National Council on Disability 

1331 F Street, NW, Suite 850 

Washington, DC 20004 

Breaking the School-to-Prison Pipeline for Students with Disabilities 

This report is also available in alternative formats upon request and on the National 

Council on Disability (NCD) website (www.ncd.gov). 

June 18, 2015 

202-272-2004 Voice 

202-272-2074 TTY 

202-272-2022 Fax 

The views contained in this report do not necessarily represent those of the 

Administration, as this and all NCD documents are not subject to the A-19 Executive 

Branch review process. 
1 

Breaking the School-to-Prison Pipeline 

for Students with Disabilities 

National Council on Disability 

June 18, 2015 
Acknowledgments 

The National Council on Disability would like to acknowledge the assistance of the 

Disability Rights Education and Defense Fund (DREDF) in developing this report and 

the HSC Foundation in convening our Fall 2014 meeting which contributed significantly 

to its findings. 

2 
3 

Table of Contents 

Section 1: Executive Summary .................................................................................... 5

Summary of Key Findings and Recommendations ...................................................... 8

Key Findings ............................................................................................................ 8

Key Recommendations ............................................................................................ 9

Conclusion ............................................................................................................. 10

Section 2: Introduction ............................................................................................... 11

Section 3: The Individuals with Disabilities Education Act (IDEA) ......................... 15

Discipline Under IDEA ............................................................................................... 16

The Relationship Between Discipline and FAPE .................................................... 16

Joint Guidance on the Discipline of Students with Disabilities ............................... 19

Section 504 Shortened School Day Guidance ....................................................... 22

FAPE Enforcement .................................................................................................... 24

Indicators 4A and 4B: Suspension/Expulsion ......................................................... 24

Early Intervention Systems: FAPE Triggers and Response to Intervention ........... 25

FAPE Enforcement Actions .................................................................................... 27

School-Based Mental Health and Behavioral-Related Services ............................. 28

Mental Health Services ....................................................................................... 29

Barriers to Accessing Appropriate FBAs and BIPs ............................................. 31

Least Restrictive Environment and the Integration Mandate ..................................... 33

Inclusion/Integration Mandates .............................................................................. 34

General Education Reform ..................................................................................... 37

Destigmatizing Disability in Diverse Communities.................................................. 38

Child Find .................................................................................................................. 39

OSEP Child Find Monitoring .................................................................................. 39

Teachers Versus Parent Referrals ......................................................................... 40

Transition Planning .................................................................................................... 42

Section 4: Addressing Racial Disparities in Special Education .............................. 47

Stereotyping and Implicit Bias ................................................................................... 47

Race-Conscious Positive Behavioral Interventions and Supports ............................. 50
4 

Section 5: Data Collection Enforcement and Expansion ......................................... 53

Enforcement and Compliance Issues ........................................................................ 53

Civil Rights Data Collection .................................................................................... 53

IDEA Discipline Data Collection and Reporting Requirements .............................. 54

Public Reporting ................................................................................................. 54

State Examination of Suspension and Expulsion Rates ..................................... 55

Restraint and Seclusion ...................................................................................... 56

Results Driven Accountability ............................................................................. 57

Legislative and Administrative Data Collection Recommendations ........................... 58

Amendments to IDEA Section 618 ......................................................................... 58

IDEA Part C Infant and Toddler Discipline Data ..................................................... 59

Access to Juvenile Justice Statistics ...................................................................... 60

Section 504 of the Rehabilitation Act ..................................................................... 61

Section 6: Other Federal Laws Impacting Students with Disabilities ..................... 63

McKinney-Vento Homeless Education Assistance Act .............................................. 63

Elementary and Secondary Education Act ................................................................ 64

Juvenile Justice and Delinquency Prevention Act ..................................................... 64

Valid Court Order Exception .................................................................................. 65

Status Offenses Reform for Youth with Disabilities ................................................ 65

Creation and Funding of JJDPA Juvenile Advocacy Programs .............................. 67

Title VI of the Civil Rights Act of 1964 ........................................................................ 68

Coordination of Federal Title VI and IDEA Enforcement ........................................ 68

Title VI and Special Education Resource Equity .................................................... 70

Section 7: Participant List .......................................................................................... 73

Section 8: List of Acronyms ....................................................................................... 77

Section 9: Endnotes .................................................................................................... 79
5 

Section 1: Executive Summary 

Studies show that up to 85 percent of youth in juvenile detention facilities have 

disabilities that make them eligible for special education services, yet only 37 percent 

receive these services while in school.1

 A disproportionate percentage of these detained 

youth are youth of color. These statistics should lead to the conclusion that many 

disabled youth in the juvenile justice and criminal justice systems are deprived of an 

appropriate education that could have changed their School-to-Prison Pipeline 

trajectory. The ―School-to-Prison Pipeline‖ refers to policies and practices that push our 

nation‘s schoolchildren, especially those most at risk, out of classrooms and into the 

juvenile and criminal justice systems.2

 This pipeline reflects the prioritization of 

incarceration over education. Yet the benefits of special education are in question. 

