By Hannah Quicksell

INTRODUCTION

School exclusionary practices disproportionately lead students with disabilities to jails and prisons through a phenomenon dubbed the “school-to-prison pipeline.” In Orleans Parish, these disproportionate effects are magnified by the decentralized charter system. The charter system thrives on a young, inexperienced labor force that suspends students with disabilities at a startling rate. Moreover, because there is no unified disciplinary system, no parish oversight exists to ensure that each school is properly enforcing manifestation determinations, which protect students from being suspended for a manifestation of their disability and are required by the Individuals with Disabilities Education Act (IDEA). [1] Suspensions are one of the leading forms of exclusion in Orleans Parish schools, [2] having a devastating impact on a student’s ability to stay in school and out of prison. [3] Once a student is suspended, their chance of having a run-in with the juvenile justice system increases significantly. [4] Similarly, once they are involved with the justice system, they are more likely to be suspended, arrested, and involved with “delinquency” again. [5] Exclusionary practices are cumulative and reinforcing, forming a pattern that pushes students out of school and into the criminal justice system. [6]

To combat the school-to-prison pipeline for students with disabilities, the Orleans Parish School Board should create a unified suspension review system to enforce manifestation determinations for suspensions that cause a “change in placement,” which includes expulsions or suspension adding up to more than ten school days. Part II provides an overview of how the school-to-prison pipeline functions. Part III analyzes why students with disabilities are disproportionately impacted by the school-to-prison pipeline, despite IDEA protections. Part IV details the specific challenges the Orleans Parish charter system faces and how these challenges cause students with disabilities to be overrepresented in discipline, arrest, and carceral data. Finally, Part V proposes a unified suspension system as a solution to reverse the Orleans Parish school-to-prison pipeline for students with disabilities.

SCHOOL DISCIPLINE AND EXCLUSION LEAD TO INCARCERATION

The school-to-prison pipeline is the systematic funneling of students out of school and into the carceral system. [7] The pipeline arises not from one cause, but from a multi-faceted pattern of harmful activity. More specifically, it is created through “low expectations, low academic achievement, incorrect referral or categorization in special education, and overly harsh discipline including suspension, expulsion, referral to law enforcement, arrest, and treatment in the juvenile justice system.” [8] All facets of this pattern directly or indirectly communicate to students that they cannot be successful in school, that they do not belong in school, and that their future is in the criminal justice system. [9] Furthermore, once a student is in the pipeline, each following action reifies the narrative and escalates their path to incarceration. [10]

Since the rise of “tough on crime,” “zero tolerance,” and “no excuses” policies, the pipeline has become a prolific system. On a national level, in the 2011-2012 school year, the U.S. Department of Education’s Civil Rights Data Collection found that about 260,000 students were referred by schools to law enforcement and about 92,000 students were arrested on school property. [11] These referrals and arrests arose mainly from minor and non-violent infractions, which could have been dealt with in numerous other ways. [12] Moreover, the number of students arrested as a result of the school-to-prison pipeline is much higher in actuality because this number does not include all the students who are excluded from school and picked up on the street.

Additionally, although the final processing point in the pipeline is a referral to police or an arrest, there are many steps along the way that lead to arrests. Discipline and exclusionary practices like suspensions usually come before the first arrest, starting students down the path. [13] In 2011-2012, about 3.45 million students in the United States were suspended and about 130,000 were expelled. [14] To make the obvious point, suspending students does not improve learning conditions. [15] Intuitively, the amount of time spent learning is one of the best predictors for academic success. [16] If a student feels successful and a sense of belonging in school, they will continue to apply themselves. On the other hand, when a student realizes that the educational system is not working for them, they are disincentivized to stay in school and follow school rules. [17] In turn, they are disciplined and excluded from school, reifying this circular, downward spiral. [18] The impact is cumulative, leading to escalating discipline and worsening student success. [19]

Suspending students for any amount of time removes a student from the classroom, causing them to miss instruction and making it difficult for them to catch up. [20] They may miss a critical class, may then perform poorly on an assessment, and may ultimately come to believe that “the teacher doesn’t like me” or “I’m not good at this”— normal, defensive responses for any kid to feel. [21] Preferring to save face than to reveal they do not understand the material and thereby be vulnerable to bullying, they may act out, stop trying, or worst, skip school. [22] This leads to further discipline, suspensions, and “bad” behavior issues. As a final step, they either get picked up by the police, arrested by a student resource officer, or referred by the school to the police. [23]

EVEN WITH IDEA PROCEDURAL SAFEGUARDS, STUDENTS WITH DISABILITIES FALL THROUGH THE CRACKS.

Despite IDEA protections, students “with disabilities are overrepresented at all stops on the school to prison pipeline,” from low academic success to exclusion to jail. [24] The IDEA does not allow schools to discriminate on the basis of a student’s disability [25] and provides limits on schools’ abilities to suspend students for a behavior that is a manifestation of their disability. [26] However, due to loopholes in the IDEA and a lack of oversight to ensure consistent implementation, students with disabilities are being disproportionately excluded from school. Disabilities often render students vulnerable to heightened degrees of discipline and exclusion, so when procedural safeguards are not enforced consistently, special education students often find themselves funneled through the school-to-prison pipeline.

