Discipline and Consequences: The Greater Risk of Suspension, Expulsion and

Placement in the Disciplinary Alternative Education Program (DAEP) for Students with

Disabilities

An OverviewPresented by Luis Echeverria

Staff Attorney Disability Rights Texas

luise@disabilityrightstx.org; (210) 424 9645; (800) 252 9108

BALANCING SOCIETY’S INTERESTS

School Safety, Order and Discipline:

Maintaining a safe and secure school

environment.  

14th Amendment Section 1:

No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of

life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the

equal protection of the laws.

The Rights of the Individual 

 

ALL STUDENTS PLACED IN CORRECTIONAL FACILITIES 

 

   

2011 2012 2013

Count Percent Count Percent

Count Percent

NON SPECIALEDUCATIONSTUDENT

938 64.6% 788 62.3% 752 64.4%

SPECIAL EDUCATION STUDENT

513 35.4% 476 37.7% 416 35.6%

TOTALS 1,451 100.0% 1,264

100.0%

1,168 100.0%

T E X A S  E D U C A T I O N  A G E N C Y

COUNTS OF STUDENTS AND DISCIPLINE ACTIONS BY DISCIPLINE ACTION GROUPINGS

PEIMS 2012-2013 DATA

STUDENTGROUP

NUMBER OF

STUDENTS

ISSACTION

S

ISSSTUDEN

TS

ISSPERCE

NT

OSSACTION

S

OSSSTUDEN

TS

OSSPERCE

NT

DAEPACTION

S

DAEPSTUDEN

TS

DAEPPERCE

NT

JJAEPACTION

S

JJAEPSTUDEN

TS

JJAEPPERCE

NT

EXPULACTION

S

EXPULSTUDEN

TS

EXPULPERCE

NT

ALL STUDENTS 5,205,6

59

1,391,

634

549,305 10.55 503,16

7

248,266 4.77 102,66

3

81,104 1.56 2,916 2,819 0.05 915 893 0.02

AMERICAN INDIAN OR ALASKA NAT

20,803 5,316 2,212 10.63 1,797 848 4.08 387 307 1.48 N/A N/A N/A N/A N/A N/A

ASIAN 185,818 10,300 5,664 3.05 2,926 1,900 1.02 641 536 0.29 25 25 0.01 N/A N/A N/A

BLACK OR AFRICAN AMERICAN

667,346 350,03

2

123,473 18.50 169,12

0

77,906 11.67 25,833 19,766 2.96 621 601 0.09 181 176 0.03

HISPANIC/LATINO

2,672,1

06

703,65

3

277,099 10.37 251,56

2

124,559 4.66 53,457 42,286 1.58 1,673 1,609 0.06 473 459 0.02

NATIVE HAWAIIAN/OTHER PACIFIC

6,915 1,659 693 10.02 476 259 3.75 129 93 1.34 N/A N/A N/A 0 0 0

TWO OR MORE RACES

94,927 25,032 10,142 10.68 8,027 3,962 4.17 1,755 1,373 1.45 43 42 0.04 18 18 0.02

WHITE 1,557,7

44

295,28

1

129,897 8.34 69,243 38,820 2.49 20,438 16,723 1.07 536 524 0.03 232 229 0.01

FEMALE 2,531,0

67

419,39

6

181,603 7.17 136,11

7

74,648 2.95 25,472 21,058 0.83 574 562 0.02 154 151 0.01

MALE 2,674,5

92

971,87

7

367,577 13.74 367,03

4

173,606 6.49 77,168 60,026 2.24 2,342 2,257 0.08 759 740 0.03

SPECIAL ED. 499,289 213,46

8

76,884 15.40 99,836 44,186 8.85 18,538 14,182 2.84 531 509 0.10 144 140 0.03

ECON. DIS. 3,232,8

32

1,183,

427

409,385 12.66 476,50

0

202,061 6.25 95,337 64,169 1.98 2,817 2,214 0.07 881 662 0.02

AT RISK 2,258,5

44

908,85

2

324,940 14.39 349,45

2

160,137 7.09 76,697 59,095 2.62 2,235 2,158 0.10 621 605 0.03

Key Findings in “Breaking School Rules”, a 2011 Report by the

Council of State Governments Justice Center Seventy–five percent (75%) of students with disabilities were suspended or

expelled at least once. Students with disabilities (particularly those with emotional disabilities) were suspended and/or expelled at higher rates than other groups of students