Students with disabilities who receive special education services in school have poorer 

outcomes and are suspended and expelled more often than their peers without 

disabilities.3 These dire statistics are even worse for students of color with disabilities, 

who are disproportionately classified as having an emotional disturbance or an 

intellectual disability and disproportionately segregated.4

These realities are often contradictory and confounding: 

(1) Many students with disabilities, including students of color, go through general 

education with unidentified and unaddressed academic, behavioral, or mental 

health needs; 

(2) Students of color are overrepresented in special education and experience more 

segregation and worse outcomes; and 

(3) Students who qualify for special education too often receive inferior services in 

segregated settings and incur repeated suspensions and expulsions. 

In conjunction with its fall quarterly meeting, the National Council on Disability (NCD) 

convened a stakeholder forum in Atlanta on October 6, 2014, to receive testimony on 

the role of special education in the School-to-Prison Pipeline and to confront these 

issues.5 The meeting began with the following facts, principles, and questions: 
6 

FACTS: 

 All races have members with disabilities. 

 Among incarcerated youth, 85 percent have learning and/or emotional disabilities, 

yet only 37 percent receive special education in school. Most were either 

undiagnosed or not properly served in school. 

 Many students have invisible disabilities, such as specific learning disability (SLD), 

emotional disturbance, posttraumatic stress disorder, or attention deficit/hyperactivity 

disorder (ADHD). 

 Schools suspended students with disabilities and students of color at many times the 

rate of their white counterparts. 

 Schools suspend students of color with individualized education plans (IEPs), 

whether they have disabilities or not, to the most disproportionate degree. 

PRINCIPLES: 

 We cannot address the School-to-Prison Pipeline without a disability lens. 

 Special education is not a place. We are talking about a system of services and 

supports for inclusion in general education. 

 Special educators have developed tools for teaching students with a variety of 

disabilities, including learning, behavioral, and emotional disabilities. 

 A referral for special education assessments can help identify learning, behavior, 

and emotional needs. 

 Students with disabilities and their families need information, training, and leadership 

development to effectively use the Individuals with Disabilities Education Act (IDEA) 

as a tool to secure better educational services. 

 There is a need for advocates to assist students with disabilities and their families in 

securing services and providing oversight to the delivery of services. 
7 

 An investment in IDEA, Section 504 of the Rehabilitation Act, and the Americans 

with Disabilities Act (ADA) is necessary to ensure that youth of color reap the 

benefits of disability laws. 

 Students of color should have access to the benefits of IDEA/504/ADA services to 

the same extent as white students. 

QUESTIONS: 

 Does IDEA offer important tools to infuse better educational services for students of 

color with disabilities who are currently suspended or expelled? 

 Can the proper implementation of IDEA help disrupt the School-to-Prison Pipeline 

for these students? 

NCD has concluded that IDEA can and should be an important part of the solution to 

the School-to-Prison Pipeline crisis. Thus, the recommendations in this report focus on 

ways to improve existing special education delivery and enforcement systems to better 

meet the needs of students with disabilities who risk entering the Pipeline. 

First and foremost, NCD would like to see a unified system of education with all 

students educated in the regular education classrooms with special education supports. 

But improved implementation of disability laws in this manner alone will not eradicate 

the persistent racial and ethnic disparities within the class of students with disabilities 

caught in the Pipeline. Thus, the recommendations acknowledge that efforts to break 

the School-to-Prison Pipeline for students with disabilities must address both conscious 

and unconscious racial biases that combine with disability discrimination to contribute to 

the crisis.6
8 

Summary of Key Findings and Recommendations 

Key Findings 

 The confusing disciplinary provisions added and refined in the last two IDEA 

reauthorizations have allowed schools to ignore their overarching obligation to 

provide a Free and Appropriate Public Education (FAPE), particularly the 

requirement to consider behavioral supports in the IEP. 

 Persistent racial and ethnic disparities in identification, discipline, placement, and 

other key categories show IDEA implementation breakdowns disproportionately 

affect students of color with disabilities. 

 Although the overall inclusion of students with disabilities in the general education 

classroom has increased over the last decade, statistics shows that students of color 

with disabilities remain disproportionately segregated from their peers without 

disabilities. 

 Reports of both overrepresentation and underrepresentation of students of color in 

special education suggest that child find enforcement does not ensure schools refer 

and assess these students in a nondiscriminatory manner. 

 Racial and ethnic disparities in suspensions and expulsions suggest the presence of 

unconscious or implicit biases that combine with discrimination on the basis of 

disability to contribute to the School-to-Prison Pipeline crisis. 

