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Zambito, Nancy S.
The perceived impact of the Individuals with Disabilities Education Act (IDEA), 1997 disciplinary mandates on the school board policies in three urban, K-12, public school districts
h [electronic resource] /
by Nancy S. Zambito.
[Tampa, Fla.] :
University of South Florida,
Thesis (Ed.D.)--University of South Florida, 2004.
Includes bibliographical references.
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ABSTRACT: In 1990 the Individuals with Disabilities Education Act (IDEA) required that states provide a free and appropriate education to all children and youth with disabilities, no matter how severe the disabilities. This obligation was tied to federal funding and outlined in detail parental rights with regard to identifying and educating their child with disabilities. The 1997 reauthorization of IDEA stepped into school discipline, creating a complex process for addressing school misconduct of such students. This study determines how the 1997 IDEA disciplinary mandates, as they existed until May 2003, were interpreted and implemented in three similar, urban, public school districts and how selected staff members perceived that implementation. School board policies in the three, urban, K-12, public school districts were very similar and, in many cases, drew language directly from the IDEA law. In each district, additional documents were developed providing detailed instruction to school based educators working directly with students with disabilities and their families. The policies and guidelines reflect a clear commitment to compliance with IDEA mandates. It was not possible through this study to assess whether the spirit of the law is part of the district culture. Staff were knowledgeable of IDEA provisions and where to seek assistance within their respective organizations. Administrators and attorneys stated that their responsibilities have expanded since the 1997 reauthorization and that more of their and their staff members' time is used addressing disciplinary issues. School principals reported concerns about the length of time it takes initially to identify students with disabilities and application of the dual discipline system created by the 1997 mandates. A majority of the principals expressed concern about the dual discipline systems. It would be helpful to undertake a longitudinal study of teachers and their attitudes towards students with disabilities.
Co-adviser: Arthur Shapiro
Co-adviser: Steve Permuth
x Educational Leadership
t USF Electronic Theses and Dissertations.
The Perceived Impact of the Individuals w ith Disabilities Education Act (IDEA), 1997 Disciplinary Mandates on the School Board Po licies in Three Urban, K-12 Public School Districts by Nancy S. Zambito A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Education Department of Educational Leadership College of Education University of South Florida Co-Major Professor: Arthur Shapiro, Ph.D. Co-Major Professor: Steve Permuth, Ed.D. William Benjamin, Ph.D. Brenda Townsend, Ph.D. Jeffrey Kromrey, Ph.D. William Heller, Ed.D. Date of Approval: June 28, 2004 Keywords: discipline, pinellas, ch arlotte-mecklenburg, indianapolis Copyright 2004, Nancy S. Zambito
To Irene Lowry, my grandmother, who told me I could be anything I wanted to be. To Catherine and Stephen, my children, who are my real sources of pride. To James Patrick, the newest Zambito, who is an inspiration to us all to be the best that we can be. To Robert Franz, who got me back on the right path and then pushed until I reached the end.
Acknowledgements As the end of this process approach es, I want to acknowledge the strong inspiration and support I have received from my dissertation comm ittee. Drs. Arthur Shapiro, Steve Permuth, William Benjamin, Jeffrey Kromrey, Brenda Townsend and William Heller have been unwavering in their encouragement and always generous with their time and wisdom. My committee co-chairs, Drs. Arthur Shap iro and Steve Permuth, as well as Dr. William Benjamin worked tirelessly with me to shape my topic, challenging me with pointed questions until I became aware of what I was really seeking to discover. Their combined intellects, experience and accessibility were my foundation. Dr. Jeffrey Kromrey has been with me si nce the beginning of this journey and I greatly appreciate his steadfastness. His ab ility to help me understand better ways to articulate data has been invaluable. Dr. Brenda TownsendÂ’s willingness to shar e her wealth of knowledge in the area of minority overrepresentation in special educ ation programs was crucial as I addressed that sensitive and critical issue. Dr. William Heller has been my link to the real world as we worked together on educational projects in Pinell as County through our Â“work rolesÂ” and on this dissertation in the academic realm. His depth of experi ence with and knowledge of special education has been a great source of help. I am grateful to the three school superint endents who afforded me access to their staff members and documents and permitted their organizations to be part of this study.
Dr. J. Howard Hinesley, Pinellas County School Florida, Dr. Pat Pritchett, Indianapolis Public Schools, Indiana and Dr. James L. Pughsley, Charlotte-Mecklenberg Schools, North Carolina were supportive every step of the way. Dr. Allen Mortimer, Director of Plan ning and Policy in the Pinellas County School District was so helpful in working with me on interview protocols, data collection and document review. A very special thank you goes to Mr. Joe Adams in the Pinellas County School District who was always patient in helping me to assemble and reassemble the statistics. Mrs. Catherine Fernandez, my daughter, co lleague and typist, wa s incredible. She read my handwriting, maintained her equani mity throughout hundreds of rewrites and I truly would not have been able to complete this without he r able assistance. Thank you also to Patrick Zambito, without whom I would have no college degree. Thank you to John Bowen, Pinellas C ounty School Board Attorney, for his contributions and thorough editing job. In addition, there are so many colleagues in each of the three di stricts to whom I am grateful, who were willing to give of their time, energy and knowledge even though their days were certainly already filled with responsibilities. They have strengthened my commitment to be ready to assist others in the future who are traveling this rocky, but worthwhile, road.
i Table of Contents Abstract iii Chapter One: Introduction 1 Legal History 1 IDEA and Student Discipline 6 Change of Placement 9 Statement of the Problem. 10 Purpose of the Study and Research Questions 11 Significance of the Study 13 Definition of the Terms 13 Limitations of the Study 17 Summary 17 Organization of the Study 18 Chapter Two: Review of the Literature 19 Introduction 19 From Federal Legislation to Classroom Procedure 19 The Language of 1997 IDEA 21 History of Educating Children with Disabilities in the USA 26 Education of the Students with Disabilities 30 Identification of Students with Disabilities 34 Discipline of Students with Disa bilities in Public Schools 35 Minority Overrepresentation 41 Relevant Case Law 48 Manifestation Determination 50 Stay-Put 52 Alternative Educational Setting 56 Personnel 57 Recent Research 60 Summary 64 Chapter Three: Methodology 66 Statement of the Problem 66 Purpose of the Study and Research Questions 66 Research Methods 68 The Qualitative Researcher as Bricoleur and Quilt Maker 69 The Case Study 70 Case Study: Strengths and Limitations 72 Triangulation 73 This Study 74 Participants 74 Summary 77
ii Chapter Four: Results 78 State and District Demographics 78 Out of School Suspension 79 Placement in Alternative Education Settings 84 Manifestation Reviews 88 Stay Put Rule 95 Previously Unidentified Students 97 Minority Overrepresentation 110 Student Discipline Data 111 Summary of Data Analysis 115 Chapter Five: Summary, Observatio ns, Conclusions and Implications 116 Statement of Problem 116 Legal History 116 Purpose of Study and Research Questions 117 Participants 120 Methodology 123 Summary of Findings 123 Conclusions 125 Implications for Further Research 128 References 130 Appendix A: State and Di strict Demographics 140 Appendix B: Protocols for Principa ls, District Administrators and School Board Attorneys 142 Appendix C: PCS 2002-2003 Student Information 148 About the Author End Page
iii The Perceived Impact of the Individuals w ith Disabilities Education Act (IDEA), 1997 Disciplinary Mandates on the School Board Po licies in Three Urban, K-12, Public School Districts Nancy S. Zambito ABSTRACT In 1990 the Individuals with Disabiliti es Education Act (IDEA) required that states provide a free and appropr iate education to all children and youth with disabilities, no matter how severe the disabi lities. This obligation was tied to federal funding and outlined in detail parental rights with regard to identifying and educating their child with disabilities. The 1997 reauthor ization of IDEA stepped into school discipline, creating a complex process for addressing school misconduct of such students. This study determines how the 1997 IDEA disciplinary mandates, as they existed until May 2003, were interpreted and implemented in three similar, urban, public school districts and how selected staff members perceived that implementation. School board policies in the three, urba n, K-12, public school di stricts were very similar and, in many cases, drew language direct ly from the IDEA law. In each district, additional documents were developed providi ng detailed instruction to school based educators working directly with students with disabilities and their families. The policies and guidelines reflect a clear commitment to compliance with IDEA mandates. It was not possible through this study to assess whether the spirit of the law is part of the district culture. Staff were knowledgeab le of IDEA provisions and where to seek assistance
iv within their respective organizations. Admini strators and attorneys stated that their responsibilities have expanded since the 1997 reauthorization a nd that more of their and their staff membersÂ’ time is used addressi ng disciplinary issues School principals reported concerns about the length of time it takes initially to identify students with disabilities and applicat ion of the dual discipline system created by the 1997 mandates. A majority of the principals expressed con cern about the dual disc ipline systems. It would be helpful to undertake a longitudinal study of teacher s and their attitudes towards students with disabilities.
1 Chapter One Introduction This qualitative study addresses the perc eived impact of the Individuals with Disabilities Education Act (IDEA) on sp ecific public school board policies and procedures that deal with stude nt discipline. The policies st udied were developed in three public, urban school districts in the United States that have op erated at some point within the confines of a federal dese gregation court order. A tria ngulation of data sources was used to compare the impacted school board pol icies, rules and procedures in Pinellas County, Florida, Charlotte-M ecklenberg, North Carolina a nd Indianapolis, Indiana. Legal History The first laws in our country to address individuals with disabilities dealt with the designation of a marine hospital to serve sailors with disabili ties. This authorization was passed in 1798 and eventually became the Publ ic Health Service. Until the 1960Â’s laws designed to aid persons with disabilities targ eted war veterans and focused primarily on disabilities related to the indi vidualÂ’s service in the armed forces (NICHCY, 1996). This focus allowed public schools to ignore the educ ational needs of children with disabilities in the population and yet remain within the law. Finally, after persistent pressure from advocates, largely the families of children with disabilities, the 89th Congress passed Public Law 89-10, the Elementary and Secondary Education Act of 1965. Subsequent amendments, which occurred during the
2 same year, set the stage for increasing federal involvement in the education of students with disabilities. The initial act was desi gned to ensure quality education for students throughout the country. Eight m onths after its congressional enactment, the first set of amendments created a federal grant program to assist young people with disabilities attending state operated or s upported institutions and school s. The grant program was opened in 1966 to local schools and became known as Title VI. At the same time the Bureau of Education for the Handicapped was established by Public Law 89-750 to assist states in developing, maintaining and evaluati ng programs for children with disabilities and to create the National Advisory Counc il, today known as the National Council on Disability. Public Law 90-247 in 1968 amended the Elementary and Secondary Education Act again and established a number of supplemental and su pportive education oriented programs. These included teacher recruitmen t and resource centers The Education of the Handicapped Act (Public Law 91-230), passed in 1970, was an effort to help states consolidate a number of programs that had been functioning independently of each other. Public Law 93-380 passed in 1974 included am endments that changed the Elementary and Secondary Act to the Education of the Handicapped Act Amendments of 1974 (Longmore, 2001, pp. 375-376). Its mandates included the following: States were required to develop timelines for offering full educational opportunities to all children with disabilities. Mainstreaming children with disabi lities to the extent possible. Procedural safeguards were to be put into practice (NICHCY, 1996, p. 6).
3 Congress passed the Education for All Handicapped Children Act (EAHCA Public Law 94-142) in 1975. This grant form ula legislation encompassed most of the significant legal protections to be found in the Individuals with Disabi lities Education Act (IDEA), which renamed it in 1990. A free a ppropriate public education (FAPE) was guaranteed to all children with disabilities and procedural safeguards for their families were strengthened. Federal dollars were ma de available to help states meet these increased legal requirements. The passage of the EAHCA resulted in thousands of administrative challenges and EAHCA lawsuits filed by disabled students and their pa rents, forcing states, local educational agencies, and school districts to bring themselves into compliance with the new federal law (McEllistrem and Roth, 2000, p. 2). At this point Congress committed to provide 40 percent of the Â“incremental costsÂ” of implementing the detailed requirements of EAHCA, but by 2001 the federal level of funding hovered at only 12 percent. Additiona lly, courts, when rendering a decision on special education cases appear to have little or no consideration of th e costs to the LEA of court ordered compliance requirements (McEllistrem and Roth, 2002, p. 3). The 1990 IDEA further expanded the scope of federal regulations in the area of educating children with disabili ties. Federal funds were to be provided to states and districts for educational pr ograms for children with disabilities under the following conditions:
4 States must ensure that: All children and youth with disabili ties, regardless of the severity of their disability, will receive a Free Appropriate Public Education (FAPE) at public expense. Education of children and youth w ith disabilities w ill be based on a complete and individual evaluati on and assessment of the specific, unique needs of each child. An Individualized Educational Pr ogram (IEP), or an Individualized Family Services Plan (IFSP), will be drawn up for every child or youth found eligible for specia l education or early intervention services, stating precisely what kinds of speci al education and related services or the types of early interventi on services, each infant, toddler, preschooler, child, or youth will receive. To the maximum extent appropr iate, all children and youth with disabilities will be educated in th e regular education environment. Children and youth receiving specia l education have the right to receive the related services necessary to benefit from special education instruction. Related services includeÂ…transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, and includes sp eech pathology and audiology, psychological services, physical an d occupational therapy, recreation, including therapeutic re creation, early identificat ion and assessment of
5 disabilities in children, counseling services, includi ng rehabilitation counseling, and medical services for diagnostic or evaluation purposes. The term also includes school health services, social work services in school, and parent counseling and training (C.F.R.: Title 34; Education; Part 300.16, 1993). Parents have the right to particip ate in every decision related to the identification, evaluation, and placement of their child or youth with a disability. Parents must give consent for any initial evaluation, assessment, or placement, be notified of any change in placement that may occur and be included, along with teachers, in conferences and meetings held to draw up individualized programs. Parents may challenge and appeal any decision related to the identification, evaluatio n, and placement of their child. Any issue concerning the provision of FAPE, for their child is protected by clearly spelled-out, extensive due process procedures. A Â“stay-putÂ” provision requires that the child rema in in the current placement until any challenge is ruled up on, including all appeals. Parents have the right to c onfidentiality of information. No one may see a childÂ’s records unless the pare nts give their written permission. (The exception to this is school pe rsonnel with legitimate educational interests.) (NICHCY, 1996, p. 11).
6 IDEA and Student Discipline While the EAHCA did not speak to discip linary issues, litigation led to a court decision mandating that during an expulsi on, services cannot be stopped. In 1994 amendments dealing with student discipline we re added to Â“include language that permits interim placements of up to 45 days for st udents with disabilities who have brought a weapon to schoolÂ” (McEllistrem and Roth, 2000, p. 2). When IDEA was reauthorized in 1997, beha vioral concerns and school discipline became a bigger issue. By this time, la nguage specifically targeting disciplinary procedures mandated that in order to r eceive federal funds for special education programs, the following additional provisions must be met: 1. A Â“free appropriate public education is available to all children with disabilitiesÂ…including child ren with disabilities who have been suspended or expelled from schoolÂ” (Western Regional Resource Center, [WRRC] 1997, p. 1). 2. A child with a disability may be moved Â“to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 school days (to the extent su ch alternatives would be applied to children without disabilities); and to an appropriate interim alternative educational settingÂ…for not more th an 45 days ifÂ” the student has a weapon at school or at a school func tion or possesses, uses, solicits the sale of or sells Â“a controlled substa nceÂ” at school or at a school function (WRRC, 1997 p. 2).
7 3. A functional behavioral assessment and behavioral intervention plan must be in place Â“either before or not later than 10 days after taking a disciplinary action describe d aboveÂ” (WRRC, 1997, p.2). 4. Any Â“interim alternative educational se ttingÂ” must allow for the studentÂ’s Individual Educational Plan to be implemented (WRRC, 1997, p.3). 5. Parents must immediately be advised of a disciplinary decision and all of their procedural safeguards. 6. Immediately or Â“in no case later than 10 school days after the date on which the decision to take that actio n is madeÂ” a manifestation review must occur to determine the relati onship, if any, between the misconduct and the studentÂ’s disability (WRRC, 1997, p. 3). The 1997 reauthorization of IDEA raised a number of implementation, interpretation, accountabili ty and even ethical issues. An example is the emergence of what appears to be a dual student discipline sy stem within a school. School district staff members struggle to develop a school wide student behavior system that includes prevention, intervention and consequences. However, the best system may fall apart when two students engaged in the same misc onduct receive widely variant consequences because one is disabled, whether or not the condu ct is determined to be a manifestation of the studentÂ’s identified disability. Hess a nd Brigham state, Â“Protections afforded to special education students in the domain of discipline have made it more difficult to enforce clear and uniform standards in schoolÂ” (Finn, Rotherham and Hokanson, 2001, p. xvi).
8 Educators are urged by parents of childr en with disabilities to increase the integration of their children into the general education setting with the outcome, at times, being the unintentional disrupti on of the education of students without disabilities. This phenomenon places educators in a conundrum. Kelman concludes, Â“More school decisions are being made by judges rather th an educators as parents are unwilling to accept local interventionÂ” (Kelman, 2001, p. 78). According to Finn, Rotherham and Hokanson, Â“We will not make rational policy unt il we see that many claims often made in debate over special educati on policy are important educati on issues but not proper civil rights claimsÂ” (Finn, Rotherham and Hokanson, 2001, p. 25). Editors of the seventeenth Edition of Students with Disabilities and Special Education state, Â“The IDEA was enacted to vind icate the rights of disabled students, not to provide a general forum for federal clai ms. A three-year-old Pennsylvania child suffered severe head injuries in a traffic accident. As a result, she required special education services. After making initial payments for educational services, the familyÂ’s insurer refused to provide further benefits. The parents sued the insurance company in a federal district court. The insurer then filed a third-party complaint against the studentÂ’s school district under the IDEA. The insurer alleged that the district was primarily responsible for providing special education services. The di strict court ruled that the IDEA did not provide general jurisdiction for sp ecial education issues in federal courts. Federal regulations under the st atute stated that insurers were not relieved from paying for services to students with disabilities. Accordingly, th e insurer had no standing to bring an IDEA lawsuit against the school dist rict, and the court di smissed the insurerÂ’s
9 complaint. Gehman v. Prudential Property and Cas. Ins. Co., 702 F. Supp. 1192 (E.D.Pa.1989)Â” (McEllistrem and Roth, 2000, pp. 9-10). There were attempts to make IDEA retro active. In Department of Education v Board of Education of Oak Park and Rive r Forest High School District 200, 115 F. 3d 1273 (7th Circuit 1997), a high school student with learning disabilities was found to possess marijuana at a school dance. The st udent was suspended for 10 days and an IEP team determined that the offense was not a ma nifestation of his disa bility. The student was expelled for the remainder of the semest er and the parents t ook the matter to court demanding a rehearing based upon the 1997 IDEA amendments. Because the studentÂ’s behavior occurred prior to the reauthorization, however, their request was denied (McEllistrem and Roth, 2000, p. 11). Change of Placement Under the IDEA reauthorization a student wi th disabilities is considered to have experienced a change of placement if: he is excluded from school more than 10 consecutive days; or he is the recipient of a number of exclusions that create a pattern Â“because they cumulate to more than 10 school days in a school year, and because of factors such as the length of each removal, the total amount of time the child is removed, and the proximity of the removals to each otherÂ” (M cEllistrem and Roth, 2000, p. 513).