Students (both disabled and non-disabled) who were suspended and/or expelled were three times more likely to be involved in the juvenile justice system the subsequent year than students not disciplined

Students (both disabled and non-disabled) suspended and/or expelled had a much higher grade retention (repeating a grade level) and drop-out rate than students not suspended

Ninety-seven percent (97%) of all disciplinary actions (involving suspensions, expulsions, and DAEP placements) of students for violations of the student code of conduct were not required but were [discretionary and] still imposed by local school districts. Only three percent (3%) of all disciplinary infractions involved mandatory suspensions and/or expulsions

“Only one out of every five students referred to DAEP in Texas is removed because of serious offenses specified in the Texas Educ. Code (Ch. 37). Eighty percent (80%) of students continue to be referred to DAEPs for violations of far less serious offenses included in local district codes of conduct.” Intercultural Development Research Association: Disciplinary Alternative Education Programs in Texas, a 2009 Update. p. 10 (2009)

Other key findings in “Addressing the Out-of-School Suspension Crisis – A Policy Guide for School Board Members”, a 2013 Report by the National School Board Association Nationally, students with disabilities are suspended at twice the

rate of their non-disabled peers. Students with disabilities are also more likely than other students to be suspended more than once in a school year

Students with disabilities’ high suspension rates raise serious questions as to whether schools are punishing students for behavior that is related to their disability and whether schools are appropriately addressing these students’ individualized needs

Discipline practices impact students with disabilities more than other groups and contributes to these students missing out on important instructional time as a result and are thus at a greater risk of reduced educational opportunities as well as dropping out from school

Key Statements in “Future Trends in State Courts: Recognizing and Combatting the School to Prison Pipeline in Texas”, a 2012 Report by

the National Center for State Courts As cited in other sources as well, the single greatest predictor in determining

future involvement with the juvenile justice system is whether the student has a history of disciplinary referrals at school

Known as the “School to Prison Pipeline”, the pattern essentially refers to the trend that “school discipline serves as a gateway to the juvenile justice and adult criminal justice systems”

In Texas, one-third (1/3) of all youth in a locked-down facility have already dropped out of school

In Texas, more than eighty percent (80%) of adult prison inmates are school dropouts Of the one million students (disabled and non-disabled) studied in Texas (as

per the Report, “Breaking School Rules”, by the Council of State Governments Justice Center), nearly sixty percent (60%) were suspended or expelled at least once between 7th and 12th grade, and fifteen percent (15%) received 11 or more suspensions or expulsions during that same period

The Honorable Wallace B. Jefferson, Chief Justice of the Supreme Court of Texas, stated in his 2011 State of the Judiciary Speech: “Charging kids with criminal offenses for low-level behavior issues exacerbates the problem. Among those suspended and expelled, minority and special education students are heavily over-represented. Of course, disruptive behavior must be addressed, but criminal records close doors to opportunities that less punitive intervention would keep open.”

The Continuum of Placements:The least restrictive environment (LRE) to the maximum extent appropriateIDEA mandates the education of their child with a disability take place in the least restrictive environment and should not be removed from the regular education classroom unless he/she cannot be educated there with supplemental aids and supports. 20 U.S.C. § 1412(a)(5)

CONTINUUM: General Education (mainstream) Co-Teach (general ed. & aide) Resource Room/Special ed. Room Self-Contained Unit B.A.C./behavior unit Life Skills Program Homebound Services Homeschooling Residential Placement/Residential Treatment Center Juvenile Detention Center State Supported Living Center or Similar 34C.F.R. § 300.115(b)(1)  Any change in placement can be done only by the ARD committee. Two Types of Changes in Placement are: Disciplinary Change in Placement based on behavior alleged to be misconduct and

alleged violation of student code of conduct. This process requires a Manifestation Determination Review (MDR). If a due process complaint were filed, “Stay Put” does not apply and Placement Change proceeds 34 C.F.R. § 300.533