 School-wide positive behavior interventions and supports (SWPBIS) and response 

to intervention (RTI) do not reduce racial and ethnic disparities in discipline without 

specific attention to issues of race and culture. 

 State and local government entities often fail to enforce and comply with mandatory 

data collection and reporting laws. 
9 

Key Recommendations 

 The U.S. Departments of Education (ED) and Justice (DOJ) should issue joint 

guidance on the discipline of students with disabilities under IDEA and Section 504 

that reconciles the obligation to provide a FAPE with the 10-day suspension rule7

and focuses on how special education supports and services in the general 

education classroom can support students who are at risk of academic failure and 

suspensions.

 Schools should develop data-driven early warning systems to identify students 

whose academic and behavioral issues put them at risk of suspensions and 

expulsions that lead to entry into the juvenile justice and criminal justice systems and 

refer these students for more intensive general or special education services and 

supports. 

 ED and DOJ should bolster efforts to monitor and enforce the provision of FAPE to 

students with disabilities in the least restrictive environment. 

 ED should issue guidance setting forth minimum substantive standards for the 

quality and delivery of special education and related services, particularly as they 

relate to behavioral supports. 

 Federal and state enforcement activities must directly address race to remedy 

longstanding racial disparities in the placement and discipline of students with 

disabilities. 

 ED should fund the development of systems for evaluating implicit racial and 

disability bias in schools where minorities are overrepresented in identification, 

discipline, or placement, and implement implicit bias training in enforcement 

agreements and compliance reviews. 

 ED should take affirmative steps to enforce mandatory data collection and reporting 

requirements and ensure the validation of data submitted. 

 Federal and state enforcement agencies should coordinate enforcement of disability 

rights laws and other civil rights laws such as Title VI of the Civil Rights Act of 1964 

and bolster enforcement efforts on the specific issue of disproportionality in school 

discipline and juvenile justice referrals, including initiating litigation. 
10

Conclusion 

There is no question that the statistical picture of special education is bleak. But after its 

meeting of stakeholders, interviews with experts, and review of the research, NCD 

believes that IDEA and other related disability laws, with improved enforcement, can 

and should benefit at-risk students who are properly referred and served. In fact, the 

interventions and supports developed in special education are the key 

recommendations in the My Brother‘s Keeper Task Force report and other initiatives to 

curb the School-to-Prison Pipeline in general education.8

 Special educators and the 

Office of Special Education and Rehabilitative Services (OSERS) should play a leading 

role in both special and general education reform. However, improved implementation 

of disability laws alone will not eliminate persistent racial disparities in special education. 

Enforcement activities must also address race head on to finally ameliorate the problem 

of disproportionality in special education. 
11

Section 2: Introduction 

A review of the literature on special education and students of color reveals a belief that 

special education is part of the problem, not part of the solution, to addressing the 

School-to-Prison Pipeline.9

 Rather than hailing IDEA as a proud descendant of the civil 

rights movement that preceded it, many view it as a threat to Brown v. Board of 

Education.

10 There is continuing fear of the label ―disabled‖ because of the stigma 

attached to it. 

This view is understandable given the dire statistics on educational outcomes and 

discipline. Students with disabilities are more than twice as likely to receive an out-ofschool suspension (13%) than students without disabilities (6%).11 IDEA students 

represent a quarter of students subjected to a school-related arrest, even though they 

are only 12 percent of the overall student population.12 In 2011–2012, the national 

graduation rate for students with disabilities was just 61 percent, compared to 80 

percent for all students.13 In 2013, 75 percent of twelfth-grade students with disabilities 

scored ―below basic‖ on their National Assessment of Educational Progress (NAEP) 

math assessment, compared to 31 percent of nondisabled students.14

The numbers are even worse for students of color with disabilities. Twenty-seven 

percent of African American boys with disabilities and 19 percent of African American 

girls with disabilities received at least one out-of-school suspension in 2011–2012.15

Students of color with disabilities remain disproportionately segregated from their peers 

without disabilities across all educational environments.16 Most notably, African 

American students with disabilities represent 18.7 percent of the IDEA population, but 

49.9 percent of IDEA students in correctional facilities.17 Students of color also continue 

to be overrepresented and misrepresented in special education.18

What the literature and data fail to point out is that these negative outcomes are often 

the result of noncompliance with IDEA and other disability rights laws. Accordingly, NCD 

convened a stakeholder forum in conjunction with its quarterly meeting in Atlanta on 

October 6, 2014, to explore whether IDEA could be used effectively to address the 

School-to-Prison Pipeline. The questions posed to participants were: 
12

Does IDEA offer important tools to infuse better educational services for 

minority students with disabilities who are currently suspended or 

expelled? Can the proper implementation of IDEA help disrupt the Schoolto-Prison Pipeline for these students? 