10 Thus far, case law has held that the s hort-term exclusion, for 10 school days or less does not mandate a determination of whether the misconduct is related to the studentÂ’s disability. Some school districts have entered into agreements with parents about the use of disciplinary consequences that overstep the boundaries established by IDEA. In at least one case a Minnesota parent was permitted to have a due process hearing when, after initially agreeing that her childÂ’s bomb threat had no connection to his emotional handicap, she changed her mind. The hearing officer set aside all prior agreements and conducted the hearing. Ind. Sch. Dist., Minn., 31 IDELR 31 IDELR 44 (SEA MINN, 1999) (Martin, 2000, p. 4). Exclusions that extend past the 10 school da ys within a year are possible Â“if an FBA (Functional Behavior Assessment) is conduct ed or planned for, and if services are provided after the 10th removal dayÂ” (Martin, 2000, p. 6). When one considers the practicality of providing se rvices during a suspension, it is easily understood why most school districts restrict school suspensions to 10 days per sch ool year, unless dealing with very severe misconducts that are outlined in the law. During his 2000 address in New Orleans, LA, Martin (2000, p. 10) stressed that Â“Applying regular code of conduc t terms of removal without considering the limitations IDEA places on cumulative short-term removals can get school into problems early in a school year.Â” Statement of the Problem The focus of this study is to determ ine how the 1997 IDEA reauthorization mandates regarding student discipline have been interpreted and implemented in three
11 similar, urban, public school districts and how that im plementation is perceived by selected staff members. The selected sc hool districts were Pinellas County Schools, Florida, Charlotte-Mecklenberg Schools, North Carolina and Indianapolis Public Schools, Indiana. Purpose of the Study and Research Questions The purpose of this collective case study was to examine perceptions of the implementation in three large, urban, K-12, public school districts of 1997 IDEA mandates related to student discipline as they existed unt il May 2003 by reviewing policies and procedures in thos e districts and collecting info rmation from selected staff members. The research questions addressed are: 1. In the three school districts how were the mandates interpreted and what school board policies were developed to implement them? How were these policies similar or dissimilar? To address this inquiry I reviewed, compared and contrasted the relevant school board policie s from the three school districts to ascert ain whether the federal laws were interpreted in the same manner and whether common wa ys of work were created in the three school districts. Dr. Allen Mortimer, Director of Planning and Policy in the Research and Accountab ility Department of the Pinellas County Florida School District, also re viewed the policie s as a means of validating my findings. 2. In the three selected sc hool districts, what gui delines other than school board policies were put into place to ensure compliance with the laws and
12 policies related to the exclusion from school of students with disabilities for disciplinary reasons? In this instance I collected, reviewed and compared documents prepared by staff members in the three districts that dealt with directions to those addre ssing school discipline of students with disabilities on a daily basis. Thes e included Codes of Student Conduct or Exceptional Education Department Guid elines for Student Discipline and other district documents that may or may not have been adopted as policy by their school board. 3. In the three school districts what di d the attorney employed by the school district, a district administrator in the exceptional education department and three principals in schools of di fferent levels and with a median number of students with di sabilities enrolled report to be their perception of the primary issues they encountered in the area of disciplining students with disabilities since the 1997 reaut horization of IDEA and through May 2003? This information was obtai ned through interviews with the identified individuals and in some cases submitted written responses to the interview questions. Interviews in Pinellas County, FL were face to face and interviews in North Carolina an d Indiana were conducted primarily by telephone. I asked what issues they dea lt with most frequently in this area of their job and whether dealing with this law and the related policies had significantly changed their way of wo rk and if so, how? Prior to the interviews, questions were developed. Dr. Allen Mortimer, Director of Planning and Policy in the Research a nd Accountability Department of the
13 Pinellas County School Dist rict reviewed these questions. Dr. Mortimer must approve any survey conducted in the Pinellas County School District and works with individuals within and outside the district as they develop surveys and questionnaires to use in sc hools. After Dr. MortimerÂ’s review the questions were piloted on staff me mbers of the Pinellas County School District (one district ad ministrator, one attorney and one principal) and finalized. After review, pilot and adjustment, questions (See Appendix A), were mailed to the in terviewees and appointments were scheduled for the interviews. Intervie ws were conducted and responses were added to the data utilized in the study. In tw o instances answers to the protocol questions were returned in written fo rm and a conversation did not occur. Significance of the Study By taking a historical look at how three separate but similar learning communities perceive their efforts to put 1997 IDEA student discipline regulations into practice, new avenues may emerge to meet those legal re quirements effectively while maintaining a strong academic focus and a positive, safe environment for all students. Definition of Terms ESEA Â– Elementary and Secondary Educati on Act (1965). This law was put in place to strengthen and upgrade the genera l quality of education in the United States. Amendments subsequently Â“aut horized that first federal government program specifically targeted for children and youth with disabilitiesÂ” who were
14 being served in Â“state-operated or stat e-supported schools and institutionsÂ” and later for students with disabilities in local schools ( NICHCY, 1996, p. 6). EHA Â– Education of the Handicapped Act ( 1970). This law consolidated several federal government programs dealing w ith the education of children with disabilities. Many of the programs addressed resource development. EAHCA Â– Education for All Handicapped Children Act (1975). This law guaranteed a Â“free appropriate public e ducationÂ” (FAPE) fo r all children and established significant legal protections for students w ith disabilities (NICHCY, 1996, p. 9). Subsequent amendments expanded pre-school educational opportunities for children with di sabilities (NICHCY, 1996, p. 10). FAPE Â– Free and Appropriate Public Edu cation. Special Education and related services that Are provided at public expense, under public supervisi on and direction and without charge, Meet the standards of the state educational agenc y, including the requirements of the IDEA, Include preschool, elementary school or secondary school education in the state, and Are provided in conformity with an IEP that meets the requirements of IDEA and its implementing regulations. (Malony, 1998, pp. 8-9) IDEA Â– Individuals with Disa bilities Education Act (1990). This amendment and reauthorization of EAHCA, expanded a number of discretionary programs that had been authorized by prior enactment s and changed its name. Additional
15 special education services were devel oped including social work, transition assistance, rehabilitation counseling and the use of assistiv e technology. IDEA outlined clear and rigorous expectations for school district staff that were working with the families of children with disa bilities. In 1997 IDEA was reauthorized and added a substantial number of manda tes dealing with student discipline. IDEA is currently undergoing another reauthorization pr ocess (NICHCY, 1996, pp. 11-12). School board policies or rule s related to student conduct Â– Any written, district wide, accepted student behavioral expecta tions and consequences, whether or not they are adopted as school board policy. Weapon Â– Â“The IDEA incorporates the follo wing definition of dangerous weapon : an instrument, material, substance, or device that is used for, or readily capable of, causing death or serious bodily injury, excep t that this does not include a pocket knife with a blade of less than 2 inches in lengthÂ” (Malony, 1998, p. 20). IEP Â– Individualized Educational Program. An IEP is required for every student with disabilities. The IEP must include e xplanations of how the childÂ’s disability impacts school requirements and the accomm odations to be ma de by school staff to compensate for the disabilities so th e child can benefit from the educational experience, not necessarily perform at the same level as students without disabilities. An IEP is re viewed and updated regularly. FBA Â– Functional Behavior Assessment. An FBA is Â“the process of collecting information and identifying functional re lationships, methods and procedures to identify associationsÂ” (Har twig, 2000, p. 5). The FBA is required if the school is
16 considering the removal of a student in a manner that Â“may constitute a change in placementÂ” (Hartwig, 2000, p. 2). The purpose of the FBA is to: identify proactive strategies to prev ent rather than suppress undesirable behaviors, develop an intervention th at is logically related to functional categories, and teach replacement behaviors instea d of suppressing through punishment (Hartwig, 2000, p.2). BIP Â– Behavior Improvement Plan. The goal of a BIP is to Â“reduce or eliminate target behaviorsÂ” (Hartwig, 2000, p. 19). A committee that includes the parents and school staff determines the cause of th e target behavior a nd steps to take to teach a replacement behavior that meets th e childÂ’s needs but is acceptable in the school setting (Hartwig, 2000). LRE Least Restrictive Environment. This Â“is a rule of educating the student with other students who do not have disabili ties (that is, in the general curriculum) to the maximum extent appropriate for the student with a disabi lityÂ” (Turnbull III, Turnbull, Sailor et al., 2003, p. 26). AES Â– Alternative Educational Setting. An AES is an educational setting, separate from the general school populati on, in which the IEP of a student with disabilities can be implemented. An assi gnment to an AES is temporary and the goal is to reintegrate the student back into the ge neral population as soon as feasible (Hartwig, 2000, p. 22). PCSD Â– Pinellas County School District
17 PCSB Â– Pinellas County School Board CMS Charlotte-Mecklenburg Schools IPS Â– Indianapolis Public Schools Limitations of the Study It was assumed for the purpose of this study that all educators in the three districts were committed to compliance with IDEA regulations and to providing the best educational environment possible for a ll students, disabled and non-disabled. Where possible student discipline data were included. It was possible to obtain some data from Pinellas County, FL that wa s disaggregated by ESE and non-ESE. I was unable to obtain such data from the other di stricts. It would be improper to make assumptions about those statistics having any causal relationships to IDEA regulations or district practices. They were proffered only to provide a more expansive view of the school district in which they occurred. The discipline data that was collected is found in Appendix C. Summary Since 1965 legislators have attempted to craft laws designed to make public schools an accommodating environment for al l students with disa bilities. Although Congress initially made commitments that di strict compliance would result in federal funding of almost half of the costs of desi gnated accommodations, most of those dollars remain elusive even in the face of ever in creasing expectations. Educators employed in public school systems strive to remain true to the law while meeting other challenges
18 such as high stakes testin g, severe budget cuts, private school vouchers and public fear due to greatly publicized school violence. Between these groups of well-intentioned individuals stand the students disabled and non-disabled, needing education, protection and nurturing. Organization of the Study This study compares efforts to comply with IDEA regulatio ns in the area of student discipline within three school districts. Chapter one introduces the issues to be c onsidered and includes a statement of the problem, purpose of the study, significance of the study, definition of terms, limitations of the study and organization. Chapter two reviews related literature d ealing with a historical view of public education and the child with disabilities, IDEA and student discipline and summaries of relevant case law and recent research. Chapter three presen ts the methodology used in this study to examine data from the three selected school districts. Chapter four sets forth information gl eaned from interviews and reviewing documentation from the three districts in cluding student discipline statistics and reflections of interested parties. Chapter five contains a summary of findings, observations, conclusions, implications, and recommendations for further study.
19 Chapter Two Review of the Literature Introduction The purpose of this collective case study was to examine perceptions of the implementation in three large, urban, public school districts of the 1997 IDEA mandates related to student discipline by reviewing their policies and procedures. This chapter provides a foundation for assessing the data collected in the school districts through a review of literature in the areas of (1) federal legislati on, (2) the language of IDEA 1997, (3) the history of educating children with disabi lities in America, (4) issues related to the discipline of students with disabilities in a public school setting, (5) minority overrepresentation, (6) relevant cas e law and (7) recent research. From Federal Legislation to Classroom Procedure A federal law (Act) is created through the Federal Legislative Process as follows: A. 1. Â“Bill is introduced, numbered se quentially and referred to committee(s)Â… 2. Possible committee action on bill (most see no action unless a chair is sponsor/cosponsor)Â… 3. Bill is brought up by chamber leadership for floor actionÂ…The House or Senate considers, debates, amends a nd passes the billÂ…The Â‘engrossedÂ’ bill (now called an Act) as passed is pr inted in the Congr essional Record. 4. Bill (Act) is referred to the other chamberÂ…
20 5. Enrolled version of the bill (Act) prepared, signed and sent to the President. Law becomes effective upon Presiden tÂ’s signature unless specified otherwiseÂ…Â” (McKinney and Sweet, 2003, pp. 1-2). B. The Federal Act must then be interpre ted by each state legislature and enacted as state statute (Â“How an IdeaÂ”, 2003, p. 1). C. Statutes are interpreted by state agencies such as St ate Departments of Education, which promulgate detailed guidelines for school districts in the state to follow when implementing laws. These are adopt ed by the State Board of Education as State Board Rules. Members of the Stat e Boards of Education may differ from state to state and those guidelines are esta blished in state statute (Â“North Carolina General StatutesÂ”, 2003, pp. 5-7). D. Each local school board must enact polic ies that will implemen t the statutes in their state. That process is outlined in the Administrati ve Procedures Act, Chapter 5 (Â“Administrative Procedures ActÂ”, 2003, p. 2). E. The staff in various departments within a school district of ten develop detailed procedures for use in individual schools and classrooms. These procedures are not usually adopted as school board polic y and may be amended as needed, more quickly than a board policy since th at process does not fall under the Administrative Procedures Act.
21 The Language of 1997 IDEA Â“Team shall Â– (i) in the case of a child w hose behavior impedes his or her learning or that of others, consider, when appropriate, st rategies including positive behavior interventions, strategies, and supports to address that behavior;Â” (IDEA, 1997, p. 53). Â“Maintenance of Current Educational Placemen t. Except as provided in subsection (K) (7), during the pendency of any proceedings co nducted to this section unless the State or local educational agency and the parents othe rwise agree, the child shall remain in the then-current educational placemen t of such childÂ” (IDEA, 1997, p. 61). Â“(K) Placement in Alternative Educational Setting (AES)Â…(1) Authority of school personnelÂ… Â…(i) to an appropriate interim alternative educational setting, or suspension, for not more than 10 sc hool days (to the extent such alternatives would be applied to children without disabilities); and Â…(ii) to an appropriate interim altern ative educational setting for the same amount of time that a child without a disability would be subject to discipline, but for not more than 45 days ifÂ…
22 (I) the child carries a weapon to school or to a school functionÂ…orÂ… (II) the child knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school functionÂ” (IDEA, 1997, p. 61). Â“(B) Either before or not late r than 10 days after taking a disciplinary action described in subparagraph (A)Â… Â…(i) if the LEA did not conduct a f unctional behavioral assessment and implement a behavioral intervention plan fo r such child before the behavior that resulted in the suspensionÂ…the agency shall convene an IEP meeting to develop an assessment plan to ad dress that behavior; orÂ… Â…(ii) if the child already has a behavioral intervention plan, the IEP Team shall review the plan and modify it, as n ecessary, to address the behaviorÂ” (IDEA, 1997, pp. 61-62). Â“(2) Authority of hearing officerÂ…A hearing officer may order a change in the placement of a child with a disability to a more appropr iate interim AES for not more than 45 days if the hearing officerÂ…
23 (A) determines that the public agency ha s demonstrated by substantial evidence that maintaining the current placementÂ…is substantially likely to result in injury to the child or to othersÂ… (B) considers the appropriateness of the childÂ’s current placement; (C) considers whether the LEA has made reasonable efforts to minimize the risk of harm in theÂ…current placement, incl uding the use of supplementary aids and services; and (D) determines that the interim Alternativ e SettingÂ…enables the child to continue to participate in the general curriculumÂ…a nd to continue to receive those services and modificationsÂ…that will enable the child to meet the goals set out inÂ…IEPÂ…and include services and modi fications designed to address the behaviorÂ…so that it does not recurÂ” (IDEA, 1997, p. 62). Â“Manifestation determination review (A) If a disciplinary action is contemplatedÂ…for a behavior of a child with a disabilityÂ…or if a disciplinary action i nvolving a change of placement for more than 10 days is contemplatedÂ… (i) not later than the date on which the decision to take that action is made, the parents shall be notified of th at decision and of all procedural safeguards accorded under this section; and
24 Â…(ii) immediately, if po ssible, but in no case later than 10 school days after the date on which the decisionÂ…i s made, a review shall be conducted by the IEP Team and other qualified personnelÂ… (c)Â…the IEP Team may determine that the behaviorÂ…was not a manifestation of the childÂ’s disabili ty only if the IEP TeamÂ…in terms of the behavior subject to disciplinar y action all relevant information, includingÂ… (I) evaluation and diagnostic resultsÂ… (II) the childÂ’s IEP and placement; and (ii) then determines that Â…(I) in relationship to the behaviorÂ…the childÂ’s IEP and placement were appropriate and the special services, supplementary aids and servic es, and behavior intervention strategies were provided consis tent with the childÂ’s IEP and placement (II) the childÂ’s disability did not impair the ability of the child to understand the impact and consequences of the behaviorÂ… (III) the childÂ’s disability di d not impair the abilityÂ…to control the behaviorÂ” (IDEA, 1997, pp. 62-63).
25 Â“(5) Determination that behavior was not manifestation of the disability (A)Â…the relevant disciplinary proced ures applicable to children without disabilities may be appliedÂ…in the same ma nner in which they would be applied to children without disabilities exceptÂ…Â” (ID EA, 1997, pp. 64-65) Â“Â…if the placement does not provide theÂ…free appropriate public ed ucationÂ…available to all children with disabilitiesÂ…between the ages of 3 and 21, incl usive, including children with disabilities who have been suspended or expelled from schoolÂ” (IDEA, 1997, p. 26). Â“(8) Protections for children not yet eligible for special educ ation and related services. (A) in general Â– A child who has not yet been determined to be eligible for special educationÂ…and who has engaged in behavior that violated any rule or code of conduct of the LEAÂ…may assert any of th e protections providedÂ…if the LEA had knowledgeÂ…that the child was a child with a disability before the behavior that precipitated the disciplinary ac tion occurredÂ” (IDEA, 1997, p. 65). Â“300.755 Disproportionality (a) General. Each State th at receives assistance under Pa rt B of the Act, and the Secretary of the Interior, shall provide fo r the collection and examination of data to determine if significant disproportiona lity based on race is occurring in the State or in the schools operated by the Secret ary of the Interior with respect to Â–
26 (1) The identification of children with disabilities, including the identification of children with disabil ities in accordance with a particular impairment described in section 602(3) of the Act; and (2) The placement in particular ed ucational settings of these children. (b) Review and revision of policies, pract ices, and procedures. In the case of a determination of significant disproportionality with respect to the identification of children as children with disabilities, or the placement in particular educational settings of these children, in accordance with paragraph (a) of this section, the State or the Secretary of the Interior shall provide for the review and, if appropriate, revision of the policies, pr ocedures, and practices used in the identification or placement to ensure that the policies, procedures, and practices comply with the requirements of Part B of the Act (Authority: 20 U.S.C. 1418(c))Â” (Palolina, 2002, p1). History of Educating Children w ith Disabilities in America Responsibility for public education in Amer ica is, for the most part, relegated to individual states and school di stricts. Thomas Jefferson was the earliest American leader to broach the concept of public education. Â“He believed that education should be under the control of government, free from religi ous biases and available to all people irrespective of their status in society. Others who vouched for public education around the same time were Benjamin Rush, Noah Webster, Robert Coram and George WashingtonÂ” (Thattai, 2001, p. 1).
27 In early America schooling was dealt with according to the standards and resources of communities and families. During the 1600Â’s religious instruction was prevalent in the colonies of Connecticut, Massachusetts and New Hampshire since local communities in those areas cons isted mainly of Puritans and Congregationalists. As people of other cultures, languages and fa iths began to become part of these communities, there was a lack of common goals and private instruction emerged. By 1791 seven of the fourteen states with constitutions of their own addressed education in those documents. At that point and until the mid 1800Â’s educational efforts were largely to serve the w ealthy. Even those efforts, however, were not consistent throughout the states. Horace Mann promoted educational reform when he published the Â“Common School JournalÂ” which finally put a discussion of educational i ssues into the hands of the reading public. By the end of the 19th century elementary education was ostensibly accessible to all American children, notwithst anding discrimination on the basis of race and gender. Massachusetts and New York led the country in the passage of compulsory elementary education laws and by 1918 all states had followed their lead. A 1925 Supreme Court case (Pierce v. Society of Sister s) established that ch ildren could attend private schools to comply with th e legal requirement for attendance. High school attendance was slower to beco me part of the countryÂ’s culture. Boston Public Latin School was the first high school in 1635 followed by the American Academy, established by Benjamin Franklin in 1751. Student popul ation in American elementary and secondary schools would more than double, from ten million to over twenty million during the forty years between 1880 and 1920 bringing greater diversity
28 into the schools. The numb er of American adolescents graduating from high school increased from 6% to 85% from 1900 to 1996 and school attendance is currently compulsory to at least age 16 in most states (Thattai, 2001, pp. 4-10). Schools mirror to some extent and ar e strongly impacted by the social and political events occurring in the communit y. To this end, educators have stressed progressive education (1920Â’s and 30Â’s), incr eased intellectual disc ipline (1950Â’s) and curriculum development (1960Â’s). Inte restingly though, since the mid 1950Â’s, discrimination issues have replaced knowledge and methodology as the prime educational focus in Amer ica (Longmore, 2001, pp. 189-190). Brown v. Board of Education of Topeka (1954) was the Supreme Court case that led to a ruling that the segregati on of schools by race was unconstitutional. All persons born or naturalized in th e United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of lif e, liberty, or property, without due process of law; nor deny to any pers on within its jurisdiction the equal protection of the laws. -FOURTEENTH AMENDMENT TO THE UNITED STAT ES CONSTITUTION, RATIFIED IN 1868 We conclude that, in the field of public education, the doctrine of Â“separate but equalÂ” has no place. Se parate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others
29 similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. -CHIEF JUSTICE EARL WARREN, BROWN V. BOARD OF EDUCATION, 1954 In January of 2004 U.S. Secretary of Education Paige spoke to The American Enterprise Institute about the 50th Anniversary of Brown v. Bo ard or Education and its impact on American education. Secretary Paige (2004, p. 3) spoke of schools as Â“the front lines of the battle for civ il rights.Â” Secretary Paige stated, Two score and ten years have pa ssed since Brown and it may take generations to finally ac hieve equality of opportun ity. But we must make our schools equitable in order to make our society and culture equitable. Because our schools are the leading indi cators of our social problems, our public schools not only serve the public they, in many ways, create the publicÂ” (Paige, 2004, p. 8). In 1972 educational institu tions receiving financial aid were forbidden to discriminate on the basis of gender by Title IX and thus, another subgroup within our population was protected. The reauthoriza tion of IDEA in 1997 expanded protection establishing broad procedural safeguards to be followe d by public school educators (Thaittai, 2001, pp. 20-22). Currently, the federal Â“No Child Left BehindÂ” plan establishes clear, but daunting, educational targets for all pub lic school students to be reached by 2014.
