AuthorScott, Ashton Tuck

TABLE OF CONTENTS Introduction 2092 I. Background 2096 A. Recent Trends Toward Alternative Schools 2097 B. Disproportionate Social Harms 2099 II. The Circuit Split 2103 A. Courts That Require Due Process for Alternative School Transfers 2104 B. Courts That Do Not Require Due Process for Alternative School Transfers 2106 III. Goss v. Lopez as a Vehicle for Greater Procedural Protections 2107 A. Evaluating the Goss Holding in a Modern Education Context 2108 B. Mitigating the Disproportionate Impact of Alternative Schools 2110 IV. Counterarguments 2112 A. Alternative Schools Provide Similar Educational Opportunities 2112 B. Requiring Due Process Infringes on School Administrators' Discretion 2114 C. Due Process Is Cost-Prohibitive for Schools 2115 Conclusion 2116 INTRODUCTION

J.R. was a sixteen-year-old eighth-grade student who attended Atlanta Public Schools. (1) After she spent a brief period in juvenile detention, Atlanta Public Schools forced J.R. to attend Forrest Hill Academy, (2) a taxpayer-funded disciplinary alternative school. (3) Unlike traditional public schools, Forrest Hill Academy was privately operated by the for-profit corporation, Community Education Partners (CEP). (4) CEP entered a contractual relationship with Atlanta Independent School System (AISS) in 2002, agreeing to run a disciplinary alternative school for middle and high school students, including J.R., who attend Atlanta Public Schools. (5)

When J.R. attempted to return to her traditional public school, the school threatened her with criminal trespassing and insisted J.R. attend Forrest Hill Academy. (6) The school transferred J.R. to the disciplinary alternative school without notice or hearing. (7) While enrolled in the alternative school, several students physically assaulted J.R. (8) Because she was pregnant and could not defend herself from the assaults, J.R. requested placement in a different classroom away from her attackers. (9) Forrest Hill Academy ignored her requests, so J.R. stopped attending the school out of fear for her safety. (10) After the birth of her child, J.R. tried to return to her traditional school, but the school again referred J.R. to Forrest Hill Academy without any opportunity for a hearing. (11) While attending the alternative school, Forrest Hill Academy subjected J.R. to daily searches, which included frisking underneath her shirt, around her bra, inside her waistband, and in her hair and mouth. (12)

J.R. is one of the hundreds of Atlanta students who are transferred to disciplinary alternative schools without due process or notice annually. (13) These schools often feature strict zero-tolerance disciplinary standards and serve as a major step in the school-to-prison pipeline for students from low-income backgrounds, students with disabilities, and Black and Brown students. (14) In 2008, the ACLU filed a class action lawsuit against Forrest Hill Academy on behalf of eight students; the case settled on December 14, 2009. (l5) The ACLU asserted that Forrest Hill Academy could hardly be described as a school. (16) "[I]ts students are treated like criminals--it is nothing more than a warehouse largely for poor children of color." (17)

The term "alternative school" is used to describe three types of public schools that differ from traditional institutions. (18) These types are: (1) schools that offer individualized or accelerated class credit recovery on a full- or part-time basis; (2) schools designated for students with disruptive or challenging behaviors; and (3) schools designed for students with disabilities under the Individuals with Disabilities Education Act (IDEA). (19) This Note focuses on the second category of alternative schools, also known as disciplinary alternative schools, where students are involuntarily transferred for a mandatory period of time as a form of punishment for their in-school behavior. (20)

Disciplinary alternative schools lurk in the shadows of public systems nationwide. They are almost always located at a separate school facility, operated by a separate staff, and vary drastically from their traditional public school counterparts. (21) Like traditional public schools, alternative schools are taxpayer funded. (22) Some alternative schools remain publicly operated by the local school district, while others are privately operated by for-profit companies. (23)