At the meeting, federal agency representatives, NCD members, and advocates from 

across the country with a broad array of expertise answered in the affirmative and 

explained how they are using IDEA in their daily practices to secure services and divert 

students from the Pipeline. While these stakeholders know that IDEA is not selfexecuting and that implementation is most often faulty, they feel that it is currently the 

best tool to infuse services to struggling students with disabilities. Instead of rejecting 

special education because of the stigma attached to ―disability,‖ NCD urges increased 

efforts to destigmatize disability in schools. Unfortunately, schools have too often 

reinforced the stigma through segregation and subpar curricula.19

NCD was also interested in how students of color with disabilities specifically could 

benefit from improved implementation of disability laws. Meeting participants explained 

that while consistent procedures, nonbiased assessments, proper behavioral plans and 

interventions, and academic supports would go a long way toward preventing arbitrary 

bias from seeping into IDEA implementation, enforcement and monitoring activities 

must still directly confront racial disparities caused by structural racism and implicit 

biases to maximize the potential of IDEA as a vehicle for breaking the School-to-Prison 

Pipeline. 

NCD also learned how general and special education research advances and more 

expansive data collection and reporting requirements have allowed advocates to target 

specific problem areas for disability rights litigation and administrative advocacy. The 

following are recent examples of advocates using IDEA, Section 504, and the ADA as 

vehicles for instituting School-to-Prison Pipeline reforms: 
13

 SWPBIS, RTI, restorative justice practices, and other programs instituted pursuant 

to successful Section 504 and ADA Title II federal administrative complaints have 

reduced suspensions and improved student reading levels, graduation rates, and 

other key measures;20

 Disability rights lawyers are increasingly bringing ADA Title II litigation to reform 

schools‘ delivery of special education and related services, including their systems 

for delivering mental health and behavioral services;21 and 

 Advocates have successfully used systemic IDEA state complaints to reform 

discriminatory school discipline policies22 and special education delivery systems, 

including methods for providing individualized positive behavioral interventions and 

supports such as functional behavioral assessments (FBAs) and behavioral 

intervention plans (BIPs).23

In short, advocates now have a much firmer understanding of how to achieve the goal 

of providing effective and appropriate general and special education services to 

students with disabilities at risk of entering the School-to-Prison Pipeline. But greater 

enforcement of existing disability laws by relevant federal and state agencies is needed 

to ensure schools implement these research-based interventions with fidelity. 

This report sets forth NCD‘s recommendations for federal, state, and local agencies and 

other key stakeholders on how to improve implementation of disability laws and address 

racial and ethnic disparities in special education.24 NCD gathered the recommendations 

from testimony at the Atlanta meeting, follow-up interviews, and extensive research. In 

agreement with them, NCD also incorporated many of the recommendations that came 

out of the November 20, 2014, Civil Rights Roundtable, a national meeting organized by 

the National Disability Rights Network to discuss intersectional approaches to reducing 

disproportionality in discipline and juvenile justice referrals. 
14
15

Section 3: The Individuals with Disabilities 

Education Act (IDEA) 

The legislative history of IDEA reveals Congress‘ intent to address discrimination on the 

basis of both disability and race/ethnicity. In a June 1975 report, the Senate Committee 

on Labor and Public Welfare noted that the proposed Act was more expansive than 

Section 504 because it included protections for ―poor, minority, and bilingual children‖ in 

addition to students with disabilities.25 The original bill contained language prohibiting 

schools from administering tests and evaluations used for the purpose of classification 

and placement of children with disabilities in a racially or culturally discriminatory 

manner.26 Congress also drew inspiration from the 1972 case Mills v. Board of 

Education,

27 which guaranteed African American students with behavioral disabilities 

the right to a FAPE. 

Four decades after the passage of the landmark IDEA, we have yet to fully realize the 

law‘s original nondiscriminatory purposes. The disproportionate discipline of all students 

with disabilities and particularly students of color with disabilities suggests a lack of 

access to appropriate special education and related services designed to address 

behavioral challenges through educational, not punitive, interventions. Furthermore, 

schools have used the disciplinary provisions Congress added during the last two 

reauthorizations of IDEA to circumvent educational interventions for behavior problems 

until after 10 days of suspension, after grave educational loss.28 Compounding these 

failures is the presence of implicit racial and ethnic biases that influence disciplinary 

decision making and other special education processes. 

NCD believes that administrative guidance would be the most effective method to 

improve IDEA implementation. In particular, the U.S. Department of Education (ED) 

must reconcile the obligation of schools to provide FAPE to students who have 

behavioral challenges with current abuses of IDEA disciplinary provisions. ED must then 

strictly monitor and enforce state education agency (SEA) and local education agency 

(LEA) compliance with the FAPE and least restrictive environment (LRE) provisions of 
16

IDEA, including the requirements relating to positive behavioral interventions and 

supports, RTI, child find, and transition planning. 

