Ending the School-to-Prison Pipeline

Ending the School-to-Prison Pipeline
Hearing Before the United States Senate Judiciary Subcommittee
on the Constitution, Civil Rights, and Human Rights

By Arlene B. Mayerson
Directing Attorney
Disability Rights Education & Defense Fund
3075 Adeline Street, Suite 210
Berkeley, California 94703

Government Affairs Office:
1825 K Street, NW, Suite 600
Washington DC 20006

Thank you for the opportunity to present testimony on the critical connection between the failure of both general and special education and the school-to-prison pipeline.

DREDF was founded in 1979 as a unique alliance of adults with disabilities and parents of children with disabilities. We are nationally recognized for our disability rights expertise. One-third of our work aims to protect and advance the rights of students with disabilities, particularly special education rights under the federal Individuals with Disabilities Education Act (IDEA). With offices in Berkeley, CA and Washington, DC, DREDF advances the civil and human rights of people with disabilities through legal advocacy, training, education, and public policy and legislative development. We address employment, housing, access to government services and benefits, transportation, higher education, architectural access, public accommodations, and education.

DREDF focuses on civil rights issues that promote integration of people with disabilities into the mainstream of society. DREDF specializes in federal disability rights laws, including Section 504 of the Rehabilitation Act of 1973, prohibiting disability based discrimination by recipients of federal funds; the Individuals with Disabilities Education Act of 1975 (IDEA), guaranteeing appropriate education services in the “least restrictive environment” for children with disabilities; the Fair Housing Amendments Act of 1988 (FHAA); and the Americans with Disabilities Act of 1990 (ADA). We also work with state disability civil rights laws, including the California Fair Employment & Housing Act (FEHA), the Unruh Civil Rights Act, and California Government Code 11135.

DREDF operates a demonstrably successful federal Parent Training and Information Center (PTI) that has served three Bay Area counties for 24 years. DREDF has the expertise needed to support the role of parents in the education of children with disabilities and work with foster families and county agencies and local and state organizations focused on child welfare. DREDF’s Education Advocates (who are also parents of children with disabilities) are in daily contact with California families in the disproportionately low-income and of-color communities in Alameda and Contra Costa counties. They work closely with DREDF’s senior and litigation staffs, providing a marginalized community with much-needed access to skilled advocates and attorneys. DREDF’s Board of Directors has a majority of parents of children with disabilities, including foster parents of youth with disabilities, aged 0 to 22, and more than half the board members are individuals with disabilities.

The Education Advocates at DREDF work with approximately 1,000 parents per year who are desperate to get help from the schools for their children. Among the most underserved are African American and Latino students, for whom the intervention of choice by school districts is suspension and expulsion. The failure to provide educational interventions cannot be ignored in an examination of the issue of the disproportionality in suspensions and expulsions of minority children.

DREDF has a current case that presents an interesting twist on the disproportionality issue, while also highlighting general issues that are often left out of the disproportionality conversation. Our client is a 14-year-old African American student who had been recognized as learning disabled ( SLD) in the lower grades but was "exited" from special education after three years. During the year that he was exited, the district had been found to have too many African American students classified as Specific Learning Disability. Whether the dis-proportionality finding was the cause of the exiting is hard to prove but there was no educational reason to exit our client who was far below basic proficiency in all subject areas, and was even retained in the very year the student was exited. The student’s mother asked for a re-evaluation for special education by 6th grade, two years after the exiting, due to increasing concern over educational performance, but this request was denied. The district refused to re-evaluate the student unless the mother was able to provide them evidence of an additional disability. Lacking health care at this time, the student’s school experience further disintegrated without evaluation until the mother could secure a position that offered access to health care and evaluation through her health plan.[1] The student received a diagnosis of ADHD from his health care provider and this was provided immediately to the school. By this time, the student’s 7th grade year included 33 days of suspension and continued failure in every academic subject except for A’s in P.E. The school district conducted an assessment and denied IDEA eligibility, discounting the medical diagnosis of ADHD and SLD, and instead deciding that the student was only defiant and oppositional. Besides being inadequate by any professional standards, the assessment suggested racial bias. The ADHD diagnosis was disregarded because this failing student’s lack of progress and impulsive behavior were considered par for the course, a conclusion that suggests implicit bias against African American boys. At that point, DREDF got involved and obtained an independent educational evaluation. The assessment found that our client had both severe learning disabilities and severe ADHD. Because he did not understand the instruction and has an attention span of only a few minutes, he had been repeatedly suspended for impulsive behavior, leading recently to a recommendation for expulsion. While we were able to address this specific case, we know from hundreds of parent calls that this scenario is not uncommon. When we went to the IDEA-mandated Individualized Education Program (IEP) meeting, I asked if getting all F’s for several years wouldn’t trigger a deeper look at this student. The reply was, "Oh, this is very common in ‘urban’ school districts.”

