The Special Ed Advocate Newsletter
July 6, 2000

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Issue - 78

ISSN: 1538-3202

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Special Report: "Zero Tolerance Policies"

On June 20, The Civil Rights Project of Harvard University released "Opportunities Suspended: The Devastating Consequences of Zero Tolerance and School Discipline Policies."

The Report described zero tolerance as "a brutally strict disciplinary model that embraces harsh punishment over education."

"Children are not only being treated like criminals in school, but many are being shunted into the criminal justice system as schools began to rely heavily on law enforcement officials to punish students."

Originally, Zero Tolerance laws "focused on truly dangerous and criminal behavior, requiring mandatory expulsion for possession of guns on school property." But school districts expanded Zero Tolerance Policies to include behavior and infractions that pose no safety concerns. Schools have defined aspirin, Alka-selzer, and Certs as "drugs" and paper clips, nail files, and scissors as "weapons."

The Project reports that harsh arbitrary rules are "zealously applied to suspend and expel students - some as young as four years old - for trivial misconduct and innocent mistakes."


More than 3.1 million students were suspended and 87,000 students were expelled during the 1998 school year. Many of these students were suspended and expelled for typical childhood or adolescent misbehavior. Last year, Maryland suspended 44,000 students for the non-violent offenses of "disobeying rules," "insubordination," and "disruption."

What happens when schools use suspensions and expulsions to  punish students who are at risk for school failure? What happens when school officials "punish" truant children by suspending these children from school? Many child development experts say suspensions accelerate the path to delinquency because at risk children are "pushed out" into an environment with minimal adult supervision and more opportunities to get into serious trouble.

When children are suspended or expelled, they are far more likely to drop out of school. "Kids often interpret suspension as a one-way ticket out of school - a message of rejection that alienates them from ever returning to school."


The Report provides compelling evidence that African-American, Latino, and children with disabilities bear the brunt of "get tough" policies. Black children, especially black males, are disciplined more often and more severely than any other minority group. "Almost 25% of all African-American male students were suspended at least once over a four year period."

Zero Tolerance policies are having a "profound impact on children with special needs." Although the Individuals with Disabilities Act provides protections for children with disabilities, the Project found that "in many circumstances, school officials are ignoring the law, and parents and students are unaware of their rights or unable to enforce them."


The Project found that "the law is [often] an inadequate safeguard. Federal laws provide an incomplete patchwork of legal protections against the imposition of harsh school disciplinary measures. Many federal courts bend over backward to defer to disciplinary decisions by school officials."


Title VI of the Civil Rights Act of 1964, through its regulations,
incorporates a legal standard known as the "adverse impact doctrine." Under the adverse impact doctrine, when a racially neutral policy or practice produces a disproportionately harmful impact on students of color, the burden shifts to the school system to justify its policy or practice under a relatively high standard. In 1971, the U. S. Supreme Court adopted the adverse impact doctrine in Griggs v. Duke Power.


The Office for Civil Rights (OCR) of the U. S. Department of Education is responsible for enforcing Title VI. "Because it is often difficult for students and their parents to find attorneys to represent them in court cases, the role of OCR is critically important. Unfortunately, it does not appear that OCR is vigorously applying the adverse impact doctrine in its complaint investigations and findings."

"While OCR has authority to initiate investigations without waiting for complaints, OCR has not used this power even to look at the educational justification for the disciplinary practices of school systems with the most egregious racial disparities."

The Project suggests using Title VI to "nudge school systems toward more positive approaches to teaching and discipline that produce better educational outcomes overall."


A few courts "have started to give the laws more teeth." In one case striking down the inflexible, mandatory expulsion of a student who did not know that a friend placed a knife in his car's glove box, a Tennessee federal court proclaimed: "Zero hour has indeed arrived for the Zero Tolerance policy." (Seal v. Dunaway, No. 3:cv-267 (E.D. Tenn. 1999) (unreported memorandum decision)


Three federal statutes provide protections for students with disabilities:
The Individuals with Disabilities Education Act (IDEA), the Americans with Disabilities act of 1990, and the Rehabilitation Act of 1973.

Under the IDEA: "If a child's misconduct is caused by the disability OR by the school system's failure to provide appropriate services and supports to address the disability, the system's power to impose discipline is limited."

"For any suspension longer than 10 consecutive days, the school system must hold a 'manifestation hearing' to determine whether the triggering misconduct was a manifestation of the child's disability. The IDEA provides procedural safeguards and protections - for students and families who have access to legal advice or representation."

"Unfortunately, many special needs students do not have access to attorneys with expertise in this complex area of law and school systems often do not fully comply with these IDEA provisions."

Download a copy of "OPPORTUNITIES SUSPENDED." 


* Wrightslaw: Special Education Law (ISBN 1-892320-03-7) includes the full text of The Individuals with Disabilities Act and Section 504 of the Rehabilitation Act.

To read the statute and Pete's commentary about discipline issues, go to these pages of Wrightslaw: Special Education Law:

* Placement in alternative educational settings - page 74-75
* Functional Behavioral Assessments - page 75

* Authority of hearing officer - page 75

* Manifestation Determination Review Hearings - page 75-76

* Child's Placement during Appeals - page 77-78

* Key Definitions (controlled substance, illegal drug, evidence, weapon) - page 78-79

You will also want to read the U. S. Supreme Court's decision in "Honig v. Doe," the only discipline case decided by the high court. This decision begins on page 329 of Wrightslaw: Special Education Law.

* Wrightslaw: Tactics and Strategy Manual includes the revised version of "Representing the Special Education Child," the popular monograph by Pete Wright.

How to Order from Wrightslaw

* What Do I Do When: The Answer Book on Discipline by Susan Gorn. 

Using a Q & A style, attorney Susan Gorn answers hundreds of questions about discipline in clear, understandable language. (This book is one of a series.)

* What Do I Do When: The Answer Book on Special Education Law by Susan Gorn.

Clear answers to hundreds of questions about legal rights & responsibilities -- eligibility, evaluations, IEPs, placement decisions, parental rights, procedural safeguards, discipline, and more.

* What Do I Do When: The Answer Book on Individualized Education Programs by Susan Gorn.

"The Answer Book on Individualized Education Programs" provides answers to hundreds of questions about IEPs. One reviewer wrote: "Takes a legal and common sense approach. Easy to read, informative. The best book I have read on this subject."

The "WHAT DO I DO WHEN" books are excellent resources for parents, educators, advocates, and attorneys who want to learn more about special education law. 

For more books about legal issues, rights and responsibilities, browse in the Legal Section of the Advocate's Bookstore. 



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