30 Education of the Student with Disabilities Addressing the issue of students with disa bilities, Barry Franklin states that, Â“During the years from the mi d-eighteenth century through the end of the nineteenth centur y, the way in which Western intellectuals, including Ameri cans, understood deviance would undergo a fundamental transfor mation. What was thought at the beginning of this period to represent explicit and willful recalcitrance on the part of i ndividuals requiring coercive punishment, came to be viewed as implicit and unintentional behavior requiring therapy of one sort or another. What was once characterized as criminal, came to be seen as illness. This shift, which we can describe as the medicalization of deviance, would have an impact on a wide array of problems related to social control. One such problem was the management of childrenÂ…Because of this transformation in our thinking about deviance, schools would begin by the turn of the twentieth century to accept responsibil ity for children with learning difficulties and other types of low achievementÂ…In attempting to deal with growing numbers of children, including children with learning difficulties, early twentieth-century school managers were immediately faced with the task of reconciling their changed circumstances to an existing educational system
31 that was ostensibly committed to the ideal of common schoolingÂ” (Franklin, 1994, pp. xii-xiii). Children who were blind, deaf or physically disabled were the fi rst to have special schools and classes although in 1896 there was a class developed in Providence, Rhode Island for those termed Â‘backwardÂ’ children. Special classes not only served the unique needs of the targeted students but als o, according to 1916 Atlanta Superintendent Landrum, Â“helped the regular classroom by a llowing the teacher to do more effective work with the normal childrenÂ” (Frank lin, 1994, p. 7). In 1907 MilwaukeeÂ’s Superintendent Pearse reported to colleague s at the forty-fifth annual meeting of the National Education Association that the sp ecial classes and school s would, Â“save these children from themselvesÂ” and Â“save the state from the harm that they might bring to the schoolsÂ” (Â“Schools for DefectivesÂ”, 1907, p. 116). Franklin sets forth the premise that the medicalization of deviance or mental hygiene movement caused the opening of public schools to medical professionals and eventually, led to the establishment of guidance counseling, social work and school psychology as standard school functions. Wherea s behavior deviant from the mainstream once led to punishment and excl usion it was now being seen as an educational problem to be accommodated (if not corrected) within the public school setting. Who should be assigned to emerging special schools and classes was already an issue in 1906 when DetroitÂ’s Superintendent of Schools addressed the local School Board as follows: Â“A more definite line of dema rcation must be drawn between those low grade imbeciles known as backward, and those of
32 higher mentality, also known as backward, who are eliminated from the regular grade. The low grade cases and those bordering on low grade must be separated from those children of possibly less than normal me ntality who are also known as backward, because they are unable to advance in one or more of the regular subjects. If this is not done, the parents of the latter class will finally refuse to send their children to these rooms and who can say they will not be justifiedÂ” (Detroit Board of Education, 1907, p. 75)? From a time when there appeared to be primarily levels of backwardness, educators, with the assistance of the medi cal profession began to expand the categories within which children were grouped. Th e 1957 Minnesota legislature broadened its exceptional education statute mandating that public schools serve students who were educably mentally retarded, blind, deaf, sp eech impaired and orthopedically handicapped. Their definition of educably mentally retarded included students with below 80 I.Q.Â’s as well as those who were emotionally distur bed and children who presented particular conduct problems or needed special educati on for another, unspecified reason (Franklin, 1994, p. 146). In 1975, Public Law 94-142 promised all children with disabilities a free, appropriate public education. Much of the di alogue surrounding that enactment centered on the education of children w ith disabilities in the leas t restrictive environment. Franklin states, however, that, Â“Although this pr ovision did appear to greatly restrict the ability of school managers to remove handi capped children from regular classrooms, it
33 did not abolish segregated placementsÂ…Public schools under this provision were to place disabled children in environments that pr ovided them with an appropriate education while maximizing their contact with thei r non handicapped peers. For many children with disabilities, the least re strictive environment was the re gular classroom. For others, however, it was a separate classroom or school or even a residen tial settingÂ” (Franklin, 1994, p. 147). Franklin further reports, Â“In 1976, the year before P.L. 94-142 was implemented, about sixty-seven percent of all handicapped children and about eighty percent of learning disabled children spent some timeÂ…in regular classrooms. Six years later, in 1982, the percentages were virtually unchangedÂ” (Franklin, 1994, p. 147). It would seem that PL 94-142 was having l ittle impact on the deci sions being made by educators regarding student placemen t of students with disabilities.
34 Identification of Stude nts with Disabilities Overlaid on the least restrictive enviro nment issue is an ongoing controversy about which children are identified for special education classes. Gottlieb and Weinberg (1999) conducted a study of differences be tween students not referred to exceptional education classes and those who were. They found, in part, the following: 1. Referred studentsÂ’ families were more transient than those of nonreferred students. 2. Most of the referred students in the study were referred because of misbehavior and poor academic progress, particularly a lack of willingness to learn. 3. Referred students were late for school strikingly more often than were nonreferred students. 4. A small percentage of the teachers in the study referred the majority of the students. The authors believe that the results of this study imply a need for comprehensive training of teachers in a variet y of prereferral interventions that might reduce the need for referrals for special educati on particularly in regard to behavior management and increasing the variety of instructional strategies teachers have at their disposal and that this training should be especially targeted to teachers who make multiple referrals (Gottlieb and Weinberg, 1999, pp. 187-199).
35 Discipline of Students with Di sabilities in Public Schools As federal law has broadened the rights of the child with disabilities and his family, it has narrowed the discretion of the e ducational manager or school administrator. A 2000 Florida Department of Education Technical Assistance Paper states, Â“Maintaining discipline in todayÂ’ s schools is a challenge for the school personnel. They must attempt to achieve a balance between a studentÂ’s educational needs and the accountability and consequences essential to ensure a safe and productive learning environment. This ba lance becomes more difficult to achieve when the student in quest ion has disabilities, since the right of a student with disabili ties to a free appropriate public education (FAPE) may conflic t with the suspensions and expulsions typically used to discipline students for inappropriate behaviors. Under certain circumstances, suspensions or expulsion may be considered a change in placement for the student that may be made only as part of the individual educational plan (IE P) process. Whether certain disciplinary actions (e.g., suspen sion) constitute a change in placement under IDEA Â’97 depends on the length of the proposed removal and whether or not the behavior being considered for discipline is a manifestation of the studentÂ’s disability. Determination of ma nifestation must be made on an individual basis and not on the ba sis of a broad classification or
36 the general characteristics of a disabilityÂ” (Â“Manifestation of the DisabilityÂ”, 2001, p.1). A question and answer section from the same Technical Assistance Paper answers for the administrators such questions as Â“For purposes of determining whether a suspension (or pattern of suspensions) exceeds 10 school days, what is a dayÂ” (Â“Manifestation of the DisabilityÂ”, 2001, p. 4) ? and defines in deta il the Manifestation Determination Process as follows: Â“Definition of Manifesta tion of the Disability: A misbehavior is considered a manifestation of the studentÂ’s disability if there exists a causal relationship between the disability and that behavior. A manifestation determination must be made any time school officials are considering a disciplinary change of placement for a student with a disability, such as suspension. The manifestation determination must be made on a case-by-case (individual incident) basis, in light of the circumstances and particular facts and not on the basis of the disability category or labe l (e.g., learning disabilities, emotionally handicapped). In de fining a relationship between misbehavior and the disabilit y, the issue of whether the misconduct was the result of the studentÂ’s educational placement and services must also be addressed. If the inappropriate behavior is determined to be a manifestation of the disability, additional assessments, interventions,
37 alternative programming, and othe r supports and resources must be considered by the IEP team. Likewise, if the inappropriate behavior is determined to be a result of any deficiencies in the studentÂ’s IEP or current educational placement or in their implementation, the school district must remedy the deficiencies immediatelyÂ” (Â“Ma nifestation of the DisabilityÂ”, 2001, p. 3). University of Memphis Professor Na than Essex (1999, pp. 40-42), outlined the following guidelines for meeting the educational needs of student with disabilities while protecting their rights: Â“DonÂ’t discipline a student for behavi or clearly linked to the studentÂ’s disability. Understand that the school district bears the burd en of proving whether the misbehavior is (or isnÂ’t) a manifest ation of the studentÂ’s disability. Know and carefully adhere to all procedural protections. Keep in place a broad range of place ment options for disabled students. Maintain a close and positive relationship with parents so they can be involved in every decision made re garding their disabled child.Â” According to Technical Assistance pa per FY 2001-7D drafted by the Florida Department of Education: Â“Four basic themes should guide action related to discipline: All students, including students w ith disabilities, deserve safe, well-disciplined schools and or derly learning environments.
38 Teachers and school administrato rs must have the tools and supports they need to assist them in preventing misconduct and discipline problems and to address these problems if they arise. There must be a balanced approach to the discipline of students with disabilities that reflects the need for orderly and safe schools and the need to protect the right of students with disabilities to FAPE. Appropriately developed IEPÂ’s with well-developed behavior intervention strategies decrease school discipline problemsÂ” (Â“Manifestation of the DisabilityÂ”, 2001, p. 2). With regard to discipline for student s with disabilities, IDEA Â’97 does the following: Â“delineates the requirements for dealing with a student with disabilities who is subject to di sciplinary action and clarifies for school personnel, parents, st udents, and others how school disciplinary rules and the oblig ation to provide FAPE fit together by providing specificity ab out important issues such as whether educational services can cease for a student with disabilities, how manifestation determinations are made, what happens to a student with disabilities when the parent appeals the decision, and how to treat a student not yet identified as having a disability.
39 includes the regular education teacher of a student with a disability in the studentÂ’s IEP m eetings to help ensure that the student receives appropriate accommodations and supports within the regular education cl assroom and gives the regular education teacher an opport unity to better understand the studentÂ’s needs and what will be necessary to meet those needs, thus decreasing the like lihood of disciplinary problems. allows school personnel to move a student with disabilities to an interim alternative educational setting for up to 45 days, if that student brings a weapon to school or a school function, or knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substan ce while at school or a school function. provides an alternative to seek ing a court injunction by asking an administrative law judge to m ove a student with disabilities to an interim alternative educati onal setting for up to 45 days if that student is substantially likely to injure himsel f or herself or others in the current placeme ntÂ” (Â“Manifestation of the DisabilityÂ”, 2001, pp. 2-3). Wright is a school psychologist, behavior analyst and trainer for California. During a 2002 conference Wright explained th e shift in understanding about behavior made necessary by the 1997 IDEA reauthorization as follows:
40 A. Past Practices: Student s may need Behavior Management Current Practice: Students may need Behavior Support WhatÂ’s the differe nce? Behavior Management focuses on consequences, positive or negative. Behavior Support Â“implies addressing environment, teaching strategies, teaching new behaviors and using positive reinforcement strategiesÂ” (Wright, 2002, p. 20). B. Past Practices: Behavior Mana gement Plans Â– again, focused on consequences (Positive for acceptable conduct and negative for the opposite) Current Thinking: Behavior Support Pl ans Â– strategies designed to help those involved understand the need s met by the offending behavior and how to meet those needs in a more acceptable way. WhatÂ’s the difference? The manageme nt plans aim at short-term goals while the support plans may pe rmanently improve behavior. C. Past Practices: There was an attempt to make the consequences so unpleasant that the student would st op the offending behavior or the positive reinforcement so intensely pleasurable that the acceptable behavior would be se lected consistently. Current thinking: Look for the Â“tri ggerÂ” or antecedent to the offending behavior and change the environm ent to eliminate that factor. WhatÂ’s the difference? Again, altering the environment should lead to longer lasting change.
41 D. Past practice: was based on the philo sophy that negative behavior had to be controlled or eliminated. Current thinking: Students need to be taught positive behavior in an environment in which such behavior is modeled. Again the difference should be lead to a more lasting change (Wright, 2002, pp. 20-23). Minority Overrepresentation Â“American society has experienced tremendous change in its racial profile, more than ever before, students in todayÂ’s schools come from a variety of raci al, ethnic, experiental and linguistic backgrounds. Projections of the United State population into the 21st century indicate thatÂ…by the ye ar 2020 the majority of sc hool-aged children in the United States will be from ethnic minority groups, either African American, Hispanic, Asian American/Pacific Islander or Am erican IndianÂ” (Daugherty, 1999, p. 1). Â“Concern about disproportionate represen tation of ethnic and culturally diverse students in special education was first rais ed by civil rights ad vocates, educators, administrators and policy ma kers who found it perplexing and disturbing that children from ethnic minority backgrounds and those with limited English proficiency were overrepresented in classes for the mentally retarded (Harry, 1994). This phenomenon was first addressed by the educational research community in 1968 by Dunn, who documented disproportionate numbers of Afri can American, American Indian, Mexican, and Puerto Rican students in classes for the m ildly mentally retarded in California (Harry, 1994). Disproportionate placement was attributed to discriminatory assessment practices
42 such as use of the IQ score as the sole criterion for diagnos ing mental retardation. Legal battles in the 60Â’s and 70Â’s erupted, including a myriad of class acti on suits in California such as Johnson v. the San Francisco Unifie d School District and the widely publicized Larry P. v. Riles in 1971. The former case ch arged that special education was a cover for segregation, while the latter wa s the first in a series of cas es alleging cultural bias in assessment. The class action suit of Diana v. the California State Board of Education in 1970 charged linguistic bias in assessment, resulting in re quirements that students be tested in their primary language or with sections of test s that do not depend on knowledge of English. The landmark court cases of the 70Â’ s found many of the public schoolsÂ’ assessment practices wanting, giving impetus to the mandate for nondiscriminatory assessment procedures in the civil rights legi slation of Section 504 of the Rehabilitation Act of 1973. These cases were extremely infl uential in shaping Part B requirements for nondiscriminatory testing and cl assification, and the procedural or due process safeguards against misclassification in the passage of the Educati on for All Children Handicapped Act of 1975 (P.L. 94-142). At the same time, gaining wide acceptanc e and incorporated under IDEA-Part B was the definitio n of mental retardation as concurrent deficits in general intellectual functioning, adaptive be havior and school performanceÂ”(Reschly, Kicklighter & McKee 1988) ci ted by Daugherty (1999, pp. 1-2). It is evident that Â“The disproportionate representati on of minority students in special education has been an important and pe rsistent topic almost since the inception of special education. In an attempt to assess and remediate the problemÂ…IDEA 97 mandated new state reporting requirements concerning minority enrollment in special
43 education and the suspension and expulsion of students with disabilities. These new requirements make the issue of overrepresentat ion and school discipline a very practical issue for state departments of education. Ho w should disproportionality be measured? What constitutes disproportionality?Â” (Ski ba, Chung, Wu, et al., 2000, p. v). At the time IDEA 1997 Â“was passed. Congress found that mi norities are 2.3 times more likely to be so labeled when compared to whites nati onallyÂ” (Losen, 2000, p. 263). With regard to school discipline, Dr. Brenda Townsend defines disproportionality as follows: Â“African American students would be expected to be suspended or expelled disproportionately if the frequency with which they receive puniti ve consequences is greater than their percentage in the population by 10% or mo re. For instance if African Americans compose 20% of the school age population, a pproximately 18% 22% of the suspensions might be expected to be imposed on Afri can American student s. When African American students are suspended more than 22 % of the time, they are disproportionately suspendedÂ” (Townsend, 2000, p. 394-385). The same definition may be applied to assignments to special education programs. A study by the National Association of St ate Directors of Special Education (NASDSE) outlined Â“state crite ria for determining disproporti onality. According to this report, 29 states have specific criteria, but the techniques vary among themÂ” (Paolino, 2002, p. 2). Two of the states addressed in th e NASDSE study and included in PaolinoÂ’s article were: Â“Florida: FloridaÂ’s administrative code (6A-19 Education Equity defines educational equity in this way: Â‘All guidance, counseling, financial assistance, academic, career and vo cational programs, services and
44 activities offered by each institution shall be offe red without regard to race, sex, national origin, marital stat us or handicap. There shall be no discrimination in recreational, athlet ic, co-curricular or extracurricular activities.Â’ The code specifically addr esses policies concerni ng guidance counseling. It prohibits counselors to steer st udents into or away from specific programs, activities or careers based on race, sex, national origin, marital status or handicap. Counselors ar e required to communi cate effectively with hearing impaired and limited English language students using an interpreter, if necessary. Guidan ce and counseling materials must be reviewed and updated to meet the requirements outlined above. If appraisal instruments are employe d, they also must be reviewed, updated or replaced if necessary so no discrimination results from administering. All students must be appraised using the same testing instruments unless application of diff erent instruments is shown to be essential in eliminating existing biases. The code addresses institutional ac tivities of school officials, administrative staff and students. All activities must be inclusive and not discriminate on the basis of race, sex, national origin, marital status or
45 handicap. Student recruitment activities are expected to follow these requirementsÂ… North Carolina: North CarolinaÂ’s Administrative C ode (Title 16, r. 6D.0106) prohibits local education agen cies from assigning or excluding students from special education progra ms or gifted and talented programs based on a studentÂ’s limited English proficiency. Their administrative code also allows for teacher traini ng to Â‘gain an unde rstanding of and develop strategies for addressing the educational needs of limited English proficient studentsÂ’Â” (Paolini, 2002, p. 3). Â“The (Florida) State Department of Education has targeted 14 school districtsÂ…that have too many mi nority students in mentally disabled classes, said DOE spokesman Adam ShoresÂ” (Weber, 2002, pp. 1-4) Pinellas is one of the 14 school districts on the list (Weber, 2002, p. 3). Â“School officials say better tests are now used to identify students who need to be in special classesÂ…they agree that poverty is the biggest factor in childrenÂ’s lagging pe rformance and a much larger percentage of minorities are poorÂ” (Weber, 2002, p. 3). The Charlotte Mecklenburg Sc hool District Â“has identifi ed the disproportionate representation of minority students in special education classes as a targeted area for change. The district is seek ing interventions for the dispr oportionality problem that is primarily emanating from referrals for be havior issuesÂ” (Â“Elementary and Middle SchoolsÂ”, 2003, p. 1).
46 In a report presented to the Indiana Depa rtment of Education, Division of Special Education during August 2000 researchers from I ndiana University studied data from all of the Indiana public school districts for the 1998-99 school y ear. The report is titled Minority Overrepresentation in IndianaÂ’s Special Education Pr ograms, A Status Report. These researchers concluded that Â“enrollment in special education across the state of Indiana do not indicate significant minority di sproportionality at the level of overall special education enrollment. Yet looking mo re specifically at specific disabilities indicates significant dispropor tionality in several disabi lity categories. African Americans are significantly overrepresented in the categories of Mild Mental Handicap, Emotional Handicap, Moderate Mental Ha ndicap, and Severe and Profound Mental Handicap. Hispanic and American Indian st udents were overrepresen ted in Severe and Profound Mental Handicap. These results mi rror previous research Â…in finding that the most significant disproportionality appears to occur in the areas of emotional handicap and mental handicap, and is most severe for African American studentsÂ…Given the increased importance in IDEA 97 on service in the least restrictive environment, this report also looked at the possibi lity of disproportionality in special education placement. African American, Hispanic, and American Indian students were underrepresented in regular class placement, and African American s were significantly overrepresented in a number of more restrictive se ttings, particularly separate classÂ” (Skiba, Chung, Wu, et al., 2000, p. 12). While fourteen districts in the state appear ed to have overrepresentation in overall special education programs duri ng 1998-1999, Indianapolis Public Schools was not in that group of identified districts with 58.12% of thei r general enrollment represented by African American students and 55.63% of their special education
47 enrollment represented by African American students (Skiba, Chung, We, et al., 2000, p. 20). A common thread running through the literature surrounding the overrepresentation of minorit y students in special education programs is the understanding that many referrals are predicat ed by behavioral concerns (Paolini, 2002, p. 2). While poverty is often recognized as a causal factor in the disproportionate referrals to special education programs and for disciplinary c onsequences others just as significant may be Â“a cultural divide that ex ists between contemporary African American students and their teachersÂ…, cultural c onflictsÂ…exist between African American studentsÂ’ culture and schoolsÂ’ mainst ream cultureÂ…, andÂ…verbal and nonverbal language differences may create additiona l opportunities for cultural conflicts and misinterpretationÂ” (T ownsend, 2000, pp. 383-384). Â“Remedies to correct the disproporti onate numbers of minorities in special education are likely to be varied and dynamic. Remedies that work for one state may not work for anotherÂ” (Paolino, 2002, p. 3). So me common components however, might be: 1. Â“ Increased and Improved Monitoring: Require specific and proven collection and analysis t echniques for districts to employ. Districts will need training in how to collect a nd analyze these data so the numbers reported accurately represent each districtÂ’s circumstances. 2. Teacher Training: As part of state licensing requirements, prepare teachers for a culturally diverse popul ation of student, including ongoing professional development courses.
