Schooling at Risk

Schooling at Risk Barbara Fedders * ABSTRACT: For much of the nation’s history, states excluded entire groups of students from mainstream public-school classrooms based on classifications of race or disability. Although Brown vs. Board of Education and its progeny, as well as the Individuals with Disabilities Education Act, now prohibit the most blatant and egregious forms of this type of exclusion, a new version has emerged. Over the last thirty years, schools have suspended, and transferred into separate schools known as Alternative Education Programs (“AEPs”), a significant and growing number of students. Proponents of this new version of exclusion argue that these practices can help to curb misbehavior, promote school safety, and assist students in obtaining academic success. Yet research shows that suspending students does little to improve behavior; nor does it necessarily improve school safety. And while policymakers intend for AEPs to re-engage students at risk of educational failure, they are often demonstrably inferior to regular public schools and thus unable to accomplish these stated objectives. Perhaps most troubling, the individual students at greatest risk of suspension and transfer to AEPs are from those groups once subject to de jure segregation and outright bans from classrooms: African-American students and students with disabilities. This Article contextualizes suspension and AEP transfer within the longer history of exclusion of Black students and students with disabilities. It * Assistant Professor, University of North Carolina School of Law. I am grateful to have had the opportunity to present earlier versions of this Article at the ASU Sandra Day O’Connor College of Law Faculty Workshop; the University of North Carolina School of Law Faculty Workshop; the Southeastern Law Schools Junior Senior Scholar Exchange; the New Scholars Panel of the Southeastern Association of Law Schools Conference; the Duke School of Law “Present and Future of Civil Rights Movements” Conference; and the New York University School of Law Clinical Writers’ Workshop. For their helpful comments on previous drafts, I thank Tamar Birckhead, Christine Bischoff, Derek Black, Jack Boger, Adrienne Davis, Bob Dinerstein, Kate Sablosky Elengold, Carissa Hessick, Tom Kelley, Catherine Kim, Holning Lau, Eric Muller, Wendy Parker, Jen Richelson Story, Kathryn Sabbeth, Mark Weidemaier, Deborah Weissman, Jane Wettach, and Erika Wilson. I am particularly grateful to Mark Dorosin, Jason Langberg, Katayoon Majd, Angela Phinney, Dean Hill Rivkin, and Mai Linh Spencer for their engagement with the ideas in this Article and their advocacy on behalf of excluded students. Jeff Nooney, Haley Phillips, Patricia Robinson, and Stephanie Ramdat provided excellent research assistance. Finally, thanks to the staff of the Iowa Law Review and, in particular, to Emily Asp, for a particularly helpful set of questions and suggestions. 872 IOWA LAW REVIEW [Vol. 103:871 describes how pre-civil rights school districts justified group-based exclusion of African-American students and students with disabilities on the basis that they were undeserving of the full promise of public education. It then analyzes the rise in suspensions and growth of AEPs and outlines their problematic features, while drawing important parallels between the new exclusion and the historical trope of the underserving child. It shows the ways in which suspension resists legal challenge, as well as how traditional tools for promoting educational equity are likely to be inadequate in addressing the flaws of AEPs. Looking forward toward possible solutions, the Article commends the small but growing number of schools finding non-exclusionary ways to address misbehavior and suggests that rather than seek to reform AEPs, policymakers should consider abandoning this failed educational innovation. I. INTRODUCTION ............................................................................. 873 II. SCHOOLING FOR SECOND-CLASS CITIZENSHIP ............................. 877 A. T HE M OVEMENT FOR C OMMON S CHOOLS ................................. 877 B. T HE R EALITY OF E XCLUSION .................................................... 879 1. Race and Ethnicity ........................................................ 880 2. Disability ......................................................................... 882 3. The Compounding Effect of Poverty ........................... 884 III. THE “UNDESERVING CHILD” AND THE NORMALIZATION OF CONTEMPORARY EXCLUSION ........................................................ 887 A. H ALTING S TATE -S ANCTIONED , G ROUP -B ASED E XCLUSION ......... 887 B. P ERSISTENCE OF THE T ROPE OF THE U NDESERVING C HILD ......... 888 C. M ISBEHAVIOR -B ASED E XCLUSION ............................................. 890 D. A LTERNATIVE E DUCATION P ROGRAMS ...................................... 896 1. The Child as the Problem ............................................. 