Under the guise of leaving no child behind, Congress quietly passed two Education Bill amendments this summer that would leave more minorities and kids with disabilities without services -- and deny families legal recourse.
Following the zero-tolerance trend in discipline, these measures allow schools to kick out students with disabilities without providing at-home services and immunize teachers and school officials against civil lawsuits by affected families. The Senate-House conference committee will take up the amendments when Congress returns in September.
Under the existing Individuals with Disabilities Education Act, or IDEA, children with disabilities can't be ejected for longer than 10 days without alternative services. The new measures vary slightly: The House's version allows banishment for weapons, drugs, or aggravated assault or battery, regardless of whether the crime was perpetrated by a student with a disability. The Senate's version allows schools to expel students for breaking any rule, including smoking cigarettes.
"A disabled child who is misbehaving is treated in an entirely different way than a child who is not a disabled child," Alabama Sen. Jeff Sessions told the chamber. "They have extraordinary protections that, in effect, make it difficult for discipline even to occur."
Wrong, says Beth Foley of the Council for Exceptional Children, who authored a letter against the IDEA measures, signed by more than 90 groups ranging from Easter Seals to the National Education Association and the ACLU. Several studies have found that kids with disabilities are, in fact, banned from school disproportionately.
The amendment's supporters say dangerous kids are being left in school too long. Sessions uses the case of Lance Landers, called the "meanest kid in Alabama" in news reports. The special-ed student had cursed at school officials, grabbed a school bus steering wheel, and punched his aide -- all without being suspended. Landers ended up spending more than a year away from his family, shuttling between juvenile facilities.
Congress's General Accounting Office reported in January that children with disabilities "are being disciplined in generally a similar manner to regular education students." Most principals told the GAO that special-ed policies have a positive or neutral effect on school safety; less than a third said the separate policies are unfair.
What's more, zero-tolerance policies appear to provide cover for racial discrimination. "Opportunities Suspended," a study by the Harvard Civil Rights Project and the Advancement Project, shows that of the 87,000 kids expelled in 1998, 31 percent were black, even though African-Americans account for only 17 percent of all students.
In a report titled "The Color of Discipline," Russ Skiba of the Indiana University Institute for Child Study says African-Americans are kicked out more often for subjective offenses such as disrespect and noise. And they're also over-represented in special education.
Now the GOP has co-opted these studies to make the case for not funding IDEA, saying the program is a way of routing African-Americans into special-ed. That strategy drew a double take from the Harvard Civil Rights Project.
Some amendment opponents worry that Senate Democrats will sacrifice IDEA protections in order to win IDEA funding. But the politics of funding may temporarily save discipline protections -- at least until a bloody IDEA reauthorization battle takes place next year.
Those who would gut the law face continued opposition. Kathleen Boundy, of the Center for Law and Education, has waged a "not now, not ever" call-in campaign. "There is no place for denial of education," she says. "We should have learned from zero tolerance."
The teachers' unions support rigorous discipline, but oppose this amendment because even expelled children need education.
Meanwhile, the second attack on children's rights -- the Teacher Liability Protection Act -- is cruising for an easy victory. It's "perhaps even more dangerous than the first," says Skiba. The act would shield all school officials from discipline-related lawsuits, which have skyrocketed since Columbine. It sounds harmless: Teachers need the ability to evict dangerous students before gunfire erupts. But the educators the bill is ostensibly designed to protect don't support it. National Education Association lobbyist Joel Packer says state law provides plenty of protection now.
Robert Schwartz, the executive director of the Juvenile Law Center in Philadelphia, says that if schools want to get sued less, they should can zero-tolerance policies that require them to act unreasonably. "Three million kids were suspended last year," he says. "It seems the problem isn't that teachers are worried about repercussions when they discipline. I don't see any evidence of terror."
Donna Ladd is a Packard Future of Children fellow at the University of Maryland. An earlier version of this article appeared in The Village Voice.