One of the most powerful IDEA procedural safeguards is the manifestation determination. The IDEA allows parents to request a manifestation determination if there has been a “change of placement,” which includes expulsions or suspension of more than ten school days. [27] In a manifestation determination, the student’s guardian meets with school administrators to review the exclusionary decision and to determine the relationship between the student’s conduct and their disability. [28] If the student’s conduct was caused by or had a direct and substantial relationship to the student’s disability, or if the conduct was the direct result of the school’s failure to implement the Individualized Education Program (IEP), then generally, the student cannot be suspended and will return to the classroom. [29] Additionally, the school will create a behavioral intervention plan (BIP) and if necessary, take immediate steps to remedy the failure to implement the IEP. [30]

The manifestation determination is an excellent tool to protect students with disabilities from being unfairly removed from the classroom, but there are loopholes within this procedural safeguard. First, a “change of placement” includes a limited scope of exclusions. A change of placement generally means a removal or suspension of more than ten days or a pattern of removals cumulatively adding up to more than ten days. [31] Therefore, schools have broad authority to remove and suspend students up to ten days, which is a significant period of time. A ten-day suspension is two weeks of coursework, or one-seventh of a fourteen-week semester. Any amount of time missed harms a student’s ability to be successful in school, but two weeks is incredibly detrimental, especially for vulnerable populations like special education students. Additionally, schools are keenly aware that a ten-day exclusion is an automatic “change of placement,” so most suspensions skirt under the ten-day mark, preventing a school’s decisions from being bureaucratically reviewed. [32] Second, a manifestation review can only be requested for documented suspensions. If a school violates the prohibition against unrecorded suspensions, there is no path for recourse. Although IDEA procedural safeguards exist, these loopholes allow students to still be excluded. 

The evidence shows that, even with legal protections in place, special education students are consistently chartered through the pipeline strikingly more than their “regular education” counterparts. Nationally, students with disabilities are both over-represented in the number of students subjected to harsh discipline and the number of people in jails and prisons. [33] In regards to suspensions, students with disabilities are more than twice as likely to receive an out-of-school suspension, at 13%, as compared to about 6% for students without disabilities. [34] In jails and prisons, 30%-50% of incarcerated juveniles have a disability, although only about fifteen percent of all school-age youths has a disability. [36]

The IDEA protections are necessary to protect students because, as the data demonstrates, having a disability makes students more prone to being disciplined. First, student’s disabilities often cause behaviors that are disruptive, which regularly are misunderstood and inappropriately disciplined. [37] For example, a student with autism may disrupt class by laughing or humming at improper times. Another classic example is a student with Tourette syndrome who may talk uncontrollably at inappropriate times. [38] Commonly, students with ADHD may display a lack of impulse control or difficulty regulating their emotions, with teachers failing to recognize their activity as a symptom of their disability. [40] These behaviors are regularly labeled “bad” within a school, and as a result, students with disabilities often receive discipline rather than accommodations and support. [41]

Second, studies show that most people have an implicit bias against people with disabilities, rendering schools prone to misunderstanding a student’s disability. [42] Implicit biases often strain educators’ relationships with students with disabilities, leading to more disciplinary infractions. [43] Rarely does someone have an explicit bias against students with IEPs; more commonly, people have an implicit bias. [44] Implicit bias is the collection of “attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner” and “are activated involuntarily and without an individual’s awareness or intentional control.” [45] In general, there are high levels of implicit bias against disabled people, where 78% of people have a pro-able implicit bias and 9% have a pro-disabled people bias. [46] Thus, most people do have an unconscious system of beliefs that are prejudiced against people with disabilities, especially “invisible” disabilities that are not apparent visually. [47]

Schools and teachers are not bad actors, wishing ill of their students with different needs. School workers are incredibly busy people, who are overworked, underpaid, and in a high-stakes environment. [48] With all these pressures, often they do not have time to question whether their decision is being caused by an implicit bias. However, the fact is that building rapport and relationships with students is one of the biggest factors for quality student learning. [49] Too frequently, the label “special education” comes with a stigma that results in low expectations— from the school and the student themselves— leading to poor academic performance. [50] Further, when students feel as though they cannot be a good student, they often act out to hide embarrassment and shame. [51] Acting out leads to suspensions, expulsions, and potentially to referrals to law enforcement. When a relationship is based on low expectations, learning is compromised and leads to self-fulfilling prophecies, where students perform at the level teachers expect from them. [52]

Students with disabilities are some of the most vulnerable to be put through the school-to-prison pipeline, suffering due to misunderstandings of their disability’s symptoms and their educators’ implicit disability bias. The IDEA protects against many exclusionary practices, but these safeguards are not foolproof. As a result, students with disabilities are consistently excluded from the classroom at rates far higher than their “regular” education counterparts.

ORLEANS PARISH SCHOOL-TO-PRISON PIPELINE

New Orleans special education students are continually pushed into the school-to-prison pipeline. Post-Hurricane Katrina, charter schools established themselves as the form of public education. [53] Since their inception, the charter school system has been the subject of critical scrutiny for their harsh policies, staffing methods, and patchwork system. [54] These structures and policies unfairly burden students, notably students with special needs. [55] This is especially problematic because Orleans Parish has a huge population of students who have special needs. [56] The structure of the charter school system allows for special education students to fall more easily through the cracks of educational deficiencies. 