48 3. Early Identification: Monitor whether or not early screenings and interventions are taking place. Early intervention strategies provide an opportunity for general educators to re duce special education referrals and to help children succeed in the classroom. 4. Improved instructional Materials: Require the use of instructional materials proven to be effective with students who are learning disabled. Administering materials based on research have been proven to help learning-disabled students a ssess the general curriculum. 5. Implement Â“Rule ReplacementÂ” Programs: Programs centered around quality indicators associated with successful interventions allow school districts to implement special educ ation systems that do not require labeling a child learning disabled. More time could be spent on successful intervention instead of th e eligibility process. This list is not exhaustive, but highlights some common polic y themes in the research literature. To remedy disproportion requires more than mere identification. Finding and using sound research-based strategies will help every child reach full potentialÂ” (Paolini, 2002, pp. 3-4). Relevant Case Law Free and Appropriate Public Education (FAPE) Board of Education of the Hendric k Hudson Cent. Sch. Dist. v. Rowley 458 U.S. 176 (1982)
49 Amy R. was a student in kindergarten who was deaf but was a skilled lip reader. She attended kindergarten in a regular classroom in a welcoming school, whose administrators learned sign language in prepar ation for her arrival. She was provided an FM hearing aid. Amy was successful in kindergarten and was promoted. AmyÂ’s first grade IEP again placed her in a regular classroom, continued her use of the FM hearing aid, provided a tutor for th e deaf one hour per day and also three hours of speech per week. While the parents agreed with these plans, they also wanted a sign language interpreter in all of AmyÂ’s classes. The district court decided that, altho ugh Amy was doing well, she still was not Â“learning as much as she would if she we re not disabledÂ” (Weatherly, 2002, p. 3) and therefore was not receiving FAPE without th e full time sign language interpreter. The Second Circuit Court of App eals affirmed the decision. The Supreme Court, however, took a differe nt position. The justices interpreted CongressÂ’ intent in writing IDEA mandates to be focused on opening the door of public education to students with disabilities. Â“Congress did not impose upon the States any greater substantive educational standard th an would be necessary to make such access meaningfulÂ”(Weatherly, 2002, p. 4). The decisi on stated that as long as the State provided individualized instruction and enough support for the child to benefit academically in that environment, FAPE was satisfied. One important factor in determining academic benefit was passing grades and promotion to the next level in the case of a student with a disabi lity in the regular classroom. The court suggested that, when attempting to determine what level of accommodation was sufficient, a two-pronged approach should be used. First, has the
50 State complied with IDEA manda tes? Secondly, is the IEP structured so the student will Â“receive educational benefits ?Â” (Weatherly, 2002, p. 5) According to Dowling-Seadon, an attorn ey in North Carolina, Â“the word Â‘appropriateÂ’ in the phrase Â‘to the maximum extent appropriat eÂ’ reflects CongressÂ’ strong preference for mainstreaming, but its intent is to defer to public school officials in applying that preference to individua l childrenÂ” (Dowling-Seadon, 1998, p. 14). Hartmann v. Lawdoun County Board of Education Dowling-Seadon discusses this case invol ving the placement of an eleven-yearold student with autism. After being main streamed for a period of time and failing to make academic progress, the IEP team change d his placement to a more restrictive and better supported site. The parents sued claimi ng a violation of the IEP because their child was not being mainstreamed Â“to the maximu m appropriate levelÂ” (Weatherly, 2002, p. 7). The federal district court set aside the ev aluations and judgments of the educators and ruled in favor of the parents. Th at ruling, however, was reversed by the 4th Circuit Court. Their decision included the remarks th at the federal judge had stepped into the role of an educator and that was not the intent of IDEA. Manifestation Determination In a 2001 Phi Delta Kappan article, Zirkel (pp. 478-479) outlines a Wisconsin case wherein a high school student who had b een identified as having specific learning disabilities committed extensive vandalism at his school. The school district moved to expel the student and the behavior was found NO T to be a manifestation of his identified disability. The parent filed for a due pro cess hearing and sought outside testing. The
51 community psychologist diagnosed Attention De ficit Disorder and depression and stated that the vandalism was a manifestation of those disabilities. The Hearing Officer ruled in favor of th e parent and the district appealed to federal court but was defeated again. Part of the judgeÂ’s explanation was that the 1997 IDEA reauthorization allows for consideration of not yet identified di sabilities (Zirkel, 2001, pp. 478-479). Poteet Independent School District (Texas) 29 IDELR 423 (SEA TX, 1998) Â“Petitioner asserted that th e behavior intervention plan developed for Rudy in January 1998 was not fully implemented. The BIP contains the requirement: Â‘Find support person for Rudy to talk to when he is oppos itional.Â’ None of the school administrators and teachers at th e hearing knew the identity of the support person, except that Ma ry Killian, the educational diagnostician, assumed it was the high school counselor. A specific support person should be named and that personÂ’s identity should be made clear to all teachers and administrators involved with Rudy. However, it was not shown that this omission affected RudyÂ’s trua ncy or his possession of marijuana. Also, in spite of the omission, his non-compliant behavior in class actually im proved during the spring semester of 1998Â… Rudy can be disciplined for posse ssion of marijuan a in the same manner as a non-disabled student because his behavior was not
52 a manifestation of his disabilit y, but he must receive FAPE in the alternative placementÂ… Poteet Independent Scho ol District did not violate the stay-put provision by failing to return Rudy to his regular placement until after the expiration of 45 days of placement at the alternative campus, even though th e parent had filed a request for due processÂ” (Ruesch, 2002, p. 6). Stay-Put Honig, California Superintendent of P ublic Instruction v. Department of Education ET AL. Certiorari to the United States Court of Appeals for the Ninth Circuit, 484 U.S., 305 (1998) Two students with emotional handicaps (D oe and Smith) were suspended for an indefinite length of time pending their expulsi on subsequent to disr uptive and violent acts that were related to their di sability. Doe filed suit agains t school district staff and the State Superintendent and was joined by Smith. They allege d that the planned expulsion and the extended suspension we re a violation of the Edu cation of the Handicapped Act (EHA). The federal district court entere d summary judgment for the respondents and issued a permanent injunction. The Court of Appeals affirmed with modifications and the district appealed to the United States Supreme Court. Justice Brennan delivered the opinion of the Court, which held that: 1. Doe was removed from the case sin ce, by 1998, he was 24-years-old and the EHA applies to individuals between the ages of 3 and 21. Smith, at
53 20, had not completed high school (alt hough he was not attending). Â“This court has jurisdiction since there is a reasonable likelihood that Smith (484 U.S. 305,306) will again suffer the de privation of EHA Â– mandated rights that gave rise to the suit. Given th e evidence that he is unable to conform his conduct to socially acceptabl e norms, and the absence of any suggestion that he has overcome his behavioral problems, it is reasonable to expect that he will again engage in aggressive and di sruptive classroom misconduct. Moreover, it is unreason able to suppose that any future educational placement will so perfect ly suit his emotional and academic needs that further disruptions on his part are improbable. If Smith does repeat the objectionable conduct, it is likely that he will again be subjected to the same type of unilateral sc hool action in any California school districtÂ…in light of the lack of a statewide policy gove rning local school response to disability related misconduc t, and petitionerÂ’s insistence that all local school districts retain resi dual authority to exclude disabled children for dangerous conduct. In li ght of the ponderousness of review procedures under the Act, and the fact that an aggrieved student will often be finished with schoolÂ…by the time revi ew can be had in this Court, the conductÂ…by the petitioners isÂ…capable of repetition, yet evading review. Thus his EHA claims are not mootÂ” (Â“Honig v. DoeÂ”, 1988, p.1). 2. Â“The Â‘stay-putÂ’ provision prohibits state or local authorities from unilaterally excluding disa bled children from the classroom for dangerous or disruptive conduct growing out of their disabilities during the pendency
54 of review proceedings. Section 1415 (e) (3) is unequivocal in its mandate that Â‘the child shall remain in the then current educational placementÂ’, and demonstrates a congressional intent to strip schools of the unilateral authority they had traditionally empl oyed to exclude disabled students, particularly emotionally disturbed stude nts, from school. This Court will not rewrite the statute to infer a Â‘d angerousnessÂ’ exception on the basis of obviousness or congressional inadvertence, since, in drafting the statute, CongressÂ…Â” made it clear Â“Â…that the omission of an emergency exception for dangerous students was in tentional. However, Congress did not leave school administrators powerless to deal with such students, since implementing regulations allow the use of normal, non placementchanging procedures, including tempor ary suspension for up to 10 school days for students posing an immediate threat to othersÂ’ safety, while the Act allows for interim placements wh ere parents and school officials are able to agree, and authorizes offi cials to file a 1415 (e) (2) suit for Â‘appropriateÂ’ injunctive re lief where such agreement cannot be reached. In such a suit, 1415 (e) (3) effectivel y creates a presumption in favor of the childÂ’s current educational placem ent which school officials can rebut only by showing that maintaining the current placement is substantially likely to result in injury to the student or to othersÂ… 3. Insofar as the Court of AppealsÂ’ judg ment affirmed the District CourtÂ’s order directing the State to provide se rvices directly to a disabled child
55 where the local agency has failed to do so, that judgment is affirmed by an equally divided CourtÂ” (Â“Honig V. DoeÂ”, 1988, pp. 1-2). BrennanÂ’s opinion includes the following statements: Â“When the law (EHA) was passed in 1975, Congress had before it ample evidence that such Legislative assura nces were sorely neededÂ” (Â“Honig v. DoeÂ”, 1988, p.2). Â“Among the most poorly served of di sabled students were emotionally disturbed children: Congressional st atistics revealed that for the school year immediately preceding passage of the Act, the educational needs of 82 percent of all children with em otional disabilities went unmetÂ…Â” (Â“Honig v. DoeÂ”, 1988, p. 2). Â“Â…the EHA confers upon disabled students an enforceable substantive right to public education in participating StatesÂ… Â…The Â‘stay-putÂ’ provision at issue in this case governs the placement of a child while these often lengthy revi ew procedures run their courseÂ… Â…Our conclusion that 1415 (e) (3) mean s what it says and does not leave educators hamstrungÂ…Â” (Â“Honig v. DoeÂ”, 1988, pp. 2-9). Martin (1999) reported to attendees of the 20th National Institute on Legal Issues in Educating Individuals with Disabilities, about injunc tion requests that occurred subsequent to the Honig decision. Included were: Walton Central School Dist. (New York), 28 IDELR 597 (N.D.N.Y. 1998): granted an injunction to the school district for the removal from an
56 education setting of a student with a history of assaulting staff and other students. School Dist. of Philadelphia v. St ephan M., 25 IDELR 506 (E.D. Pa. 1997), The injunction was denied. Phoenixville Area School Dist. (Penns ylvania), 25 IDELR 452 (E.D. Pa 1997): the injunction was denied be cause there was no evidence that previous assaults by the student had caused injuries (Martin, 1999, pp. 137). Alternative Education Setting (AES) If a student with disabilities is moved in to an AES for 45 days the IEP must be fully implemented. IDEA regulations mandate that the AES shall: 1. Â“be selected so as to enable the child to continue to participate in the general curriculumÂ…and to continue to receive those services and modificationsÂ…that will enable the child to meet the goals set out in that IEP and 2. include services and modifications designed to address the behaviorÂ…so that it does not recurÂ” (Martin, 1999, p. 15). Case law related to AES placements include: Board of Education of the Akron Ce ntral School Dist. (New York), 28 IDELR 909 (SEA NY 1998: Home inst ruction was found by a New York administrative law judge to be an inappropriate AES for a student who
57 brought marijuana to school because sp ecial education services that were in the studentÂ’s IEP before the offense were not provided. Freeport Public Schools (Maine), 26 IDELR 1251 (SEA ME 1997): A student who brandished a knife at school was provided 2.5 hours of tutoring each school day at a public li brary. The Maine Administrative Law Judge ruled that the AES was only partially acceptable because all services and accommodations (particul arly those designed to address behavioral issues) were not being implemented. Oconee County School System (Georgia), 27 IDELR 629 (SEA GA 1997): An ADHD student came to school with a shotgun and was provided two hours of service per school day during the 45 day removal. Â“The Administrative Law Judge ruled for the district when the parents failed to object to the AES edu cational program and focused only on attacking the manifestation determination Â– a crucial strategic errorÂ” (Martin, 1999, p. 17). Personnel A teacher in a Texas public school serv ing only students who were severely emotionally disabled (SED) also drove th e school bus. The teac her-driver documented the studentsÂ’ conduct on the bus, which, not su rprisingly, was consistently disruptive and aggressive. The teacher had requested that a m onitor be hired to ride the bus but that step was not taken. At one point he had to ca ll 911 for assistance with the students.
58 When one of the students sprayed the driver with a fire extinguisher during rush hour traffic he managed to maneuver the buslo ad of children to safety but Â“suffered permanent injuries including asthma and r eactive airways disease, rendering him unable to teach or drive a busÂ” (Â“Mc Kinney et al v. IrvingÂ”, 2002). The teacher filed suit against the distri ct claiming they had created a dangerous situation by segregating students with severe emotional disabilitie s into one school and not providing a monitor on the bus and should ha ve foreseen such a situation. McKinney Â“Â…added claims under 42 U.S.C. 1983 based on a Â‘state-created dange r theoryÂ’, as well as state law claims for negligence and damage s under the Texas Tort Claims Act. The court entered judgment for the district, and McKinney appealed. The United States Court of Appeals for the 5th Circuit observed that it had never recognized liability for the actions of priv ate parties like students and declined the teacherÂ’s suggestion to impose liability on the districtÂ” (Â“McKinney et al v. IrvingÂ”, 2002). This decision reflected the courtÂ’s belief that it was not the distri ct that created the danger but the individual stude nts and that the presence of a monitor on the bus would not have guaranteed that the fire ex tinguisher situation could not occur. According to the January, 2003 issue of Legal Notes For Education Â“Districts are rarely liable for injuries caused by private parties, the court said, and the teacher fail ed to show that the district was deliberately indiffere nt to his requests for a monitor to help supervise studentsÂ” (Â“McKi nney et al v. IrvingÂ”, 2002).
59 Recent Research During a 2001 study conducted by the Unite d States General Accounting Office, 465 middle and high school principals were surv eyed about their per ception of the impact of the 1997 IDEA disciplinary provisions on st udent discipline in their school. The report found that the 272 administrators w ho responded said that Â“IDEA plays a limited role in affecting schoolsÂ’ ability to properl y discipline studentsÂ” (Fine, 2001, p. 2). Data collected reflected Â“About tw o-thirds of all students who engage in serious misconductÂ…are given out-of-school suspensions, regardless of whether they are in special education programs or notÂ” (Fine, 2001, p. 1). Administrators reported that the suspensions were of equal length for both groups of students and educational services during the suspension were provided to fewe r than half of the affected students. Â“About 86 percent of the schools respondi ng to the survey operate under their own policies for disciplining special educa tion studentsÂ” and Â“generally rated their schoolsÂ’ special education discipline policiesÂ… as having a positive or neutral effect of school safety and orderlinessÂ” (Fine, 2001, p. 2). However, Â“27 percent of principals said that a separate discipline policy for students in special education is unfair to other students. About 20 percentÂ…believe that di scipline under the IDEA is burdensome and time-consumingÂ” (Fine, 2001, p. 3). Fine reported that, while special education advocates welcomed that results of the study, a representative of the American Association of School Administ rators Â“said the studyÂ’s results were not consistent with what he hears from his groupÂ’s membersÂ” (Fine, 2001, p. 2). The Civil Rights Project at Harvard Univ ersity reported on a study conducted that dealt with over representation of African American students in American special
60 education programs. Researchers conclude d that although the pa ssage of IDEA has helped Â“approximately six million children with disabilities enjoy their right to FAPEÂ…the benefitsÂ…have not been equitably distributedÂ” (Â“Civil Rights ProjectÂ”, 2002, p. 1). The study concludes, Â“Once identifie d, most minority students are significantly more likely to be removed from the general e ducation program and be educated in a more restrictive environmentÂ” (Â“Civil Rights Pr ojectÂ”, 2002, p. 1). Other findings in the study included: Â“Disturbing racial disp arities are found in outco mes and in rates of disciplineÂ… The process of identification and placement is rife with subjectivityÂ… The theory that poverty can expl ain overrepresentation in mental retardation or emotional disturbance is contradicted by national trends revealed by the dataÂ… The research suggests that the ob served racial, ethnic and gender disparities are the result of complex and interacting f actors including: unconscious racial bias on the part of school authorities, large resource inequalitiesÂ…unjustifiabl e reliance on IQ and ot her evaluation tools; educatorsÂ’ inappropriate response to th e pressures of high-stakes testing; and power differentials between minor ity parents and sc hool officialsÂ” (Â“Civil Rights ProjectÂ”, 2002, p. 3). Recommendations by the Ha rvard researchers were: Â“Require data collection and public reporting from every school and districtÂ…
61 Ensure accountability where di sparities are significantÂ… Boost the power of parents to seek remediesÂ… Guarantee that states receive adequate fundingÂ” (Â“Civil Rights ProjectÂ”, 2002, p. 3). Researchers concluded, in part, that Â“There are no quick fixe sÂ” (Â“Civil Rights ProjectÂ”, 2002, p. 4). A Washington D.C. Think Tank met in 2002 to look at the link between research about student disciplinary pr actices in schools and actual pr actice. The October, 2002 meeting Â“was intended to be a step towa rd bridging the gap between research and practice on an issue that teachers and parent s alike see as a top concern. Conference organizers noted, for example, that more than three-quarters of adu lts surveyed for this yearÂ’s Phi Delta Kappa/Gallup Poll on education cited a lack of student discipline as either a Â‘very seriousÂ’ or Â‘somewhat seriousÂ’ problemÂ” (Viadero, 2002, p. 1). Dr. Sheppard Kellam, from the Johns Hopkins UniversityÂ’s Boarding School of Medicine presented to the group his own longitudinal st udy, conducted in the 1980 Â’s. Â“As part of his study programÂ…1st graders in 18 schools were ra ndomly assigned to classrooms and tracked through middle school. The researchers found that boys who were rated among the top 25 percent of the group in aggressiveness fared mu ch worse if they started out in chaotic 1st grade classrooms. By the time they reached 6th grade, those students were 59 times more likely than the average child to exhibit severe aggressive behavior. In comparison, students from the same quartile who started school in calmer, better ma naged classrooms, were only 2.7 times
62 more likely than most children to act up in the 6th gradeÂ…The researchers have since tracked the same stude nts through ages 19 or 21Â…and the effects appear to be hold ing (Viadero, 2002, pp. 2-3). Dr. Killam discussed one effective behavior strategy and agreed that others just as effective were to be found in research projects but stated, Â“half the teachers in his study did not have any effective tools for mana ging classroomsÂ” (Viadero, 2002, p. 3). A superintendent serving in the think-tank concluded, Â“I donÂ’t think thereÂ’s a very good marriage between practice and researchÂ” (Viadero, 2002, p. 3). A May, 2003 report to Congress by the Unite d States General Accounting Office (GAO) entitled, Â‘Special Education: Clear er Guidance Would Enhance Implementation of Federal Disciplinary ProvisionsÂ’ determin ed that Â“In the 200001 school year, more that 91,000 special education students were re moved from their educational settings for disciplinary reasonsÂ” (USGAO, 2003, p. 1). Th e GAO was asked to find out where those students went, how many of them received educ ational services during their removal and how much United States Department of E ducation support and mon itoring of district disciplinary actions occurred. The number of removed students approximated 1.4 percent of all publicly educated special educa tion students in the United States. GAO Â“conducted an in-depth study of the use of disciplinary placements for special education students in the middle and high school grades in three states Â– Illinois, Maryland and North CarolinaÂ” (USGAO, 2003, p. 2) The states were selected because of the variance in their sp ecial education populations. GAO Â“collected data for the school year 2001-02Â…and surveyed a total of 36 di strict special education administrators and 78 school principalsÂ” w ith Â“response rates of 83 pe rcent (30 school districts)
63 forÂ…district special educa tion administratorsÂ’ survey and 63 percent (49 schools) forÂ…survey of school offi cialsÂ” (USGAO, 2003, p. 2). It was found that students removed from school for disciplinary purposes were either sent home on out-of-school suspensions or assigned to in-school suspension rooms. These removals were for fewer than 10 days Longer removals were to alternative schools or homebound education programs (U SGAO, 2003, p. 3). Â“School district officials reported that they generally did not provide any se rvices to assist returning special education students in acclimating to their regular educa tional setting after a disciplinary placementÂ” (USGAO, 2003, pp. 2-3). While the Department of Education did provide information to school district personnel about federal mandates, school offi cials reported that Â“this guidance was not specificÂ” (USGAO, 2003, p. 4). Â“Some state and lo cal education official s also said that the information contained in the regulati ons was difficult to accessÂ” (USGAO, 2003, p. 4). Researchers referenced their findings in 2001 that IDEA was not an impediment to the disciplining of special education students and that they appeared to be assigned the same consequences as students without disabi lities but recognized that study as focusing Â“on serious student misconduc t (drugs, weapons, assault, rape, sexual assault and robbery) and did not focus on less se rious offensesÂ” (USGAO, 2003, p. 6). Researchers determined that Â“Because stat e and local district officials may not have the specific information that they n eed to comply with federal requirements, disciplined special education students may not receive time ly protections and servicesÂ” (USGAO, 2003 pp. 17-18). It was noted that U.S. Department of Education officials agreed that more specific information was not required.
