Special Education Law Blog

Suicide Prevention Needs to be Part of a FAPE

My biggest fear as an attorney representing families of students with special needs is losing a student to suicide. To date I have not lost one. Currently, we are on the cusp of the long, dark months of winter, in which many suppose that the risk of suicide increases around the holiday season when persons who are isolated or without strong social support systems may be more vulnerable to attempting suicide.  Somewhat surprisingly, however, the risk for death by suicide increases not in the winter months but in the spring, according to the CDC.  For those of us who suffer from depression, the bright promise of spring and summer only serves to exacerbate symptoms.  And for those who suffer from this darkness, summer and springtime can be deadly.  And our youth are not immune to this troubling trend.

Senate Hearing on the School to Prison Pipleline

In December the U.S. Senate held hearings on ending the “School to Prison Pipeline.”  As discussed previously in this blog and elsewhere, the “school to prison pipeline” refers to exclusionary disciplinary practices (e.g., suspension, expulsions, or even arrests) resulting from blind adherence to zero tolerance policies, which critics harshly state criminalize otherwise normal behavior and are disproportionately used on minority and special needs students.  African American males are 3 ½ times more likely to be suspended or expelled than are their white peers, and students with special needs are twice as likely to be suspended or expelled than are their non-disabled peers. The Senate hearings, which were held before the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights and chaired by Senator Dick Durbin, were the first ever held to address the overall question of school discipline and how it has gone so terribly wrong.  But perhaps more importantly, the hearings discussed what needs to happen to “plug” the pipeline.

So how many students are being suspended or expelled?  According to data collected by the Civil Rights Project and released last March, 3 million students were suspended from our nation’s schools in 2009-2010.  As graphically illustrated in the report, “Opportunities Suspended:  The Disparate Impact of Disciplinary Exclusion from School” and discussed in a previous blog, this is enough students to fill every seat at every major league ball park and NFL stadium in the country.  And for many of these students, suspensions or expulsions may be their entry into the school to prison pipeline.  According to a Texas study, students who are expelled or suspended are three times more likely to become involved with the juvenile justice system within the year.

The Harsh Reality of Incarcerated Youth

The use of seclusion and restraint for children with special needs in our nation’s schools has received national attention.  These practices have been deemed as cruel and dangerous, and various pieces of legislation have been proposed to eliminate their use.  Yet, these practices are being used on an ongoing basis on our nation’s incarcerated youth.  Up to 81,000 teens are incarcerated in juvenile facilities on any given night, and an additional 10,000 teens are in adult prisons. According to the ACLU, which released a report on solitary confinement in October, a significant number of these facilities isolate youth for days, weeks, months, or even years.  The use of solitary confinement, according to the ACLU, causes “anguish, provokes serious mental and physical health problems, and works against rehabilitation for teenagers.”

One of the most tragic outcomes for incarcerated youth is suicide, and half of teen suicides occur while youth are placed in solitary isolation.   A position paper published by the National Commission on Correctional Health Care, which expresses concern about the high rate and potential underreporting of teen suicides in jails, states that further research is needed to delineate better the relationship between suicide and isolation.  Yet, according to the American Academy of Child & Adolescent Psychiatry (5), the research is in already.  The potential psychiatric consequences of prolonged use of solitary confinement on these “developmentally vulnerable” adolescents are “well recognized” and include depression, anxiety, and psychosis. 

The Real Harm of Bullying

October was National Bullying Prevention month. Throughout our nation’s schools, students attended pep rallies, signed petitions, wore t-shirts with anti-bully messages, and participated in anti-bully marches. Anti-bullying Facebook pages, some with extraordinary amounts of helpful resources and information, were created. It was all a wonderful display of anti-bully sentiment which ensured that everyone was thinking about bullying behavior and its consequence, at least for awhile. So what happens in November? Now that anti-bullying month has ended, what is occurring today in your child’s lunchroom or on the playground? Were the October messages enough to reduce bullying? What really works to help reduce bullying? There is a huge amount of literature on the best methods and curriculums to defeat bullying. Yet some of it is contradictory. One strategy from one anti-bullying expert is deemed misguided by another. To add clarity to this discussion, the U.S. Department of Health and Human Services has defined 10 best practices for bullying prevention. Those 10 strategies are:

1. Focus on the social environment of the school

2. Assess bullying at your school

3. Garner staff and parent support for bullying prevention

4. Form a group to coordinate the school’s bullying prevention activities

5. Train your staff in bullying prevention

6. Establish and enforce school rules and policies related to bullying

7. Increase adult supervision in hot spots where bullying occurs

8. Intervene consistently and appropriately in bullying situations

9. Focus some class time on bullying prevention.

10. Continue these efforts over time.

Elopement Behaviors: A Real Danger

Elopement or running away behaviors are certainly at the top of the list of most serious behaviors that must be eliminated from the range of behaviors that a student with special needs experiences in school. I have had several families where elopement has been a frequent and tortuous experience. While some have been injured fortunately none have died. For students with autism there is a great propensity to elope from school supervision and put themselves in danger. According to a study just published in Pediatrics on elopement behaviors, 49% of parents reported that their child had attempted to elope at least once. Of these children, 65% had a “close call” with traffic whereas another 24% were at risk of drowning. Children who elope leave their homes (74%), stores (40%), and schools (29%). Researchers were able to compare the rate at which children with an autism spectrum disorder eloped compared with that of their typical siblings. Between ages 4 and 7 (4 being the developmental age when children can be expected to not wander off), 46% of children with an autism spectrum disorder eloped compared to 11% of their siblings. And between ages 8 and 11, 27% of children on the spectrum wandered compared with just 1% of their siblings.

