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/
The 2016 session of the Virginia General Assembly may prove to be a watershed moment for the rights of all children in Virginia schools, and particularly those with disabilities.
Advocates and educators across the state are tired of seeing children suffer from a number of different indignities in school. Nationwide our children are being subjected to an onslaught of unpleasant experiences at school where they spend the majority of their waking hours between September and June, including:
- Lack of access to physical exercise even though studies show it improves learning
- Bullying and disability harassment
- Excessive and unnecessary school disciplinary action
- Use of physical or mechanical restraint and placement in seclusion
- High rates of suspension and expulsion
- Entanglements with law enforcement for developmentally expected behavior
Data collected from states by the federal government shows that two groups of school children experience this unpleasantness at a much higher rate than the total student population: minorities (specifically Black and Latino students) and children with disabilities.
The truth is, despite the many improvements to educational services for children with special needs under the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act, these federal laws have not necessarily resulted in an improvement to overall school environment. A combination of parental protectiveness, “tough on crime” policies that affect children as well as adults, excessive testing, the paperwork burden on educators and an obsessive focus on academics to the exclusion of play time and exercise have combined to make school a far less welcoming place. For children with disabilities who have a much higher rate of anxiety and need for movement, this is very bad news. Unfortunately, the data on Virginia is bad.
How Bad Is Bad? Three Times as Bad.
The data raises a number of civil rights concerns. As bad as many of the statistics are nationwide, Virginia’s statistics are consistently far worse in key indicators. Based upon the most recent US Department of Education single school year data collected from states, Virginia leads the nation in referral of students to law enforcement with 16 students referred per 1000, which is nearly 3 times the national average. This is getting a lot of attention and led to Virginia Governor Terry McAuliffe to announce a “Classrooms Not Courtrooms” initiative last fall. Disciplinary action and referrals to law enforcement are both known to increase the likelihood of delinquency in children. If you think about it, this is common sense. Once you tell kids they are bad and that they are criminals, and they will fulfill your expectation. Instead of teaching and modeling positive behaviors, we are sidelining children into the criminal justice system. The opportunity to learn from a serious mistake at school without life altering consequences has all but vanished for our youth.
Eliminating Excessive Restraint and Seclusion Practices
Restraint and seclusion rates in the nation are similarly alarming. Data on students with disabilities show that the practices of concern are affecting school children with disabilities at far higher rates in Virginia than the national average. While approximately 14% of Virginia students have disabilities and are served under both IDEA and Section 504 of the Rehabilitation Act, they represent:
-83.3% of students subjected to seclusion (compare US rate 56.7%)
-81.1% of students subjected to physical restraint (compare US rate 75.7%)
-58.3% of students subjected to mechanical restraint (compare US rate 31.8%)
These rates matter because restraint and seclusion practices cause trauma to children, resulting in poor academic and functional outcomes over the short- and long-term. Sometimes restraint and seclusion can even result in death. Children with disabilities subjected to restraint and seclusion tend to require more services after these experiences rather than less, which is more expensive for states and localities. Children subjected to restraint and seclusion also become more aggressive. School becomes an unsafe place when children lose control over their own bodies. In 2015, the General Assembly mandated that new state regulations be issued to reduce the rates of restraint and seclusion in public schools. This effort has not yet been completed, but regulations issued in 2015 that apply to private day schools serving children with disabilities enacted sweeping reforms. The regulatory process needs to be followed carefully to ensure that the new regulations are effective in reducing or, in the case of seclusion, prohibiting these disfavored practices in the public school setting. No one’s child should be getting locked in a room by themselves in any public school in America.
What Price Disorderly Conduct?
Virginia’s disorderly conduct statute explicitly makes it a crime for a student to disrupt instruction during school by causing “inconvenience or annoyance.” Children of all ages and abilities are known to cause inconvenience and annoyance, so this law would make a sensible person laugh if it were not so sad. The language in this statute is so broad that nearly any inappropriate or annoying act could qualify. Of particular concern, children with disabilities regularly exhibit behaviors that are distracting or annoying to others in the school environment. This is especially true when the quality of special education support is low or services are not tailored to meet the student’s needs. It is embarrassing but true, in Virginia many children are being charged under the disorderly conduct statute for behaviors caused by their disability. Incidents in school can also be caused by adults unintentionally escalating situations due to insensitivity or lack of training. Because Virginia law treats a child with a developmental disability as equally responsible as a child without any disability, a child can be charged and adjudicated a juvenile delinquent even if the behavior at issue is clearly caused by the disability itself. Adults do not refrain entirely from acts that cause inconvenience or annoyance, so why are we expecting this type of perfection from children?