64 Summary A free public education for all children is an American ideal that few of our citizens would argue against. Certainly it is logical that an educated populace is more desirable that an uneducated citizenry. Over time the scope of an American education has expanded and schools are now expected to accommodate and teach all children. Economic realities have let to the estab lishment of larger and larger schools and pre-kindergarten programs ar e common. With increased st udent populations come more opportunity for student-to-stude nt conflict, student/adult c onflict and individual student misconduct. This would be true if the stude nt population was homogenous. When a very diverse student population is al lowed to become huge there is no avoiding the fact that student behavior management will become an issue. The 1997 IDEA reauthorization created even more extensive procedural safeguards for students with di sabilities and put school admini strators in the position of implementing a dual discipline system. Litigat ion linked to disciplinary steps taken with students with disabilities in the public school is common. Areas of dispute include Free and Appropriate Public Education, Altern ative Educational Settings, manifestation determinations, stay put, personnel issu es and minority overrepresentation. As Bowen (2003), school board attorney for Pinellas County Schools, Florida has stated to principals in August, 2003: Â“Your legislators have demonstrated their belief that there is no behavior or pattern of behaviors demonstrated by a student that you, in your public school setting, cannot accommodate or change through the use of a proper Functional Behavior
65 Assessment (FBA) and Behavior Improvement Plan (BIP). If the student continues the behavi or it is because the school did not prepare a proper FBA and BIP. Revise it. If the behavior continues, it is because the school has still not developed a proper FBA and BIP. The student and parents have no responsibility for the studentÂ’s behavior.Â”
66 Chapter Three Methodology Statement of the Problem The focus of this study is to determ ine how the 1997 IDEA reauthorization mandates regarding student discipline have been interpreted and implemented in three similar, urban districts and how that imple mentation is perceived by selected staff members. The selected school districts were Pinellas County Schools, Florida, CharlotteMecklenberg Schools, North Carolina and I ndianapolis Public Schools, Indiana. Purpose of the Study and Research Questions The purpose of this collective case study was to examine perceptions of the implementation in three large, urban, K-12, public school districts of 1997 IDEA mandates related to student discipline as they existed unt il May 2003 by reviewing policies and procedures in thos e districts and collecting info rmation from selected staff members. The research questions addressed were: 1. In the three school districts how were the mandates interpreted and what school board policies were developed to implement them? How were these policies similar or dissimilar? To address this inquiry I reviewed, compared and contrasted the relevant school board policie s from the three school districts to ascert ain whether the federal laws were interpreted in the same manner and whether common wa ys of work were created in the three states. Dr. Allen Mortimer, Di rector of Planning and Policy in the
67 Research and Accountabili ty department of the Pinellas County School District, also reviewed the po licies to validate my findings. 2. In the three selected sc hool districts, what gui delines other than school board policies were put into place to ensure compliance with the laws and policies related to the exclusion from school of students with disabilities for disciplinary reasons? In this instance I collected, reviewed and compared documents prepared by the three district staff members that dealt with directions to those addre ssing school discipline of students with disabilities on a daily basis. Thes e included Codes of Student Conduct or Exceptional Education Department Guid elines for Student Discipline and other district documents that may or may not have been adopted as policy by their school board. 3. In the three school districts what di d the school attorney employed by the school district, a distri ct administrator in th e exceptional education department and three principals in sc hools of different levels and with a median number of students with disab ilities in their schools report to be their perception of the primary issues they encountered in the area of disciplining students with disabilities since the 1997 reauthorization of IDEA and through May 2003? This information was obtained through interviews with the identified indi viduals or in some cases submitted written responses to the interview questions. Interviews in Pinellas County, FL were face to face and interviews in North Carolina and Indiana were conducted by telephone and in two interviews the protocol
68 responses were submitted in writing and no conversation occurred. I asked what issues they dealt with most frequently in this area of their job and whether dealing with this law and the related policies had significantly changed their way of work and if so, how? Prior to the interviews, questions were developed. Dr. Allen Mortimer, Director of Planning and Policy in the Research and Accountab ility department of the Pinellas County School District reviewed thes e questions. Dr. Mortimer must approve any survey conducted in the Pinellas County School District and works with individuals within and ou tside the district as they develop surveys and questionnaires to use in sc hools. After Dr. MortimerÂ’s review the questions were piloted on staff me mbers of the Pinellas County School District (one district ad ministrator, one attorney and one principal) and finalized. After review, pilot and ad justment questions (See Appendix A), were mailed to the interviewees and appointments were scheduled for the interviews. Interviews were conducte d and responses were added to the data utilized in the study. Research Methods With regard to research methods, Ta shakkori and Teddlie describe Â“two prototypical monomethod desi gns: (a) the laboratory expe riment, characterized by a controlled research environment in which a manipulation of variables occurs and involving confirmatory investiga tions of a prior hypothesis, and (b) the descriptive case study, characterized by a natural environment in which no manipulation of any variable
69 occurs and involving explorat ory investigationsÂ” (Tasakko ri and Teddlie, 1998, p. 30). The major difference noted between experime nts and case studies is that the former occurs in a controlled setting and the latter in a natural se tting. Tashakkori and Teddlie however, view this distinction as more of a continuum when it come s to error variance and the control of variables. Â“The Qualitative Researcher as Bricoleur and Quilt MakerÂ” (Levi-Strauss, 1966, p. 4) A bricoleur is a Â“Jack of all trades or a kind of professional do it yourself personÂ” (Denzin and Lincoln, 2000, p. 16). Denzin a nd Lincoln use this definition in their description of the qualitative researcher as one who uses diverse tools and methods to piece together an in depth interpretation of a phenomenon (Denzin and Lincoln, 2000, p. 16). Flick states that Â“qualitative resear ch is inherently multi method in focusÂ…The use of multiple methods, or triangulation, refl ects an attempt to se cure an in-depth understanding of the phenomenon in question. Objective reality can never be captured. We know a thing only through its repr esentationsÂ” (Flick, 1998, pp. 229-230). The general focus of the many qualitative research methods moves in several directions simultaneously: Â“(a) the Â‘detour through interpreti ve theoryÂ’ linked (b) to the analysis of the politics of representation and the textual analysis of literary and cultural forms, including their production, distribu tion, and consumption; (c) the ethnographic qualitative study of these forms in everyda y life; and (d) the investigation of new pedagogical and interpretive prac tices that interactively engage critical cult ural analysis in the classroom and the local comm unityÂ” (Denzin and Lincoln, 2000, p. XV).
70 The Case Study Stake states Â“case study is not a methodologi cal choice but a choi ce of what is to be studied.Â” By whatever methods we choose to study the case Â“we could study it analytically, or holistically, en tirely by repeated measures or hermeneutically, organically or culturally, and by mixed methods but we conc entrate, at least for the time being, on the caseÂ” (Denzi and Lincoln, 2000, p. 435). Yin states that case studies can be explor atory, descriptive or explanatory. He defines the case study in two ways. Fi rst as Â“an empirica l inquiry that investigates a contemporary phenome non within its real -life context, especially when the boundaries between phenomenon and c ontext are not clearly evidentÂ” (Yin, 1979, p. 13). and second as an inquiry that Â“copes with the technically distinctiv e situation in which there will be many more variables of interest than data points, and as one result relies on multiple sources of evidence, with data needing to converge in a triangulation fashion, and as another result benefits from the prior development of theoretical propos itions to guide data collection and analysisÂ” (Jick, 1979, p. 13). Stake identifies three categories of case study: Â“Intrinsic case study if it is undert aken because, first and last, the researcher wants better unde rstanding of this partic ular case. Here, it is not undertaken because the case repres ents other cases or because it
71 illustrates a particular trait or problem but because, in all its particularity and ordinariness, this case itself is of interestÂ…writings illustrating intrinsic case study includes The E ducation of Henry Adams: An Autobiography (Adams, 1918)Â” (Stake, 2000, p. 437). Â“instrumental case study if a particular case is examined mainly to provide insight into an issue or to redraw a generalization. The case is of secondary interest, it plays a s upportive role, and it facilitates our understanding of something else. The case still is looked at in depth, its contexts scrutinized, its ordinary activ ities detailed, but all because this helps the researcher to pursue the exte rnal interest. The case may be seen as typical of other cases or notÂ…Her e the choice of case is made to advance understanding of that othe r interestÂ…Writings illustrating instrumental case study includeÂ…Campus Response to a Student Gunman (Asmussen and Creswell, 1995/1997)Â” (Stake, 2000, p. 437). Â“collective case study if it is an instrumental st udy extended to several cases. In this instance a researcher ex amines a number of cases in order to investigate a Â“phenomenon, population or general conditionÂ…Individual cases in the collection may or may no t be known in advance to manifest some common characteristic. They may be similar or dissimilar, redundancy and variety are each importan t. They are chosen because it is believed that understanding them will lead to a better understanding, perhaps better theorizing about a still larger co llection of cases. Works illustrating collective case study includeÂ…The Dark Side of
72 Organizations: Mistake, Misconduct and Disaster (Vaughan, 1999)Â” (Stake, 2000, pp. 437-438). Â“Harrison White categorized social scie nce casework according to three purposes: case studies for identity, explana tion or controlÂ” (White, 1992, p. 90). Case Study: Strengt hs and Limitations Yin writes, Â“the case studyÂ’ s unique strength is its ab ility to deal with a full variety of evidence Â– documents, artifacts, interviews, and observations Â– beyond what might be available inÂ…Â” other types of re search (Yin, 1994, p. 9). Case studies are, according to Yin, the research design of c hoice when Â“Â…a Â‘howÂ’ or Â‘whyÂ’ question is being asked about a contemporary set of events over which the investigator has little or no controlÂ” (Yin, 1994, p.9). Ary, Jacobs and Razavieh report that the Â“a dvantages of the case study are also its weaknesses. Although it can hone depth, it wi ll inevitably lack breadth. The dynamics of oneÂ…social unit may bear little relationshi p to the dynamics of othersÂ” (Ary, Jacobs and Razavieh, 1972, p. 287). Additionally, case studies can Â“take too longÂ” and Â“may grow into lengthy detailed studies from whic h it is difficult to gl ean the outcomeÂ” (Yin, 1994, p.9). Other cautions found in the literature include the pr esence of researcher bias in conducting interviews and interpreting res ponses. Van Dalen warns that Â“elements of subjectivity may enter a report, particularly when judgments are made about a subjectÂ’s character and motives. An investigator must guard against permitting personal biases and standards to influence his inte rpretationsÂ” (Van Dalen, 1973, p. 210).
73 Triangulation Â“To reduce the likelihood of misinterpretation, re searchers employ various procedures, two of the most common being re dundancy of data gath ering and procedural challenges to explanationsÂ” (Denzin, 1993, p. 320) Qualitative researchers refer to this process as Â“triangulation which utilizes multip le perceptions to clarify meaningÂ” (LeviStrauss, 1966, p. 443). Flick adds to th is observation by stating that although no interpretation or observation can be exactly repeatable, Â“triangulation also serves to clarify meaning by identifying different wa ys the phenomenon is being seenÂ” (Flick, 1998, p. 225). In triangulation a research er uses various methods and sources to validate findings. Â“The concept of Â‘triangulation of methodsÂ’ was the intellectual wedge that eventually broke the methodological hegem ony of the monomethod puristsÂ” (Jick, 1979, p. 604). In 1979, Jick (writing in the area of administration) discusses triangulation in terms of Â“the weaknesses of one method bei ng offset by the strengths of anotherÂ” (Jick, 1979, p. 604). He further described Â“within methods of triangulationÂ” which refers to the use of multiple qualita tive or quantitative methods within the same study and Â“across methods triangulationÂ” which refers to the u tilization of both quantitative and qualitative methodology within the same study (Jick, 1979, p. 604). Patton (1987) described f our triangulation possibilitie s including data sources, using different investigators, presenti ng different theories and using various methodologies.
74 This Study The approach this study took was through a collective case study as suggested by Yin in Case Study Research, Second Edition 1994. This collective case study examined the impact of 1997 IDEA reau thorization regulations (a contemporary phenomenon) as they existed through May 2003 within the cont ext of three practicing large K-12 public school districts. Triangulation of data s ources occurred through the consideration of school board policies, current related distri ct documents and interviews of practicing educators and attorneys in three school districts. Participants The three school districts sele cted for inclusion in this study are similar in that each serves an urban community and edu cates from 40,000 to 112,000 students. All of the districts have, within the past decade operated under the supe rvision of a federal court desegregation order and are functioni ng now within relatively new school choice pupil assignment plans. In 1954 the Brow n v Board of Education Supreme Court decision terminated officially sanctioned segr egation. Â“From the mi d 1960Â’s to the late 1970Â’s a vast transformation took place in Amer ican public schools as federal courts and governmental agencies demanded race-consc ious policies in ev ery facet of school operations. The most controve rsial aspect of school dese gregation duri ng this period involved the rules for assigning students to schoolsÂ” (Armor and Rosell, 2001, pp. 219220). Â“In the 1971 Swann decision for Char lotte-Mecklenburg, North Carolina, the Supreme Court endorsed strict racial balance quotas for a ll schools in a system and approved cross-district mandatory busing to attain complete racial balanceÂ” (Armor and
75 Rosell, 2001, p. 224). Many large school di stricts subsequently came under similar federal court orders. Green et al v. County School Board of New Kent County et al. was a Virginia case decided by the Supreme C ourt in May 1968 and set forth what became known as the Green factors (Â“Green et al. v. CountyÂ”, 1968). The Green factors were Â“six desegregation plan components Â– student assignment, faculty, staff, facilities, transportation, and extra curri cular activitiesÂ…All school sy stems under court order had to show they had complied with each of them before they could be declared unitary (non discriminating) systems and released from court ordersÂ” (Armor and Rosell, 2001, p. 220). Balancing those similarities it is significa nt that each of the chosen school districts is located in a different state so it can be discerned whet her perceived IDEA implementation differs in diverse geographic areas. Pinellas County, Florida is a large (112,000 st udents), urban school district that is just beginning to operate without the restrictions of a federa l desegregation court order. The Pinellas County school district was pl aced under a federal desegregation order in 1971. To comply with the mandates of that order a complex pupil assignment zoning system with regular rotations from zone to zone in some areas was established. In 1998 the school board, after listening to parents who wanted stabilit y in their child renÂ’s school assignment, directed Superinte ndent J. Howard Hinesley to seek unitary status. After lengthy negotiations with the NAACP Legal Defe nse Fund (a party in the original law suit), agreement was reached to request the lifting of the court or der and in August 2000, unitary status was granted. A controlled C HOICE student assignment plan was instituted in August 2003 with the plan for an expande d CHOICE plan to begin in 2007 (Janssen, 2001, pp. 119-120).
76 Charlotte-Mecklenburg Schools, No rth Carolina also operated under a desegregation court order. It was in the 1971 Swann v. Charlotte-Mecklenburg Board of Education Supreme Court decision that Â“a dese gregated school was defined as one whose racial composition is roughly the same as the racial composition of the entire school systemÂ” (Armor and Rosell, 2001, p. 232). Th e Charlotte-Mecklenburg School District operated under the 1971 federal court order un til 1975 when the judge lifted it, believing that adequate progress in the move toward ra cial balance was being made (Â“The History ofÂ”, p. 2). Â“While the system was focused on student achievement, the issue of student assignment resurfacedÂ” when a parent Â“sued CM S, claiming that his daughter was denied enrollment toÂ…a magnet school because she wa s not blackÂ” (Â“The History ofÂ”, p. 3). The Swann case was reactivated in 1998 and, fina lly, in September 1999, CMS was declared unitary but the court Â“mandated that a new student assignment plan be in place for the 2000-2001 school yearÂ” (Â“The Histor y of.Â”, p. 3). CMS returned to court asking for an additional year to put in place the new st udent assignment plan. That request was granted, however, in 2000 Â“The 4th Circuit Court of Appeal s ruled that CMS is not unitary in some areas such as facilities, student assignment and tr ansportation and sent them back to the lower court for reconsideratio n. Areas such as faculty, staff and extra curricular activities and student discipline were considered unitaryÂ” (Â“The History of.Â”, p. 4). It was not until September 2001 that Â“Fou rth Circuit Court of Appeals affirmed an earlier court ruling that CMS has achieved unitary status and or dered the Board of Education to operate the school system without regard to the desegregation order no later than the 2002-2003 school yearÂ” (Â“The Hi story ofÂ”, 2003, p. 5). The Charlotte-
77 Mecklenburg school district is among the top 25 largest school syst ems in the nation, with over 105,000 students. The Indianapolis Public Schools in Indi anapolis, Indiana similarly has operated under a desegregation court order. The Indianapolis Public School System, according to current Superintendent Pat Pritchett Â“was foundÂ…operating a segreg ated school systemÂ” (Schneider, 1999, p. 1) in 1971 and was placed unde r a federal court order. That order remained in place until 1998 (U.S. Department of Justice, 1998). The Indianapolis Public School System educates over 42,000 student s and employs more than 5,000 people. Summary The research method for this study is a collective case study w ith a triangulation of data sources. Participants were describe d as three large, K-12, urban, public school districts and the rationale for their selection was outlined. Each of the chosen districts educates over 40,000 students in an urban setting and has op erated under a federal court order dealing with desegregat ion during the past decade.