Discipline Under IDEA 

Schools continue to exclude students with disabilities at disproportionate rates despite 

more than four decades of political and scholarly attention to this issue. Nationally, 

students with disabilities are more than twice as likely to receive an out-of-school 

suspension (13%) than students without disabilities (6%).29 The statistics are even 

worse for students of color with disabilities. In 2009–2010, one out of every four (25%) 

African American children with disabilities in grades K–12 received at least one 

suspension.30

Out-of-School Suspension Rates by Race and Disability Status, 2009–201031

Race

Suspension Rate for Disabled 

Students (%)

Suspension Rate for 

Nondisabled Students (%)

All 13 7

African American 25 16

Latino/Hispanic 12 7

Native American 11 8

White 9 4

Asian 3 2

Reducing these disparities is imperative. Frequent use of out-of-school suspensions has 

no academic benefit and is strongly associated with low achievement, a heightened risk 

for dropping out, and a greater likelihood of juvenile justice involvement.32

The Relationship Between Discipline and FAPE 

NCD believes that faithful implementation of IDEA and other disability rights laws 

guaranteeing a FAPE in the LRE would help reduce disproportionality in discipline and 

juvenile justice referrals. But in practice, the confusing IDEA disciplinary framework, 
17

particularly the provision allowing schools to remove students with disabilities up to 10 

days, has been an impediment to proper IDEA implementation. 

IDEA‘s ―10-day rule‖ allows school personnel to 

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).33

Congress instituted the 10-day rule during the 1997 reauthorization, when lobbyists of 

the National School Boards Association and other organizations representing 

administrators and teachers urged that children with and without disabilities should be 

disciplined the same. The detailed and confusing compromise lawmakers reached with 

these groups maintained procedural protections for students with disabilities only after 

10 days of suspensions in a school year. 

IDEA defines a FAPE as ―special education and related services that have been 

provided at public expense, under public supervision and direction, and without 

charge; meet the standards of the SEA; include an appropriate preschool, 

elementary school, or secondary school education in the state involved; and are 

provided in conformity with the individualized education program (IEP).‖34 Special 

education and related services must provide an education that is ―specifically 

designed to meet the child‘s unique needs, supported by services that will permit 

him  ̳to benefit‘ from instruction.‖35

In practice, the 10-day rule has allowed schools to ignore their overarching 

obligation to provide a FAPE to students with disabilities. Schools have 

interpreted the 10-day rule as giving them 10 ―free‖ removal days for each IDEA 

student—―free‖ in that the days can be used without an IEP team meeting, a BIP, 

an FBA, or any other service or support. This interpretation is particularly harmful 

for students most likely to have behaviors that are manifestations of their 

disabilities. 
18

Informational materials produced by private law firms representing school 

districts demonstrate this prevailing interpretation. The following excerpt is from a 

pamphlet titled ―The Relationship Between Discipline and FAPE,‖ created by a 

Texas-based law firm representing school districts: 

Schools have free use of up to 10 school days of short-term removals per 

school year without IDEA implications. The days can be used in any 

combination, quickly or slowly, although caution would warrant using the 

10 ―free‖ days judiciously over the school year, and avoiding multiple 

suspension days if at all possible.36

Under this interpretation of the 10-day rule, short-term suspensions are accepted 

behavioral tools schools can strategically spread out over the course of the school year. 

Schools have no incentive to intervene on behalf of struggling IDEA students until the 

eleventh day of removal. But the IDEA right to a FAPE is severely and often irrevocably 

compromised after 10 days of suspension. Moreover, the overwhelming majority of 

suspensions incurred by students with disabilities are for less than 10 days, often by 

design to avoid IDEA obligations. 

This interpretation also contradicts Congress‘ intent for schools to proactively address 

behavior prior to the eleventh day of removal. Responding to a growing body of 

behavioral research, Congress added provisions in the 1997 amendments on the use of 

positive behavioral interventions and supports to specifically address the persistent 

disproportionate discipline of students with disabilities. As Senator Edward Kennedy 

stated at the time, 

[D]iscipline should never be used as an excuse to exclude or segregate 

children with disabilities because of the failure to design behavioral 

management plans, or the failure to provide support services and staff 

training.37

The key addition was a provision requiring the IEP team to ―consider the use of positive 

behavioral interventions and supports‖ during the development, review, and revision of 

an IEP for a child ―whose behavior impedes the child‘s learning or that of others.‖38
19

