Tag Archives: students with disabilities

Disproportionate School Discipline Is Not Separate From Justice System Disparities

In December of 2017, the United States Civil Rights Commission held a public briefing addressing the school-to-prison pipeline, paying special attention to students of color and students with disabilities and the impact of school suspensions and expulsions. There’s a debate centering around whether bias is at play in school discipline. (You can watch the archived livestream here.)

As usual, the Commission then opened a window for written public comments. I wrote a memo to the Commission to help place the conversation about disproportionate school discipline into context: school discipline is just one manifestation of a larger and well-studied criminal justice phenomenon. (This blog posts summarizes my comments; if you want to read my full memo, click here.)

Rates of disparate school discipline for students of color and students with disabilities parallel the disparate local and national rates of arrest, incarceration, and executions of people of color and people with disabilities. It is reasonable to infer that that the identified causes of those disparities are likely to be similar to — if not the same as — the differential rates of school-based discipline.

Efforts to claim that questions about school discipline are new and mysterious ignore the wealth of available data and expertise going back as far as the 1950s. None of these questions are novel, and the feigned confusion about how we could possibly know when and where bias against students of color and students with disabilities affects the imposition of punitive discipline are disingenuous.

Within the research, it is undisputed that the juvenile and adult justice systems come into more frequent contact with people of color and people with disabilities than their white and non-disabled counterparts. It is also undisputed that the consequences at each point of the interaction are more severe for people of color and people with disabilities. Here are some examples:

Bias is notoriously difficult to document, particularly where researchers are not recording data themselves but instead relying on the records kept by those whose behavior is under scrutiny. But a study in Cook County, Illinois, for example, found that when controlling for all other variables, judges demonstrated racial bias: “We find evidence of significant interjudge disparity in the racial gap in incarceration rates, which provides support for the model in which at least some judges treat defendants differently on the basis of their race. The magnitude of this effect is substantial.”

It is impossible to find a credible study that concludes that the difficulty of ascertaining the degree to which bias influences disparities means that no further investigation would be appropriate. In fact, those who study the issue consistently conclude that the undisputed statistical disparities point to a need for deeper investigation of specific systems, more complete data collection, and additional targeted research.

An attempt to frame the very same phenomenon when it appears in schools as the result of applying unbiased policies and practices ignores decades of relevant research. Schools are integral to, not separate from, our civic experience. Every person — child and adult — who shows up in a school building also exists outside of that building and within our larger civic context, a context that includes our law enforcement and justice systems. Discussions about when and how statistical evidence of disproportionality should trigger an investigation cannot be had in a vacuum; they should, instead, be grounded in the substantial body of research and evidence outside the schoolhouse walls.

Many of those who believe that the statistical differences in student discipline can be explained away by out-of-school factors or by objectively different student behavior have been pushing to nullify a 2014 guidance letter issued jointly by the Departments of Justice and Education. That letter made clear that significant disproportionality in the administration of suspensions and expulsions could lead to a federal investigation.

Evidence of disproportionality in the administration of punitive discipline strategies — both at school and in the justice system — is not sufficient to identify bias. It is, however, a leading indicator of where bias may be found if one were to investigate. Additionally, all of the existing research shows that a targeted inquiry is the only way to determine whether bias is, or is not, the underlying cause of the disparity.

The Commission is expected to review all of the briefing materials and public comments and release a public report, as it typically does. These reports are non-binding on government agencies but may include commentary about pending legislation or suggest new guidelines. I expect that this report will make a specific recommendation about rescinding or maintaining the 2014 joint guidance package on school discipline. Where bias does lead to differential treatment, federal civil rights protections must be enforced and constitutional and statutory protections against discrimination are implicated.

School Voucher Programs for Students with Disabilities Are Deeply Misguided

The Trump administration’s newly proposed education budget directs $400 million dollars to expanding school choice, including vouchers for private schools. Education Secretary Betsy DeVos has repeatedly touted state voucher policies, including Florida’s McKay Scholarship program for students with disabilities, as a way to increase parental choice and improve the U.S. education system. DeVos cited high parent satisfaction with the McKay program during her Senate confirmation hearing, leading to national press coverage of parents who were in fact unsatisfied with the program.

But the reality is parent satisfaction is an inappropriate metric for examining the effectiveness of programs like the McKay Scholarship. A voucher program for students with disabilities presumes that providing choice will ultimately result in helping students with disabilities receive an education that will best meet their needs. But this is unlikely because private schools do not have to abide by the Individuals with Disabilities Education Act (IDEA), the federal special education law, and few private schools are well equipped to meet the needs of students with disabilities.

In a recent op-ed, Former Governor Jeb Bush writes: “Too many parents hit frustrating dead ends in trying to get the right services for their children in their assigned public schools.” While it is certainly true that parents struggle to make changes when they are unhappy with their child’s placement or his/her individualized education plan (IEP), there is little reason to believe school choice is the answer. Currently, many parents do not understand their rights under the Individuals with Disabilities Education Act (IDEA). Parents also may feel uncomfortable bringing due process claims and/or lack access to legal assistance. Moreover, even for those with legal assistance, due process claims can be time consuming and costly. As a result, researchers have found that IDEA’s reliance on private enforcement leads to disparities in enforcement which ultimately favor the affluent.

Voucher programs do little to change this reality.

Currently, under the Florida program, parents receive an average of $8,000 for their child with a disability. This is not enough funding for students to attend private schools specifically designed to serve special needs students without extra outlays from parents. Instead, many students enroll in parochial schools, which make up the majority of private schools in Florida. There is little reason to believe these schools are a better placement for students with disabilities. Most do not employ school psychologists, related service providers, or teachers experienced with meeting the needs of students with disabilities. Since these schools are not required to comply with IDEA, they do not provide occupational therapy, physical therapy, speech therapy, behavioral therapy, or counseling. Moreover, these schools are not required to use any specialized curriculum to meet the unique needs of students with disabilities. So using a voucher means a student with a disability will still not receive the services they need to be successful in school. Continue reading