896 2. Inferior by Design ......................................................... 898 3. Perpetuation of Race- and Disability-Based Exclusionary Practices ................................................... 901 IV. ELUDING REFORM ......................................................................... 902 A. L EGAL C HALLENGES TO S USPENSION ........................................ 902 B. T HE I NDIVIDUALS WITH D ISABILITIES E DUCATION A CT : H OPE BUT M INIMAL H ELP ....................................................... 905 C. S CHOOL -F INANCE P RECEDENT : A S TRAINED F IT ........................ 907 D. T HE “E VERY S TUDENT S UCCEEDS ” A CT : A M ISSED O PPORTUNITY FOR R EFORM ..................................................... 913 E. T HE N EED FOR AND A BSENCE OF P ROCEDURAL D UE P ROCESS IN AEP T RANSFERS .................................................................. 918 2018] SCHOOLING AT RISK 873 F. V OLUNTARY R EFORMS ( AND T HEIR I NADEQUACIES ) .................. 921 V. CONCLUSION ................................................................................ 923 “How does it feel to be a problem?” 1 “I would show up, I would sit down and listen to music the whole time. I didn’t really make any progress the whole time I was there . . . .” 2 I. INTRODUCTION A new version of school exclusion has emerged over the last thirty years. During this period, schools have increasingly employed out-of-school suspensions and involuntary transfers. Since the 1970s, many students’ chances of suspension have doubled. 3 In the 2011–2012 school year, the most recent for which data are available, 3.5 million students—nearly 7% of the total number of enrolled students—received at least one out-of-school suspension, while over 100,000 students were expelled. 4 In addition, school districts have begun to transfer a growing number of students struggling with academic or behavioral issues out of regular public schools and into Alternative Education Programs (“AEPs”). 5 Over half a million students attend AEPs each year. 6 States and school districts make reference to purported educational benefits in justifying suspension and AEP transfer. Suspension typically rests on notions that removal from school can deter future misbehavior by the offending student. 7 AEPs are meant to provide a different, ostensibly more 1. WILLIAM EDWARD BURGHARDT DU BOIS, THE SOULS OF BLACK FOLK: ESSAYS AND SKETCHES 2 (1904). 2. Heather Vogell & Hannah Fresques, ‘ Alternative’ Education: Using Charter Schools to Hide Dropouts and Game the System , PROPUBLICA (Feb. 21, 2017), https://www.propublica.org/article/ alternative-education-using-charter-schools-hide-dropouts-and-game-system (quoting Thiago Mello, who spent a year at an alternative education program and left without graduating). 3. Derek Black, Reforming School Discipline , 111 NW. U. L. REV. 1, 3 (2016) (citing DANIEL LOSEN ET AL., CTR. FOR CIVIL RIGHTS REMEDIES, ARE WE CLOSING THE SCHOOL DISCIPLINE GAP? 6 (2015), https://perma.cc/R2PH-2F24). 4. U.S. DEP’T OF EDUC. OFFICE FOR CIVIL RIGHTS, CIVIL RIGHTS DATA COLLECTION, DATA SNAPSHOT: SCHOOL DISCIPLINE 2 (2014), https://perma.cc/MH78-N72B. 5. Camilla A. Lehr et al., Alternative Schools: A Synthesis of State-Level Policy and Research , 30 REMEDIAL & SPECIAL EDUC. 19, 23–24 (2009). 6 . Id. at 23 (noting that there were 646,500 students enrolled in public school districts attending alternative schools and programs for at-risk students in 2007–2008); Hannah Fresques et al., Methodology: How We Analyzed Alternative Schools Data , PROPUBLICA (Feb. 21, 2017), https://www.propublica.org/article/alternative-schools-methodology (noting alternative school students number roughly half a million). 7. Goss v. Lopez, 419 U.S. 565, 580 (1975) (“Suspension is . . . a valuable educational device.”); see also infra notes 232–39 and accompanying text. 874 IOWA LAW REVIEW [Vol. 103:871 supportive environment for students at risk. 8 The “at risk” category is capacious, typically encompassing academic problems as well as misbehavior both in and out of school. 9 Yet research reveals that suspension and AEP transfer in fact have little proven educational benefit, and they instead cause significant harm. 10 Suspended students fall behind in their studies 11 and face a heightened risk of involvement in the juvenile and criminal systems. 12 In addition, high rates of suspension in a school can negatively affect both the climate in the classrooms they leave behind and the safety and academic achievement of the remaining students. 13 AEPs are designed to be inferior to regular public schools in significant respects, including curricular offerings and extracurricular opportunities. 14 In-person instruction is frequently absent; when teachers are present, they are often less qualified than their counterparts in regular public schools. 15 AEPs frequently mete out comparably harsher forms of discipline than regular schools. 16 Students assigned to AEPs...