Duality of Discipline Disparity

Today’s guest author is Teresa Olafson. Teresa has been blessed with two amazing sons that have raised her to be a fierce advocate when she would have enjoyed simply being “mom”. She is currently concluding her master’s in nursing administration and management and hopes to expand her learning on the neurobiology of trauma. She is passionate about empowering families and creating positive impact on educational, health care and political systems through shared knowledge.

Recently the Department of Education Office of Civil Rights (OCR) published a Request For Information (RFI) asking for Information regarding the nondiscriminatory administration of school discipline. OCR requested information in the form of written comments that include information, research, and suggestions regarding the administration of school discipline in schools serving students in pre-K through grade 12. OCR solicits these comments to inform determinations about what policy guidance, technical assistance, or other resources would assist schools that serve students in pre-K through grade 12 with improving school climate and safety, consistent with the civil rights laws that OCR enforces, to ensure equal access to education programs and activities. OCR has promulgated regulations to implement civil rights laws and periodically provides policy guidance and technical assistance to clarify these statutory and regulatory requirements. Information received through this request may be used to assist OCR in preparing further guidance, technical assistance, and other resources.

What follows are written comments submitted by Teresa Olafson. We encourage other to submit written comments here: http://bit.ly/tellOCR


Horace Mann spoke in 1848 that “Education…is a great equalizer of conditions of men” however in today’s U.S. education system the only greatness to be witnessed is that of the duality of students which leads to inequality and injustice.  In a duality system of civil rights and criminal wrongs, students bear the burden of society’s implicit bias. 

I believe that the U.S. Educational System is either the greatest liability to, or can be the greatest solution for, our nation’s current societal issues. We exist in a country where rules, laws, and protections are established to give an illusion of rights but lack teeth to bite and chew through the roots of a discriminatory system. 

The Government Accountability Office (GAO) has produced two reports addressing the significance of aversive discipline practices on children. The GAO released its 2009 report Examining the Abusive and Deadly Use of Seclusion and Restraint in Schools in which it detailed hundreds of cases of child abuse from seclusion and restraint with some resulting in death. The GAO reported concerns that there was no Federal guidance or law on these practices which afforded a variety of state regulations and no reliable reporting mechanism to track injury or death rates and resulting criminal cases due to the extensive level of misuse by poorly trained employees. Over a decade later we are no closer to addressing or resolving these issues which threaten the very lives of our children. 

The GAO released K-12 Education Discipline Disparities for Black Students, Boys, and Students with Disabilities that outlined the disproportionate use of discipline interventions based upon the civil rights data collected by the Department of Education (2018). The GAO outlines that the Education’s Office of Civil Rights and Justice’s Civil Rights Division share Federal enforcement responsibility of civil rights laws to ensure schools administer discipline without discriminatory practices by a) differential treatment based on race, or create b) racial disparity impact. The report includes interviews with school officials from five states; including my state of North Dakota. Here are a few findings to consider. 

GAO Data Analysis of 2013-14 CRDC:

  • Black students (15.5% of total US student population) yet made up 39% of suspensions.
  • 17.4 million more white students than black yet black students received 176,000 more suspensions.
  • 54% of preschoolers were boys yet made up 78% of preschool suspensions.
  • 51% of K-12 students were boys yet made up 70% of law enforcement referrals.
  • 19% of K-12 disabled boys’ students were black yet made up almost 36% of disabled students’ suspensions.

Per GAO, it is noted that North Dakota prohibits Corporal Punishment in public schools however a closer look at my state’s Century Code reveals a caveat that has escaped notice:

15.1-19-02. Corporal punishment – Prohibition – Consistent policies. 1. A school district employee may not inflict, cause to be inflicted, or threaten to inflict corporal punishment on a student. 2. This section does not prohibit a school district employee from using the degree of force necessary: a. To quell a physical disturbance that threatens physical injury to an individual or damage to property, b. To quell a verbal disturbance, c. For self-defense; d. For the preservation of order; or e. To obtain possession of a weapon or other dangerous object within the control of a student.

More importantly within this report on page 29 is figure 9 which are six picture examples of school spaces that are set aside for students needing additional supports. North Dakota’s “cool down” room is a padded cell for special education students in an unidentified middle school that was provided by school officials. My child entered North Dakota Early Childhood Special Education at the age of 3 with an IEP that specified “time outs” for behavioral management for “non-listening” behaviors way before my child ever entered the classroom; predetermination. These behaviors are both age and disability-appropriate, yet aversion interventions were used routinely however not tracked nor recorded. By the age of 4, a behavioral intervention plan included walking escorts or physical removal of my child to a seclusion room for a 30-45 minute “time-out” that was anything but behavioral or calming. By kindergarten, my student was restrained and secluded countless times in Fargo, North Dakota. Countless because there is no law; state or federal, that mandates accurate record-keeping by the school or proactive interventions outside aversion use for stress behaviors. The consequence for my child is a lifelong impairment of PTSD yet the school district simply signed a settlement with OCR to “retrain” and “rewrite” a policy which they then ignored. Duality of a system. 

