#RethinkDiscipline: Students of color with disabilities can’t learn if they’re not in school

Harold Jordan, senior policy advocate at ACLU-PA, offered comment on the harsh discipline of students of color with disabilities in public schools today before the United States Commission on Civil Rights. Here is his statement.

Harold Jordan of ACLU-PA with Catherine E. Lhamon, chair of the U.S. Commission on Civil Rights, at today’s briefing on school discipline in Washington, D.C.

Thank you for this opportunity to address the Commission on a matter of great importance to students and families in Pennsylvania, the harsh discipline of students of color with disabilities in our public schools.

The American Civil Liberties Union of Pennsylvania has reviewed discipline and law enforcement data, addressed relevant policy issues, and participated in discussions with school communities and education decision-makers. I’ve had the privilege of serving on a committee of Pennsylvania’s Developmental Disabilities Council, a state agency which has provided grants to programs that address the school-to-prison pipeline’s impact on students with disabilities.

Pennsylvania’s patterns of punishment of students of color with disabilities parallels national trends:

  • Black students with disabilities receive out of school suspensions at the highest rates of any group of students. Some 22 percent of Black students with disabilities were suspended at least once. In fact, the profile of the PA student who is most likely to be suspended is a Black male student with a disability. Black and Latino students with disabilities are more likely to be suspended multiple times than any other group.
  • Roughly a dozen districts suspend between 40 percent and 75 percent of Black students with disabilities.
  • Similar patterns of punishment are reflected in contact with law enforcement and arrest.
  • Overidentification, misidentification and under-identification of students of color remains a significant problem.
  • Also problematic is the failure of schools to conduct manifestation reviews and to provide appropriate individualized education supports.

The result is the excessive punishment of students of color, especially those who have disabilities.

Parents and guardians have great difficulty exercising their rights under the Individuals with Disabilities Education Act (IDEA), the Americans with Disabilities Act (ADA), and the Rehabilitation Act. It is challenging for them to ensure that their children are treated fairly and receive constructive supports and services.

We ask the commission to:

1) Urge the U.S. Department of Education to implement the “Equity in IDEA” rule (significant disproportionality) fully and on schedule.

2) Urge local education agencies to establish protocols that address interactions between law enforcement and students with disabilities. These should:

  • Limit contact between police and students with disabilities. No elementary school student should be handed over to law enforcement.
  • Require any law enforcement working in schools to get extensive training on how to de-escalate conflicts and how to work with youth, and youth with disabilities.
  • Protect the privacy rights of students with disabilities.
  • Require training for school staff on how to better work with students of color with disabilities and de-escalate conflicts, instead of turning to law enforcement to force compliance.

3) Urge state and local education agencies to do more rigorous monitoring of the use restraint and seclusion practices, and to make that information available to the public.

Pennsylvania Commission Releases Informative Study of School Discipline

By Harold Jordan, Senior Policy Advocate, ACLU of Pennsylvania

Pennsylvania has a problem.

According to a recently released report initiated by the state House, “The Commonwealth’s rates of expulsion and out-of-school suspension are higher than the national average. Further, studies have shown that excessively punitive discipline for misbehavior can result in long-term consequences for the children involved, especially the youngest ones… Policies relating to expulsion and out-of-school suspension are those in need of the most scrutiny.”

On October 28, Pennsylvania’s Joint State Government Commission, the research service for the state legislature, released Discipline Policies in Pennsylvania’s Public Schools. The study, a year in the making, was developed at the request of the PA House (House Resolution 540).

The Commission was tasked with doing a comprehensive study of school discipline policies, state laws and regulations and memoranda of understanding between law enforcement and school districts. A focus was to be on the effects of discipline on students with disabilities and those under 12 years of age. Finally, it was asked to make recommendations for policy and legislative reform.

Overall, the report is thoughtful and informed. It nicely complements the ACLU of Pennsylvania’s statewide report, Beyond Zero Tolerance: Discipline and Policing in Pennsylvania Schools.

The report states that PA ranks 20th and 13th in the nation in the percentage of students that are respectively suspended and expelled.

While not a full blueprint for reform, the report offers many important policy recommendations. In my view, the most important ones are these:

  • Minimize the use of exclusionary discipline and law enforcement intervention and move toward a system of evidence- or research-based alternatives.
  • Lower Pennsylvania’s expulsion and out-of-school suspension rates and clarify that expulsion and out-of-school suspension are reserved for only the most serious of offenses.
  • Restrict out-of-school suspensions or expulsions of children under the age of 10 to those circumstances when the discipline is based on conduct that is of a violent or sexual nature that endangers others, and provide services to return the child to the classroom as soon as possible.
  • Change the language of the MOU school districts are required to have with law enforcement to eliminate mention of offenses where notification is discretionary. I’ve long argued that that the current language encourages districts to report incidents they are not legally required to report. The Commission uses a different argument to reach the same conclusion.
  • Use pull-out discipline programs (known as “alternative education for disruptive youth”) sparingly and only for the most disruptive students. Remove from the definition of disruptive “disregard for school authority, including persistent violation of school policy,” as too vague and subjective.
  • Change Act 26 (PA’s zero tolerance law) so that it is much narrower, modeling the federal Gun-Free Schools Act.
  • Adjust the funding formula for state school safety grants, so that a smaller percentage goes to funding School Resource Officers vs. other programs, including those that reduce the use of exclusionary discipline.

The report falls short, though, in how it tackles the epidemic of student arrests and racial disproportionality in discipline. The report fails to mention that PA ranked first in the nation in the rates of student arrest — the ultimate form of exclusion — during the same period in which it ranked well above average in other forms of exclusionary discipline. Also, while it acknowledges racial disproportionality in discipline rates and arrests, it does little to address its possible causes and remedies.

A final irony in the report is that it defines zero tolerance so narrowly that it struggles to explain why suspension and expulsion rates are unacceptably high. The report is correct in identifying as a problem the fact that some districts have added non-firearms infractions to the list of zero tolerance offenses for which there is mandatory exclusion. But this is only one piece of the explanation for the high rates of exclusionary discipline.

“Zero tolerance” has come to refer to the phenomenon of using exclusionary discipline for alleged infractions that aren’t at the level of serious safety concerns involving weapons or significant injury. This expanded meaning is widely accepted, including by groups like The Council of State Governments. With the adoption of zero tolerance approaches came a dramatic rise in the use of out-of-school suspensions for dress code violations, lateness, and a whole host of infractions not involving weapons and not resulting in significant injury.

The lesson is this: If you don’t correctly identify the policies that contribute to these rates, you cannot make the reforms that would be needed to bring them down. This larger “culture of zero tolerance” accounts for much of the racial disparity and for the overall high suspension rates in many districts. Perhaps it is time we broaden the definition of “zero tolerance.”

On a constructive note, the Commission recommends that the Pennsylvania Department of Education increases its monitoring of discipline data and, where problems are identified, be empowered to require districts in question to establish Disciplinary Policy Review Committees. These committees would have 50% their membership be “parents and advocates who are representative of the population subject to disciplinary exclusions and law enforcement referrals.”

The Commission is to be commended for producing an informative report and accompanying draft legislation. Hopefully, lawmakers and school decision makers will engage the serious issues it raises.

Get the full report and executive summary

Originally posted at EndZeroTolerance.org