

Outside of the classroom setting, students with ASD or AD/HD may find it difficult to judge whether other students are being friendly or if their peers are actually messing with them.  In an effort to fit in, such students are particularly prone to pressure from their peers and may be less savvy in their explanations to administrators. In this way, social deficits can contribute in significant ways to students with disabilities exercising poor judgment and can lead to negative perceptions of them.

Positive Behavior Intervention Support

It does not have to be this way.  In Virginia and in many other states, training projects supported at the state level are underway to provide “Positive Behavior Intervention Support”[ii] or PBIS at the school (and sometimes district) level to provide positive and effective interventions school wide, with buy in from students, teachers and administrators.  The reach of these projects has been limited, however, and it requires the schools to “get on board” with a significant commitment.  Some school districts have been resistant to participating in these state programs in spite of demonstrated results.  Among these are highly regarded school systems in Northern Virginia whose discipline disparities for students with disabilities are notable.

Practices of Concern

School districts have their own policies which may vary in implementation at individual schools.  Some administrators may opt not to make formal referrals.  Problems tend to concentrate in particular schools.  There are numerous disciplinary practices known by special education advocates to be used on students with disabilities in school districts in Northern Virginia.  Among these are seclusion (being kept in a room alone isolated from other students), restraint (being physically restrained by school personnel or school resource officers).  This issue was recently highlighted in a Washington Post article printed on December 7, 2012, about a civil rights lawsuit filed on behalf of a student in the Prince William County Public Schools.  Students with disabilities are also suspended for long terms or reassigned to “alternative” school programs frequently for behaviors relating to the student’s disability.  The behavior frequently reflects the school’s failure to recognize or meet the needs of the student.  Students with disabilities who are victims of bullying often get disciplined for reacting to the bullying.  Schools have a difficult time sorting out victims from bullies, and being less socially savvy does not help a bullying victim make his case.  Zero tolerance policies can result in absurd outcomes, such as expulsion of elementary students for bringing a toy gun to school.

It should be a concern to everyone that this is happening to students with disabilities at a much higher rate than the rest of the public school population.  For example, based upon the most recent Arlington County Public Schools data available on the United States Department of Justice Office of Civil Rights (2004)[iii], 60% of long term suspension or expulsion cases were for students with disabilities, although students with disabilities made up less than 15% of the school population in 2004.  A school administrator is ill equipped to function as investigator, judge, jury and executioner – and yet it is at the school level that all this is determined. In cases of physical aggression, all too often any involved students, including victims, are punished.  Thus a victim of aggression is victimized twice:  once by the bully and again by a school system that does not allow victims to defend themselves from violence.

Even when facts are not clear, school systems still proceed with expulsion proceedings.  The evidentiary standard for school discipline is a lower standard.  The due process offered does not afford much legal protection.  In fact, the school discipline process seems to undermine the rights of minors in a myriad of ways.  For example, schools take student statements without a parent present even when it is known they will most likely face a criminal charge.  Students are expected to show remorse if they want a better outcome from a hearing officer, but expressions of remorse can be taken as admissions of wrongdoing.

Parallel Systems of Justice?:  Why Schools Make Bad Courts

One of the most disturbing trends we are seeing in Virginia is the way in which schools have created a parallel justice system by exercising their authority under state law.  This is happening in two different contexts:  through the criminalization of rule breaking in school, resulting in increasing numbers of referrals to law enforcement, and through the exercise of school jurisdiction for “crimes in the community” which are referred to schools by law enforcement.  Mandatory coordination between law enforcement and schools can be disadvantageous in a number of ways.  Mostly, it “ups the ante” so that schools do not feel free to use misbehavior as an opportunity to counsel students on their choices or give second chances to students.

“Zero tolerance” attitudes have spread around the country with states authorizing courts to try juveniles as adults, eliminating probation and parole, and passing three strikes laws.  This environment has contributed to the increase in school discipline cases. Cases that would never be pursued by police are being pursued by schools.  Children are treated as if they are lost causes, removed from the regular education setting, reassigned to “alternative schools” or expelled altogether.

Adults Get More Due Process Defending A Speeding Ticket

When school offenses cross over into the criminal universe, the stakes are high.  Adults have more due process defending a speeding ticket than public school students do when a school investigates a student accused of a crime.  In cases where criminal charges have been filed, students facing expulsion find their legal rights squeezed between two parallel systems.  If they cooperate with the school system to improve their chances of avoiding expulsion, students may place themselves at additional risk in a pending criminal case.