THE CHARTER SYSTEM AND “NO EXCUSES” DISCIPLINE

Although each charter school has different rules, many are based on a No Excuses [57] model born out of 80’s and 90’s “tough on crime” rhetoric. [58] In the 1990s, federal education legislation aimed to deter juvenile crime in schools and on the streets, mirroring an expansion in targeting drug and firearm possession. [59] Not only were some school offenses criminalized, but also a variety of smaller behaviors became disciplinary infractions as well. [60] Although there has been much critique of No Excuses harms, school leaders generally are still expected to implement consistent, harsh punishment when students break certain rules. [61]

Today, the No Excuses model, which refers to school culture with high academic expectations and strict punishment, is common in New Orleans charter schools. [62] No Excuses schools embrace the criminalization of school discipline, which is often “paternalistic and punitive” in nature. [63] These policies create a “culture of fear” in schools, which increases disruptive behavior and disengagement from already marginalized students, like students with disabilities. [64] Resultantly, No Excuses schools tend to have higher out-of-school suspension rates than other schools, [65] and harsh discipline policies are proven to be linked to incarceration. [66]

As the name suggests, excuses for bad behavior are rarely taken into account, and teachers must impose “non-discretionary disciplinary consequences” when students display certain behaviors. [67] These policies are at odds with the IDEA, which clearly states that a disability manifestation is a justified reason for certain behaviors that require accommodation, not discipline. [68] While more extreme behaviors like fighting often merit a suspension, a consistent pattern of smaller behaviors may also receive a suspension in No Excuses schools. [69] Small behaviors, like uniform violations or unauthorized bathroom use, are often recorded with a vague term like “willful disobedience,” rendering them unclear to later review. [70] The most common reasons for suspensions are not specific actions like bringing a weapon to campus or fighting, but rather these vague terms, specifically “willful disobedience,” “violating rules habitually,” and “disrespecting authority.” [71]

Policies are only as strong as their enforcement power, so to understand the New Orleans charter school system, it is necessary to understand who implements these rules. First, the New Orleans Police Department lends support to schools, so many have student resource officers (SROs) on campus. [72] Studies show that the presence of SROs on campus increases students’ involvement with the criminal justice system, even for low-level violations of school rules. [73] Whereas in the past minor student misbehavior was dealt with by educators, now SROs have the authority to intervene. [74] Acts of childishness became criminal behavior. [75] This causes schools to incorporate police into daily life at school and leaves students with the impression that they are “criminal.”

Second, classrooms are staffed by notably young and inexperienced people from outside the community, who are not required to be certified. [76] Although these people have good intentions and some do become quality educators, half of the city’s teachers have less than five years of educational experience. [77] Studies show that when students with disabilities are not provided effective instruction, disruptive behavior results. [78] Moreover, the vast majority of teachers quit within the first few years, if not within the first year, so teacher turnover is high. [79] Over a two-year period, nearly one-third of the teacher workforce quit, mainly due to low pay and a lack of administrative support. [80] This causes a lack of consistency: for students, who might have different teachers within the same class in a year, and for families, where siblings and parents will not be able to anticipate what a teacher is like through word of mouth. [81] However, the charter school system planned for all of this. [82] When all of the educators were laid off after Katrina, the charter schools symbiotically brought in truncated certification programs like Teach for America, teachNOLA, and City Year. [83] There is little difference between the three certification programs; all use the same Doug Lemov Teach Like a Champion bootcamp, which throws teachers into a yearlong classroom after five weeks. [84] Both the certification programs and schools rely on youthful employees dedicated to social change, who serve as a cheap labor force until they either become an administrator or burn out. [85] Either way, the school has a perfect staff to implement harsh discipline policies: naive do-gooders who are too exhausted by overwork to think of the implications of their actions and who have never failed at anything, motivating them to finish their certification work and the school year.

Finally, the decentralized charter school system model has historically discriminated against special education students, because of a lack of accountability, oversight, and resources. In the years following Katrina, suspensions and expulsions skyrocketed. In 2010, the Southern Poverty Law Center (SPLC) filed a federal civil rights lawsuit against the Louisiana Department of Education (LDOE) for excluding students from schools and failing to provide procedural safeguards required by the IDEA. [86] They showed that students with disabilities were suspended and expelled far more frequently than their peers and that often the root of these exclusions was a manifestation of the student’s disability. [87] Additionally, investigative reporting proved that charter schools were underreporting their disciplinary exclusions, and failing to provide appropriate education for students with disabilities. [88]

As a result, LDOE signed a consent decree to remedy these discriminatory behaviors, and there has been a lot of progress in recent years towards a more unified and cohesive system. [89] The lawsuit brought national attention to New Orleans. [90] Under pressure, the schools came back under the Orleans Parish School Board, and a unified expulsion review system was put into place. [91] Before the unified expulsion system, schools had often lacked documentation, schools followed their own procedures, and families had little to no appeal process. [92] Now, all documentation must be submitted to a central system, there are uniform procedure standards, and families can appeal to the district. [93] Experts conclude that expulsion decreases from legal pressure have been solidified by standardized review. [94]

However, the schools still retain many of the procedures that allow students to fall through the cracks. Suspensions are still carried out at alarming rates within Orleans Parish schools, with no centralized oversight and few protections for students. [95] Additionally, although the LDOE consent decree prohibits undocumented suspensions, there is no oversight to track undocumented suspensions due to the decentralized nature of the system. [96] Because of this, despite improvements and progress, the New Orleans charter school system remains an active player in the school-to-prison pipeline. 

STUDENTS WITH DISABILITIES STATS: SUSPENSIONS, EXPULSIONS, AND OTHER POLICIES

Data demonstrates that New Orleans special education students are notably vulnerable to being shuffled through the school-to-prison pipeline. The evidence shows that not only are students with special needs being suspended at an alarming rate, but also a huge portion of incarcerated youth require special education. In a parish where one-in-four students have a disability, schools need a unified approach to account for students’ differing abilities. [97]

However, many special education students are taught to feel they do not belong in school through exclusionary practices and interactions with New Orleans police. Further, many special education students are excluded from classrooms. In the 2018-2019 school year in Louisiana, 14,481 special education students were subjected to disciplinary removals totaling from one to ten days, 10,523 of which were out-of-school suspensions. [98] These are only the reported removals, so the number may be higher in total days and frequency of occurrence. Because these removals were under the ten-day trigger for a manifestation determination, parents and students had no procedural safeguard to challenge these removals. For each day a student is removed from the classroom, they fall further behind and are more likely to act out in the future, creating a negative, compounding impact on their ability to be successful in school.

