Reasonable supervision in the city: enhancing the safety of students with disabilities in urban (and other) schools.

• Author: Daggett, Lynn M.
• Position: I. The Scope of the Duty to Reasonably Supervise Students B. Foreseeable Risks 2. Safety-Related Characteristics of Urban Schools c. Staffing Issues through Conclusion, with footnotes, p. 529-556

3. Staffing Issues

   Staffing patterns typical of urban schools enhance safety risks for students with disabilities in several ways.

   Teacher absenteeism. Urban schools report higher than usual teacher absence rates (212) and thus relatively greater use of substitute teachers. As discussed earlier, there are many cases in which students with disabilities were injured when their class has a substitute teacher. (213)

   Teacher shortages. Urban schools report difficulties in hiring teachers, (214) perhaps in part because salaries are lower than in suburban schools. (215) These realities may cause schools to hire teachers without thorough background checks, or to hire less than optimally qualified staff. In particular, it is especially difficult in urban schools to hire special education teachers. (216) As in Isabella's case, there may be shortages of bus attendants or other non-certified staff. (217)

   Teacher experience levels. Urban school staffs also include relatively large numbers of teachers with lower levels of experience (for example, experience in supervising students and otherwise managing classrooms) compared to staffs in suburban and rural schools. (218)

   Use of police as school security. Some urban schools have a relatively large police presence. For example, New York City has hired more than 5200 police officers for its schools--far more than the number of its school guidance counselors (3152). (219) Perhaps counterintuitively, recent research suggests increased police presence in schools may not be associated with lower safety levels. (220) Police presence may cause school staff to relax their own efforts toward student safety, on the assumption that police have assumed that responsibility, perhaps heightening safety risks for students.

   Lesser staff supervision in large schools. Urban schools such as HCPS tend to be large, (221) associated with somewhat less close supervision of staff. As discussed earlier, the case law shows that students with disabilities have been abused by or otherwise injured at the hands of staff when their schools did not follow reasonable hiring and reasonable staff supervision practices. (222) Students with disabilities may also be at somewhat greater risk of peer harassment and bullying because of large student bodies and perhaps less closely supervised staff.

4. Special Education Deli very Issues

   Placement patterns of special education students. Urban schools place students with disabilities in separate special education classes at high rates. The Department of Education reports that "in inner cities, 41.3 percent of students with disabilities are enrolled in ... programs that remove students from regular classes for 50 percent or more of the school day, compared to 23.4 percent in non-inner-city areas." (223)

   Disability law in fact requires student placement and instruction in the LRE. (224) Non-urban schools' widespread placement of students with disabilities in general education classes suggests that inner-city schools can and must do better to comply with LRE requirements. As more students with disabilities are included in general education classes, increased student injuries are foreseeable. (225) When compared with, for example, a self-contained special education class (such as Jenny's special education gym class, which had twenty students, a teacher, and six aides (226)), in general education classes the staff-student ratio is higher, with perhaps thirty students, a teacher, and no aides. (227) Moreover, the general education staff's knowledge level about the student's disability and its specific manifestations is low. (228)

   Impact of placement on safety. On the one hand, the case law seems to reflect relatively fewer claims from injury in special education settings. (229) On the other hand, placing students with disabilities in separate special education classes, as is common in urban schools, (230) creates greater separations between special education and general education school staffs, and between general education students and students with disabilities. (231) Increased separation also suggests that general education staffs have less experience (and thus less expertise and knowledge gained from experience) supervising students with disabilities when they are in general education settings. (232) Increased separation arguably increases safety risks for students with disabilities when they are not in their special education classrooms. Moreover, integrating students with disabilities in general education less frequently suggests that general education students may have less sensitivity about disability, heightening risks of bullying and harassment of students with disabilities. (233) The relative isolation of self-contained special education classes also creates more opportunities for staff abuse in those settings, which unfortunately has occurred. (234) Finally, these placement patterns in urban schools make it particularly challenging to develop a true school community, which recent education research indicates is an important basis for school safety. (235)

   In sum, the safety issues for students with disabilities attending urban schools are significant and unique. Minimizing these safety risks requires careful reflection and planning by urban and other schools.

   2. MEETING THE DUTY TO REASONABLY SUPERVISE STUDENTS WITH DISABILITIES IN URBAN (AND OTHER) SCHOOLS

   Part I of this Article has shown that students with disabilities not only require special instruction, but often are also members of the school community with special safety needs. Moreover, "reasonable" supervision of students with disabilities involves more and different action than does "reasonable" supervision of other students. Schools, especially urban schools, need to consider how to reasonably supervise their students with disabilities at both systemic and individualized levels. Creating good IEPs and having an expert special education staff is not enough.

   Students with disabilities spend significant time in general education settings, not only in general education classrooms, but also on the school bus, (236) and in the cafeteria, the bathrooms, the playground, and the hallways. (237) In these latter settings, students with disabilities are supervised by general education staff, from teachers to bus drivers to cafeteria workers, with, at most, minimal training in student disability and often with little relevant information about specific students with disabilities. (238) Building-wide safety responsibility likely is assigned to the school principal, who also likely lacks significant training in disability and information about specific students' needs. (239)

   Part II.A of this Article explains how reasonable supervision of students with disabilities must be accomplished consistent with federal disability law. Part II.B proposes that effective safety planning first requires training of general education staff (240) about students with disabilities. Part II.C explores how, armed with this training, schools can then engage in school-wide safety planning and create appropriate policies. (241) Part II.D explains that schools must also engage in individualized safety planning for some students. This can be accomplished by reviewing IEPs to identify potential safety issues and then engaging in appropriate planning and information dissemination. Part II.E explains the need to also provide school staff with safety-relevant information about specific students as appropriate. Part II.F proposes that in light of the distressing instances of misconduct by school staff and the vulnerabilities of students with disabilities, schools need to ensure staff, including substitutes, contractors, and volunteers, are thoroughly supervised. Effective staff supervision may include background checks, guidance and oversight of substitute employees, and opening classrooms to observation.

   1. Considering Student Safety While Complying with Disability Law

      Schools planning for student safety and supervising students must also comply with disability law, which requires special education placements in the LRE and prohibits disability discrimination.

      1. A voiding Illegal Disability Discrimination

         Both the Americans with Disabilities Act (ADA) and section 504 of the Rehabilitation Act prohibit disability discrimination in schools. (242) With regard to student safety, this means providing students with disabilities with equal opportunities to participate in school activities (243) such as lunch with other students in the cafeteria, recess on the playground, field trips and athletics. (244) Hence, schools cannot, for example, keep a student with a disability inside for recess in an attempt to maximize safety when that student can be made reasonably safe on the playground, perhaps with appropriate supports like an assigned aide. (245) Similarly, students with disabilities must participate in fire drills and other safety protocols to the extent feasible. (246) Providing equal participation may require affirmative steps in the form of modifications as needed to make participation as safe for students with disabilities as it is for general education students. (247)

         Schools also cannot transfer the burden of keeping children safe at school to the parents. To do so without imposing equal burdens on parents of students who do not have disabilities is a form of disability discrimination. (248) For example, schools cannot condition participation of students with disabilities in school dances and other extracurricular activities on their parents chaperoning their children unless parents of other students are also required to do so. (249)

      2. Special Education Law LRE Requirements

         Reasonable supervision of students with disabilities must occur within the context of providing appropriate special education placements. (250) This includes the obligation of schools under special education law to educate students with disabilities in the LRE...