“Kiera” is a 13-year-old 7th grader placed in a segregated classroom for students with emotional disabilities. (Kiera is a client of Maryland Disability Law Center I have changed her name and altered details to protect her confidentiality.) She has been diagnosed with a mood disorder, a mild to moderate intellectual disability, and attention deficit hyperactivity disorder. According to her psychologist, Kiera’s various disabilities affect her impulse control, perception of risk, and ability to regulate her emotions. Last spring, while having a bad day at school, Kiera created a disturbance in her classroom by using profanity and refusing to follow instructions. Unable to manage Kiera while attending to the other students, her teacher called for the school resource officer. The officer entered the classroom, armed and in uniform, to remove Kiera. He grabbed her by her arm to escort her out of class; she reacted by kicking the officer in the shin and attempting to run away. The officer responded by charging Kiera with assault on a police officer, disturbing school activities, disorderly conduct, and resisting arrest. Kiera was handcuffed and taken to a juvenile detention center. When she returned to school the following day, she was issued a five-day suspension for the incident. Although the school determined that Kiera’s conduct was a manifestation of her disability and her public defender attempted to use this information to defend against the charges in court, the court found Kiera delinquent. She remains under the court’s supervision.
Contrast Kiera’s experience with an alternative scenario. Imagine that instead of calling the school resource officer, the teacher was able to call a trained behavioral aide or mobile crisis staff experienced in de-escalation, knowledgeable regarding the impact of Kiera’s disabilities on her behavior, and present in the school with the explicit purpose of assisting teachers and students in the event of crisis. Imagine this person arriving to the classroom, not with an authoritative and disciplinary presence, but rather with a calming and supportive approach. Consider how the teacher, Kiera, and the other students may have been affected by the alternative and the value to the school’s climate and the court system in avoiding the former scenario.
Shifting the practice of Maryland schools to the latter scenario is among the goals of Maryland Disability Law Center’s juvenile justice project. Here I discuss the various advocacy strategies Maryland Disability Law Center has explored in our continuing effort to effectuate this change; our quest for and use of data on suspensions and school-based arrests of students with disabilities; and our collaborative work with strategic partners to ensure students like Kiera remain in the classroom with the supports and accommodations they need to thrive.
Investigating the Incidence of Suspensions and Arrests
Maryland Disability Law Center staff observed an increasing number of reports involving students with disabilities arrested and suspended for disability-related in-school conduct in certain school systems in Maryland. The Maryland Office of the Public Defender, Maryland Disability Law Center’s case referral partner, reported similar trends, especially in particular jurisdictions. These students generally have educational disabilities affecting their behavior, such as attention deficit hyperactivity disorder, emotional disabilities, or autism. They are typically placed in self-contained classrooms for the majority of the school day, and the conduct leading to their police or juvenile justice involvement involves temper tantrum-like behavior: yelling, defiance, throwing things, punching, kicking, or running out of the classroom. In police jargon, such behavior constitutes disturbing the peace, assault, and property destruction.
This trend led Maryland Disability Law Center to seek information and data on suspensions and arrests to determine whether the clients referred to our office reflected a larger population with similar needs. We were concerned that the school-to-prison pipeline was expanding, not only pushing youth with disabilities out of school through suspensions and expulsions but also directly funneling them into the juvenile justice system via school-based arrests.
Suspension and expulsion data for students with disabilities in Maryland is relatively easy to access. In addition to the data collected by the Office of Civil Rights and compiled by the University of California, Los Angeles’s Civil Rights Project, the Maryland State Department of Education collects and publishes data annually.
However, finding data on school-based arrests for any population, let alone specific data on students with disabilities, proved nearly impossible. School systems in Maryland are not required to record in-school arrests or calls to the police. School resource officers in most jurisdictions write general arrest reports that are not separately maintained nor recorded differently from arrest reports for community-based incidents. The Maryland Department of Juvenile Services does not track whether a youth is referred to its agency for a school-based incident, and the court system does not track this information, either.
Baltimore is home to several initiatives specifically focused on school-house to jail-house phenomena.
Baltimore City is an exception. Unlike other jurisdictions in Maryland, Baltimore City Public Schools have their own police force that functions in partnership with but independently from the Baltimore City Police Department. Further, as a large city with numerous nonprofit organizations and foundations, Baltimore is home to several initiatives specifically focused on school-house to jail-house phenomena. For example, Baltimore City is a Juvenile Detention Alternatives Initiative site, funded by the Annie E. Casey Foundation; as part of this initiative, all entry points into the juvenile justice system, including school-based arrests, are monitored and analyzed. Baltimore also has an active Disproportionate Minority Contact Reduction Initiative that accesses and scrutinizes juvenile arrest data. As noted later in this article, the access to data for students in Baltimore City Public Schools has proven helpful in reducing the arrest rate for school-based conduct.