The data implies that schools are intentionally skirting the ten-day “change in placement” trigger as well, so that they do not have to deal with manifestation determinations. In comparison to the 14,481 removals under ten days, 1105 special education students were subjected to disciplinary removals of over ten days in that same year, and only 746 of those instances were out-of-school suspensions. [99] There is a striking drop off at the ten-day mark, which is suspicious because that is also the automatic “change in placement” trigger.

When special education students are not being successful in school, school discipline leads them to drop out of school and to be arrested.  In Orleans Parish public schools, about one in ten special education students dropped out before receiving a diploma, and only about two in three received a regular diploma in the 2018-2019 school year. [100] More than half of these students are not receiving a regular diploma, and nearly half are not finishing school at all. Within the Travis Hill Schools, New Orleans schools for incarcerated youth, 30%-40% of students are labeled special education. [101] This startling percent is 23%-33% more than the city average. [102] Furthermore, despite ADA protections to keep these students in school, “Nearly all of the students who pass through [Travis Hill Schools] have experienced school failure—many did not attend school regularly and were suspended or expelled. Most are far behind their peers academically[.]” [103] Vulnerable special education students are being excluded from school and, resultantly, picked up by the police.

UNIFIED SUSPENSION REVIEW: A SOLUTION TO PROTECT STUDENTS WITH DISABILITIES

To account for the number of special education students being funneled from schools towards incarceration, Orleans Parish School Board should institute a centralized suspension review system. A fundamental quality of the charter school system is autonomy, where they choose what they teach, how they schedule a school day, and how they discipline their children. Importantly, the review would not evaluate the reason for the suspension, which would allow charter schools to maintain autonomy over discipline policies while providing parish-wide implementation of IDEA protections. The suspension review would simply assess, under the provided suspension reason, whether the cause of the offensive behavior was the student’s disability and whether the schools took the necessary intervening steps prior to the suspension. Schools should be encouraged to clearly define the offense, not vaguely describe it, assisting in determining whether the offense was a manifestation of the students’ disability. The remedies to the review board’s findings would be the same as the remedies for current change of placement reviews. If the offensive behavior was the result of a manifestation of the student’s disability but a change of placement occurred, then the student would be placed back in the classroom. If the necessary, prior intervening steps were not taken, then the student would be placed back in the classroom and the school would be required to come up with a BIP. If a BIP has already been issued, then it would be reviewed, modified, and implemented. By having the power to review suspensions that result in a change of placement for procedural compliance and manifestation of disability, Orleans Parish would have the proper safeguards to ensure that students are not pushed out of schools and into jails. 

The centralized expulsion system proves that a unified suspension system is a workable solution that would check many of the issues leading to suspensions. Since the charter schools implemented a unified expulsion system, expulsions have drastically decreased. Moreover, schools provide better school documentation, there is more procedural transparency, and families have a stronger ability to appeal and advocate for their children. Similarly, a centralized suspension system would offer necessary oversight and ensure consistent implementation of IDEA procedural safeguards. A centralized system would also organize suspension documentation, which would put a stop to prohibited undocumented suspensions.

Because disabilities often make students more prone to removals, Orleans Parish needs a system that checks to ensure that students are not being removed because of their disabilities. For example, the student with autism who hums at an inappropriate time or the student with ADHD who throws a tantrum due to difficulty regulating their emotions would not be removed from the classroom. Therefore, the unified suspension system would act as an external check on harsh discipline policies, educator’s implicit biases, and ineffective classroom management. Contrary to No Excuses policies, the unified system would make sure that a manifestation of a disability is an excuse. Rather than relying on suspensions as a method of classroom control, schools would disincentivize suspension as a method of classroom control and incentivize the development of positive behavioral approaches and student-teacher rapport instead. This is especially important because of the implicit biases many have against students with disabilities and the rookie workforce common to charter schools. Teachers may not have ill intentions, but ineffective instruction causes more discipline. A centralized suspension system would make sure that students with disabilities are receiving IEP support and that they are not being removed because of their disability.

There is not one thing that turns the gears of the school-to-prison pipeline, and a centralized suspension system will not solve all of the factors that contribute to forming the pipeline. First, suspensions and expulsions are just two types of removal. The IDEA also does not offer a system of review for arrests by student resource officers or referrals to police. At that point, the student’s life is in the hands of the criminal justice system. Second, IDEA protections, and legal protections in general, are reactive in nature. IDEA protections kick in only after a school has made a judgment that a student misbehaved; students then cannot dispute or remedy the circumstances leading up to the behavior. [104] Because the system is reactive, many of the pipeline harms have already been in play—low expectations, poor academic performance, harsh discipline. Third, procedural safeguards do nothing to remedy the mental health issues that often accompany disabilities. Labeling students—low reading proficiency, intellectually disabled, emotionally disturbed—reifies stereotypes for students, convincing them that they cannot be high achieving. [105] The stigma around special education often causes students to believe that school is not for them and that they do not belong in the educational system. Unifying the suspension system would address many urgent problems students with disabilities face, but there are further conversations to be had to address criminal justice system issues and issues outside the legal scope.

