Schooling at Risk

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

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. 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.