  Educational Change in Placement is (not based on misbehavior but) based on

educational, academic, functional, or developmental data. If a due process complaint were filed, “Stay Put” does apply and Placement Change is put “on hold”

Behaviors and Violations of Student Code of Conduct: A Disciplinary change in placement…

Before a school can change a student’s placement for disciplinary reasons (to DAEP, for example), the school’s ARD committee must first determine to what extent a child’s behavior is related to or caused by his disability, a process called a Manifestation Determination Review (MDR). A change in placement can also happen if a child has been suspended for more than 10 days total during the school year and there is a pattern to the suspensions.

A change in placement occurs if the student is removed for (1) over ten consecutive days, or (2) over ten cumulative days if the removals form a “pattern.” A “pattern” exists if the child’s behavior is “substantially similar” to the child’s behavior in previous removals, and “because of such additional factors as the length of the removal, the total amount of time the child has been removed, and the proximity of the removals to one another.” 34 C.F.R. § 300.536(a)(2)

COUNTING of School Days for Long and Short Term Disciplinary Removals: The Dept. of Education has stated in its Commentary that IN-SCHOOL SUSPENSIONS count if the special education student:

Was not afforded an opportunity to continue to participate in the general education curriculum; OR

Was not provided the services specified in his Individualized Educational Program (IEP) including related services, behavioral interventions, etc; OR

Was not allowed to continue to participate with nondisabled children to the extent the student would have in his current placement DOE Commentary, 71 Fed. Reg. 46715 (2006)

Behaviors and Violations of Student Code of Conduct: Disciplinary change in placement (cont) Within 10 school days of any decision to change the placement of a child with a disability because of

(mis)conduct and a violation of the student code of conduct, the ARD committee must hold an MDR and must review all relevant information in the student’s file, including the child’s IEP, any teacher observations, and any relevant information provided by the parents

The MDR requires that the committee review all relevant information to determine whether a child’s alleged conduct or (mis)behavior was:

1) Caused by or has a direct and substantial relationship to the child’s disabilityOR2) A direct result of the school’s failure to implement the child’s IEP and/or Behavior

Intervention Plan (BIP) If the ARD committee determines that a child’s conduct was a manifestation of his disability, the

school must return the child to the placement he was in when the behavior occurred, unless the parent agrees the student should be placed elsewhere as a modification of his BIP

If the child’s conduct was a manifestation of his disability, the school must also either conduct a functional behavioral assessment, OR, if a BIP has already been developed, then review the BIP and modify it as necessary to address the behavior

If it is determined that a child’s conduct or behavior was NOT a manifestation of his disability, the school can then proceed to discipline the child the same way it would a regular education child (or child not receiving special education). Again, if the discipline results in a disciplinary change in placement, the full ARD committee alone has to make that decision

34 C.F.R. § 300.530(e),(f)

Behaviors and Violations of Student Code of Conduct: Disciplinary change in placement (cont) School personnel may remove a student to an “Interim Alternative Educational Setting”

for not more than 45 school days REGARDLESS of whether the behavior is determined to be a manifestation of the child’s disability if the child:

“Carries or possesses a weapon at school… or to a school function” “Knowingly p0ssesses or uses illegal drugs, or sells or solicits the sale of a controlled substance,

while at school or at a school function,” OR “Has inflicted serious bodily injury upon another person while at school… or at a school function”

However, even if the child is removed for violation of the student code of conduct involving a weapon, drugs, or serious bodily injury, an MDR must occur still occur within 10 school days of a decision to change the placement of a student with a disability

34 C.F.R. § 300.530(e)(1),(g)

School officials can impose short-term disciplinary consequences, such as ISS and OSS, on students with disabilities for any violation of the student code of conduct, so long as those consequences are also applied to the non-disabled student and do not amount to a change in placement. For the first 10 days of such removals in a school year, the school is not obligated to provide educational services. After the student has been removed from the placement as per the IEP due to disciplinary problems for 10 days, any subsequent removal must be accompanied by services. Walsh, Kemerer and Maniotis. Educator’s Guide to Texas School Law, Seventh Edition. p. 129 (2010)