Congress also authorized SEAs to use IDEA professional development funds to 

―provide training in methods of . . . positive behavioral interventions and supports to 

improve student behavior in the classroom‖

39 and encouraged implementation of these 

supports through grants.40

The main supports contemplated in the 1997 amendments were the FBA and the BIP, 

two research-based procedures for addressing behaviors that had gained favor among 

special education experts. An FBA is a systematic process of identifying the purpose 

and function of problem behaviors by investigating preexisting environmental factors 

that motivate problem behaviors.41 Based on the foundation provided by an FBA, a BIP 

is a concrete plan of action for reducing problem behaviors, dictated by the particular 

needs of the student exhibiting the behaviors.42

If schools deliver FBAs, BIPs, and other related behavioral interventions with fidelity, 

they can change behavior before it leads to disciplinary action. Unfortunately, schools 

only utilize these interventions when a child is removed from his or her placement (i.e., 

suspended or expelled more than 10 days) and the offending conduct is determined to 

be a manifestation of the child‘s disability, in accordance with IDEA.

43

Joint Guidance on the Discipline of Students with Disabilities 

To curb these abuses of the IDEA 10-day Rule, the Departments of Education and 

Justice must issue policy guidance on the discipline of students with disabilities under 

IDEA and Section 504. To date, NCD,44 My Brother‘s Keeper Taskforce,45 and other 

stakeholders have called on the Departments to issue IDEA guidance similar to their 

January 8, 2014, joint ―Dear Colleague‖ Letter and Guidance Packet regarding public 

schools‘ obligation under Title VI of the Civil Rights Act to administer student discipline 

without discriminating on the basis of race, color, or national origin.46

IDEA discipline guidance must first and foremost clarify the meaning of the 10-day rule 

and reconcile it with the overarching obligation of SEAs and LEAs to provide a FAPE.47

It should also clarify the obligations of LEAs that seek to order a change in placement of 

a child with a disability that would exceed 10 days, including their obligation to conduct 
20

manifestation determinations and provide educational services irrespective of whether 

the behavior is determined to be a manifestation of the child‘s disability. 

The guidance should also clarify that the requirement to ―consider‖ FBAs and BIPs is 

actually a requirement to provide behavioral interventions when necessary for a student 

to benefit from special education. Congress intended the word ―consider‖ to require a 

review of behavioral issues at the IEP stage for a student ―whose behavior impedes [his 

or her] learning or that of others.‖48 The IEP team‘s consideration of a student whose 

behavior would or could result in suspensions should result in an intervention plan to 

address those behaviors. If the school addresses the behavior without an FBA or BIP, 

the school should be required to show that its approach is evidence based and 

effective. In any case, the Departments should make it clear that schools cannot use 

discipline instead of proactive and affirmative approaches to behavioral issues. The 

Departments should also clarify that the failure of an IEP team to ―consider‖ the use of 

positive behavioral interventions and supports for a student whose behavior results in 

suspensions is a substantive, not procedural, violation of FAPE. 

ED and DOJ must also clarify the obligation of LEAs to inform families of their 

disciplinary due process rights and to provide this information in their native language. 

Language barriers prevent many parents, guardians, and caretakers of English 

language learners (ELLs) from meaningful participation in the complicated IDEA 

discipline process, and schools are often unable or unwilling to provide necessary 

translation and interpretation services. As a result, many families agree to forgo IDEA 

due process procedures and accept ―voluntary transfers‖ to more restrictive alternative 

and continuation schools. This is an unacceptable, yet very common, form of discipline 

for ELLs. 

Finally, IDEA guidance should clarify the meaning of the phrase ―to the extent‖

contained in the language of the 10-day rule. The provision states that schools may 

remove a student with a disability for up to 10 days ―to the extent such alternatives are 

applied to children without disabilities.‖49 So long as there is overrepresentation of 

students with disabilities in suspension data, discipline is not being used ―to the extent‖ 

it is applied to students without disabilities. Disproportionate suspensions of students 
21

with disabilities should trigger an examination of the eligibility of the disciplined students 

as well as the quality of assessments, behavior plans, IEPs, and placements by 

enforcing agencies. 

Recommendation: 

3.1. Similar to their joint January 2014 Title VI guidance, ED and DOJ should 

issue a “Dear Colleague” Letter and policy guidance on the discipline of 

students with disabilities under IDEA and Section 504. The guidance 

should: 

 Reconcile the obligation to provide a FAPE with the 10-day rule by 

clarifying the obligation of IEP Teams to proactively consider the use of 

positive behavioral interventions and support prior to the eleventh day 

of removal;

 Clarify that the failure of an IEP team to “consider” the use of positive 

behavioral interventions and supports for a student whose behavior 

results in suspensions is a substantive, not procedural violation of 

FAPE; 

 Clarify the obligations of an LEA when it seeks to order a change in 

placement that would exceed 10 school days, including the obligation to 

perform manifestation determinations; 

 Describe standards for the special education, related services, and 

positive behavior interventions and supports (such as FBAs and BIPs) 

needed for students with behavioral challenges to receive a FAPE; 

 Clarify the obligations of LEAs to inform families of their IDEA due 

process rights, including their rights during the complicated IDEA 

disciplinary process, and to translate this information into families’ 

native language; 

 Clarify the illegality of “voluntary transfer” and other circumventions of 

IDEA disciplinary processes that disproportionately affect parents, 

guardians, and caretakers of ELLs; and 
22

 Clarify the meaning of the phrase “to the extent such alternatives are 

applied to children without disabilities” contained in the language of the 

10-day rule.

