What happens to the "bad apples": an empirical study of suspensions in New York City schools.

• Author: Schuck, Peter H.
• Position: Symposium: Educational Innovation and the Law

INTRODUCTION

The current study grows out of earlier research--conducted by one of us (with a collaborator) and published in book form (1) in 2006--on the following problem: In many public programs that seek to improve social conditions and increase opportunity for low-income people, a relatively small number of participants, whom the study termed "bad apples," (2) so severely disrupt those programs that they prevent the rest of the participants from gaining the programs' full benefits. The public school system is the most important venue in which the bad apples problem occurs, and the current study seeks to increase our understanding of how the system tries to manage this problem.

Roughly 1.1 million students are enrolled in the New York City public schools each year. (3) Over the period spanning the 2005-06 and 2009-10 school years, the schools issued 323,680 suspensions, or about 64,736 a year. (4) This works out to significantly less than 5.9% of the total enrolled students in the system during those five years because many of the suspended students were repeat offenders. These suspended students are responsible for a great deal of the time, energy, money, and other resources that the system expends on student discipline and classroom management. Even more importantly, they are presumably responsible for much of the disruptive behavior that impedes classroom learning for all students.

Past studies have found that the New York City school system has higher suspension rates for students of color, students who are male, and students with special needs. (5) The system also may fail to ensure that all students, even the more disruptive ones, receive the support they need to succeed academically or to at least complete high school. This study attempts to probe more deeply into the data on suspensions in New York City and to learn how schools use suspensions (to improve behavior, to aid classroom management, to improve test scores, etc.) and, thus, to consider whether and how they can use suspensions more effectively--for example, by issuing them more or less frequently or in different ways.

The introduction that follows, taken verbatim from an earlier project, (6) presents some necessary background for the current study:

Widespread, intense concern about the harmful effects of disruptive students on their peers is evident in public opinion polls and surveys of both teachers and students. This finding is hardly surprising. The externality and public good aspects of classroom education mean that just as students can learn from each other as well as from their teachers, so too can one student's misconduct quickly cascade through the classroom, thereby reducing learning for all. (7) For purposes of this discussion, we call such chronically disruptive students "bad apples."

Although disruptive behavior and discipline problems can be defined in different ways, data sets in this area often distinguish among four crude categories of misconduct: disruption, nonserious violence, violence, and criminal violence. (8) According to one report, more than seventy-seven percent of public elementary and secondary schools suffered at least one violent incident (as defined in the report) during the 1999-2000 year, and students were more likely to fear being attacked at school than being attacked when away from school. (9) Schools that reported a large number of serious discipline problems were more likely to experience violent criminal incidents, including rape, sexual battery, physical attacks, and robbery. (10)

Not surprisingly, the risk of encountering violence in school is concentrated in poor areas and is greatest for economically disadvantaged students. (11) Some believe that noncriminal incidents, which are of course far more common than violent crime, are more responsible for disrupting the educational environment and making it more difficult for students to learn. (12) There are also suggestions that officials, at least in New York City, under-report violent and disruptive incidents in the public schools. (13)

In a May 2004 study, a third of the teachers surveyed said that because of student discipline problems, they had either considered leaving or knew colleagues who had left the profession. (14) Almost twenty percent of parents reported that discipline problems had caused them to consider moving their child to another school or that they had already done so. (15) Nearly eight in ten teachers (seventy-eight percent) said that their school had students who should be removed and sent to alternative schools. (16) The same percentage reported that students are quick to remind them that they have rights or that their parents can sue. (17) A majority of teachers (fifty-five percent) said that discipline problems were also the result of school officials backing down in the face of assertive parents. The survey found that parents and teachers favored allowing discipline-related lawsuits only in cases where serious sanctions like expulsion are imposed and that in such cases monetary awards against schools should be barred. (18)

Although some federal and state laws address the problem of chronic disruption by a small core group of students, most policy responses occur at the local school district or individual school level. (19) These responses include: rules at the level of the school district or school and a number of practices, such as the use of metal detectors and hallway monitors; specific modes of punishment, such as corporal punishment (especially in the South); removal of the disruptive students from the classroom; and placement of the disruptive students in alternative schools. (20) A number of the alternative schools serving these removed students offer crisis or behavioral intervention. (21) Nevertheless, the fragmentary evidence suggests that many efforts to remove violent and chronically disruptive students fail at that task and that the removals that do occur are often not timely. (22)

A recent study by Richard Arum of the discipline problem in public schools places much of the blame on judicial decisions that broadly extended due process rights to students in public schools, as well as on an increase in related educational regulations and legislation that have constrained the authority of teachers and school administrators and often prevented them from taking prompt and effective action to curb disruptive behavior. (23) In particular, the Supreme Court's 1975 decision in Goss v. Lopez, (24) involving students suspended for fighting in the lunchroom, extended due process rights--there, notice and an opportunity to be heard--even to students facing relatively minor school discipline, such as suspensions of ten days or less. (25) Presumably, students facing more serious discipline, such as expulsion or transfer to alternative programs, had more extensive procedural rights.

Post-Goss court decisions have held that the constitutionally required hearing for a short-term suspension is minimal; one commentator insists that Goss would be satisfied by "a three-minute due process [heating]." (26) She suggested that due process would be satisfied if the school officials tell the student the charge, give the student the opportunity to tell his/her side of the story, listen, and make a decision. (27) The Goss hearing need not include written notice, pre-suspension notification of parents, an opportunity for parents to tell their side of the story, time to prepare a presentation, a right to counsel, a right to offer or cross-examine witnesses, or a right to appeal the decision. Nonetheless, state law and local school board policies often provide students with additional procedural rights. Some courts, state laws, and administrative policies have even extended these rights to in-school suspensions or isolation, as well as out-of-school suspensions shorter than that involved in Goss. This "due process creep," as this commentator has called it, (28) may encourage misconduct by making it much more costly for school officials to impose discipline.

The Individuals with Disabilities Education Act (IDEA), (29) enacted in the same year as Goss, conferred further substantive and procedural rights on students with disabilities. The statute defines disabilities to include mental retardation, hearing impairments including deafness, speech or language impairments, visual impairments including blindness, emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, specific learning disabilities, multiple disabilities, or developmental delay. (30) Students with these disabilities need special education and related services.

Subsequent amendments to IDEA, most recently in December 2004, expanded the rights of disabled students, notably in discipline cases. Since IDEA's purpose is to mainstream special education students into the "least restrictive environment," (31) it limits schools' ability to remove disabled students from the classroom, particularly when their misconduct stems from their disability. Although this is a noble goal, the statute has had the severe unintended side effect of inhibiting the removal of bad apples, thereby blighting the educations of vast numbers of good apple students.

IDEA does not seriously impede removals for short periods. (32) Schools may suspend disabled students for less than ten days for whatever reason, as long as the suspension would be appropriate for

similarly situated nondisabled students. (33) Thus, short-term suspension remains an option even when the misconduct stems directly from the student's disability. For violations related to weapons, drugs, or serious bodily injury, schools can also remove a special needs child for up to forty-five days to an interim educational setting. (34)

Under the statute, schools cannot remove a disabled student from public school for more than ten consecutive days for disruptive behavior that falls short of...