Advocacy Strategies Considered and Deployed
Given the limited resources available to Maryland Disability Law Center to address the disability community’s myriad of needs for legal assistance, we must be strategic and efficient in our responses to systemic problems facing our clients. We thoughtfully weighed the pros and cons of various legal and extra-legal solutions to the escalating arrest rate for students with disabilities.
Upon discovering that the relevant agencies generally do not collect data on school-based arrests, Maryland Disability Law Center set out to compel the collection of such data. We encountered the formidable challenges involved with organizing statewide data collection by police departments given that the placement, operation, and management of police in schools varies by jurisdiction, and that all arrests are typically recorded using the same form. Thus, extracting data on school-based arrests would require manually sifting through all arrest reports for a specified time period and determining whether the address associated with the report belonged to a school. Together with another statewide advocacy organization, Advocates for Children and Youth, Maryland Disability Law Center drafted and submitted a formal request for data collection to the Maryland Department of Juvenile Services. We asked the administration to change its intake procedures so that all school-based incidents referred to the Department of Juvenile Services would be noted as such and that the data could be readily extracted and analyzed. Department of Juvenile Services administrators were receptive, but the logistics of an information technology change and retraining intake workers promised to be time-consuming. Nearly a year later, electronic intake forms still have not been modified.
We contemplated proposing legislation to require the data collection but decided against this approach because, as discussed below, the Maryland State Board of Education has released a report and proposed regulations that would require schools to collect data on school-based arrests. Maryland Disability Law Center is working with a broad coalition to support these proposed regulations, and we are confident that schools will be required to begin collecting data on school-based arrests in the near future.
State Individuals with Disabilities Education Act Complaint Process
Maryland’s special education complaint process, as required by the Individuals with Disabilities Education Act and accompanying federal and state regulations, has proven to be an effective legal tool for helping parents of students with disabilities address school system violations of their children’s educational rights. The Maryland State Department of Education timely investigates allegations and frequently issues letters of finding determining that the aggrieved student is entitled to compensatory services. To remedy systemic issues, the Department of Education develops corrective action plans and monitors school systems. In light of the positive outcomes Maryland Disability Law Center has obtained using the complaint process, we explored whether the Department of Education would find use of school police and the arrest process, in lieu of development and adherence to an individualized behavior intervention plan, to violate a student’s rights under the Individuals with Disabilities Education Act.
After filing several complaints on behalf of clients with behavioral problems who were suspended and arrested in school, Maryland Disability Law Center learned that the Maryland State Department of Education will not address in-school arrests of students with disabilities. Relying on 34 C.F.R. § 300.535, which states, “Nothing in this part prohibits an agency from reporting a crime committed by a child with a disability to appropriate authorities or prevents State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability,” the schools and the state take the position that law enforcement action is outside the scope of the Individuals with Disabilities Education Act. Although we succeeded in obtaining some relief, such as compensatory services for gaps in instruction caused by arrest and suspension, for our clients by filing complaints, this process was not effective for addressing the underlying problem of school-based arrests for disability-related behavior.
Maryland Disability Law Center also considered filing discrimination complaints on behalf of clients arrested in school for behavior that clearly was a manifestation of their disabilities, either through the United States Department of Education’s Office for Civil Rights or the Department of Justice Civil Rights Division. A major obstacle preventing us from taking this course of action was the lack of data. Without arrest data specific to students, we had inadequate support for our contention that students with disabilities comprise a disproportionate number of students arrested and are being treated differently from students without disabilities. While we could file an individual rather than systemic complaint, experience had taught us that without a clear procedural violation or strong evidence of a systemic problem, favorable findings or even convincing the departments to investigate were unlikely results.
Another issue was relief. What exactly was the relief we were seeking? For individual clients, the relief most often sought was the provision of appropriate services and accommodations that would allow the student to be placed in the least restrictive environment, avoid arrest, and progress toward graduation. This relief could be obtained faster and less litigiously through individual advocacy at individualized education program meetings. Yet a successful individual complaint would not lead to the larger cultural shift we wanted to achieve in the schools, for example, movement away from use of arrests toward accommodation and inclusion.