DREDF is deeply committed to the use of disproportionality monitoring to address the historical mislabeling of African American and other students of color that has led to segregation, and the extremely shameful disproportionate suspension and expulsion of African American and Latino boys. Unfortunately, we have been told by teachers, counselors, and school psychologists, that they are instructed to not refer any African American students to special education because their quota is full.[2] This perversion of the purpose of disproportionality triggers raises thorny issues. Suffice it to say that the reduction or elimination of racially biased suspensions will do little to change the school-to-prison pipeline if we do not directly focus on improved outcomes for students who have experienced or are in peril of experiencing suspensions and expulsion. Schools that reduce suspension rates but do not improve educational outcomes leave students with little hope of success.

In the case I described above, the need for an intensive special education program with academic and positive behavioral supports was essential. Tutoring or counseling may be needed in other instances. This is particularly true for students who have been suspended so often that even the best of students would not be able to keep up academically. The administrators at the IEP meeting told me that they have to pick up the pieces of a bad general educational system. At some point, a student who has not gotten the academic help he or she needs is so far behind, so alienated, and has heard themselves described as a “bad student” so repeatedly that misbehavior becomes a self-fulfilling prophesy. One of our parent advocates always points out at parent trainings that the fear that a child will be labeled in special education ignores the fact that many of the kids that face repeated suspensions and sub-par academic performance already have labels at school: “bad,” “lazy”, “defiant”. Their parents are also given similar labels.[3]

It seems that disproportionality efforts focus on reducing suspensions, restorative justice, racial bias training, alternative-to-suspension models, and other all-school efforts. All are vital. In addition to school-wide cultural changes, there needs to be a focus on the student’s needs, both academic and emotional. In our case, the student needed services that, at this point in history, only special education provides. Other students may need similar services who are not learning disabled or do not have an ADHD diagnosis. We think that a focus on unbiased evaluation, services and remediation must be a central part of a successful effort to end the school-to-prison pipeline.

Currently, disproportionality monitoring requires the reduction of suspensions and expulsions as a numerical remedy. DREDF urges the Department of Education and the Congress to look deeper when examining this issue. If a student is not being suspended but is continuing to fail, how much have we done to curb the school-to-prison pipeline? Reducing suspensions is only a first step. In districts with disproportionate suspensions and expulsions, student files should be reviewed to understand the causes of the underlying misbehavior. Also, an examination of policies, procedures and practices must be completed for the students who fell or are falling into the pipeline of suspension, expulsion, removals and failure with no help brought to them. While it cannot be disputed that racial minorities are more likely to be called out for the same behaviors that majority students are not, the fact remains that many of the suspended students of color are also being underserved by both general and special education.

Specifically, DREDF urges that a finding of disproportionality be accompanied by:

1. A thorough review of student files to identify students who are in need to additional academic and behavioral supports, including, but not limited to an IDEA referral.
2. An examination of the means used by the school district to come into compliance with the disproportionality factors. Currently, there is no examination of how a district reduced disproportionality. The idea of reducing suspensions is to increase educational interventions in the early years.

Given the systemic use of suspensions to incorrectly address educational malfeasance, it is virtually impossible to come into compliance in one or two years. Yet districts consistently “clean the books” on disproportionality in a year. Are the students in that district better off? Are the very students in peril receiving compensatory and/or remedial educational services? Are they being appropriately referred for IDEA assessments? Are they being appropriately assessed? Are they being served in special education or is special education being used as a dumping ground to remove students from the general education environment without regard to least restrictive environment requirements of IDEA? Are they being exited or kept from help to bring the numbers quickly in line? Without a deep examination into these questions, we will do little to address the school-to-prison pipeline.

Thank you for your consideration of this testimony and I look forward to continuing the dialogue on this critically important topic for all children.

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[1] Lack of health insurance accounts for the under-representation and treatment of poor children for ADHD.

[2] DREDF Education Advocates have heard from personnel in many districts that they have been instructed by school administrators to not refer minority students for IDEA eligibility evaluations if the district has a disproportionate number of that minority in the suspected category. Not surprisingly, school personnel are not willing to speak on the record.

[3] Unfortunately, the situation of our 14-year-old African-American client reflects a larger problem. African-American and Latino children with ADHD are more likely to be undiagnosed, misdiagnosed or mistreated than white children. Studies have shown that white children have been diagnosed with ADHD at double or close to triple the rates for African-American and Latino children, though the underlying prevalence of ADHD does not vary by race. The result is two-fold. Schools classify minority students as having pure ‘behavior problems’ and refer those students for ineffective discipline rather than effective medical and psychological treatment. Second, as longitudinal studies have shown, untreated or poorly-treated ADHD leads to worse life outcomes decades later, including greater rates and longer periods of unemployment, greater difficulties in family and relationships, and more incarceration. Instead of diagnosing and treating minority children with ADHD, we convict and incarcerate them years or decades later. It is costly, it is ineffective, and it is tragic for the ADHD children and their families.