78 Chapter Four Results State and District Demographics Similarities between the three selected school districts are their large, urban populations and their history of becoming unita ry after functioning within the parameters of a federal desegregation court order. The 2001-02 st ate and district school demographics are outlined in Appendix C. The first two research questions addresse d in this collectiv e case study were, in the three school dist ricts, how were the mandates in terpreted and what school board policies were developed to implement them? How were these policies similar or dissimilar? To address this inquiry I revi ewed, compared and cont rasted the relevant school board policies from the three school distri cts to ascertain whether the federal laws were interpreted in the same manner and whet her common ways of work were created in the three states. Dr. Allen Mortimer, Director of Planning and Policy in the Research and Accountability Department of the Pinellas County School District, also reviewed the policies to validate my findings. In the thre e selected school distri cts, what guidelines other than school board policies were put into place to ensure compliance with the laws and policies related to the exclusion from school of st udents with disabilities for disciplinary reasons? In this instance I collected, reviewed and compared documents prepared by staff members in the three distri cts that dealt with directions to those addressing school discipline of students with di sabilities on a daily basi s. These included Codes of Student Conduct or Exceptional Educ ation Department Guidelines for Student
79 Discipline and other district documents that may or may not have been adopted as policy by their school board. It was discovered that in Pinellas C ounty compliance information is outlined in the Code of Student Conduct and the Exceptional Student Education Handbook both of which are adopted as school board policy. In Charlotte-Mecklenburg these issues are addressed in their Secondary Student Rights, Responsibilities and Character Development Handbook which is adopted as school board policy, and the District Services Manual which is not. In Indianapolis detailed compliance information is addressed within the general school board policies. Additiona lly, a compilation of student related board policies and procedures is adopted as policy, printed and given to each student annually. The latter refers the reader to the larger board policy book where necessary. Because of the di scovered overlapping of school board policy and procedural documents, the responses to the first two re search questions have been consolidated. The 1997 IDEA student discipline mandates that have been incorporated into School Board Policy and other related docum ents in the three school districts are discussed below. Out of School Suspension The IDEA, 1997 language related to the use of out of school suspension with students who are disabled reads, in part: Â“Authority of school personnelÂ…(i) to an appropriate interim alternative educational setting, or suspension, for not more that 10 school days (to the
80 extent such alternatives would be a pplied to children without disabilities)Â” (IDEA, 1997, p. 61). The Codes of Student Conduct are adopted as school board policy in each of the three districts although they have different titles. The Pinellas County Sc hool Board Code of Student Conduct is titled as such and serves the same purpose as the CharlotteMecklenburg Schools Secondary (or Elementa ry) Student Rights, Responsibilities and Character Development Handbook and the Indianapolis Public Schools Policies and Procedures All are updated, approved as school board policy, printed and given to each student annually. In all of the districts language is includ ed in their Codes of Student Conduct answering the question, Â“Can a student with disabilities receive an out-of-school suspension?Â” (PCSB Â“Code of Student ConductÂ”, 2003, p. 19) as follows: PINELLAS COUNTY A student with disabilities may be suspended from school just like any other student. During 10 days of an out-of-school suspension in any one school year a student with a disabil ity will not receive any educational services during the suspension. If th ere are more than 10 days of out-ofschool suspension during the school year, the student with a disability will receive the educational accommodations provided for in the studentÂ’s IEP (PCSB Â“Code of Student ConductÂ”, 2003, p. 19). Additionally, the Pinella s County School Board adopted PCSB Exceptional Student Education Handbook as policy in November, 2000. This handbook is updated annually and states the following about suspending students with disabilities:
81 Out of school suspension is reserved for the most serious offenses. Whenever possible, the student should continue to receive instructionÂ…In the event of serious offenses, student s with disabilities may be suspended from school for no more that 10 cumulative days in a school year. Educational services do not need to be provided during these days. Note: If a student is sent home ear ly or asked to remain home, these days or partial days count toward the cumula tive total even if formal suspension notices are not provided. If a student is suspended from the bus and is unable to attend school, these days co unt toward the cumulative total as well (PCSB Â“Exceptional Student HandbookÂ”, 2000, p. 93). CHARLOTTE MECKLENBURG Â– In the CMS Secondary Student Rights, Responsibilities and Character Development Handbook under Â“SuspensionÂ…of Disabled StudentsÂ” (CMS Â“Stude nt RightsÂ”, 2003, p. 47) the following is found: Students may be suspended for not more than 10 consecutive days for any violation of school rules and addition al removals of not more that 10 consecutive school days in that same school year for sepa rate incidents of misconduct, as long as those removals do not constitute a change in placement (CMS Â“Student RightsÂ”, 2003, p. 47). There is no mention of students with disabilities in the Elementary Handbook but the district has created and di sseminated a Services Manual developed by staff of the CMS Alternative Education and Safe Schools Depart ment. The inclusion of IDEA information is planned for future revisions of the Elementary Handbook The section in the Services
82 Manual that deals with IDEA information a nd out-of-school suspension includes the following statements: Contrary to public percep tion students with disabilities can be disciplined for not complying with local board po licy or Codes of Student Conduct, or breaking the law. However, because of their disabilitie s, these students are guaranteed the right to a free a ppropriate public education, including procedural safeguardsÂ… It is important to remember that prevention and anticipation are the key factors in eliminating the need fo r suspension/expulsionÂ…We must not overlook the need for sound, appropriate alternative educational settings for all students, with and without disa bilities. When a suspension is for 10 cumulative school days or less in a given school year, the school may follow its normal disciplinary proced uresÂ…While there are no specific actions that must occur during this suspension period, if school personnel anticipateÂ…further disciplinary actio nÂ…this period of removal can be used for further planningÂ…(CM S Â“Services ManualÂ”, 2003, p. 52). When a student with a disability is subject to a discip linary removal for more than ten cumulative school days in a given year, the LEA must provide services during days of rem ovalÂ…to enable the child to progress in the general curriculum and appropriately advance toward achieving the goals set out in the childÂ’s IEP (CMS Â“Services ManualÂ”, 2003, p. 53).
83 INDIANAPOLIS Â– Regarding the suspension of students with disabilities the IPS Student Code of Conduct states, Â“IPS will follow all applicable laws and regulations governing the procedures for the suspen sionÂ…of students with disabilitiesÂ” (IPS Â“Board PoliciesÂ”, 2003, p. 41). Within the IPS genera l school board policies, but not outlined in the IPS Policies and Procedures booklet, is the following additional, clarifying language: This public agency mayÂ…suspend your child for not more than ten (10) cumulative instructional days in a school year for violations of the school discipline policy, in accordance with po licies and procedures that apply to all students, including st udents without disabilities (IPS Â“Board PoliciesÂ”, 2003, pp. 20-21). Summary: With regard to the suspending of students with disabili ties out-of-school, the policies and documents of all th ree districts are clear in thei r direction to staff about the need to provide the student w ith services outlined in the studentÂ’s IEP if the removal from school exceeds 10 cumulative days during a given school year. Two of the districts seem to caution students with disabilities a bout the accountability with statements, Â“A student with disabilities may be suspende d from school just like any other studentÂ” (PCSB Â“Code of Student ConductÂ”, 2003, p.19) and Â“Contrary to public perception students with disabilities can be disciplined for not complying with local board policy or Codes of Student ConductÂ” (CMS Â“Services ManualÂ”, 2003, p. 52).
84 Placement in Alternative Education Settings The IDEA, 1997 language dealing w ith the placement of students with disabilities in alternative education settings includes the fo llowing authority for the LEA to remove a child with a disability: (ii) to an appropriate inte rim educational setting for the same amount of time that a child without a disability would be subjec t to discipline, but for not more that 45 days ifÂ…(I) the child carries a weapon to school or to a school functionÂ…orÂ…(II) the child knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function (IDEA, 1997, p. 61). PINELLAS COUNTY Â– In the 2003-04 PCSB Code of Student Conduct the assignment of students with disabilities to an alternativ e educational setting is addressed as follows: A student with a disability may be reassigned to an alternative school because of the studentÂ’s misconduct. To do so, the team consisting of the parents and school personnel familiar with the student must meet and develop the Functional Beha vior Assessment and the plan on how to deal with the studentÂ’s misconduct. The team must also determine if the studentÂ’s disability is causing the misc onduct. Such a reassignment to an alternative program may or may not be a change in placement. If it is a change in placement, then all of the procedural safeguards for students with disabilities will be followed as required under the Individuals with Disabilities Education Act (IDEA), the federal law providing for the education of students with disabili ties (PCSB Â“Code of ConductÂ”, 2003, p. 19).
85 The PCSB Code of Student Conduct further states that Â“Because students with disabilities are entitled to rece ive the educational services pr ovided for in their IEP during any expulsion, they should receive a discip linary reassignment to an alternative school instead of an expulsionÂ” (PCSB Â“C ode of Student ConductÂ”, 2003, p. 19). The PCSB Exceptional Student Education Handbook states, If a student commits a serious offe nse, i.e. drugs, weapons, battery resulting in injury, or threats to scho ol personnel, educational services will be provided at an alternative middl e or high school facility until a manifestation determination meeting is conducted within 10 business daysÂ… Â…The alternative facility must enable the student to continue to progress in the general curriculum; receive the services and modifications specified in the IEP that will enable him/her to meet IEP goals; a nd receive services that will address the behavior whic h resulted in the removal and are designed to prevent the misconduct from recurring (PCSB Â“Exceptional Student HandbookÂ”, 2000, p. 94). CHARLOTTE-MECKLENBURG Â– The CM S Secondary Student Rights, Responsibilities and Character Development Handbook states the following with regard to the placement of a student with disabili ties into an alternative educational setting: The principal may consider moving a student with a disability to a temporary placement for up to 45 days for any one of the following violations: Possession of weapons* at sc hool or a school function;
86 Possession or use of illegal drugs at school or a school function; Sale/solicit the sale of a controlled substan ce at school or at a school function. A weapon is defined for these purposes as Â“a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term doe s not include a pocket knife with a blade of fewer than 2 inch es in length. Note: Under no circumstances may discipline procedures be imposed on disabled students, which exceed those which would be applied to nondisabled students for the same offense (CMS Â“Student RightsÂ”, 2003, p. 50). The Charlotte-Mecklenburg Schools Services Manual adds additional guidance by stating: when a child with a disa bility carries a weapon or knowingly possesses or uses illegal drugs or solicits the sale of a controlled substance, the student may be placed in an interim alternative educational setting for forty-five (45) school daysÂ…The alte rnative educational setting must be determined by an IEP team which includes the parent The setting must be selected so as to enable the child to continue to progress in the general curriculum, although in another setting, and to con tinue to receive those services and modifications that will enable the child to meet the goals set out in the
87 IEP. The setting must also include services and modifications that are designed to prevent the behavior that subjects the child to disciplinary removal from recurring (CMS Â“Services ManualÂ”, 2003, p. 54). INDIANAPOLIS Â– The IPS Policies and Procedures refers the reader to the Indianapolis Public School Board Policies for provisions related to school discipline of students with disabilities. Within that section is found, Placement in Interim Alternative Educational Settings. This public agency may order the placement of your child to an appropriate interim Alternative Educational settingÂ…for vi olations of school discipline policy in accordance with policies and procedures that apply to all students including students w ithout disabilities. Your child may be removed to an appropriate interim Alternative Educational setting for not more than forty-five (45) calendar days if: 1. Your child carries a weapon to schoo l or to a school function; or 2. Your child knowingly possesses or uses illegal drugs or se lls or solicits the sale of a controlled substance while at school or a school function (IPS Â“Board PoliciesÂ”, 2003, pp. 20-21). Summary: In each of the three districtsÂ’ policy and procedural documents placement in alternative education settings is addressed in conjunction wi th the possession of a weapon and involvement with illegal drugs. The PCBS Exceptional Student Handbook adds Â“battery resulting in injury or threats to school personnelÂ” (PCSB Â“Exceptional Student HandbookÂ”, 2000, p. 94). CMS and IPS policies and documents specify the 45 day limit and IPS policy states that a student with di sabilities may be placed in an alternative
88 education setting Â“for violati ons of school discipline policy in accordance with policies and procedures that apply to all students, including students without disabilitiesÂ” (IPS, Â“Board PoliciesÂ”, 2003, pp. 20-21). While the policies and documents clearly implement the law, there is also evidence of an attempt to provide school based administrators with room to maintain an orderly, safe environmen t in their schools. Manifestation Reviews The IDEA, 1997 language addressing manife station reviews includes the following statements: (A) If a disciplinary action is contemplatedÂ…for a behavior of a child with a disabilityÂ…or if a disciplinary action i nvolving a change of placement for more than 10 days is contemplatedÂ… (i) not later than the date on which the decision to take that action is made, the parents shall be notified of th at decision and of all procedural safeguards accorded under this section; and Â…(ii) immediately, if po ssible, but in no case later than 10 school days after the date on which the decisionÂ…i s made, a review shall be conducted by the IEP Team and other qualified personnelÂ… (c)Â…the IEP Team may determine that the behaviorÂ…was not a manifestation of the childÂ’s disabili ty only if the IEP TeamÂ…in terms of
89 the behavior subject to disciplin ary action considers all relevant information, includingÂ… (I) evaluation and diagnostic resultsÂ… (II) the childÂ’s IEP and placement; and (ii) then determines that Â…(I) in relationship to the behaviorÂ…the childÂ’s IEP and placement were appropriate and the special services, supplementary aids and servic es, and behavior intervention strategies were provided consis tent with the childÂ’s IEP and placement (II) the childÂ’s disability did not impair the ability of the child to understand the impact and consequences of the behaviorÂ… (III) the childÂ’s disability di d not impair the abilityÂ…to control the behavior (IDEA, 1997, pp. 62-63). If there is a (5) Determination that behavior was not a manifestation of the disability (A)Â…the relevant disciplinary pr ocedures applicab le to children without disabilities may be applie dÂ…in the same manner in which they would be applied to child ren without disabilities exceptÂ…Â” (IDEA, 1997, pp. 64-65) Â“Â…if the placement does not provide
90 theÂ…free appropriate pu blic educationÂ…availab le to all children with disabilitiesÂ…between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school (IDEA, 1997, p. 26). PINELLAS COUNTY Manifest ation reviews are addressed in the PCSB Exceptional Student Education Handbook but not in the PCSB Code of Student Conduct In the Handbook the following information is found: If a student commits a serious offe nse, i.e. drugs, weapons, battery resulting in injury, or threats to scho ol personnel, educational services will be provided at an alternative middl e or high school facility until a manifestation determination meeting is conducted within 10 business days. If the IEP team determines that the studentÂ’s behavior is not related to the disability, the student will be assigne d to the alternative facility in the same manner that students without disabilities are assignedÂ… . If the IEP determines that the studentÂ’s behavior is related to the disability, the student may be assigned to the alternative facility if the IEP team determines that is the most appropriate placement, or another recommendation may be made (PCS Â“Exceptional Student Education HandbookÂ”, 2000, pp. 94-95). CHARLOTTE-MECKLENBURG In the CMS Secondary Student Rights, Responsibilities and Character Development Handbook the following process is outlined:
91 The IEP team of the studentÂ’s home school must conduct a manifestation determination (includi ng parent/guardian). The IEP team must convene within 10 school days after the date on which the decision to take this action is ma de to determine if the behavior in question is related to the studentÂ’s disa bility. In making this determination the IEP team should consider the following information: a. Is the IEP appropriate? b. Is the current placement appropriate? c. Did the studentÂ’s disability impa ir his/her ability to understand the impact and consequences of the behavior? d. Did the studentÂ’s disability impair his/her ability to control the behavior? If the responses to questions (a) a nd (b) are yes and the responses to (c) and (d) are no, no manifestation ex ists and the student may remain in the Interim Alternative Educatio nal Placement for the full 45 days. If, however, the answer to any of the four questions is not as set forth above, the behavior is automatically deemed to be a manifestation of the disability. The IEP team must then consider whether (a) it is appropriate to keep the student in the Interim Alternative Educational Placement for the full 45 days and (b) whether the studentÂ’s IEP
92 (including his current placement before the disciplinary action) remains appropriate (CMS Â“Seconda ry Student RightsÂ”, 2003, p. 50). The Charlotte-Mecklenburg Schools Services Manual reminds staff that if a student with a disability is being considered for a disciplinary removal for more than 10 consecutive school days or for a series of removals that constitute a change in placementÂ…An IEP team and other qualified personnel must conve ne within ten (10) school days to determine if the behavior is a manifestation of the childÂ’s disabilityÂ…If,Â…the team determin es that the behavior is not a manifestation of the childÂ’s disability, school personnel may follow its normal disciplinary procedures subject to the parentsÂ’ right to seek a due process hearing although the student must be provided a free and appropriate education during this pe riod of disciplinary removalÂ…If the team determines that the behavior is a manifestation of the childÂ’s disability, the child may not be removed (CMS Â“Service ManualÂ”, 2003, p. 53). Also, as previously noted, When a child with a disability carri es a weapon or knowingly possesses or uses illegal drugs or solicits the sale of a controlled substance, the student may be placed in an interim alternative educational setting for forty-five (45) schools days (PCSB Â“Excep tion Student Education HandbookÂ”, 2003, p. 53).
93 INDIANAPOLIS In the IPS Policies and Procedures booklet, manifestation reviews are addressed as follows using somewhat diffe rent terminology but reflects the same interpretation as is found in Pinell as County and Charlotte-Mecklenburg: Causal Relationship Procedures If a disciplinary action involving a change of placement to an interim a lternative educational setting if a disciplinary action involving a change of placement for more than ten (10) instructional days in a school year is recommended for your child because he/she has engaged in beha vior that violated any ru le or code of conduct, this public agency must: 1. notify you of that decision no la ter than the date on which the decision to take action is made; 2. provide you with a copy of these procedural safeguards; 3. invite you to participate in a causal determination CCC (Case Conference Committee) meeting; and 4. conduct the causal determina tion CCC meeting immediately, but not later than ten (10) school da ys after the date in which the decision to take the action is made. At this meeting, the CCC and other qualified personnel must first review and consider the following: 1. your childÂ’s current IEP and placement
94 2. all relevant information, incl uding evaluation and diagnostic results, relevant information supplied by you; 3. observations of your child; and 4. the relationship between your chil dÂ’s disability and the behavior. In order to find that the behavior was not causally related to the disability, the CCC must determine: 1. that special education services, supplementary aids and services, and behavior intervention strate gies were provided consistent with your childÂ’s IEP and placement; 2. that your childÂ’s IEP and placement were appropriate; 3. that there is no relationship be tween your childÂ’s disability and his/her behavior subject to disciplinary action; 4. your childÂ’s disability did not impair his or her ability to understand the impact and conse quences of the behavior; and 5. your childÂ’s disability did not impa ir his or her ability to control the behavior. If it is determined that your childÂ’s behavior was not causally related to your childÂ’s disability, the relevant disciplinary pr ocedures applicable to students without disabilities may be a pplied to your child in the same manner in which they would be applied to students without disabilities except that a FAPE must be ma de available to your childÂ…
95 If the CCC determines that the beha vior was causally related to your childÂ’s disability, disciplinary proced ures applicable to students without disabilities may not be applied (IPS Â“Board PoliciesÂ”, 2003, p. 21). Summary: The manifestation review process is in place in the policies of all three districts, although IPS policy calls it a causal determination. The procedures mirror those mandated in law. Stay Put Rule The IDEA, 1997 language outlining the Â“stay put Â” provision reads, in part, as follows: Maintenance of Current Educational Placement. Except as provided in subsection (K) (7), during the pendenc y of any proceedings conducted to this section unless the State or loca l educational agency and the parents otherwise agree, the child shall rema in in the then-current educational placement of such child (IDEA, 1997, p. 61). PINELLAS COUNTY The Â“stay pu tÂ” provision as it relates to student discipline is addressed in the Exceptional Student Education Handbook rather than the Code of Student Conduct That document states: Â…If the parent disagrees with the mani festation determination, he/she may request an expedited hearing. The st udent remains in the current school unless the parent and school personnel agree otherwise; drugs or weapons
96 are involved; or the school district requests a h earing officer to order that the student be excluded as a result of the danger presented by the student. If drugs or weapons are involved or the hearing officer rules that the student may be excluded, the time peri od for the alternative facility is 45 school days (PCS Â“Exceptiona l Student Education HandbookÂ”, 2000, p. 95). CHARLOTTE-MECKLENBURG In the Second ary Student Rights, Responsibilities and Character Development Handbook two statements refer to the Â“stay putÂ” mandate. Â…Stay Put Rule: Students who are bei ng tested for possible placement in an Exceptional ChildrenÂ’s Program must remain in the current placement until the testing is complete. In some instances students in violation of the Code of Conduct may qualify for a 45 day Placement (drug and/or weapon violation) (CMS Â“St udent RightsÂ”, 2003, p. 42). and, after an assignment to an alternative placement, If the parent/guardian contests the pl acement, stay put is the alternative placement for the duration of 45 days. At the expiration of the 45-day period, the student must return to hi s/her previous placement unless school officials and the parent/guardian agre e otherwise (CMS Â“Student RightsÂ”, 2003, p. 51). Additionally, the Char lotte-Mecklenburg Sc hools Services Manual states: Stay-put is implemented when parent s file a due process petition because they are in disagreement with the sc hool system over a proposed change in
97 the identification ev aluation, or placement of th e student, or the provision of a free and appropriate educat ionÂ…(CMS Â“Service ManualÂ”, 2003, p. 55). INDIANAPOLIS Â– In the 2003-04 IPS Policies and Procedures booklet the Â“stay putÂ” provision of IDEA is addressed in the sect ion dealing with Â“Due Process Hearing and Impartial Review Rights (Â“I PS Code of Student Conduct Â”, 2003, p. 24) as follows: Unless you and the public agency agree otherwise, your child will remain in his/her present educational pl acementÂ…during a due process hearing, administrative hearing appeal or judicial proceeding (IPS Â“Code of Student Conduct Â”, 2003, p. 24) Summary: Each of the three districtsÂ’ pol icies clearly state that during any proceeding designed to settle disagreements about the pl acement of a student w ith disabilities, the student will remain in the current placement. Previously Unidentified Students The IDEA, 1997 language dealing with students who have not yet been identified as being disabled includes: (8) Protection for children not yet eligib le for special education and related services. (A) In general Â– A child who has not yet been determined to be eligible for special educationÂ…and who has engaged in behavior that violated any rule
98 or code of conduct of the LEAÂ…may assert any of the protections providedÂ…if the LEA had knowledgeÂ…tha t the child was a child with a disability before the behavior that precipitated the disciplinary action occurred (IDEA, 1997, p. 65). PINELLAS COUNTY This issu e is not addressed in the PCSB Code of Student Conduct but the Exceptional Student Education Handbook states the following: The previously unidentified studen t may receive all of the above protections if the distri ct had knowledge that the child had a disability before the behavior that caused th e disciplinary action occurredÂ…If a parent requests an evaluation of a regular education student who is suspended or expelled, evaluation will be expeditedÂ…If a student has been referred for evaluation to determine wh ether the student has a disability, the out of school suspension days ar e counted from the date the parent signed consent for the evaluationÂ…(PC S Â“Exceptional Student Education HandbookÂ”, 2000, p. 95). CHARLOTTE-MECKLENBURG In the CMS S econdary Rights, Responsibilities and Character Development Handbook the following section is found: F. Children Suspected of Having a Di sability: A child who has not yet been determined to be eligible for special education and related services and who has engaged in behavior th at violates Char lotte-Mecklenburg Schools code of conduct may assert any of the protections described above if the child was a child with a disability before the behavior that led to the
99 disciplinary action. The following is cons idered to be evidence that there was knowledge that the ch ild had a disability: 1. The parent has expressed concern in writing (or orally if the parent cannot write) to Charlotte-Meck lenburg Schools personnel that the child is in need of special education and related services. 2. The behavior or performance of the child demonstrates that need for such services; 3. The parent has requested an eval uation of the child to determine eligibility for special education and related services; or 4. The childÂ’s teacher or other pers onnel of the Charlotte-Mecklenburg Schools have expressed concern ab out the childÂ’s behavior or performance in accordance with specia l education referral procedures (CMS Â“Student RightsÂ”, 2003, p.54). In the Charlotte-Mecklenbur g Schools Services Manual this issue is addressed in the following manner: The student who has not been identified as a student with a disability may invoke the procedural safeguards that ar e available to an identified student with a disability if the school had kn owledge that the child was a child with disabilities before the behavior th at resulted in the disciplinary action occurred. A school shall be assumed to have knowledge that the student was suspected of havi ng a disability if:
100 The parent had expressed a concer n in writing to the appropriate school official that the student is in need of special education and related services; The behavior or performance of the student demonstrates a need for services; The parent of the child has requested an evaluation; or The teacher of the student and ot her personnel of the school system have expressed concern about the behavi or or performance of the child to the director of special educa tion or other agency personnelÂ… The local education agency would not be deemed to have knowledgeÂ…if the school conducted an eval uation and determined that the child was not a child with a disability and did not require special education or upon request made a determination that an evaluation was not necessary and provided proper notice to the parents (CMS Â“Services ManualÂ”, 2003, p. 57). INDIANAPOLIS In the IPS Policies and Procedures there is a section titled, Â“For Students Not Yet Eligible for Special Education and Related ServicesÂ” (IPS Policies and Procedures, 2003, p. 22). Within this sect ion is found the following information: If this public agency has no knowledge that your child is a child with a disability, and your child engages in be havior that violat es IPS rules or code of conduct, then your child may be subjected to the same disciplinary
101 measures applied to all other students without disabilities who engage in comparable behaviors. This public agency is considered to have such knowledge if: 1. you have expressed your concerns in writing (unless you are illiterate or have a disability that prevents you from writing) to personnel of this public agency that your child need s special education and related services; 2. the behavior or performance of your child demonstrates the need for special education and related services; 3. you have requested IPS to conduct an evaluation to determine whether your child is a child with a disab ility who requires the provision of special education and related services; or 4. your childÂ’s teacher or other public agency personnel have expressed a concern about your childÂ’s behavior and performance to this public agencyÂ’s Director of Special Educat ion or other appropriate personnel. If a request is made to evaluate your child during the time period for which your child is subject to discip linary measures that result in disciplinary removal, the multidisciplin ary team must meet to develop an assessment plan for the evaluation of your child. The evaluation must be completed in an expedited manner. Pending the results of the evaluation, your child will remain in the interi m alternative edu cational setting determined by this public agency.