By creating a centralized suspension system, Orleans Parish can start reversing the school-to-prison pipeline, showing students with disabilities they do belong in school. Like the centralized expulsion system, a unified suspension system would hold schools accountable for providing appropriate education for their students with disabilities. Students could not be suspended for behavior that is a manifestation of their disability, guaranteeing maximum instruction time in the classroom. Moreover, through the review system, suspensions would be disincentivized and schools could have parish-wide conversations about discipline, positive behavior systems, and BIPs. A centralized suspension system will ensure procedural safeguards for students with disabilities, who are especially prone to being funneled through the school-to-prison pipeline.

[8] Id.

[9] See id. at 22–23.

[10] See id. at 33.

[11] Id. at 14.

[12] Id.

[13] See Joel Mittleman, A Downward Spiral? Childhood Suspension and the Path to Juvenile Arrest, 91 Sociology of Educ. 183, 198-199 (2018). Mittleman provides an analysis on the ways childhood suspensions redirect students' long-term trajectories toward future juvenile justice contact. Other processing points include the Families in Need of Services (FINS) system, which is a set of proceedings meant for status offender to try to keep them out of the delinquency system and is often used for truant children. La. Sup. Ct., Families in Needs of Services Assistance Program, LASC, https://www.lasc.org/Children_Families?p=FINS (last visited Jul. 30, 2022).

[14] Redfield & Nance, supra note 3, at 14.

[15] Id. at 22.

[16] See generally Alan Ginsburg, Hedy Chang & Phyllis Jordan, Absences Add Up: How School Attendance Influences Student Success (2014), https://www.attendanceworks.org/wp-content/uploads/2017/05/Absenses-Add-Up_September-3rd-2014.pdf (“Students reporting missing 3 or more days of school in the prior month had lower average [National Assessment for Educational Progress] scores in reading and math than students with fewer absences.”).

[17] Redfield & Nance, supra note 3, at 22.

[18] Rebecca Stavenjord, Multnomah Cnty. Comm'n on Child., Fam. & Cmty., Exclusionary Discipline in Multnomah County Schools: How Suspensions and Expulsions Impact Students of Color 9 (2012), https://allhandsraised.org/wp-content/uploads/2012/10/exclusionary_discipline_1-3-12.pdf. 

[19] Redfield & Nance, supra note 3, at 22. 

[20] Ellen Tuzzolo & Damon T. Hewitt, Rebuilding Inequity: The Re-Emergence of the School-to-Prison Pipeline in New Orleans, 2006 High Sch. J. 59, 61–62 (2006), http://cretscmhd.psych.ucla.edu/nola/volunteer/EmpiricalStudies/ Rebuilding%20inequity%20-%20the%20re-emergence%20of%20the%20school-to-firm%20prison%20pipeline% 20in%20new%20orleans.pdf.  

[21] See Elizabeth Sullivan & Damekia Morgan, Pushed Out: Harsh Discipline in Louisiana Schools Denies the Right to Education A Focus on the Recovery School District in New Orleans 12 (2010), https://www.njjn.org/uploads/digital-library/resource_1587.pdf. 

[22] See id.; Matthew P. Steinberg, Elaine Allensworth & David W. Johnson, Student and Teacher Safety in Chicago Public Schools: The Roles of Community Context and School Social Organization 46 (2011), https://consortium.uchicago.edu/sites/default/files/2018-10/SAFETY%20IN%20CPS.pdf; see also Matthew P. Steinberg, Elaine Allensworth & David W. Johnson, What Conditions Support Safety in Urban Schools?: The Influence of School Organizational Practices on Student and Teacher Reports of Safety in Chicago (2012), https://escholarship.org/content/qt2mx8c60x/qt2mx8c60x.pdf?t=obhr81. The rate at which students with disabilities are referred to law enforcement is especially chilling, given the fact that “people with disabilities are at disproportionate risk of lethal encounters with law enforcement.” Redfield & Nance, supra note 3, at 12, 14. 

[23] See Redfield & Nance, supra note 3, at 14.

[24] Nicole Joseph, The Civil Rights Crisis in Our Schools, Md. B.J., Sept. 2016, at 12.

[25] Betty A. Cox, Sandra S. Murray & Becky J. Cox, Far-Reaching Effects of Katrina: The Education of Special Needs Students, 55 La. B.J. 18, 19 (2007).

[26] See 20 U.S.C. § 1415(k)(1)(E).

[27] Id. The IDEA also provides for the following procedural safeguards:

(A) Case-by-case determination - School personnel may consider any unique circumstances on a case-by-case basis when determining whether to order a change in placement for a child with a disability who violates a code of student conduct.

(B) Authority - School personnel under this subsection may remove a child with a disability who violates a code of student conduct from their current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 school days (to the extent such alternatives are applied to children without disabilities).

(C) Additional authority - If school personnel seek to order a change in placement that would exceed 10 school days and the behavior that gave rise to the violation of the school code is determined not to be a manifestation of the child's disability pursuant to subparagraph (E), the relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner and for the same duration in which the procedures would be applied to children without disabilities, except as provided in section 1412(a)(1) of this title although it may be provided in an interim alternative educational setting.

(D) Services - A child with a disability who is removed from the child's current placement under subparagraph (G) (irrespective of whether the behavior is determined to be a manifestation of the child's disability) or subparagraph (C) shall--

(i) continue to receive educational services, as provided in section 1412(a)(1) of this title, so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP; and

(ii) receive, as appropriate, a functional behavioral assessment, behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur.

(E) Manifestation determination

(i) In general - Except as provided in subparagraph (B), within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the local educational agency, the parent, and relevant members of the IEP Team (as determined by the parent and the local educational agency) shall review all relevant information in the student's file, including the child’s IEP, any teacher observations, and any relevant information provided by the parents to determine--

(I) if the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability; or

(II) if the conduct in question was the direct result of the local educational agency's failure to implement the IEP.