Minority Students & Students with Disabilities Suspended at a Higher Rate

The Civil Rights Project (Proyecto Derechos Civiles) released a study in March demonstrating that minority students and students with disabilities are suspended at a far higher rate than their non-disabled or non-minority peers. At first blush, this is not news.  Other researchers have already documented these disproportionate rates, which have even been discussed in this blog.   But the new study, “Opportunities Suspended:  The Disparate Impact of Disciplinary Exclusion from School,” is different for two primary reasons. First, the authors, Daniel Losen and Jonathan Gillespie, use data from the Civil Rights Data Collection survey from the Department of Education, thereby providing the most comprehensive and exhaustive review of what is happening in our nation’s schools.  These DOE data are from 7000 schools districts and represent 85% of our nation’s students.  Second, the Civil Rights Project does not solely focus on the problem states or the problem districts that are suspending students at such horrific rates.  The study also provides the data for those states and districts that are not engaging in high suspension rates.  These districts have figured out how to keep students in school and engage them in learning.  These are the districts from which we need to learn. 

Bullying: The Sad Reality

Back in 2010, Education Secretary Arne Duncan convened a “bullying summit” in which he characterized bullying as a “gateway to hate,” which when left unchecked, could escalate into further violence and abuse.  The Department of Education was announcing a shift in its approach to this issue by reframing bullying as a civil rights issue in which the federal government would take a more proactive role in investigating, enforcing, and monitoring compliance of school districts. To that end, the Office of Civil Rights expanded its data collection and for the first time gathered data on bullying related to racial, sexual, or disability harassment.  The OCR recently released data on the 2009-2010 school year.  The data, which were gathered from 85% of the nation’s schools, or 7000 school districts, revealed some surprising results.  Of the 20 largest school districts in the country, 14, including the public school systems of New York City and Los Angeles, had absolutely no reports of bullying or harassment. 

Restraint and Seclusion, Opposing Viewpoints

The Department of Education recently released the new Civil Rights Data Collection that analyzed equities and disparities in educational opportunities in our nation’s schools during the 2009-2010 school year.  Data were gathered from 72,000 schools, or roughly 85% of students.  Among the data examined was the frequency with which students were secluded or restrained.  Almost 70% of the 38,792 students who were restrained during the past calendar year had disabilities, although students with disabilities comprise only about 12% of the student population.  African-American males, who make up only 21% of the student population with disabilities, represented 44% of those students restrained.  And finally, although approximately half of students with disabilities are male, 70% of students with disabilities who were restrained were male.  According to TASH and other disability groups, the data are sobering.  TASH characterizes the use of restraint and seclusion as an issue of “national significance,” which leads to “traumatic physical and emotional harm, and even death.”  In a press release, Barb Trader, the executive director of TASH, states, “Our students need equitable access to education and protection for their personal safety under the law, and clearly that’s not happening for students with disabilities or those from diverse backgrounds.  It is a national tragedy that any child, especially the most vulnerable, is not safe in school.”  

Keeping All Students Safe Act Introduced in Congress

The “Keeping All Students Safe Act,” which was introduced in the U.S. Senate last December, would limit the use of physical restraint and seclusion of students who are out of control or may pose harm to themselves or others.  According to Senator Harkin, the Democratic sponsor of the bill, “Every child should be educated in a supportive, caring, stimulating environment in which they are treated as an individual and provided with the tools they need to succeed.  They should never be subjected to abusive or violent disciplinary strategies or left alone and unsupervised.  This bill will set long-overdue standards to protect children from physical and psychological harm and ensure a safe learning environment for teachers and students alike.”

When Zero Tolerance Goes Too Far

 In our post-Columbine world and in an understandable effort to ensure that schools are safe, schools enacted “zero tolerance policies” resulting in expulsions or suspensions for infractions involving weapons, drugs, or other violent acts.  These policies were designed to ensure that schools respond harshly and consistently to serious student misconduct.  With time, however, the list of violations for which zero tolerance applies has been broadened to cover acts involving defiance, noncompliance, or disrespect.  These policies, when rigidly adhered to (and they often are), deny administrators the opportunity to consider any extenuating circumstances related to the incident, or in many cases, the application of plain common sense when meting out discipline.  One report has dubbed zero-tolerance policies as “zero-thinking policies.”