102 If, after reviewing all assessments, information from the evaluation and information you provide, the CCC determines your child is a child with a disability, we will make special educa tion and related services available to your child (IPS Â“Policies and ProceduresÂ”, 2003, p. 22). A review of the pertinent school board policies and related district documents from the three selected school districts reve als a consistent interp retation of the IDEA, 1997 language involving discipline. Since much of the policy language is taken directly from the law the policies from the th ree public school districts are almost interchangeable. The final research question addressed in this study is: 1. In the three school districts what di d the attorney employed by the school district, a district administrator in the exceptional education department and three principals in schools of di fferent levels and with a median number of students with disabilities in their scho ols report to be their perception of the primary issues th ey encountered in the area of disciplining students with disabilities since the 1997 reauthorization of IDEA and through May 2003? This information was obtained through interviews with the identified individuals and in some cases submitted written responses to the interview questions. Interviews in Pinellas County, FL were face to face and interviews in North Carolina and Indiana were primarily conducted by te lephone. I asked what issues they
103 dealt with most frequently in this area of their job and whether dealing with this law and the related policie s had significantly changed their way of work and if so, how? Prior to the interviews, questions were developed. Dr. Allen Mortimer, Director of Plan ning and Policy in the Research and Accountability Department of th e Pinellas County School District reviewed these questions. Dr. Mo rtimer must approve any survey conducted in the Pinellas County Sc hool District and works with individuals within and outside the di strict as they develop surveys and questionnaires to use in schools. After Dr. MortimerÂ’s review the questions were piloted on staff memb ers of the Pinellas County School District (one district ad ministrator, one attorney and one principal) and finalized. After review, pilot and adjustment, questions (See Appendix A), were mailed to the in terviewees and appointments were scheduled for the interviews. Intervie ws were conducted and responses were added to the data utilized in the study. Two of the school districts in the study em ploy in-house attorneys (three in Pinellas County and two in Charlotte-Mecklenburg) and one district, (Indianapolis) contracts out all legal services. The dist ricts with in-house legal departments also contract out a portion of their legal work. A ll of the attorneys have been involved in the training of school district staff and part icipate in training throughout th e school year. The in-house attorneys provide training in IDEA/student discipline issues and procedures multiple times during a school year to various gr oups, such as school based and district administrators, teachers and social workers. The areas most frequently addressed include
104 the manifestation determination process and Â“stay putÂ” issues. Â“Stay putÂ” issues were seen as particularly problematic because a cas e dealing with a challenge to a change of placement can continue for years. Each of the attorneys interact regularly with school based and district level staff. Two of the attorn eys mentioned dealing with more cases involving weapons and more aggression duri ng recent years. One attorney reported Â“more serious offenses from younger studentsÂ” and talked about Â“the need to focus on addressing the behaviors pro actively and establishing pr ograms to meet studentsÂ’ educational needs during a disc iplinary periodÂ” (Interview responses from Attorneys, 2003) such as a 45-day move to an Alternativ e Education Setting. N one of the attorneys said that the discip linary provisions of the 1997 IDEA reauthorization increased their workloads but all agreed that at least half of their time is spent on cases dealing with issues related to students with disabilities. Some comments were: Given the tremendous size of the district the situations ar e quite varied. From a behavior perspective we have had an increase in weapon and aggression offenses. From a training perspective we have worked a lot on the manifestation process. The dual discipline system makes a mockery of discipline. I would like to see the la w changed so that something less than full FAPE would be required when an ESE stude nt is excludedÂ…just as a limited continuation of educational services is provided during the expulsion of a non disabled student.
105 (Interview responses from Attorneys, 2003) District level administrators in the three districts who work w ith the programs that educate students with disabil ities interact with school ba sed educators as they use the district processes and with attorneys when Â“glitchesÂ” occur or duri ng legal challenges to district action. In two of the districts, manifestation reviews for students who may be moved to an Alternative Edu cational Setting are conducted by the school IEP team and in one district a county team fac ilitates that level of review, but includes school based staff members who have worked with the student. In one of the districts using the school team a compliance-coordination teacher must re view all manifestation determination documents before being sent to the discip line office. Problems with the appropriate identification of manifestations was mentione d several times and that was part of the reason one district made it a district level pro cess. In each of the districts compliance is described as a huge, time-consumi ng activity. Remarks included: One of the district administrators from the Exceptional Education Department outlined the following three issues as those that have emerged most frequently during the past two years: 1. Concern from school based personn el and parents regarding the existence of a dual discipline system. 2. Need for expertise in behavior management for school personnel, and 3. Increase in paperwork requirements to document discipline issues in exceptional student education (In terviews with District ESE Administrators, 2003).
106 Other remarks from the district administrators include: (Since the 1997 IDEA reauthorizati on) Process compliance has become more critical. Concerns recording vi olations of IDEA, the inclusion of attorneys at IEP meetings and the amount of complex paperwork required has resulted in morale issues for teachers and administrators. There is a general concern that the paperwork requirements shift the emphasis from supporting highest student achievement. The main issues we have for all other discipline issues (excluding weapons and drugs) are that the IEP t eams do not identify manifestations when suspending more than ten days. The district conducts professional development regularly and all mani festation determinations are now reviewed by a compliance coordinating teacher before being sent to the discipline office. We watch manifestation reviews care fully, being careful that someone from outside the school is representi ng the ESE department. Schools have had some concerns about a behavior be ing said to be a manifestation of the childÂ’s handicapping condition just because the paperwork is not correct but having them returned to th e school is acting as a Â‘wake up callÂ’ and they are finding more efficient wa ys to keep IEPs up to date and implemented.
107 It is very expensive to create effectiv e alternative educational settings, and once they are in place, it is difficu lt to keep the student population a good mix of disabled and non-disabled students. Teachers, even ESE teachers, are feeling more threatened today by students, even when the behavior that seems frightening is pretty much standard ESE behavior. This lead s to more requests by teachers for students to be excluded. (Interviews with District ESE Administrators, 2003) Five of the nine principals interviewed in this study indicated that the IDEA 1997 disciplinary mandates have significantly chan ged their ways of work. Some of the changes mentioned were Restrictions on out of school suspensions have caused us to have to create increased alternative placements for students chronically disruptive in the general education classroom. Â“The restriction on out of school suspen sions allows some students to hide behind their exceptionality rather than facing the natural school consequences for their behaviorÂ” (Â“In terview responses from PrincipalsÂ”, 2003-2004). A frustration with this dua l discipline system was mentioned by five of nine of the principals in this study.
108 Teachers of students with disabilities Â“spend an inordinate amount of time as data gatherers and secretaries.Â” Â“Many times students are aware of the limitations places on school personnel and this compromises the abili ty to control, change, mold or assign consequences to the severely unruly studentÂ” (Â“Interview responses from PrincipalsÂ”, 2003-2004). Other areas of concern include: Our district has Â“Â…added steps to our processes in dealing with recurring behavior issues. While the intent of the required meeti ngs (manifestation, FBA) is to protect the st udentÂ’s rights and to deve lop plans to address the problems, the meetings carry with them very involved paperwork that creates an additional burden to staff.Â” ESE students who are continuously disrupt ive/defiant and the fact that we are so limited in what we can do to address the problems. If we identify an ESE student who needs a more restrictive environment (i.e. center placement), it may take a semester (or more) to accomplish the change. In the meantime we must use consequen ces other than suspension for the instances of misconduct or disruption. This causes problems in other areas of the school (ABC rooms, in-school suspension classrooms or office areas) when the students are held th ere and become disruptive in those areas.
109 Limited suspension days for ESE stude nts results in the assignment of lesser consequences for serious mi sconduct e.g. fighting, defiance, insubordination, threats, etc. In an e ffort to conserve suspension days, we use other alternatives such as ABC or in-school suspension. Often when an ESE student commits an act agai nst another student (e.g. battery or serious threat), the consequence is le ss than it would have been for a regular education student, and sometimes the parent of the victim questions the Â“lightÂ” consequence. Du e to the need for confidentiality, we cannot explain that the consequence was determined because the student who caused the problem was an ESE student. (Interview responses from Principals, 2003) All the principals feel adequately tr ained and know which staff members to contact if they have questions about IDEA student di scipline issues or need assistance in this area. All have what they consider as easy access to legal s upport when necessary. The perceived impact on ways of work may vary according to the numbers of assisting staff at the school such as assistant princi pals, deans and department chairs. IDEA discipline related duties, while consistently in compliance with the law, were handled by a variety of school staff me mbers across the districts.
110 Minority Overrepresentation School discipline information broken down by race and disability is not generally available in the three district s. A 1991 study of suspended students conducted in Pinellas County Â“revealed that black st udents were suspended at a disproportionately high rate relative to their representation in the school populationÂ” (Iachini, Mortimer, Schwarts, and Fisher, 1991, p. 58). The researchers corre lated race, socio-economic status (SES), reading achievement and the age of the student relative to grade level with out of school suspensions in an attempt to determine whic h of the variables were Â“most predictive of suspensionÂ” (Iachini et at, 1991, p. 81). It appeared in that study that: Â“The suspension of a student was most directly affected by SES, such that students with low SES scores tended to be suspended. Suspension was also affected by a studentÂ’s age and reading achievementÂ…The effect of SES on age and reading achievement is notable and suggests that students with low SES scores tend to be ove rage and have relatively low reading achievement scoresÂ…Race can be re garded as a factor related to suspension when it is viewed as a vari able strongly correlated with SES, that is, a variable whose relationshi p to suspension is mediated by SES (Iachini et al, 1991, p. 81).Â” The stud y did not considerÂ…whether students were disabled or non-disabled.
111 Student Discipline Data Staff in the three school districts stud y, compile and report student discipline information disaggregated in different wa ys. A summary of information regarding available out of school suspensions is included only to provide a snapshot of some facets of the use of out of school suspension in each of the three public school systems. This data is not adequate to lead to any specula tion or conclusions about the organizations and their disciplinary practices. CHARLOTTE-MECKLENBERG Â– During the 2000-01 school year in No rth Carolina, the following statistics about student discipli ne were gathered: In the 2000-01 state report a long term suspension (LTS) is defined as a suspension which: lasts from eleven days up to the re mainder of the school year. It is possible for a student to rece ive more than one long term suspension during a school yearÂ…Dis tricts may allow students to attend an alternative learning progr am or alternative school (ALP) during their long term suspensi on (Public Schools of North Carolina, 2000-01, p. 2). Â“In both 1999-2000 and 2000-01, special status students (e.g. students receiving special education services, Limited English Proficient student,
112 etc.) accounted for almost one in ev ery five LTSs. The number of LTSs given to special status students, however, increased from 441 in 19992000 to 530 in 2000-01Â” (Public Schools of North Carolina, 2001, p. ii). In 1999-2000 5% of all expulsions in North Carolina Public Schools involved students with disabilities and in 2000-01, the special education population accounted for 19% of all e xpulsions (Public Schools of North Carolina, 2000-01, p. iii). In Charlotte-Mecklenburg Schools, during the 1999-2000 school year no long term suspensions or expulsions occurred (Public Schools of North Carolina, 2000-01, Appendix D-1). In Charlotte-Mecklenburg Schools, dur ing the 2000-01 scho ol year there were 151 long term suspensions assi gned and no expulsions occurred (Public Schools of North Carolina, 2001, Appendix E-3). The long term suspension differs in North Carolina from an expulsion because when expelled Â“the student cannot return to their home school or any school, everÂ…An expulsion is usua lly reserved for cases where the student is at least 14 years of age a nd presents a clear danger to self or othersÂ” (Public Schools of North Carolina, 2000-01, p. 3). The following caution is included in the North Carolina report:
113 The Use of Data to Stereotype Students The data in this report indicate that suspensions, expulsions, and ALP placements are increasing overall, and that certain subgroups of students are disproportionately represented in those events. However, these data should not be used to label or stereotype any student. The fact remains that the majority of students Â– of any age, gender, or ethnicity Â– will never commit an offense resulting in suspension or expulsion from school. Rather, these data should be used by schools and districts as an impetus to examine disciplinary policies fo r equity, to target prevention efforts on vulnerable subgroups, to study ways to provide earlier intervention, and to explore a broader array of services for students, including those provi ded by community groups and agencies, that address both academic and non-academic needs. (Public Schools of North Carolina, 2000-01, p. 7). INDIANAPOLIS Â– The Indiana State Board of Education Schools Report for Indianapolis Public Schools reflects a decrease in the number of out-of-school suspensions assigned. In reviewing the seventy-seven I PS school reports that include d three years of suspension information it was noted that in 199899 the total was 6,689, in 1999-2000 the total decreased to 5,722 and dropped again to 5,000 in 2000-01. The report does not reflect the number of suspensions assigned to students with disabilities.
114 PINELLAS COUNTY Â– During the 2002-03 school year, of the 125,868 Pre-Kindergarten Â– Adult students, 21,516 (or approximately 21%) were students with disabilities. The most populated category of exceptionali ty was specific lear ning disabilities (9,382 students). Six thousand three hundred forty six of the students with disab ilities were black, 278 were Asian, 1,112 were Hispanic, 54 were Indi an (Native American), 543 were of mixed races and 13,159 were white. Approximately 36% (8,367) of the 23,370 suspensions assigned during the 200203 school year were to students with disa bilities. Students with specific learning disabilities were assigned more out-of-sc hool suspensions than students with other disabilities. Students in ni nth grade, disabled and non-di sabled were assigned out-ofschool suspensions more than students in any other grade. Sixty-nine percent (16,186) of the suspensions were assigned to males. The most frequent behavior s that led to out-ofschool suspensions during 2002-03 were Defian ce and Insubordination (3,966), Repeated Misconduct (2,720) and Fighti ng (2,659). (Appendix B). After reviewing school board policies and related documents that speak to school discipline and students with disabilities from th e three selected districts it was determined that the IDEA, 1997 language related to stude nts with disabilities and out of school suspension placement in alternative education settings, manifestation reviews, and the Â“stay putÂ” provision of previous ly unidentified students has been interpreted into almost identical school board po licies in the three examin ed school districts.
115 Summary of Data Analysis The focus of this study was the lack of substantive information about school board policies and related documents created to implement the disc iplinary provisions of the 1997 reauthorization of IDEA, as they existed until May 2003. Although several studies were conducted wherein various state departments of education were surveyed, collected data is lacking at th e school district level, where actual implementation occurs. To address this gap the researcher reviewed the school board policie s and related school district documents in the Pinellas C ounty School District, Florida, CharlotteMecklenburg, Schools, North Carolina and I ndianapolis Public Schools, Indiana. It was discovered that school board po licies in the three, urban, K-12, public school districts were very similar and, in ma ny cases, drew language directly from the IDEA. In each district additional documents were developed to provide more detailed instruction to the school based educator s working directly with students having disabilities and their fa milies. Staff in the three school districts were knowledgeable of the IDEA provisions and where to go fo r assistance within their organization. Administrators and attorneys stated that th eir responsibilities in the area of student discipline have expanded since the 1997 reauth orization and that more of their time and the time of their staff is used addressing sp ecial education disciplinary issues. School principals reported concerns about the amount of time teachers of students with disabilities must spend gather ing and maintaining data a nd the dual discipline system created by the 1997 mandates. Th e attorneys and district leve l administrators working in the IDEA compliance area discussed concerns about training sta ff appropriately to
116 conduct manifestation reviews a nd provide adequate Alternativ e Education Settings that include students with an d without disabilities.