Forrest Hill Academy is one of many publicly funded, privately operated disciplinary alternative schools that plague inner cities across the nation. (24) Atlanta paid almost seven million dollars annually to run the alternative school, yet it was "among the most dangerous and lowest performing schools in Georgia." (25) During AISS-CEP's partnership with Atlanta Public Schools, Georgia taxpayers paid the for-profit corporation a whopping $36,570,941. (26) Public school students were forced into the alternative school without procedural protections such as notice or opportunities for hearings. (27) "[T]he placement process is often arbitrary and students who do not belong at AISS-CEP are given few meaningful opportunities to challenge compulsory assignment to the school." (28)

CEP boasts a similarly poor educational record in its alternative schools in Houston, Philadelphia, Richmond, Orlando, and Florida's Pinnellas and Bay districts, yet in 2005 alone, CEP accrued an annual revenue of $70 million. (29) In these alternative schools, violence runs rampant, the quality of education is low, and students are often subjected to daily stop-and-frisk policies. (30) The schools act as a funnel into the school-to-prison pipeline for students from low-income backgrounds, students with disabilities, and Black and Brown students. (31) For example, within the entire Atlanta Public Schools system, Forrest Hill Academy accounted for over 67 percent of all reported batteries, 46 percent of all reported vandalisms, and 20 percent of all reported incidents of gun possession. (32)

The high rates of juvenile and criminal justice referrals often work in tandem with the underperforming and under-resourced alternative school curriculum. In the 2007-08 school year, 93 percent of students at Forrest Hill Academy did not meet grade-level competency in math, and 95 percent did not meet grade-level competency in science. (33) Less than 23 percent of students met or exceeded state standards in all subjects. (34) In 2006, not a single student made it to senior year. (35) This underperformance may be attributed to the lack of resources, functional curriculum, and teacher experience. In 2006-07, "teachers at [Forrest Hill Academy] averaged only 0.94 years of experience compared to teachers in other local alternative schools, who averaged 19.07 years and 10.58 years, respectively." (36) Furthermore, unlike its public school counterparts, the disciplinary alternative school assigns no homework and offers no library, cafeteria, or gym. (37)

Circuits are split on whether students are entitled to procedural protections before school officials may force them into alternative schools. (38) This Note argues that students facing an involuntary transfer to a disciplinary alternative school are entitled to procedural protections under the Due Process Clause of the Fourteenth Amendment. Part I explains the trend toward the use of disciplinary alternative schools and the social and educational harms that these schools exacerbate. Part II explores the current circuit split around the procedural due process rights of students facing involuntary transfer to an alternative school. Part III argues that courts should expand the Supreme Court's holding in Goss v. Lopez to ensure students receive due process protections before being involuntarily transferred to disciplinary alternative schools. Part IV addresses counterarguments and concludes that, by extending procedural protections to students facing involuntary alternative school transfers, courts can protect those most vulnerable from harmful disciplinary actions.


    The evolution of alternative schools has resulted in low-quality facilities with low disciplinary thresholds and zero-tolerance standards. (39) Modern alternative schools serve a punitive goal, rather than providing the student opportunities for rehabilitation, and their disproportionate effect on certain student groups exacerbates this harm. (40) Black and Brown, poor, and disabled students constitute a significant portion of the student body at alternative schools and remain at greater risk of transfer after minor disciplinary infractions. (41) Once transferred to an alternative school, students' odds of becoming involved in the criminal justice or juvenile justice systems increase. (42) Section A of this Part discusses the history and evolution of disciplinary alternative schools. Section B explores the disproportionate harm that alternative schools inflict on students from low-income backgrounds, students with disabilities, and Black and Brown students.

    1. Recent Trends Toward Alternative Schools

      The U.S. Department of Education defines an alternative school as "[a] public elementary/secondary school that (1) addresses needs of students that typically cannot be met in a regular school, (2) provides nontraditional education, (3) serves as an adjunct to a regular school, or (4) falls outside the categories of regular, special education, or vocational education." (43) The movement toward alternative schools started in the 1960s as a genuine effort to help students at risk of failing or dropping out of school. (44) Originally, alternative schools provided academic support in an insulated environment to encourage student success. (45) Alternative schools continued gaining traction in the 1980s during the War on Drugs and the advent of zero-tolerance disciplinary policies in schools. (46)

      Many of these policies followed the "broken windows" theory of criminal justice. (47) This theory insists that crime is a disorder that leads to more...

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