Why Johnny Can’t Stay In School

Under the guise of leaving no child behind, Congress quietly passed two Education Bill amendments this summer that would leave more minority and disabled kids without services -- and deny families legal recourse.

Following the zero-tolerance trend in discipline, these measures allow schools to kick out disabled students without providing at-home services and immunize teachers and school officials against civil lawsuits by affected families. The Senate-House conference committee will take up the amendments when Congress returns in September.

Under the existing Individuals With Disabilities Education Act, or IDEA, children with disabilities can't be ejected for longer than 10 days without alternative services. The new measures vary slightly: The House's version allows banishment for weapons, drugs, or aggravated assault or battery, regardless of whether the crime resulted from a disability. The Senate's version continues educating kids who screw up because of their disability, but allows schools to expel students for breaking any rule, including smoking cigarettes.

"A disabled child who is misbehaving is treated in an entirely different way than a child who is not a disabled child," Alabama senator Jeff Sessions told the chamber. "They have extraordinary protections that, in effect, make it difficult for discipline even to occur."


"Sixty to 65 percent of students, both regular and special ed, who commit "serious misconduct" are suspended; the length of suspensions is about equal, and fewer than half the students receive alternative education during their suspensions."


Wrong all around, says Beth Foley of the Council for Exceptional Children, who authored a letter against the IDEA measures, signed by more than 90 groups ranging from Easter Seals to the National Education Association and the ACLU. Several studies have found that disabled kids are, in fact, banned from school disproportionately. The amendment's detractors point to Kip Kinkel, the Oregon teen who was suspended in 1998, then killed his parents and two classmates. "These kids who are getting expelled aren't going to go home and watch PBS," she says.

The amendment's supporters say dangerous kids are being left in school too long. Sessions uses the case of Lance Landers, called the "meanest kid in Alabama" in news reports. The special-ed student had cursed at school officials, grabbed a school bus steering wheel, and punched his aide--all without being suspended. The local district attorney petitioned a court to expel him two months after the Columbine massacre. Landers ended up spending more than a year away from his family, shuttling between juvenile facilities.

Congress's General Accounting Office says the much touted double standard is a myth, reporting in January that disabled children "are being disciplined in generally a similar manner to regular education students." Sixty to 65 percent of students, both regular and special ed, who commit "serious misconduct" are suspended; the length of suspensions is about equal, and fewer than half the students receive alternative education during their suspensions. Most principals told the GAO that special-ed policies have a positive or neutral effect on school safety; less than a third said the separate policies are unfair.

What's more, zero-tolerance policies appear to provide cover for racial discrimination. "Opportunities Suspended," a study by the Harvard Civil Rights Project and the Advancement Project, shows that of the 87,000 kids expelled in 1998, 31 percent were black, even though African Americans account for only 17 percent of all students. One in four black males was suspended at least once over a four-year period.

In a report titled "The Color of Discipline," Russ Skiba of the Indiana University Institute for Child Study says African Americans are kicked out more often for subjective offenses such as disrespect and noise--and not just because they act out more, or come from poorer homes. They're also overrepresented in special education. The latter may be shielding some from unfair, zero-tolerance discipline. "Why are we in such a hurry to include a whole new set of children in programs and policies that haven't shown any evidence whatsoever of being effective?" Skiba asks.

Now the GOP has co-opted these studies to make the case for not funding IDEA, saying the program is a way of routing African Americans into special ed. That strategy drew a double take from the Harvard Civil Rights Project. It makes no sense for the GOP to play the race card with one hand, says codirector Gary Orfield, while with the other passing an amendment to make discipline more arbitrary. "On the one hand, [special ed] can't get more money because civil rights aren't being observed, so let's limit rights in a further way?" he says. "It's Orwellian."

Some amendment opponents worry that Senate Democrats will sacrifice IDEA protections in order to win IDEA funding. But the politics of funding may temporarily save discipline protections--at least until a bloody IDEA reauthorization battle takes place next year. On August 15, Education Secretary Rod Paige wrote House education chairman John Boehner, saying that the White House won't support any changes now, in funding or discipline. "We also recognize that IDEA discipline policy is a very complex and controversial issue," Paige wrote. "As such, it deserves a careful and thorough review during the IDEA reauthorization."

Those who would gut the law face continued opposition. Kathleen Boundy, of the Center for Law and Education, has waged a "not now, not ever" call-in campaign. "There is no place for denial of education," she says. "We should have learned from zero tolerance. If this hasn't worked for kids without disabilities, it sure as hell won't work for kids with disabilities."

The teachers' unions support rigorous discipline, but oppose this amendment because even expelled children need education. "You just throw a kid out on the street with no alternative services," says lobbyist Joel Packer, of the National Education Association, and "he's likely to do inappropriate things, not become a productive citizen."
"That immunity could also end up protecting discrimination against minority students."

Meanwhile, the second attack on children's rights is cruising for an easy victory. It's "perhaps even more dangerous than the first," says Skiba about the Teacher Liability Protection Act, which would shield all school officials from discipline-related lawsuits, which have skyrocketed since Columbine. The amendment sounds harmless: Teachers need the ability to evict dangerous students before gunfire erupts. But the educators the bill is ostensibly designed to protect don't support it. Packer, the union lobbyist, says state law provides plenty of protection now. Teachers might also be prevented from suing, because the House includes broad immunity for school boards and districts.

That immunity could also end up protecting discrimination against minority students. Robert Schwartz, the executive director of the Juvenile Law Center in Philadelphia, says that if schools want to get sued less, he says, they should can zero-tolerance policies that require them to act unreasonably. "Three million kids were suspended last year," he says. "It seems the problem isn't that teachers are worried about repercussions when they discipline. I don't see any evidence of terror."

Donna Ladd is a Packard Future of Children fellow at the University of Maryland.An earlier version of this article appeared in The Village Voice

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