(ii) Manifestation - If the local educational agency, the parent, and relevant members of the IEP Team determine that either subclause (I) or (II) of clause (i) is applicable for the child, the conduct shall be determined to be a manifestation of the child's disability.

(F) Determination that behavior was a manifestation - If the local educational agency, the parent, and relevant members of the IEP Team make the determination that the conduct was a manifestation of the child's disability, the IEP Team shall--

(i) conduct a functional behavioral assessment, and implement a behavioral intervention plan for such child, provided that the local educational agency had not conducted such assessment prior to such determination before the behavior that resulted in a change in placement described in subparagraph (C) or (G);

(ii) in the situation where a behavioral intervention plan has been developed, review the behavioral intervention plan if the child already has such a behavioral intervention plan, and modify it, as necessary, to address the behavior; and

(iii) except as provided in subparagraph (G), return the child to the placement from which the child was removed, unless the parent and the local educational agency agree to a change of placement as part of the modification of the behavioral intervention plan. 20 U.S.C. § 1415(k)(1).

[28] See 20 U.S.C. § 1415(k)(1)(E); La. Believes, La. Dep't of Educ., Louisiana’s Educational Rights of Children with Disabilities Special Education Processes + Procedural Safeguards 20–21 (2020), https://www.louisianabelieves.com/docs/default-source/academics/louisiana%27s-educational-rights-of-children-with-disabilities.pdf?sfvrsn=12.

[29] See 20 U.S.C. § 1415(k)(1)(F); La. Believes, supra note 28, at 20–22 (2020). There are exceptions for drugs, weapons, and serious bodily injury. 20 U.S.C. § 1415(k)(1)(G).

[30] See 20 U.S.C. § 1415(k)(1)(F)(i); La. Believes, supra note 28, at 21.

[31] See La. Believes, supra note 28, at 22.

[32] See La. Believes, La. Dep't of Educ., Report of Students with Disabilities Subject to Disciplinary Removal with 3 Year Comparison in the 2018–19 Louisiana Special Education Data Profile tbl.15b (2018–2019), https://louisianabelieves.com/docs/default-source/academics/2018-2019-special-education-data-profile.pdf? sfvrsn=193e981f_4.

[33] Joseph, supra note 24, at 12–14..

[34] See Redfield & Nance, supra note 3, at 37.

[35] David E. Barrett, Antonis Katsiyannis, Dalun Zhang & Dake Zhang, Delinquency and Recidivism: A Multicohort, Matched-Control Study of the Role of Adverse Experiences, Mental Health Problems, and Disabilities, 22 J. Emotional & Behav. Disorders 3, 4 (2014).

[36] Véronique Irwin, Josue De La Rosa, Ke Wang, Sarah Hein, Jijun Zhang, Riley Burr, Ashley Roberts, Amy Barmer, Farrah Bullock Mann, Rita Dilig & Stephanie Parker, Report on the Condition of Education 2022 13 (May 2022), https://nces.ed.gov/pubs2022/2022144.pdf. Data is imprecise on students with disabilities making it tough to track the patterns, because that encompasses such a large, diverse population, and few carceral systems keep diligent track of whether a student has a disability or not. Redfield & Nance, supra note 3, at 46.

[37] Cf. Joseph, supra note 24, at 15.

[38] Id.

[39] Tourette Syndrome, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/tourette-syndrome/symptoms-causes/syc-20350465 (last visited Aug. 8, 2018).

[40] Joseph, supra note 24, at 15 (citing Fact Sheet: Attention Deficit Hyperactivity Disorder (ADHD) Topics, Russell Barkley, http://www.russellbarkley.org/factsheets/adhd-facts.pdf (last visited Sep. 4, 2016)).

[41] Id.

[42] Disability IAT Results: Feedback, Project Implicit, https://implicit.harvard.edu/implicit/selectatest.html (last visited Aug. 6, 2022).

[43] Redfield & Nance, supra note 3, at 54–55; Joseph, supra note 24, at 15. 

[44] Redfield & Nance, supra note 3, at 55.

[45] Kirwan Inst. for Race and Ethnicity, Understanding Implicit Bias, Okla. State (May 29, 2012), http://kirwaninstitute.osu.edu/research/understanding-implicit-bias/.

[46] Project Implicit, supra note 42.

[47] Id.  Here, it is important to remember that students are never summed up by one characteristic.  People have intersectional identities, rendering their experience in the world individual and simultaneously, we are able to see patterns by isolating different characteristics. Students with disabilities, especially under IDEA discretionary categories, are overwhelmingly people of color. Redfield & Nance, supra note 3, at 34–35 (2016), https://scholarship.law.ufl.edu/cgi/viewcontent.cgi?article=1765&context=facultypub. Nationally, 19% of students with an IEP are Black, which is an overrepresentation in comparison to the fraction of the American population who are Black. See id. at 39. In New Orleans, the majority of special education students are Black, La. Believes, La. Dep't of Educ., Percent of Students with Disabilities by Race/Ethnicity in the 2018-19 Louisiana Special Education Data Profile tbl.3 (2018–2019), https://louisianabelieves.com/docs/default-source/academics/2018-2019-special-education-data-profile.pdf?sfvrsn=193e981f_4, and male, La. Believes, La. Dep't of Educ., Percent of Students with Disabilities by Gender in the 2018-19 Louisiana Special Education Data Profile tbl.4 (2018–2019), https://louisianabelieves.com/docs/default-source/academics/2018-2019-special-education-data-profile .pdf?sfvrsn=193e981f_4. Moreover, Black (and brown students) are far more likely to be suspended, expelled, and arrested than their white counterparts, and also, more likely to be prosecuted for more serious crimes. Redfield & Nance, supra note 3, at 11, 46. Although this memo focuses on students in the special education category, it is crucial to note that there are correlative patterns that intersect with the New Orleans black communities and communities of color.