116 Chapter Five Summary, Observations, Conclusions and Implications Statement of the Problem The focus of this study is to determ ine how the 1997 IDEA reauthorization mandates regarding student discipline have been interpreted and implemented in three similar, urban, public school districts and how that im plementation is perceived by selected staff members. The selected sc hool districts were Pinellas County Schools, Florida, Charlotte-Mecklenberg Schools, North Carolina and Indianapolis Public Schools, Indiana. Legal History The Individuals with Disabilities Edu cation Act (IDEA) was enacted in 1990 to replace the Education for all Handicapped Children Act (Public Law 94-142). IDEA guaranteed a free, appropriate education to all children with disabilities and strengthened the procedural safeguards for the families of these children. Federal dollars were committed to assist states to meet the mandates. When IDEA was reauthorized in 1997 th e following consistent themes emerged: Strengthening parental participa tion in the educational process; Accountability for studentsÂ’ partic ipation and success in the general education curriculum and master y of IEP goals and objectives; Remediation of behavior problems in school and in the classroom; and
117 Responsiveness to the growing n eeds of an increasingly diverse societyÂ…(PCSB Â“Administrator PacketÂ”, 2000, p. 1-1) The Reauthorization of IDEA a nd accompanying federal regulations emphasize the responsibilitie s of school personnel to address the behavior of a student with a disability. If that behavior is imped ing the learning of the student or that of other students IDEA requires: The IEP team, including the ge neral education teacher, if appropriate, plays a key role in addressing the behavior needs of students. A focus on the strengths of the student Use of positive behavioral strategies Use of Functional Behavior Asse ssments (FBAs) and Behavior Intervention Plans (BIPs) The use of alternatives to suspension and expulsion whenever feasible The provision of a free, appropriate education (FAPE) to students; services may not be terminated even when a student is expelled (PCSB Â“Administrator PacketÂ”, 2000, p. 8-1). Purpose of the Study and Research Questions The purpose of this collective case study was to examine perceptions of the implementation in three large, urban, K-12, public school districts of 1997 IDEA
118 mandates related to student discipline as they existed unt il May 2003 by reviewing policies and procedures in those districts. The research questions addressed are: 1. In the three school districts how were the mandates interpreted and what school board policies were developed to implement them? How were these policies similar or dissimilar? To address this inquiry I reviewed, compared and contrasted the relevant school board policie s from the three school districts to ascert ain whether the federal laws were interpreted in the same manner and whether common wa ys of work were created in the three states. Dr. Allen Mortimer, Di rector of Planning and Policy in the Research and Accountability Departme nt of the Pinellas County School District, also reviewed the po licies to validate my findings. 2. In the three selected sc hool districts, what gui delines other than school board policies were put into place to ensure compliance with the laws and policies related to the exclusion from school of students with disabilities for disciplinary reasons? In this instance I collected, reviewed and compared documents prepared by staff members in the three districts that dealt with directions to those addre ssing school discipline of students with disabilities on a daily basis. Thes e included Codes of Student Conduct or Exceptional Education Department Guid elines for Student Discipline and other district documents that may or may not have been adopted as policy by their school board. 3. In the three school districts what di d the attorney employed by the school district, a district administrator in the exceptional education department
119 and three principals in schools of di fferent levels and with a median number of students with disabilities in their scho ols report to be their perception of the primary issues th ey encountered in the area of disciplining students with disabilities since the 1997 reauthorization of IDEA and through May 2003? This information was obtained through interviews with the identified individuals and in some cases submitted written responses from the interview questions. Interviews in Pinellas County, FL were face to face and interviews in North Carolina and Indiana were primarily conducted by te lephone. I asked what issues they dealt with most frequently in this area of their job and whether dealing with this law and the related policie s had significantly changed their way of work and if so, how? Prior to the interviews, questions were developed. Dr. Allen Mortimer, Director of Plan ning and Policy in the Research and Accountability Department of th e Pinellas County School District reviewed these questions. Dr. Mo rtimer must approve any survey conducted in the Pinellas County Sc hool District and works with individuals within and outside the di strict as they develop surveys and questionnaires to use in schools. After Dr. MortimerÂ’s review the questions were piloted on staff memb ers of the Pinellas County School District (one district ad ministrator, one attorney and one principal) and finalized. After review, pilot and adjustment, questions (See Appendix A), were mailed to the in terviewees and appointments were scheduled for the interviews. Intervie ws were conducted and responses were added to
120 the data utilized in the study. In tw o instances answers to the protocol questions were submitted in written fo rm and a conversation did not occur. Participants The three school districts sele cted for inclusion in this study are similar in that each serves an urban community and edu cates from 40,000 to 112,000 students. All of the districts have, within the past decade operated under the supe rvision of a federal desegregation court order and are functioni ng now within relatively new school choice pupil assignment plans. The Brown v Boar d of Education Supreme Court decision in 1954 terminated officially sanctioned segregation. Â“From the mid 1960Â’s to the late 1970Â’s a vast transformation took place in Amer ican public schools as federal courts and governmental agencies demanded race-consc ious policies in ev ery facet of school operations. The most controve rsial aspect of school dese gregation duri ng this period involved the rules for assigning students to schoolsÂ” (Armor and Rosell, 2001, pp. 219220). Â“In the 1971 Swann decision for Char lotte-Mecklenburg, North Carolina, the Supreme Court endorsed strict racial balance quotas for a ll schools in a system and approved cross-district mandatory busing to attain complete racial balanceÂ” (Armor and Rosell, 2001, p. 224). Many large school di stricts subsequently came under similar federal court orders. Green et al v. County School Board of New Kent County et al. was a Virginia case decided by the Supreme C ourt in May 1968 and set forth what became known as the Green factors (Â“Green et al. v. CountyÂ”, 1968). The Green factors were Â“six desegregation plan components Â– student assignment, faculty, staff, facilities, transportation, and extra curri cular activitiesÂ…All school sy stems under court order had
121 to show they had complied with each of them before they could be declared unitary (non discriminating) systems and released from court ordersÂ” (Armor and Rosell, 2001, p. 220). Balancing those similarities it is significa nt that each of the chosen school districts is located in a different state. Pinellas County, Florida is a large (1 12,000 K-12 students), urba n school district that is just beginning to opera te without the restrictions of a federal desegregation court order. The Pinellas County school district was placed under a federal desegregation order in 1971. To comply with the mandates of th at order a complex pupil assignment zoning system with regular rotations from zone to zone in some areas was established. The school board, in 1998, after listening to parent s who wanted stability in their childrenÂ’s school assignment, directed Supe rintendent J. Howard Hinesley to seek unitary status. After lengthy negotiations with the NAACP Legal Defense Fund (a party in the original law suit) agreement was reached to request the lifting of the court order and in August 2000, unitary status was granted. A contro lled CHOICE student assignment plan was instituted in August 2003 with the plan for an expanded CHOICE plan to begin in 2007 (Janssen, 2001, pp. 119-120). Charlotte-Mecklenburg Schools, No rth Carolina also operated under a desegregation court order. It was in the 1971 Swann v. Charlotte-Mecklenburg Board of Education Supreme Court decision that Â“a dese gregated school was defined as one whose racial composition is roughly the same as the racial composition of the entire school systemÂ” (Armor and Rosell, 2001, p. 232). Th e Charlotte-Mecklenburg School District operated under the 1971 federal court order un til 1975 when the judge lifted it, believing that adequate progress in the move toward racial balance was being made (CMS Â“The
122 History ofÂ”, 2003, p. 2). Â“While the system was focused on student achievement, the issue of student assignment resurfacedÂ” when a parent Â“sued CMS, claiming that his daughter was denied enrollment toÂ…a magnet school because she was not blackÂ” (CMS Â“The History ofÂ”, 2003, p. 3). The Swann cas e was reactivated in 1998 and, finally, in September 1999, CMS was declared unitary but the court Â“mandated that a new student assignment plan be in place for the 2000-2001 school yearÂ” (CMS Â“The History of.Â”, 2003, p. 3). CMS returned to court asking for an additional year to put in place the new student assignment plan. That reque st was granted, however, in 2000 Â“The 4th Circuit Court of Appeals ruled that CM S is not unitary in some areas such as facilities, student assignment and transportation and sent them back to the lower court for reconsideration. Areas such as faculty, staff and extra curri cular activities and student discipline were considered unitaryÂ” (CMS Â“The History of .Â”, 2003, p. 4). It was not until September 2001 that the Â“Fourth Circuit C ourt of Appeals affirmed an earlier court ruling that CMS has achieved unitary status and ordered the Board of Education to operate the school system without regard to the desegrega tion order no later th an the 2002-2003 school yearÂ” (CMS Â“The History ofÂ”, 2003, p. 5). Th e Charlotte-Mecklenburg school district is among the top 25 largest school systems in the nation, with over 105,000 students. Indianapolis Public School s, Indiana similarly has ope rated under a desegregation court order. The Indianapolis Public School district, according to current Superintendent Pat Pritchett Â“was found (to be) operating a segregated school syst emÂ” (Schneider, 1999, p. 1) in 1971 and was placed under a federal court order which remained in place until 1998 (U.S. Department of Justice, 1998). The Indianapolis Public School System educates over 42,000 students and em ploys more than 5,000 people.
123 Methodology The approach of this study was through a collective case study as suggested by Yin (1994) in Case Study Research, Second Edition This collective case study examined the impact of 1997 IDEA reau thorization regulations (a contemporary phenomenon) as they existed through May 2003 within the cont ext of three practicing large K-12 public school districts. Triangulation of data s ources occurred through the consideration of school board policies, other cu rrent district documents a nd interviews of practicing educators and attorneys in three school districts. Triangulation involves the use of vari ous methods and sources to validate findings. Jick described triangulation as Â“the weakness of one method being offset by the strengths of another (Jick, 1979, p. 604).Â” Tr iangulation in this study was accomplished through the consideration of archival documents, current documents (1997 IDEA mandates), current documents (school district policies and procedural documents) and interviews of practicing educators and attorn eys in the three large, urban public school districts. Summary of Findings Seven years after the 1997 reauthorizati on of IDEA there appears to be strong, consistent compliance with the major student discipline related mandates of the law in the three large, urban, K-12 public school districts that were st udied. School board policies have been adopted in each of the districts wi th language often drawn from the law itself. A number of supplementary documents design ed to assist teachers and school based administrators as they deal with school misconduct by stud ents with disabilities have
124 been created in all of the studied school districts. Some of these supplementary documents (i.e. Handbooks, Administrator Packet s, or Service Manuals) are adopted as school board policy and some are not. All of these documents are annually updated to reflect current case law and other legal adjustme nts. It would not be accurate to say that the documents are in the hands of every sta ff person dealing directly with students with disabilities but they are located at each school site and are readily accessible. Extensive training in the area of school discipline and students with disabilities occurs throughout the school year in all of the examined distri cts. District staff and the attorneys (in-house or contracted) who deal with the districtÂ’s IDEA legal challenges provide this training. The attorneys for the sc hool districts cited con cerns about correctly conducted manifestation reviews and the need to continue to create additional alternative educational settings as they deal with mo re offenses involving weapons, aggression and increasingly serious offenses committed by younge r students with disabilities. All of the attorneys stated that more of their time is spent on placement issues than on disciplinary issues. District administrators who deal extensively with compliance issues in this arena also reported concerns about the manifestati on review process as we ll as appropriate and timely use of Functional Behavior Assessments and Behavior Intervention Plans. There was at least one district admi nistrator who expressed worry a bout the cost of alternative educational settings and the struggle to keep those populations from becoming exclusively students with disabilities. Member s of this group also talked about changes in the teachers of students with disabilities. References were made to teachers expressing fear of students, even when the student beha viors being exhibited ar e behaviors that have
125 been linked to certain disabilities (i.e. emo tional handicaps) for decades. Instances were cited where student defiance was perceived as threatening behavior and voiced concern about the lack of adequate viable alternative settings. More than half of the nine principals who contributed information to this study stated that their ways of work have significantly changed since the 1997 IDEA reauthorization. Noted were the need to im plement a less than consistent, dual student discipline system, the teacher time that must be spent gathering and maintaining data and the reality of feeling that they must keep too many disruptive stude nts in classes to the detriment of other studentsÂ’ learning. More secondary than elementary principals voiced this concern. One principal stated, Â“A lthough each studentÂ’s ex ceptionality should be recognized and accommodated, teachers and sch ools should have much more latitude to modify situations. By utilizing our own pers onal judgment, particularly with discipline, we could create a more realistic and produc tive educational atmosphere for our ESE studentsÂ” (Â“Interviews w ith PrincipalsÂ”, 2003-04). Conclusions Staff in the three school districts that se rved as the population for this study know the 1997 IDEA reauthorization mandates rela ted to student discipline and compliance seems to be the rule. In fact it appears that compliance is the focus of most conversations between educators about student s with disabilities. There was little brought up about the impact of these compliance steps on students w ith or without disabilities. Much of the compliance concern centers around program placem ent as well as disciplinary matters. Educators and school board members in th e three targeted sc hool districts have
126 constructed school board policies and procedur al documents that reflect the language of the IDEA 1997 reauthorization mandates. Various handbooks and manuals are available at school sites and school based administrators and teachers are exposed to training in the procedural requirements. It appears that a great deal of time is expended in the development of these detailed documents and the training of school based administrators. All of the documents reviewed and interviews with staff members lead to the conclusion that, whatever questions or c oncerns are present about the ap propriateness of the law as it stands, there is a clear commitment to complian ce. It was less evident that school based staff believe the compliance steps are best educational practice. The legal history of educating students w ith disabilities in America makes it clear that the public education system required a legal push to truly open its doors to the student with disabilities. Wh ether the law in this area has become better or worse for school districts as it has expande d is largely a matter of oneÂ’s perspective. The educators contacted in this study expressed empathy a nd caring for students w ith disabilities but seemed unconvinced that the curr ent state of the law is best for students with disabilities or for the school environment as a whole. IDEA is currently awaiting reauthoriza tion again. Two of the issues being debated are increasing federal funding for states as they reshape thei r school districts to meet IDEA requirements and greater flexibil ity for school administrators when dealing with misconduct by students with disabilities. An analysis of the data collected in th is study makes it clear that in the three public urban school districts re viewed there has been a deci sion to comply with the 1997 Individuals with Disabilities Education Act st udent discipline mandate s. In each of the
127 districts, school board policie s have been created that mirror the law to a great extent. Additionally, staff in each of the districts have created handbooks or manuals, which delineate the rights of students with disabi lities and provide guidel ines for school based administrators. These documents are put into the schools, and into the hands of students and parents annually. Training of staff about district expe ctations with regard to compliance with these mandates is ongoing in all three school districts. School based administrators report that they are knowledgeable of the 1997 IDEA requirements relative to student discipline a nd know who to contact within their system if they have questions. In spite of this compliance, however, five of the nine principals contributing to this study expressed concerns about impleme nting the dual student discipline system created by the 1997 IDEA disciplinary mandate s, the increased paperwork and meeting demands placed upon their teachers. These conc erns, occurring at the level most closely interacting with students, lead me to the c onclusion that additional study would be helpful to determine whether the disciplinary protections for student with disabilities are actually leading to increased academic achievement for these same students. It seems evident that each of the gr oups interviewed Â“experienceÂ” the law in different ways depending upon their responsibilities. Minority overrepresentation was a factor that arose during the review of the literature. It was not possibl e to obtain relevant student in formation from the CharlotteMecklenburg or Indianapolis sc hool districts regarding this i ssue for this study. Pinellas County demonstrated this overrepresentation in its 2003-04 ninth grad e class. African American students comprised 20.8% of the population and 33% of those students were
128 identified as students with disabilities. Additionally, 79.2% of these students were not African American and of that group only 15% were identified. This tiny snapshot of information should not be used to make a ny assumptions about the school district, but does reflect concerns found in some of the reviewed literature. Implications for Further Research The following implications for further re search are suggested by this study: 1. A longitudinal study should be unde rtaken to track students with disabilities who demonstrate serious misconduct early in their school career to see if there is evidence th at the current disciplinary safeguards ultimately result in greater academic success. 2. Research similar to that of th is study should be conducted with populations of small, rural public sc hool districts or suburban public school districts in different states. 3. A study of the models of and results from alternative educational settings in place for students with disabilities at elementary, middle and high school levels in similar districts is n eeded to both provide information and models for educators. 4. A longitudinal study should be undertak en to look at African American students with disabilities and other st udents with disabilities in the same exceptional education category, with si milar backgrounds, and in the same school system to see how comparable their school experiences are.
129 5. An in depth study of the attitudes of teachers regarding the IDEA 1997 mandates related to student discipline would be interesting. This would include elementary and secondary t eachers who teach students with and without disabilities. 6. When reviewing student discipline data, how do definitions of Â“disrespectÂ”, Â“defian ceÂ” and other categories of misconduct compare between districts.
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140 Appendix A State and District Demographics
141 Appendix A State and District Demographics Location Public Schools Pre K-12 SchoolsMinority Students Children in Poverty Students with Disabilities Florida 3,231 2,500,000 46.5% 14.0% 15.0% Pinellas County Schools (2001-02) 144 111,272 29.6% 36.0% 20.0% North Carolina 2,192 1,304,000 39.0% 19.4% 13.9% Charlotte-Mecklenburg Schools (2001-02) 138 105,172 55.5% 37.8% 11.4% Indiana 1,882 995,000 16.4% 14.1% 15.7% Indianapolis Public Schools (2001-02) 79 40,515 69.0% 63.0% 17.0% Information obtained from Florida Facts at a Glance, 2003, PC SB Facts, 2001-02, North Carolin a Facts at a Glance, 2003, CSM The History of Public Schools in CharlotteMecklenburg, 2003, Indiana Facts at a Glance, 2003
142 Appendix B: Protocols for Principals, District Administrators and School Board Attorneys
143 Appendix B Criteria for Principal Selection Principals in Charlotte-Mecklenburg were selected by the Superintendent. Principals in Pinellas County were selected by the writer of this study. Principals in Indianapolis were select ed through the Education Law Association.
144 Appendix B (Continued) Protocol for Principals A. Biographical (You will not be identified by name, school or district in the paper) 1. Years in education: _____ 2. Years at current position: _____ B. Grades served at your school: _____________ C. What is the total stude nt population at your school? D. How many special education students do you have in your student population? E. Do you have inclusion? _____ self-contained? _____ both? _____ F. What special education categories are represented in your student body? G. What special education/student disciplin e issue have you dealt with most frequently during the past two years? H. How is that issue ad dressed in your district? I. What has been the most critical specia l education/student di scipline issue you have confronted during the past five years? J. Have the 1997 IDEA laws and resulting district policies sign ificantly changed your way of work? If so, how? K. Is there anything else you would like to add to a paper dealin g with the impact of IDEA regulations on school districts?
145 Appendix B (Continued) Protocol for District Administ rators for Special Education A. Biographical (You will not be identifi ed by name or district in the paper) 1. Years in education: _____ 2. Years in current position: _____ B. Number of schools in your district: _____ C. What is the student pop ulation in your district? D. What is the special educa tion population in your district? E. How many staff members are there in your districts special e ducation department? F. How were your school board policies re lated to the implementation of IDEA developed? 1. Who had input? 2. Have they been adjusted since they were first enacted? 3. If so, what significant changes have been made? G. Who develops the guidelines for school staff to use when dealing with the school discipline of special education students? H. Who carries out the training for school st aff in the discipline of special education students? I. Who conducts the manifestation reviews for students when they have been recommended for a disciplinary consequen ce that would remove them from their school for more than 10 school days? J. What special education/student disciplin e issue have you dealt with most frequently during the past two school years? K. How is that issue ad dressed in your district? L. What has been the most critical specia l education/student di scipline issue you have confronted during the past five school years? M. Have the 1997 IDEA laws and resulting district policies sign ificantly changed your way of work? If so, how?
146 Appendix B (Continued) Protocol for District Administrators for Special Education (Continued) N. Is there anything else you would like to add to a paper dealin g with the impact of IDEA mandates dealing with student discipline on school districts?
147 Appendix B (Continued) Protocol for School Board Attorneys A. Biographical (You will not be identified in the paper by name or district) 1. Years as an attorney work ing with education issues: _____ 2. Years in current position: _____ B. How many attorneys are employed by the school district in which you work? C. Has that number increased since 1997? D. What is your interaction, as a rule, with the Exceptional Education Department? 1. Do you interact most often with certain individuals? Who are they and what are their positions? 2. What is the nature of most of those interactions? 3. How often do you interact with sta ff at schools about issues related to exceptional educations and student discipline? 4. Are you involved at all with th e training of school staff about IDEA provisions related to student discipline? E. What exceptional education/student disc ipline issues have you dealt with most frequently during the past two school years? F. How is that issue ad dressed in your district? G. What has been the most critical or interesting exceptional education/student discipline issue you have c onfronted during the past five school years? H. Have the 1997 IDEA mandates regarding th e discipline of students with disabilities significantly changed your wa y of work? If so, how? I. Is there anything else you would like to add to a paper dealin g with the impact of 1997 IDEA mandates dealing with student discipline on school districts?
148 Appendix C Pinellas County Schools 20022003 Student Information
Appendix C Rate of Out of School Suspen sions by Offense for Students Without and With Disabilities 149 Pre-Kindergarten through Grade 12 Student s without disabilities = 92,542 students Pre-Kindergarten through Grade 12 Stude nts with disabilities = 20,209 students Offense Rate per 10,000/ESE Rate per 10,000/Non-ESE Alcohol 6 6 Arson less than 1 2 Battery on an Adult 135 9 Battery on a Student 285 69 Breaking and Entering 0 1 Bus Misconduct 24 8 Cheating 3 4 Class or Campus 459 30 Disruption Defiance 727 268 Drugs 65 35 Electronic Devices less than 1 less than 1 Fighting 470 184 Forgery 11 7 Unauthorized Location 35 17 Lack of Cooperation 128 62 Leaving Campus 70 59 Missed Detention 48 30 Missed Saturday School 196 136 P.E. Misconduct 2 less than 1 Profanity 398 151 Repeated Misconduct 480 187
Appendix C (Continued) Rate of Out of School Suspen sions by Offense for Students Without and With Disabilities (Continued) 150 Offense Rate per 10,000/ESE Rate per 10,000/Non-ESE Robbery 2 1 Sex Offenses 9 3 Sexual Battery 4 1 Sexual Harassment 26 9 Skipping Class 55 22 Stealing 64 29 Threat or Intimidation 126 29 Tobacco 18 16 Vandalism 25 11 Weapons 42 15 Summary: During 2002-03, in Pinellas County Public Schools, Out of School Suspensions were assigned to students with disabilities at a rate of 414 per 10,000 students while suspensions were assigned to stud ents without disabilitie s at a rate of 162 per 10,000 students.
About the Author Nancy Styles Zambito received a Bachelors Degree in Education from the University of Central Florida in 1971 and a Masters Degree in Education from the same university in 1980. She has ta ught students in grades thr ee through 12 in Lake County, Florida where she also worked as a high sc hool assistant principa l and an elementary school principal. From 1980-1983 Ms. Zambito worked as a consultant for the Florida Department of Educations Pr ofessional Practices Section a nd has delivered workshops to administrators across the state in the areas of Effective Teacher Evaluation and Dealing with Ineffective Employees. She was the Dire ctor of Personnel Services for the Pinellas County School District in Flor ida where she is currently em ployed as Director of School Operations. Ms. Zambito has taught educati on courses for Nova University, has made numerous conference presentations and has testified as an expe rt witness in areas of the implementation of school law during ma ny legal proceedings in Florida.