Section Review

House of Delegates supports greater fairness in expulsion laws

Susan coleSusan Cole is the director of the Children's Law Support Project at the Massachusetts Advocates for Children. Michelle Griffin, who edited the article, is the chair of the Children's Rights Practice Group of the MBA and a staff attorney at Children's Law Center of Massachusetts. Both attorneys assist families and children who have been suspended and expelled from school.

At its May 22 meeting, the MBA House of Delegates voted to put its support and lobbying efforts behind House Bill 1260: "An Act Relative to Alternative Education and School Safety."1 Filed by Rep. Alice Wolf of Cambridge, HB 1260 would inter alia grant students who have been excluded from public school for disciplinary reasons a right they currently do not have - a hearing at school on the question of whether they may return. In supporting this bill, the Massachusetts Bar Association has put its strength and power behind some of the most vulnerable children in the commonwealth. This support couldn't have come at a better time.

Commonwealth students can be excluded from school for disciplinary reasons - even permanently - and never given an opportunity to be heard on the question of whether they may be allowed to return.

There is no age limit on the use of this punishment,and children as young as 6 have been excluded from school for long periods of time.2 Massachusetts does not require schools to provide alternative education to regular education students who are excluded from school3 and, as a result, the most recent published statistics show that on average more than 40 percent of regular education students who are excluded do not receive alternative education.4 For students excluded for particular offenses, no other city or town in the commonwealth is required to accept them if they move to another town or request to transfer.5

These laws have created great inequities in our system of justice. In an era when education was rightfully viewed as important to the rehabilitation of youth, the commonwealth began requiring that children in DYS custody receive an education; this requirement continues today. Thus, if a student engages in activity extreme enough to warrant commitment to DYS, he or she will continue to be educated while in DYS placement. Yet when school systems exclude students for engaging in actions that may not warrant a criminal complaint or any DYS involvement, they may sit out of school at home or on the street for long periods of time - or forever - with no education at all. In a recent case, an elementary school student was excluded when the school learned that he was charged with a felony for pointing a survival game gun off grounds at another student. While waiting for a trial, the young student was left with no education whatsoever for six months.6

Despite these and other tragic situations, the numbers of disciplinary exclusions continue to rise. The most recent statistics in Massachusetts (for the 2000-01 school year) reveal that more than 1,620 students were excluded from school for more than 10 consecutive days.7 This represents a 22 percent increase over the prior two years.8 Since the new expulsion laws in the Education Reform Act passed, the use of exclusion has fallen most harshly on children from racial minorities. Although students of racial and ethnic minority groups represented 23 percent of the total student enrollment in the 1999-00 year, they accounted for 61 percent of student exclusions. Specifically, Hispanic students, almost one-tenth of the total student enrollment, accounted for one-third of student exclusions. African American students constituted 9 percent of the total enrollment and 24 percent of student exclusions.9

It is important to note, however, that in the 1999-00 year, 37 percent of the cities and towns in Massachusetts accounted for all exclusions beyond 10 consecutive days.10 This means that more than half of Massachusetts school systems don't exclude beyond 10 days at all - and for good reason.

Research indicates that suspension, expulsion and other forms of punitive school disciplinary responses for the most part have not been effective in making schools safer or in reducing disruptive behavior beyond short periods of time.11 A whole new body of research has developed around proven, cost-effective approaches that reduce problem school behavior by using what is called "positive behavioral supports." These approaches have been found not only to decrease the use of suspensions, expulsions and disciplinary referrals, but at the same time to improve school climates, increase attendance and not surprisingly, improve academics. Federal special education law has incorporated this highly regarded behavioral research in its 1997 amendments,12 and requires schools to use these "positive behavioral supports" to address needs of students with certain disabilities and behavior "that impedes [their] learning or that of others…"13 The Federal Office of Special Education Programs has set up centers across the country to share the research on positive behavioral supports and provide consultation to schools. Massachusetts schools need an incentive to try these proven approaches with all students.

The No Child Left Behind Act (NCLB) further encourages schools to address problems early in order to make schools safe by labeling schools as "unsafe" if expulsions for serious violations have taken place.14 To avoid this label, schools must address underlying needs of children before behavior reaches a point where safety becomes an issue and expulsion is considered.