Reducing the scope of the disorderly conduct statute and redefining the offense would go a long way toward reducing Virginia’s very high rates of school referral to law enforcement. To be clear, this would have no effect on other crimes. Disorderly conduct is not assault, battery, larceny, property destruction, weapons offenses and drug offenses. All those crimes are still fair game if we stop pursing school children for disorderly conduct. Of course, school disciplinary action can always be meted out for minor behaviors like being fidgety, getting out of your seat, being noisy, not following directions, leaving class without permission, or misusing school materials. School Resource Officers would still have broad authority to maintain safety at school if indeed there is a safety issue.
What makes advocates so sure that targeting the disorderly conduct statute will make a difference? Because Texas recently eliminated the charge in the school context for enrolled students, which resulted in a dramatic drop in criminal charges against students in all categories. We need to do the same in Virginia.
School Climate Bills Aimed at Reform
Several bills being pursued in the Virginia General Assembly attempt to address school climate. These efforts include eliminating school referral mandates to law enforcement, exploring alternatives to suspension and expulsion, and addressing the number one criminal law resulting in referral of students to law enforcement: the disorderly conduct statute.
Will this year’s efforts in the Virginia General Assembly be successful? That is unclear. In a political environment with such wide chasms, success can seem remote. However, each incremental step in Virginia offers the opportunity to educate legislators in both parties. We need to develop child friendly policies that are grounded in an understanding of child development. The price if we do not? Miserable kids, the criminalization of childhood and the continuation of a system that is absurdly unfair to the most vulnerable among us.
VIRGINIA 2016 SCHOOL CLIMATE BILLS
The following bills were introduced in the 2016 General Assembly and can be tracked at https://lis.virginia.gov/lis.htm. As of the date of this blog, the bills in bold are still alive, but require support from the public. If you support these bills, tell your legislator, which you can find here:
- HB1213 (Del. Albo-R) Allowing minors prosecuted for misdemeanos in school to present educational plans and behavioral assessments, under seal by the court, as evidence that the minor did not act willfully
- HB1200 (Del. Collins-R) Prohibiting students with individualized education programs (IEPs) from being found guilty of battery against a school employee if the offense occurred on school property or a school bus or at a school-sponsored activity
- HB1132 (Del. LaRock-R) Eliminating requirement that school principals report numerous misdemeanors and non-crimes to law enforcement
- HB1134 (Del. LaRock-R) Eliminating “disorderly conduct” as a possible delinquency or criminal charge for school students 14 and younger if the conduct occurred during school hours and on school property.
- HB487 (Del. McClellan-D) Eliminating requirement that School Resource Officers (SROs) “enforce school board rules and codes of student conduct,” to avoid compelling SROs to intervene in disciplinary issues
- HB488 (Del. McClellan-D) Eliminating secure placement (e.g., detention) as an option for children who violate a court order or probation agreement to attend school
- SB458 (Sen. McEachin-D) Prohibiting out-of-school suspensions unless all feasible alternatives to suspension have been considered
- HB486 (Del. McClellan-D) Eliminating requirement that Commonwealth’s Attorneys prosecute all truancy cases
- SB587 (Sen. Sturtevant-R) Same as HB486
U.S. Government Accountability Office, Ending the School to Prison Pipeline, Testimony before the Judiciary Committee, Senate, Washington D.C., December 12, 2012.
Civil Rights Data Collection 2011-2012 http://ocrdata.ed.gov/; U.S. Department of Education Office for Civil Rights Data Collection: Data Snapshot (School Discipline) March 21, 2014; U.S. Government Accountability Office, Seclusions and Restraints: Selected Cases of Death and Abuse at Public and Private Schools and Treatment Centers. Testimony before the Committee on Education and Labor, House of Representatives, Washington, D.C., May 19, 2009; Council of Parent Attorneys & Advocates, Inc., Unsafe in the Schoolhouse: Abuse of Children with Disabilities (May 27, 2009); Congressional Research Service, The Use of Seclusion and Restraint in Public Schools: The Legal Issues (April 14, 2009); National Disability Rights Network, School is Not Supposed to Hurt: Investigative Report on Abusive Restraint and Seclusion in Schools (January 2009); National Alliance on Mental Illness, Cries of Anguish: A Summary of Reports of Restraint & Seclusion Abuse Received Since The October 1998 Investigation By the Hartford Courant (March 2000); U.S. Government Accountability Office, Improper Restraint and Seclusion Place People at Risk. Report to Congress, September 1999; Weiss, E.M. et al., Deadly restraint: A Hartford Courant Investigative Report 1998, October 11-15.
Published February 14, 2016; All Rights Reserved Juliet D. Hiznay