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New Federal
Battle Over Disciplining Students
by John O'Neil, New York Times, September 17, 2003
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When Nancy
Davenport, a retired teacher in Dallas, thinks about discipline
and special education, she thinks of the times her mentally
retarded son got involved in some "pushing and shoving."
"He was not a discipline problem, but it would have been pretty
easy if somebody had wanted to kick him out," she said - except
for provisions in federal law that offer greater protection to
students whose behavior problems are considered a result of
their disability.
When Dr. Gayden Carruth, the superintendent of the Park Hill
school district in Kansas City, Mo., thinks about discipline and
special education, she thinks of the long, costly court struggle
that resulted when the district transferred an autistic
14-year-old who hit a teacher in the face with a textbook. "All
we wanted was to find a place where he could be safe and his
teachers could do their job," Dr. Carruth said.
Congress's fall agenda is dominated by issues like Iraq,
Medicare and energy. But one of the year's most bitter
legislative struggles is being waged by school administrators
and parent groups over a bill passed by the House that would
remove virtually all the protections for special-education
students that Mrs. Davenport found so important and Dr. Carruth
found such a burden.
The bill has raised fears among parents that recent progress in
moving disabled students into mainstream classes will be rolled
back, especially as schools feel increased pressure to raise
test scores. Under the bill, any infraction of school rules,
they say, no matter how minor, could lead to a transfer to a
segregated setting. Other advocates worry that minority
students, who are already put in special-education classes and
suspended in disproportionate numbers, would be most affected.
Groups representing school boards and administrators say the
current rules have forced teachers to tolerate disruptions by
students whose presence in their classroom is protected
precisely because they cannot control their behavior.
Bruce Hunter, associate executive director for public policy at
the American Association of School Administrators, said the
rules also clashed with more recent zero-tolerance laws,
creating an untenable double standard. "We've created a
situation where - and it's common enough - a disabled child and
a nondisabled child have been part of the same behavior, and
you've had to discipline the children in quite distinct ways,"
Mr. Hunter said. "And you cannot explain that to the parent of
the nondisabled child."
Advocates for special education see a different double standard
at work. Daniel Losen, a legal and research policy associate at
the Harvard Civil Rights Project, said the House bill would make
it far too easy for an administrator to get rid of a
hard-to-serve disabled child on a disciplinary pretext.
"The school can fail to do what it's obliged to do under the law
and then can kick the kid out," Mr. Losen said. "It's an
incredible injustice and makes no sense."
The lobbying is now focused on the Senate, which is expected to
begin consideration later this month of a bipartisan bill
reauthorizing the law that governs special education, the
Individuals With Disabilities Education Act. That bill would
streamline disciplinary procedures in ways that could make it
easier for schools to remove disruptive students, and would
reduce what schools are required to do to improve students'
behavior short of suspension.
But the Senate bill retains the concept at the heart of the
debate: that students should be treated differently if their
disabilities makes it harder for them to control their actions
or to understand its consequences.
Under the current law, special-education students are treated
like everyone else when it comes to incidents involving drugs,
weapons or actions that pose a danger to the student or others.
They are also treated the same for minor infractions: the
protections apply only after a special-education student has
accumulated 10 days of suspensions in any school year.
At that point, the law calls for staff members and parents to
meet to analyze the problem behavior and develop a strategy for
reducing the risk of recurrence. Further punishment depends on
the answers to two questions: Was the child receiving adequate
services? Did the child's disability interfere with his or her
ability to understand or control the behavior in question?
If the group decides that the child was receiving sufficient
help and that the infraction was unrelated to his or her
condition, then the student may be punished like any other.
Otherwise, the school must take steps to address the behavior in
the student's current classroom.
The House bill would drop all the steps now required for
deciding on punishment. Instead, schools would have the right to
suspend disabled students unilaterally for any violation of
school rules for up to 45 days, or longer if state law allows a
nondisabled student guilty of the same infraction to be
suspended for more than 45 days.
Only one protection would remain: the requirement that disabled
students continue to receive educational services during
long-term suspensions. "The point is to eliminate the dual
system of discipline" while protecting the disabled student's
right to an education, said Alexa Marrero, a spokeswoman for the
House Committee on Education and the Workforce.
There are few hard figures on how often the procedures are
invoked, and states appear to vary widely in their application
of discipline. For the 1999-2000 school year, for instance,
Texas reported suspending 7,974 disabled students for more than
10 days for reasons other than drugs, weapons or safety,
according to federal figures; California reported 1,368 such
long-term suspensions and Florida, 76.
Advocates of special education say the only significant study of
how the current system works, conducted by the General
Accounting Office, an investigative arm of Congress, provides
little support for the proposed changes.
The report, published in 2001, found that three-quarters of
principals surveyed said the regulations did not interfere with
discipline. And while special-education students were found to
have gotten in trouble more than other students, there was no
evidence of lenient treatment; disabled and nondisabled students
were suspended at similar rates and for similar periods.
Christopher P. Borreca, a Houston lawyer who represents school
boards, said the study did not capture the intimidation teachers
and administrators trying to grapple with the system's
complexity feel.
"Every decision point can be a trigger for a lawsuit," Mr.
Borreca said. "In some cases, staff members have become quite
fearful of the disciplinary system, and it's interfered with the
disciplining of students."
Advocates respond that many schools turn quickly to suspensions
as an alternative to providing the complicated services children
with disabilities can need to succeed in mainstream classes.
Jill Morningstar, co-director of education and youth development
at the Children's Defense Fund, said that instead of extending
zero-tolerance rules to children regardless of their disability,
Congress should give schools the resources they need to carry
out the remedial behavior plans called for in the current law.
"If there's no money made available for schools to offer
positive interventions, and there's no requirement to do that,"
Ms. Morningstar said, "you're leaving schools with one choice:
to remove them."
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