HB 1260 takes an incremental step toward encouraging the use of this behavioral research and supporting the national efforts embodied within the NCLB and the IDEA. It would take a bite out of out of the overly rigid application of school expulsion rules by holding a hearing at the 45th day of exclusion. At the hearing the student can re-enter school unless the school can demonstrate that the student's presence in school will pose a physical danger to self and/or others and that the student has not made an adequate showing that his re-admission will further the student's educational goals.

HB 1260's grant programs contain cutting edge language that would help schools proactively address the underlying needs of children whose behavior interferes with learning, including the needs of children who may act out in school for trauma-related reasons. The bill also creates a financial incentive for schools to educate expelled students by making sure a city or town does not receive state funding for any excluded child who has not been provided with an alternative education as defined in the bill. And, by specifically defining alternative education, the bill seeks to ensure that children who are excluded from their regular placements continue to receive a quality education. In requiring school districts to consider referring children for special education evaluations and notifying parents of the right to refer their children for such evaluations, the bill also recognizes what many advocates have found over time - that many of the children that are referred to them for disciplinary exclusions (or simply "excluded from school") are children whose special education needs have long been unidentified and unmet.

While the bill does eradicate the use of the surface punishments of suspension and expulsion, it takes a step in the right direction - toward assuring that children are not deprived of education forever, a current situation that benefits no one.15

End notes

1. The proposal to the House of Delegates was co-sponsored by the IRR Children's Practice Group and the Family Law Section.[back]

2. Student Exclusions in Massachusetts Public Schools: 1999-2000, Massachusetts Department of Education, published December 2001. In 1999-2000, 32 students "10 years old or under" were excluded for more than 10 consecutive days. DOE has released only the total number of exclusions for the following year, 2000-2001, indicating a macro increase in the number of expulsions, but has not published an age analysis for any later years. The authors have assisted families with students at young as age 6. [back]

3. Currently in Massachusetts, regular education students who are excluded from school have no right to alternative education. However, under current federal special education law, schools must continue to provide disabled students who are suspended or expelled from school with a "free and appropriate public education." 20 U.S.C. ß 1412(a)(1). [back]

4. Students Exclusion in Massachusetts Public Schools: 1999-2000, supra at pg 8. [back]

5. Mass. Gen L. ch. 71 sections 37 H and 37H 1/2. [back]

6. Upon the issuance of a criminal complaint charging a student with a felony or upon the issuance of a felony delinquency complaint against a student, the principal or headmaster of a school in which the student is enrolled may suspend such student for a period of time determined appropriate by said principal or headmaster if said principal or headmaster determines that the student's continued presence in school would have a substantial detrimental effect on the general welfare of the school. Mass. Gen. L. ch. 71 sec. 37 H1/2.[back]

7. DOE has published this figure on the 2000-01school year on its Web site. However, it has not released more detailed information as it has in past years.[back]

8. In 1999-00 there were 1,412 and in 1998-00, 1,326. Student Exclusions in Massachusetts Public Schools: 1990-00 supra.[back]

9. Student Exclusions in Massachusetts Public Schools: 1999-00, supra at pg. 2. Lawyers in this field feel that this burden is also falling harshly on low-income families who may not be in a position to secure advocacy that might result in appropriate services prior to the point where expulsion is considered.[back]

10. Students Exclusions in Massachusetts Public Schools: 1999-00, supra at pg 10. For that year, the total number of exclusions was 1,412. [back]

11. See Luiselli, James K., EdD, ABPP, BCBA and Charles Diament, PhD, Behavior Psychology in the Schools, Innovations in Evaluation, Support and Consultation, 2002 Haworth Press, Inc. pp 24-28[back]

12. Individuals with Disabilities Education Act, 20 USC 1400, et seq.[back]

13. 20 U.S.C. ß1414(d)(3)(B), requires that the educational team "in the case of a child whose behavior impedes his or her learning or that of others, consider, when appropriate, strategies, including positive behavioral interventions, strategies, and supports to address that behavior." [back]

14. The Massachusetts Board of Education voted to define a school as unsafe pursuant to NCLB if for three consecutive years, one or more students have been expelled for a violation of the federal Gun-Free Schools Act, or the number of students who have been permanently excluded or expelled form school for more than 45 days for weapons or physical assaults or violent crimes exceeds 1.5 percent of the student enrollment.[back]

15. For more information about these laws, or to volunteer to accept cases under these and other education laws on a pro bono basis, please contact Susan Cole at the Massachusetts Advocates for Children, or Michelle Griffin at the Children's Law Center of Massachusetts.[back]

©2014 Massachusetts Bar Association