[48] See Kate Babineau, Arpi Karapetyan & Vincent Rossmeoer, The Cowen Inst., The State of Public Education in New Orleans 35 (2019–2020), http://www.thecoweninstitute.com.php56-17.dfw3-1.websitetestlink.com/uploads/SPENO_2019_FINAL-1583842221.pdf; see generally Nathan Barrett & Douglas Harris, Educ. Rsch. All. For New Orleans, Significant Changes in the New Orleans Teacher Workforce (Aug. 24, 2015), https://educationresearchalliancenola.org/files/publications/ERA1506-Policy-Brief-Teacher-Workforce-Cover.pdf (discussing teacher turnover rates and qualifications).

[49] Redfield & Nance, supra note 3, at 40 (“Relationships are one of the most significant factors in student learning; where those relationships are lacking or based on low expectation, learning will be damaged.”).

[50] See id. at 61.

[51] See, e.g., Joseph, supra note 24, at 15–16.

[52] See Redfield & Nance, supra note 3, at 18 (2016).

[53] Sullivan & Morgan,  supra note 21, at ii.

[54] Id. at 6; see also Barrett & Harris, supra note 48, at 2.

[55] Sullivan & Morgan, supra note 21, at 22–23.

[56] See La. Believes, La. Dep't of Educ., General and Special Education Student Count Comparison in the 2018–19 Louisiana Special Education Data Profile tbl.1 (2018–2019), https://louisianabelieves.com/docs/ default-source/academics/2018-2019-special-education-data-profile.pdf?sfvrsn=193e981f_4.

[57] Also known as zero-tolerance policies. See Mónica Hernández, Educ. Rsch. All. for New Orleans, Is There No Excuse? The Effects of the New Orleans School Reforms on School Discipline 2–3 (2019), https://educationresearchalliancenola.org/files/publications/03192019-Hernandez-Is-There-No-Excuse-The-Effects-of-the-New-Orleans-School-Reforms-on-Exclusionary-Discipline-Practices.pdf.

[58] See Redfield & Nance, supra note 3, at 51.

[59] See id. at 24; New Orleans Child. & Youth Plan. Bd., Our Children Our Choices Their Chances 13 (2016–2017), https://www.nolacypb.org/wp-content/uploads/2019/04/JJ-Final-Final-Report-4-1-18-kwe.pdf; Tuzzolo & Hewitt, supra note 20, at 61.

[60] See Jyoti Nanda, The Construction and Criminalization of Disability in School Incarceration, 9 Colum. J. Race & L. 265, 290 (2019); New Orleans Child. & Youth Plan., supra note 59.

[61] See Hernández, supra note 57, at 34–35.

[62] See id. at  2–3 (2019).

[63] See id. at 12 (2019), https://educationresearchalliancenola.org/files/publications/03192019-Hernandez-Is-There-No-Excuse-The-Effects-of-the-New-Orleans-School-Reforms-on-Exclusionary-Discipline-Practices.pdf.  This is not to say everything about No Excuses policies are bad. Some of the policies are good: for example, there is extended instructional time, for students whose parents may not have the opportunity to read to them at home, targeted instruction like tutoring for low-performing students.  Id. at 2–11 (2019).

[64] Nanda, supra note 60, at 288 (internal quotations omitted).

[65] Hernández, supra note 57, at 11–12.

[66] Sullivan & Morgan, supra note 21, at 2.

[67] Mary Willis, Utilizing Prosecutorial Discretion to Reduce the Number of Juveniles with Disabilities in the Juvenile Justice System, 2016 BYU Educ. & L.J. 191, 205 (2016).

[68] 20 U.S.C. § 1415(k)(1)(E).

[69] Willis, supra note 67, at 206.

[70] See Hernández, supra note 57, at 21; see also New Orleans Child. & Youth Plan. Bd., supra note 59, at 14; Sullivan & Morgan, supra note 21, at 15.

[71] Hernández, supra note 57, at 23.

[72] New Orleans Child. & Youth Plan. Bd., supra note 59, at 16.

[73] Redfield & Nance, supra note 3, at 53.

[74] Id.

[75] Tuzzolo & Hewitt, supra note 20, at 61.

[76] See Barrett & Harris, supra note 48, at 6–7.

[77] Babineau et al., supra note 48, at 30.

[78] Joseph, supra note 24, at 15. 

[79] See Barrett & Harris, supra note 48, at 5–6.

[80] Babineau et al., supra note 48, at 35.

[81] Cf. Eric Westervelt & Anya Kamanetz, Teach for America at 25: With Maturity New Pressure to Change, NPR (Dec. 1, 2014), https://www.npr.org/sections/ed/2014/12/01/366343324/teach-for-america-at-25-with- maturity-new-pressure-to-change (“Lasting ties between teachers and the communities they're in, White says, can keep children on the right path. ‘I remember my own teachers as fixtures in the community. I walked to school every day from kindergarten through seventh grade. My teachers educated all my siblings,’ a twin brother and two sisters. ‘My brother could be rambunctious. If my teachers hadn't had such deep relationships with our family, he could easily have been labeled and misunderstood.’”).

[82] Barrett & Harris, supra note 48, at 4 (“[O]ne reason the New Orleans case is important is that state policies have reduced legal requirements that focus on credentials, while increasing requirements and opportunities to hold teachers directly accountable for performance”).