Section 504 Shortened School Day Guidance 

Related to the abuse of IDEA disciplinary provisions is the fact that schools remove 

students with disabilities from classroom instruction by informal means as a way to 

circumvent the 10-day rule. This occurs through the use of shortened school days (e.g., 

repeated ―sent homes ― or changes to the IEP or Section 504 plan that provide the child 

less than a full school day), forced withdrawals from school, compulsory transfers to 

inadequate alternative programs or very limited homebound instruction, lengthy stays in 

seclusion rooms, and other methods. These removals do not count toward the 10-day 

threshold triggering IDEA safeguards despite the fact they often add up to much more 

than 10 days out of school. 

National Disability Rights Network (NDRN) currently has a national project to draw 

attention to the issue of informal removals from school. NDRN believes that informal 

removals of students with disabilities have increased due to the increased scrutiny on 

formal removals such as suspension and expulsions. In May 2014, NDRN submitted a 

letter to ED‘s Office for Civil Rights (OCR) formally asking the agency to address this 

hidden epidemic through policy guidance that incorporates the following Shortened 

School Day Principles: 

1. Affirm the Right of All Students to a Full School Day. This principle is 

consistent with the Section 504 regulations at 34 C.F.R. Part 104. 

2. Define Shortened School Day. OCR should define ―Shortened school day‖ as 

―any day in which a student with a disability attends school for less time than 

students without disabilities.‖

3. Shortened School Days and Disciplinary Processes. OCR should explain that 

shortened school days that have not occurred pursuant to Section 504, IDEA, or 

general education disciplinary procedures are potentially discriminatory.
23

4. “Significant or Material Loss.” OCR should provide examples of a ―significant or 

material loss‖ needed to signify a violation of Section 504.

5. Review Relevant Regulatory Requirements. OCR should clarify the obligation of 

LEAs under Section 504 to provide a FAPE in the LRE to all students with 

disabilities, including students with behavioral issues.

6. Discuss Budgetary Constraints. OCR should clarify that budgetary constraints 

do not warrant a school giving a student a shorter school day.

7. “Earning” a Full Day. OCR should clarify that behavioral incentives cannot 

include earning educational services or time in school. 

8. “An Hour is an Hour.” There is no legal authority to support the argument that an 

hour of homebound, one-on-one tutoring is worth a certain number of hours of inclass time.50

9. A Need for Closer Analysis. When a school proposes a shortened day for 

behavioral reasons, it should review the student's IEP or 504 plan to see whether 

he or she is receiving proper services and supports.

10. Data and Funding. OCR should review how shortened school days are recorded 

for federal data collection purposes to ensure that data collection systems do not 

indirectly encourage the use of shortened school days. Similarly, OCR should 

encourage SEAs to review whether state funding formulae encourage homebound 

or shortened day programming by providing full reimbursement for partial days of 

school. 

Each principle is consistent with existing Section 504 regulations, policy statements, 

and principles enunciated in OCR decisions. Therefore, there is no need for 

amendments to Section 504 or its implementing regulations. 

Recommendation: 

3.2. ED-OCR should issue guidance that addresses shortened school days and 

other informal means of removals and clarify that they are illegal when 

used to circumvent statutory and regulatory protections. The guidance 

should incorporate each of NDRN’s Shortened School Day Principles.
24

FAPE Enforcement 

Once ED and DOJ clarify IDEA, Section 504, and ADA obligations of SEAs and LEAs, 

they must then vigorously monitor and enforce the provision of FAPE to students who 

have behavioral challenges. 