The complaint pertained to a specific client but also included allegations of systemic abuses.
Despite these considerations, Maryland Disability Law Center chose to file a complaint with the Department of Justice against a school system on the Eastern Shore in October 2012. The complaint pertained to a specific client but also included allegations of systemic abuses. The crux of our claim was that by relying on the school police rather than giving the protections in the Individuals with Disabilities Education Act, such as an appropriate individualized education program and behavior intervention plan, the school system discriminated against our client (a student with disabilities) by treating his disability-related behavior as criminal activity and failing to provide him with reasonable accommodations. (Because this complaint is still under investigation, I am not providing identifying information, in order to protect our client’s privacy.)
Other advocates and individuals filed complaints with the Department of Justice in this particular county alleging both racial and disability discrimination. While these complaints remain under investigation, advocates and local community members are moving forward to obtain improvements in the school system. In the late spring of 2013, over 50 community members gathered to share their children’s stories. Local community leaders are assisting these families in advocating for their children at school proceedings and are hoping to mobilize the community to improve the school system.
Maryland Disability Law Center also considered writing a public report on suspensions and arrests of students with disabilities. Among the advantages to this approach, we could cite the existing data, note the lack of available data on arrests, and focus on the compelling stories of our clients. We had seen the success of similar and related reports, such as the Justice Policy Center’s Education Under Arrest: The Case Against Police in Schools and the American Civil Liberties Union’s Arrested Futures: The Criminalization of School Discipline in Massachusetts’ Three Largest School Districts. The purposes of the report could include a push for data collection and accountability from the state agencies and schools or for legislation that would require such data collection. However, we ultimately decided against this route due to the level of resources required to publish an effective report and because the Maryland State Board of Education had published a report outlining many of the same issues and concerns that we had already raised.
Collaboration with Stakeholders—Task Forces and Workgroups
The strategy that we have ultimately put the greatest emphasis on in addressing the school-to-prison pipeline for students with disabilities is collaboration with other stakeholders with the goal of modifying existing policies and practices of local school systems. The Maryland legislature and agencies frequently utilize task forces when considering a change in existing law or procedure. Often, the lead agency will bring together those affected by the proposed changes and advocates that work on the relevant issues to develop a plan that will be presented to agency administration or the legislature, depending on the level of approval necessary to make the change. The downside to task force participation is that it often requires frequent, lengthy meetings that can drain advocates’ resources without a guarantee that the end product will be adopted, have an impact, or even reflect the advocates’ goals. The upside is that advocacy organizations are given a voice in the process and positive, mutually beneficial relationships are formed between representatives of the state agencies and outside advocacy groups.
Maryland Disability Law Center participates in multiple workgroups that each focus on discrete aspects of the school-to-prison pipeline. While none of these workgroups are disability-specific, the issues presented squarely affect our clients, and we find that the unique challenges of students with disabilities would not be addressed without Maryland Disability Law Center’s presence at the table. The composition of advocates and agency representatives are often similar, but keeping the workgroups focused on a single issue helps make the tasks manageable and the outcomes specific and measurable.
Baltimore City School Safety Collaborative
Modeled after the collaborative groups led by Judge Steven Teske of Clayton County, Georgia, and Judge Brian Huff of Jefferson County, Alabama, the Open Society Institute assisted a Baltimore City juvenile court judge, Hon. Robert Kershaw, in convening a workgroup to reduce school-based arrests in Baltimore schools. The workgroup included representatives from the school system, school police, State’s Attorney’s Office, Maryland Office of the Public Defender, Maryland Department of Juvenile Services, and various advocacy organizations. When this workgroup began in 2010, the first order of business was data analysis. The school police and the Department of Juvenile Services shared detailed information they had collected on arrests including the offense, the student’s demographics, the school, the arresting officer, the decision at Department of Juvenile Services intake, and the outcome of any judicial proceedings that occurred. After reviewing nearly a year’s worth of data, the group discovered the following: (1) the majority of arrests that school year were for misdemeanor offenses; (2) many arrests were made for conduct requiring the officer’s interpretation and discretion, such as disturbing school activities and disorderly conduct; (3) students arrested in school often did not have their cases formalized by the Department of Juvenile Services or adjudicated by the courts, and as a result the arrest did not trigger an increase in services to the child or family; (4) arrest rates varied greatly by school; and (5) some schools and officers diverted arrests through referrals to alternative programs or collaboration with school administration.