Established Federal laws such as IDEA, Section 504, and ADA lead parents to have a sense of protection however, this is not the case when it comes to school discipline and aversion use when a student is black, brown, male, and disabled. The U.S. Department of Education produced a 2012 report Restraint and Seclusion: Resource Document provides definitions of seclusion and restraints. However please note that on page 10 is footnote #6 that reads: 

“As these terms are used in this document, “restraint” does not include behavioral interventions used as a response to calm and comfort (e.g., proximity control, verbal soothing) an upset student, and “seclusion” does not include classroom timeouts, supervised in-school detentions, or out-of-school suspensions.”

This footnote allows every school a workaround the Education Office of Civil Rights Fifteen Principles that apply to seclusion and restraint intervention use in schools. Student containment, whether it be of body or room, should be tracked and monitored for appropriateness of use, patterns of misuse, and indications for further evaluations or supports/aides that may be needed.  Pre-school-aged children are being suspended rather than supported. There is no greater indication that we need to track this data and utilize this window of opportunity to gain children the greatest functional capacity at the lowest resource consumption rather than reinforce their stress response and create complex trauma resulting from a threatening and deprivation environment. 

Since 2009 there have been multiple letters sent from heads of authority on the matter of disparity of discipline use on specific student populations from the Department of Education, The Office of Special Education, and the Education Office of Civil Rights. Regardless, there lacks real consequences or real-time data collection that can lead to real-time enforcement of governing laws. A parent is told to “file a lawsuit” to seek federally protected rights while criminal charges are readily filed against their student, duality of a system.

In January 2019, Fargo Public School in North Dakota underwent a district compliance review on its use of seclusion and restraint. The investigation was predicted to take a year. It is now June 2021, and the compliance review remains open allowing formal and informal policies to remain in effect while the investigation results remain elusive. The duality of our system is that a black, brown, or disabled child is subjectively judged and punished, altering their life while adults are afforded due diligence to a process that will yield no consequences or punishment for their actions. Duality at its best, or I would argue, its worst. 

Zero tolerance policies created the harsh reality of implicit bias and inference that unevenly applies discipline across our U.S. student population. Lost days of instruction become a predictor of future achievement for students (Losen & Whitaker, 2018). From the 2016-18 CRDC data the amount of lost instructional days due to the harsh application of school discipline is noted in the 11 million lost instructional days as it affects black, brown, and disabled students (Losen & Whitaker, 2018): 

Lost Days of Instruction per 100 students enrolled:

  • White: 14
  • Nondisabled: 22
  • Black: 66 
    • Black girls lost a total of 1.7 million days double the national average for girls.
    • Missouri enrolled 145,000 black students which accounted for 177,000 lost instructional days. 
    • Loss of >100 days: Ohio, Michigan, Mississippi, Tennessee, and Virginia
  • Native American: 31
    • North Carolina reported 77.
  • Latino: 17
    • 9, 800 enrolled in New Hampshire’s schools but lost 5,300 instructional days due to suspensions.
  • Disabled: 44
    • Hawaii disabled students lost 95 instructional days. 

In 2019 the U.S. Commission on Civil Rights produced a 224-page briefing report on the interconnecting pathway between school discipline, minority disabled students, and the school-to-prison pipeline. The data analyzed noted that student behaviors have not worsened however the “structure and systemic” issues found within our public schools have afforded significant disparities among the rate of discipline in the minority disabled student population (USOCR, 2019). 

Concerning Statistical Facts from US OCR 2019 Report:

