State Bar of Michigan
Volume 4, Issue 2, April 2008

Committee on Justice Initiatives and Equal Access Initiative Disabilities Project

Disabilities Project Newsletter

Preventing Push-Out of Children
with Disabilities from School:
Strategies for Family Court
and Family Service Providers

by Mark D. McWilliams, Director of Education Advocacy, Michigan Protection and Advocacy Service, Inc.

Family courts and associated service providers are at the forefront of providing services to children with disabilities. As most practitioners know, children with disabilities make up a significant portion of children in the foster care and juvenile justice systems. A 2006 study by United Cerebral Palsy of America and Children’s Rights reports that, on any given day, at least one-third of the more than half a million children and youth in foster care in the United States have disabilities, ranging from minor developmental delays to significant mental and physical disabilities. According to 2004 statistics from the U.S. Department of Justice, up to 31 percent of youth in residential placement have psychiatric disorders, 9 percent have suicidal ideations, 26 percent use psychotropic medications, and 44 percent have a history of therapy.

Children with disabilities are pushed out of school and often wind up in the family court system by default. According to state reports, over 1,600 children were expelled from Michigan schools in 2005–2006; these numbers have long been subject to question, and at least one report suggests they are significantly underreported. Many of these children were expelled under the “zero tolerance” provisions of state law (MCLA 380.1310 and 1311), requiring automatic reporting to DHS. Others simply wound up in family court because there are no other systems to serve them.

Family courts have a number of tools to prevent children from being pushed out of school into the justice system, including:

  • Student Code of Conduct. Although individual codes vary, the state’s Model Code of Student Conduct calls for proportional responses to different types of violations. Check the district’s Code of Conduct to make sure it calls for exclusion from school for the conduct at issue.
  • Weapons law exceptions. MCLA 380.1311(2) requires expulsion of students who bring weapons to school, but provides four exceptions for a student who (a) did not intend to use the object as a weapon, (b) did not know s/he had a weapon, (c) did not know the object was a weapon, or (d) was allowed to have the weapon by school authorities or police. Schools may, but do not have to, expel students if any of these four circumstances are present.
  • Due process. Under Goss v. Lopez, 95 S.Ct. 729 (1975), schools must afford due process to students who are excluded from school. Due process includes notice and an opportunity for hearing, and becomes more formal beyond exclusion for 10 days. Although many school districts provide the “hearing” before their school boards, some districts employ alternative hearing methods using impartial hearing officers.
  • Alternative dispute resolution. School districts are increasingly resorting to systems of alternative dispute resolution such as balanced and restorative justice. Sometimes these systems are part of school-wide programs to support positive behavior in school. Michigan has supported such programs through grants and policies on school-wide positive behavior support and integrated learning and behavior support initiatives. For more information on these programs, visit www.cenmi.org. For information on positive behavior support in school, see Bazelon Center for Mental Health Law, Suspending Disbelief (May 2003), www.bazelon.org.
  • Special education process. Students with disabilities have additional process protections if the conduct at issue was caused by a disability or by the school’s failure to implement a student’s individualized education program (IEP). The process that protects such students is the manifestation determination review; students who disagree with findings at this step may request a hearing before an administrative law judge. These protections extend to students who are being evaluated for special education eligibility and cover all areas of known disability affecting education. Although schools are required under federal and state law to report crimes to the proper authorities, schools may not use the court system as a substitute for meeting their own obligations to provide appropriate educational supports to eligible students. See Morgan v. Chris L., 927 F.Supp. 267 (6th Cir. 1994).
  • Academic supports in struggling schools. Schools and districts are required to make adequate yearly progress under federal law (the “No Child Left Behind” Act of 2002). Schools that do not make such progress over multiple years must adopt corrective actions, including school choice and supplemental services to students who need them in some circumstances. Students with disabilities also have access to services and supports to meet IEP goals and highly qualified teachers to help provide access to the general curriculum. These services may include behavior support plans based on individualized functional assessments of behavior; such assessments and services can be provided any time, not just when a student is about to be suspended or expelled.
  • Truancy and dropout prevention. Dropout prevention is also a measure of a school’s adequate yearly progress. Students with disabilities in particular have higher dropout rates and lower graduation rates than their non-disabled peers; students with emotional impairments fare far worse even than other students with disabilities.
  • Addressing domestic violence and child maltreatment. School failure is often a symptom of violence, abuse, or neglect at home, especially among girls. Using the full range of court powers to redress and reduce abuse and neglect can have a positive effect on school, in turn preventing future court referrals for problems caused by school failure.
  • Proactive case management of children in care. Challenges in placing and maintaining children in foster care can lead to problems in school. These challenges include missed school due to court appearances, frequent moves not always timed with school cycles, and delays in forwarding records. These challenges can often create a lack of connectedness to school and a higher risk of school failure. Undertaking the complex task of managing the cases of children in care with an eye toward maximizing school success can, when successful, lead to lower risk of future problems.
  • Proactive reintegration planning. Some courts have challenges in successfully reintroducing a child from residential care to school. Some courts or programs may even go so far as to start their own schools to avoid reintegration challenges. Addressing these systems proactively and facilitating reintegration to the community can reduce the continued oversight of children’s education by courts.
  • Systemic advocacy. Michigan law omits critical protections for students, such as the right to attend school, a lack of consistent and meaningful due process protections, zero tolerance laws that go beyond the federal mandate, and lack of access to high-quality, consistent alternative education. In addition, sound policy making in this area has been plagued by longstanding problems in collecting valid data on exclusion from school. Family courts have opportunities to advocate for better policies to protect students and ensure access to education, reducing the risk of school failure and taking the courts out of the education business.

For more information on this topic, please contact Mark McWilliams at MPAS, (800) 288-5923 or www.mpas.org.

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