Important Points to Know about Manifestation Determination Reviews (MDRs)

Who is entitled to an MDR? Any student with an IEP (i.e., a student in special education) Any student in a 504 program

The ARD committee, when conducting its MDR, must review all relevant information in the student’s file, including the student’s IEP, any teacher observations, and any relevant information provided by the parent(s). 20 U.S.C. § 1415 (k)(1)(E); 34 C.F.R. § 300.530(e)(1)

Any failure to review all relevant information is grounds for reversing an MDR decision. MDR decisions have been reversed, when challenged by the parent or legal guardian, for: Failure to review an independent psychiatric report Sch. Bd. Of City of Norfolk v. Brown, 769

F.Supp.2d 928 Failure to consider contradictory information in the student’s record In Re: Student with a

Disability, 53 IDELR 173 (WI SEA 2009) Failure to consider all of a student’s disabling conditions (e.g., Oppositional defiant disorder) Fulton

County Schools, 47 IDELR 33 (GA SEA 2007) “Case by Case Determination: School personnel may consider any unique circumstances

on a case-by-case basis when determining whether a change in placement… is appropriate for a child with a disability who violates a code of student conduct.” 34 C.F.R. § 300.530(a)

The first prong of the 2 Part Analysis (see p. 11) does not involve a determination of whether a student understood right from wrong at the time of the misconduct

Special Education and/or 504 services and IEP Follow the Student

to the DAEP Setting Students must continue to receive educational services to enable the child to participate

in the general education curriculum Student must make PROGRESS toward meeting the child’s IEP goals Related services must continue to be provided as per the child’s IEP The DAEP must have qualified, credentialed teachers “In the case of a child whose behavior impedes the child’s learning or that of others,”

the ARD committee must “consider the use of positive behavioral interventions and supports (PBIS) and other strategies to address the behavior.” 34 C.F.R. § 300.530(d); 34 C.F.R. § 300.324(a)(2)(i)

The student’s IEP must include “a statement of the special education and related services and supplementary aids and services, based upon peer reviewed research to the extent practicable, to be provided to the child…” 34 C.F.R. § 300.320(a)(4)

Students (disabled and nondisabled) in DAEPs score poorly in TAKS reading and mathematics. In 2005 – 2006, the average passing rate in reading for DAEP-referred students was seventy three percent (73%) – 13 points lower than the state average. Their average passing rate in math was thirty four percent (34%), which was 31 points lower than the state average of 65 points. It is not known how much of the DAEP referral and the subsequent lapse in curriculum and instruction causes or contributes to the low passing rate. Intercultural Development Research Association: Disciplinary Alternative Education Programs in Texas, a 2009 Update. p. 6 (2009)

What Process Is Due to the Student Turns on Three Questions: 1) Did the state take action? 2) Did the state deprive the individual of liberty or property?, and 3) Did the state provide the process that is due for such a deprivation? TX Educ. Code § 37.001(a) requires that each district adopt a student code of conduct that

will specify standards for student conduct and outline the types of behavior that may get a student into trouble at school. The code of conduct is to be developed with the advice of the district-level committee and must be provided in some format to the parent

A new law passed in 2009 requires the code of conduct to specify that four mitigating factors will be taken into account when a school orders a suspension, a DAEP or Juvenile Justice Alternative Education Program (JJAEP), or an expulsion

Self-defense; Intent, or lack there-of; The student’s disciplinary history; and Any disability that substantially impairs a student’s capacity to appreciate the

wrongfulness of the conduct SUSPENSION: The TX Educ. Code states that a student may be suspended from school if

the he/she engages in conduct identified in the student code of conduct for which a student may be suspended. Thus, the local school district is tasked to decide what types of offenses should necessitate a suspension (Process due to student is notice and opportunity to student to offer explanation)