[83] Id. at 2.

[84] See Westervelt & Kamenetz, supra note 81; Fast Start: Training Better Teachers Faster, with Focus, Practice and Feedback, The New Teacher Project 10 (2014), https://tntp.org/assets/documents/TNTP_ FastStart_2014.pdf (teachNOLA); Brittany White, What to expect at the start of City Year service (June 13, 2022), https://www.cityyear.org/national/stories/the-corps/what-to-expect-at-the-start-of-city-year-service/; Laree Foster, My Experience at The Carl and Leslee Guardino Summer Leadership Academy (Sept. 3, 2013), https://cityyearsanjose.wordpress.com/page/3/.

[85] Davis Clement, Legitimizing the Dilettante: Teach for America and the Allure of Ed Cred, 7 Berkley Rev. Educ. 29, 32–33 (2018) (describing Teach for America applicants as “idealistic,” “ambitious,” and desirous of social change but ripe for professional burnout).

[86] Hernández, supra note 57, at 2–3.

[87] Id. at 3.

[88] Sullivan & Morgan, supra note 21, at 21–23.

[89] See Babineau et al., supra note 48, at 33; P.B., et al. vs. White, et al., No. 2:10-cv-04049 (E.D. La. 3/25/15), https://www.splcenter.org/sites/default/files/d6_legacy_files/downloads/case/pb_order.pdf.

[90] Hernández, supra note 57, at 6.

[91] See Marta Jewson, NOLA Public Schools, state Dept. of Education want out of long-running special education consent judgment, but civil rights lawyers say they’re not ready, The Lens, Nov. 12, 2021, https://thelensnola.org/ 2021/11/12/nola-public-schools-state-dept-of-education-ask-out-of-long-running-special-education-consent-judgment-but-civil-rights-lawyers-say-theyre-not-ready/. 

[92] Parker Baxter & Christopher Hines, Centralized Expulsion in New Orleans, Public Charters, http://www.publiccharters.org/sites/default/files/migrated/wp-content/uploads/2014/06/d.Centralized-Expulsion-in-New-Orleans.pdf (last visited May 9, 2020).

[93] See id.

[94] Hernández, supra note 57, at 6 (“I conclude that the legal pressures likely contributed to the decrease in exclusionary discipline rates from 2009 through 2012. During this time, school leaders also faced significant pressure from community advocates about disciplinary practices, and this also may have contributed to the decline. Under political and legal pressure, the RSD formalized and enforced a centralized public school expulsion system at the beginning of the 2012-13 academic year. This could not have caused the decline in suspensions and expulsions that occurred earlier, in 2010, but it may have helped maintain those declines after the pressure from the SPLC lawsuit subsided.”).

[95] Id. at 5.

[96] See Id. at 9; P.B., et al., No. 2:10-cv-04049. Just recently, the KIPP charter school network came under fire for removing special education students without documentation in violation of FAPE. Marta Jewson, NOLA Public Schools accuses KIPP of violating discipline policies, special education laws, The Lens, Aug. 9 2022, https://thelensnola.org/2022/08/09/nola-public-schools-accuses-kipp-of-violating-discipline-policies-special-education-laws/.

[97] In New Orleans public schools, 26% of students have disabilities. La. Believes, La. Dep't of Educ., Students With Disabilities and Gifted/Talented Rates by LEA- Feb 2020 (2020), https://louisianabelieves.com/docs/ default-source/academics/2020-feb-sped-rates-by-lea-site_public.xlsx?sfvrsn=ea92981f_4.

[98] La. Believes, La. Dep't of Educ., Report of Students with Disabilities Subject to Disciplinary Removal with 3 Year Comparison in the 2018-19 Louisiana Special Education Data Profile tbl.15b (2018-2019), https://louisianabelieves.com/docs/default-source/academics/2018-2019-special-education-data-profile.pdf?sfvrsn=193e981f_4. To note, because of the decentralized discipline system, complete data on Orleans Parish students with disability discipline is not available. However, a study in 2016 found that “New Orleans schools are more likely to suspend students out-of-school compared to all other parishes in Louisiana.” Andre Perry, The New Orleans Youth Index 2016, The Data Center (Dec. 14, 2016), https://www.datacenterresearch.org/reports_analysis/ the-new-orleans- youth-index-2016/.

[99] La. Believes, supra note 32.

[100] La. Believes, La. Dep't of Educ., Percent of Students with Disabilities Ages 14 through 21, Exiting Special Education in the 2018-19 Louisiana Special Education Data Profile tbl.14 (2018–2019), https://louisianabelieves.com/docs/default-source/academics/2018-2019-special-education-data-profile.pdf?sfvrsn= 193e981f_4. To note, this data is incomplete, because data from multiple Local Education Agencies (LEAs) is missing from the Louisiana Believes report.

[101] Travis Hill School Juvenile Justice Intervention Center, Travis Hill NOLA (2020) https://www.travishillnola.org/ juvenile-justice-intervention-cente (last visited Aug. 16, 2022). There are two Travis Hill Schools, one for older youth and one for younger youth. Travis Hill School Juvenile Justice Intervention Center, Travis Hill NOLA (2020) https://www.travishillnola.org/our-history-our-schools (last visited Aug. 16, 2016). There is no data on special education rates within the older children’s facility, so this statistic is based on the younger children’s facility.

[102] La. Believes, supra note 56.

[103] Travis Hill NOLA, supra note 101.

[104] Logan J. Gowdy, Disabling Discipline: Locating a Right To Representation of Students With Disabilities in the ADA, 115 Col. L. Rev. 2265, 2281 (2016).

[105] Redfield & Nance, supra note 3, at 53.