The Chief of Baltimore City Schools Police was an active participant in the workgroup. As a result of the data collection and review, he began training his officers differently to include education on the use of discretion and diversionary alternatives to arrest. He identified the officers and schools that had the highest number of arrests for minor conduct and focused his efforts on reducing arrests in these schools. Due to his leadership in response to the data, school-based arrests in Baltimore City dropped significantly. Based on Baltimore’s success, the Maryland legislature passed a bill in 2013 requiring Prince George’s County, a suburb of the District of Columbia, to convene a similar collaborative.
Code of Conduct Revisions
Another Baltimore City workgroup in which Maryland Disability Law Center participates is focused on the school system’s code of conduct. Beginning in 2007, Baltimore City Public Schools worked with the Open Society Institute, the Advancement Project, and advocates to develop a new code of conduct eliminating zero tolerance, placing an emphasis on positive relationships and intervention, and clearly and concisely setting forth the consequences for various kinds of misbehavior in school. The revised code of conduct also provides guidance to principals and other administrators on how to exercise appropriate discretion when dealing with conduct that violates the code. In addition to clarifying the misconduct eligible for suspension or expulsion (and that which may only be addressed by a conference or detention), the code of conduct now includes the offenses that must be reported to school police. Among the primary goals of the revisions is addressing the discrepancies in schools’ and educators’ responses to student misconduct as revealed by data. While administrators are given discretion on how to handle specific incidents, the disciplinary consequences must be within established boundaries. For example, under the code, a principal may not suspend a student for possessing tobacco and a principal must suspend a student who makes a bomb threat. The code has been updated in the last year, with city schools continuing to include advocates in the process.
Maryland Disability Law Center has also participated in the review and revision of Baltimore County’s code of conduct, as well as a statewide code of conduct that will be published by the Maryland State Department of Education. A goal of our participation is changing school polices to be more transparent, less punitive, and more consistent and to reduce the incidence of youth with disabilities and of color, who have historically been disproportionately pushed into the juvenile justice system, being suspended or arrested in school. We are also involved in a statewide effort to offer alternatives to exclusionary discipline, such as positive behavioral supports and community conferencing.
Statewide Discipline Changes and the Development of Best Practices
Additionally, Maryland Disability Law Center has been actively supporting Maryland State Board of Education’s initiative to make statewide policy changes regarding the discipline of students. The Board of Education in 2009 began an effort to review the discipline of students in school systems across the state. This effort was prompted by the Board’s appellate review of the expulsion of a student who received little-to-no educational services during her nearly year-long exclusion from school. Because school systems in Maryland make their own discipline policies and no laws or regulations require educational services for students excluded from school, the Board sought to review data to determine how often students are suspended, the types of offenses that are leading to suspension, whether students receive services during suspension, and whether Maryland follows national trends regarding the disparate treatment of minority students and students with disabilities.
Based on the results of this data review, as well as a review of national studies on the efficacy (or lack thereof) of excluding students from school for misconduct, the Maryland State Board of Education issued a report and proposed multiple, progressive regulatory changes, as discussed above, in regard to data collection. These include efforts to reduce suspensions for nonviolent misconduct, change the definitions of short-term and long-term suspension to keep students in school, require the provision of educational services to excluded students, collect and review data including data on school–based arrests, and provide greater due process rights for students proposed for exclusion.
While the Maryland State Board of Education has led these efforts, advocates have been included in the process. Maryland Disability Law Center and others testified before the State Board on the status of discipline statewide and additional issues of concern. Advocates continue to be involved in assisting the Board by participating in several workgroups as it considers possible regulatory changes. Spawned by the Board’s efforts, the Maryland State Department of Education also formed several workgroups to further the study and reform of discipline. Maryland Disability Law Center actively participates in a workgroup to develop best practices for school systems statewide. These practices include evidence-based methods that promote a positive school culture and alternatives to the suspension and arrest of students.
Overall the collection and analysis of data on suspensions and expulsions in Maryland have proven to be integral to effectively advocating for improvements in school system practices and supporting and prompting discipline reform by state leaders.Maryland Disability Law Center and other advocates hope that that changing the collection and analysis of data on school-based arrests of students so that the process includes students with disabilities will lead to similar developments as demonstrated in Baltimore City.
Author’s Acknowledgment: The author would like to thank The Morton K. and Jane Blaustein Foundation, the primary funders of Maryland Disability Law Center’s juvenile justice project.