Suspension is meant as short-term disciplinary action. Under TX Educ. Code § 37.005(b), suspension is limited to three consecutive days per offense, but there is no limit to the number of suspensions that could be imposed over the school year. Walsh, Kemerer and Maniotis. Educator’s Guide to Texas School Law, Seventh Edition. p. 317 (2010)

Removal to the DAEP – Mandatory and Discretionary Removal or Placement Under Ch. 37 of the Texas Education Code…

Mandatory Placement under TX Educ. 37.006 lists the offenses for which a student [after conducting the MDR and affording the rights under IDEA to the student with the disability] must be assigned to the DAEP. These include events which occur at school or within 300 feet of a school, such as:

Any conduct punishable as a felony (in the TX Penal Code) Assault resulting in bodily injury Certain drug offenses Certain alcohol offenses Public lewdness Indecent exposure

Other offenses that require DAEP placement regardless of where it occurs include:

False alarm or report involving public school Terroristic threat involving public school Commission of Felony under Title 5 (violence against person) under TX Penal

Code Retaliation Against School Employee

Removal to the DAEP – Mandatory and Discretionary Removal or Placement Under Ch. 37 of the Texas Education Code (Cont.)

Discretionary Placement can involve reasons other than those listed in the TX Educ. Code Ch. 37 as long as the student code of conduct gives notice that such removal could occur

Whatever decision is made about DAEP placement by the board or board’s designee is “final and may not be appealed” Walsh, Kemerer and Maniotis. Educator’s Guide to Texas School Law, Seventh Edition. p. 321 (2010)

EXPULSIONS: (Applied to not less than 10 years old), a student may be expelled for:

Serious or persistent misconduct at a DAEP Drug or alcohol offenses if not punishable as a felony Criminal mischief

EXPULSIONS: (Applied to not less than 10 years old), Expulsion is required for:

Possession of weapons Assaultive offenses Arson Murder Indecency with a child Aggravated kidnapping Acts of retaliation against school employee

On Reasons Why Students with Disabilities May Be Over-Represented in Disciplinary Actions Resulting in Suspensions, Expulsions, or Removal to the DAEP… Lack of familiarity with educational system

Lack of disclosure and dissemination of IDEA-based information Not informing parent that IDEA places an affirmative duty on states and their local educational

agencies to identify, locate, and evaluate all children with disabilities residing in the state 34 C.F.R. § 300.111

Not providing parent with a copy of their procedural rights and safeguards 34 C.F.R. § 300.504

Lack of resources

Language and other cultural barriers

BALANCING A SCHOOL’S OBLIGATIONS (On Reasons Why Students with Disabilities May Be Over-Represented in Disciplinary Actions Resulting in Suspensions, Expulsions, or Removal to the DAEP)

1)Maintaining School Safety, Order, and

Discipline…2)Maintaining a

Utilitarian Approach to Education or Pedagogy (“the greater good for

the greatest number”)…  

Implementation of an Individual’s Individualized

Education Program (IEP) under Special

Education“Specialized instruction

and services that are necessary to meet unique

needs of a child with a disability to have a free

appropriate public education”

20 U.S.C. § 1412(a)(1) 

On Addressing and Reducing the Number of Students with Disabilities Disciplined With the Use of Suspensions, Expulsions, and Removal to the Disciplinary Alternative Education Program

School Districts’ Codes of Conduct should include a system of different levels of responses to minor and major student misconduct and one that holds youth responsible for their actions but makes clear that removal from school is a last resort and complies with the Individuals with Disabilities Education Act (IDEA)

Devise “early warning or intervention systems” that identify and provide interventions to students in need of behavioral interventions, including those who are chronically absent, failing courses, experiencing disciplinary actions, or engaging in high-risk behavior

School Districts should develop policies and guidelines to minimize referrals to the Juvenile Justice System. Students should not be arrested and charged with minor school-based offenses

Police and/or Resource Officers (SROs) should not make arrests or issue citations for minor student misconduct that can be clearly addressed through the school’s code of conduct

The Southern Disability Law Center: Keeping Students With Disabilities in School: Legal Strategies and Effective Educational Practices for Preventing the Suspension of Students with Disabilities, p. 5 (2014)