Schools make very poor courts.  The school discipline process provides extremely limited due process.  For example, in Fairfax County expulsion hearings, students have no opportunity to bring their own witnesses or to confront witnesses against them, or even to know the identity of the person who has provided evidence against them.  If witness statements are provided, they are heavily redacted.  Witness statements are taken by administrators and redacted to remove the names of witnesses or other involved students.  There is no opportunity to challenge the reliability of witness statements or to elicit exculpatory evidence.  In short, school officials conclude what happened and students have a very limited opportunity to contest their version of the facts.

An “appeal” to the School Board is a closed proceeding, such that the student and their advocate or parent is not permitted to attend, and the decision is made “on the administrative record.”  This is the same “record” that precludes the confrontation of witnesses, a constitutional protection in criminal cases.  Even typical legal arguments, such as whether the facts offered actually meet the criteria of a school policy violation is often skipped in the typical school hearing case.

Meanwhile, the school presents their version of facts, based upon their internal investigation. The school also presents a disciplinary record, which, when listing every minor offense, can look like a long rap sheet.  Offenses as minor as making an inappropriate comment, interrupting, or repeatedly tapping your pencil on a desk may be listed on discipline records as “insubordination” or “showing disrespect to a teacher” or “causing a disruption in class.”

Again, schools make poor courts.  Even serious offenses that result in recommendations for expulsion do not result in juvenile detention for many students, especially if there is no past criminal history.  However, they often result in the student being expelled from school, making it far more likely they will avoid authority figures, instead gravitating toward people who may not make good role models.

Some Virginia school districts are now opting to pursue disciplinary action for offenses occurring away from school and which also have no connection to school.[iv]  These cases are reported to schools by law enforcement, as mandated by state law, and can result in expulsion or reassignment to a “non-traditional school.” Although reassignment to such a school means the student with a disability will continue to receive their education, they most likely will not receive the special education services they require or complete the classes in which they are enrolled.  These facts alone place them at risk of not graduating on time or obtaining a standard or advanced diploma.

School board authority to expel students is so broad that children can forfeit their right to attend school at any time.  The consequences of these policies are significant. One could argue that for a young person expulsion from school or school “reassignment” is more life altering than anything else that could happen to them as a kid.  Students who are removed from school are essentially discarded by our society at a very young age.  When a person is treated in this manner, should it surprise us when they decide that they do not care to conform to social norms?

By passing the Americans with Disabilities Act[v] and the Individuals with Disabilities Education Act[vi], Congress took a strong stand:  that we would not hide those who fall outside of the comfortable norm, that we would not force them behind closed doors and away from others, that we would not segregate  them from the rest of the school population.  The education policy of the United States is to include students with disabilities, to place them in the least restrictive environment.  Disciplinary practices in our schools are seriously undermining this policy.

What action can be taken to reverse this trend?

1. Public schools should limit the types of offenses that can lead to expulsion.
2. All “zero tolerance” policies in school should be reevaluated to determine if outcomes justify their use.
3. School districts should report data on discipline by school and by all disability categories that exist under the state law so that schools can identify the need for training.
4. Schools should pursue Positive Behavior Intervention Support training so that teachers are better prepared to handle behaviors that are interfering with instruction in the classroom.
5. With regard to students with disabilities, Congress should revise the provisions for “Manifestation Determination Review[vii]” (MDR) under the Individuals with Disabilities Education Act so that the review is meaningful.  The MDR hearing is often a rubber stamp.  It is extremely difficult to meet the current standard for an MDR.  Students with disabilities are being expelled even when it is clear that their disabilities contributed directly to the actions for which they are being disciplined.  This means that children are removed from the school system and placed in alternative settings where they are less likely to be successful, where they will not receive the same of services or an equivalent education, at a higher cost to the school system.
6. Reassignment should require a finding by the school that the student poses a direct danger to other students based upon factual information in the school’s possession.  A mere charge pending in a criminal matter should not be enough to conclude that the student is dangerous to others.
7. Schools need to take real steps to eliminate bullying by teachers, administrators, parents and students alike.

We as a society need to be more inclusive so that individuals who stand out or have eccentricities are not victimized. Congress should act to end the School to Prison Pipeline.  It all starts with how discipline is handled in our schools.  Students with disabilities make up a disproportionate number of discipline referrals.  The behavior resulting in discipline is often caused by the failure of schools to identify and address the needs of a student with special needs. Congress should consider what revisions to federal law may be needed to ensure that this disparity is eliminated.

Posted December 9, 2012; All Rights Reserved Juliet D. Hiznay

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