  • 95% of out-of-school suspensions are attributed to nonviolent misbehavior.
    • disruptive, acting disrespectfully, tardiness, profanity, and dress-code violations.
    • California noted in 2011-12 some 700,000 suspensions statewide for “willful defiance”.
  • Black disabled students were nearly four times more likely in 2015-16 to receive multiple out-of-school suspensions and almost two times more likely to be expelled than white students with disabilities. 
  • Black girls with disabilities received multiple suspensions at higher rates (44 percent) than girls with disabilities of any other race or ethnicity.
  • Native American and Native Alaskan students with disabilities comprise less than 1% of the entire student population yet are three times more likely to be expelled than a white student with a disability.
  • Disabled students are suspended at higher rates (13%) than non-disabled students (6%)
  • Suspension rates in Urban school settings are double the national average.
    • Black students comprise 1/3 of these suspensions by a majority of reporting schools.
  • 73% of drop out students with IDEA emotional disturbed disability will be incarcerated within five years of leaving the school environment.
  • 2021-12 data reflects black students with disabilities make up only 19% of all the disabled student population yet comprise more than 50% of the disabled population in incarceration facilities.
  • 70% of incarnated individuals have not completed high school. 
  • 75% of youths (<18 yo) sentenced to adult prison have not completed 10th grade.
  • Nearly half of all students sent to juvenile facilities have poor academic performance.
    • Marginally literate
    • Illiterate
    • History of academic failure
  • Black youth make up 15% of the juvenile population and 40% of the confined youth; white youth make up 56% of the juvenile population yet only 30% of confined youth.
  • 24.5 % of SRO programs were initiated simply due to the administrator’s perception of school violence on social media and not due to factual criminal activity. 
    • 23.5% rowdiness and vandalism primary reason for SRO assignment
  • 2015-16 over 82,000 SROs placed in 43% of U.S. schools.
    • Students are 5 times more likely to be charged with disorderly conduct in schools with SROs.
    • Baltimore City Public Schools spent $7 million of the school budget on school police compared to counseling and guidance which received $270,000.
    • Philadelphia County, Pennsylvania:  school arrests rose 34 percent in three years from 1999.
    • Houston, Texas, school police arrested 4,002 students; nearly half of these arrests were for minor offenses, such as “disruption” or “disorderly conduct”.
  • Implicit bias by SROs influence engagement and discipline:
    • A survey of 130 SROs in Kentucky found that >50% agree that students with disabilities account for many schools’ behavioral issues.
    • 84.8% of SROs believe that special education students use this status to avoid responsibility and accountability. 
  • In 2011–12, 75% of students who were subjected to physical restraint were students with disabilities served by IDEA.
    • 36% of mechanical restraints were executed on black students with disabilities yet only comprise of 19% this population.
  • 2015–16, students with disabilities (as a whole) served by IDEA represent 12 percent of all students, but 71 percent and 66 percent of students subject to restraint or seclusion, respectively
  • Under the Trump administration OCR narrowed the focus of investigations on those allegations involving race discrimination and school discipline. 
    • Per Eve Hill: “As a result of that, each parent of each child subjected to discriminatory discipline will have to challenge it themselves. . . And ironically, this may result in more litigation because systemic solutions will not be on the table to stop future incidents.”
    • ProPublica released an internal memo from the Education Department by a Devos’ top official in June 2017 in which investigators were told “to limit proactive civil rights probes rather than expanding them to identify systemic patterns.
  • Widespread purposeful non-compliance by states to 20 U.S.C. Section 1418(d) of IDEA affords misrepresentation of significant disproportionately by LEAS for students with disabilities by setting exceedingly high thresholds.
    • Devos delayed implementation of Equity in IDEA regulations for 2 years which simply utilized a standard approach to identify significant disproportionality among school districts.

The reality is these numbers are unrepresented as they are voluntarily reported. There are no accurate depictions of the impact of SROs, Zero Tolerance, or lagging educational resources (nurses, counselors, social workers, school psychologists) on the disparity of discipline rates against students that are black, brown, male, or disabled. The U.S. education system exists to teach our children functional skills that enhance our society; instead of reading, math and civic lessons students have learned implicit bias, social injustice, and trauma.

What begins in the classroom ends on our streets, dying beneath the knee of a cop or marching in unity for human rights. 

References

Losen, D.J., & Whitaker, A. (2018). 11 million days lost. Race, discipline and Safety at U.S. public schools. The Center for Civil Rights Remedies at the Civil Rights Project. https://www.aclu.org/report/11-million-days-lost-race-discipline-and-safety-us-public-schools-part-1

United States Government Accountability Office. (2009). Seclusions and restraints: Selected cases of death and abuse at public and private schools and treatment centers. [Testimony HELP] Office of Public Affairs. https://www.gao.gov/products/gao-09-719t

United States Government Accountability Office. (2018). K-12 education discipline disparities for black students, boys, and students with disabilities. [Report to Congressional Requesters]. https://www.gao.gov/products/gao-18-258

U.S. Department of Education. (2012). Restraint and seclusion: Resource document. American Institute for Research. www.ed/gpve/policy/restraintseclusion

The U.S. Commission on Civil Rights. (2019). Beyond suspensions. Examining school discipline policies and connections to the school-to-prison pipeline for students of color with disabilities [Briefing Report]. www.usocr.gov

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