Schooling at Risk

Author:Barbara Fedders
Position:Assistant Professor, University of North Carolina School of Law
Pages:871-923
SUMMARY

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... (see full summary)

 
FREE EXCERPT
871
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 La w 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. THE MOVEMENT FOR COMMON SCHOOLS ................................. 877
B. THE REALITY OF EXCLUSION .................................................... 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. HALTING STATE-SANCTIONED, GROUP-BASED EXCLUSION ......... 887
B. PERSISTENCE OF THE TROPE OF THE UNDESERVING CHILD ......... 888
C. MISBEHAVIOR-BASED EXCLUSION ............................................. 890
D. ALTERNATIVE EDUCATION PROGRAMS ...................................... 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. LEGAL CHALLENGES TO SUSPENSION ........................................ 902
B. THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT:
HOPE BUT MINIMAL HELP ....................................................... 905
C. SCHOOL-FINANCE PRECEDENT: A STRAINED FIT ........................ 907
D. THE “EVERY STUDENT SUCCEEDS ACT: A MISSED
OPPORTUNITY FOR REFORM ..................................................... 913
E. THE NEED FOR AND ABSENCE OF PROCEDURAL DUE PROCESS
IN AEP TRANSFERS .................................................................. 918
2018] SCHOOLING AT RISK 873
F. VOLUNTARY REFORMS (AND THEIR INADEQUACIES) .................. 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. DEPT 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.

To continue reading

FREE SIGN UP