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DOE/DOJ Issue Comprehensive Discipline Package: Fail to Clearly Protect Students with Disabilities

Wednesday, January 15, 2014   (0 Comments)
Posted by: Denise Marshall

The Department of Justice ("DOJ”) and the Department of Education ("DOE”) jointly released a guidance package on school discipline to aid schools and localities in creating climates in which school discipline is non-discriminatory, fair and effective. On one hand this package seems remarkable in that it takes a strong stance against discrimination in school discipline, and provides a comprehensive package of guidance and resources for schools to carry out the vision of creating safe schools with positive climates. On the other hand, it is of grave concern that the primary document, the Dear Colleague letter which addresses racial discrimination in school discipline, fails to protect students with disabilities who are relegated to a footnote.

Students with disabilities are an important part of the fabric of our schools; they do not deserve a mere footnote status, nor should they be required to wait for justice.

The statistics show that school discipline falls more heavily on students of racial minorities and on students with disabilities. Under the law, a student cannot be discriminated against on the basis of disability. Not to state this upfront and central, given the dismal reality for students with disabilities, is unacceptable. Not to provide official guidance that will help schools administer discipline in a manner that does not discriminate on the basis of disability, in addition to race, color and ethnicity, evidences a failure to fully address the problem.

In addition to the Dear Colleague Letter that provides guidance on schools’ legal obligations to refrain from racial discrimination in disciplining students, the package contains a resource guide for improving school climate and discipline, a directory of resources to assist schools with this effort and a compendium of school discipline laws for all 50 states.

The resource guide, Guiding Principles, cites data collected by the Office for Civil Rights, which shows that students with disabilities are disproportionately impacted by suspensions and expulsions. Although students receiving special education services represent 12% of students nationally, they represent 25% of students receiving multiple out of school suspension.[1] According to the DOE, "the widespread overuse of suspensions and expulsions has tremendous costs.”[2]

The resource guide emphasizes the importance of developing school discipline policies that comply with state and federal disability laws, both for students receiving special education and also for those who may be eligible for services under the IDEA.[3] The document also emphasizes the importance of strong due process protections to all students before imposing serious disciplinary consequences.[4] Further, the Resource Guide states "restraint and seclusion should never be used for punishment or discipline.”[5] It must be noted, however, that the resource guide, while useful, offers non-regulatory guidance, which is not binding on any school district or entity.

While this package is clearly a step forward in the effort to eradicate discrimination in school discipline, the DOJ and ED stop short of adequately addressing the problem by failing to include students with disabilities in their official guidance. Guidance must be strong, clear and legally binding not only to assure safe, positive learning environments for all children, but also to protect the due process rights of parents and students; end the use of aversive interventions, including restraint and seclusion for disciplinary purposes; and prevent schools from continuing to use discipline as an excuse not to provide education to students with disabilities.

The entire package can be found at www.ed.gov/school-discipline

[1] Guiding Principles: A Resource Guide for Improving School Climate and Discipline, i, Washington, D.C., 2014.

[2] Id. at ii.

[3] Id. at 14.

[4] Id.

[5] Id.

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