Indicators 4A and 4B: Suspension/Expulsion 

IDEA requires the federal Office of Special Education Programs (OSEP) to monitor 

SEAs, and SEAs to monitor LEAs, using quantifiable indicators that measure either 

compliance with specific statutory or regulatory provisions of IDEA (compliance 

indicators) or results and outcomes for children with disabilities and their families 

(results indicators).51 The 20 Part B indicators created by OSEP target the following 

priority areas: (A) provision of a free appropriate public education in the least restrictive 

environment; (B) state exercise of general supervisory authority, including child find, 

effective monitoring, the use of resolution sessions, mediation, voluntary binding 

arbitration, and a system of transition services; and (C) disproportionate representation 

of racial and ethnic groups in special education and related services, to the extent the 

representation is the result of inappropriate identification. 52

This current monitoring system is not equipped to remedy the abuses of the IDEA 10-

day rule and ensure the provision of FAPE to students suspended less than 10 days.53

SEAs monitor LEA compliance with IDEA disciplinary provisions through OSEP 

Indicators 4A and 4B, which only measure the rates of suspensions and expulsions of 

children with disabilities (including, in the case of 4B, data disaggregated by race and 

ethnicity) for greater than 10 days. Advocates have long urged OSEP to expand the 

scope of Indicators 4A and 4B to include suspensions of less than 10 days, especially 

since the Section 618 discipline data should be readily available. 

A recent decision in the IDEA class action case Emma C. v. Eastin54 validated these 

criticisms of Indicators 4A and 4B. In Emma C., the plaintiffs challenged the adequacy 

of the California Department of Education‘s (CDE) state-level monitoring system, 

arguing, inter alia, that CDE‘s exclusive use of Indicator 4A and 4B failed to connect 

suspensions of any length to potential child find and FAPE violations. Plaintiffs further 
25

argued that IDEA requires an individualized record review of students suspended or 

expelled to monitor whether a denial of a FAPE and/or behavior related to students' 

disabilities has caused the high rates of suspension. 

The Court Monitor agreed in his January 9, 2014, report and ordered CDE to engage in 

corrective action steps ―reasonably calculated to ensure that students with disabilities 

subjected to disciplinary removals for fewer than 10 days are receiving a FAPE, 

including any positive behavior supports necessary for them to receive FAPE.‖55 The 

Court Monitor‘s findings and Judge Thelton Henderson‘s subsequent order approving 

these findings underscore the serious deficiencies in the current discipline monitoring 

model.56

Recommendation: 

3.3. OSEP should expand the scope of OSEP Indicators 4A and 4B to include 

suspensions of less than 10 days and to require a record review to 

determine if LEAs should have addressed the behavior in the IEP or failed 

to deliver the IEP services with fidelity. This change would help curb 

abuses of the IDEA 10-day rule and ensure the provision of FAPE to 

students suspended less than 10 days. Congress would not have to amend 

IDEA since Section 618 already requires SEAs to collect data on 

suspensions of less than 10 days.57

Early Intervention Systems: FAPE Triggers and Response to Intervention 

LEAs should develop protocols to ensure they are not punishing students with IEPs for 

problematic behaviors caused by educational deficiencies. An example would be for a 

short-term suspension to trigger a review of a student‘s IEP to ensure it is reasonably 

calculated to provide FAPE. A review of a suspended student‘s records will likely show 

a problem with instruction or other underlying problems that schools cannot remedy 

through exclusionary discipline. These periodic reviews would also give the IEP team an 

opportunity to consider or modify the use of FBAs, BIPs, and other positive behavioral 

interventions and supports to ensure the student stays in school. 
26

One such protocol is the Behavioral Support Continuum created by Fluency Plus, Inc. 

for Jackson Public Schools of Jackson, Mississippi. The continuum calls for procedural 

safeguards for reviewing and revising students IEPs and BIPs following removals from 

school of two, four, six, and 10 days, respectively, for any disciplinary reason.58 The 

Council of State Governments called for a similar system in their influential 2014 School 

Discipline Consensus Report and included a thorough review of examples currently in 

place across the country.59

For students without IEPs, SEAs and LEAs should implement RTI, a school-wide, multistep process of providing academic and behavioral supports and interventions.60 While 

there are different RTI frameworks, experts agree that the core features of an RTI 

model are: (1) students receive high-quality, research-based instruction in their general 

education setting; (2) continuous monitoring of student performance; (3) all students are 

screened for academic and behavioral problems; and (4) multiple levels (tiers) of 

instruction that are progressively more intense, based on the student‘s response to 

instruction.61 Rather than wait years for a student to fail, RTI assumes that if students 

who are identified by the universal screening process continue to demonstrate an 

inadequate response to a sequence of intensified, evidenced-based behavior supports, 

then that student can and should be given more intensive intervention assistance 

including, but not limited to, special education and related services.62

ED and many SEAs strongly support LEA implementation of RTI strategies. But for RTI 

to reach its potential as a School-to-Prison Pipeline reform, ED and SEAs must oversee 

LEA RTI implementation closely as part of their IDEA monitoring and enforcement 

responsibilities to ensure that schools are not violating their IDEA child find 

requirements by using RTI to deny or delay special education assessments.63

Recommendations: 

3.4. Schools should develop data-driven early warning systems to identify 

students at risk of retention, dropping out, or entry into the juvenile justice 

system. Under these systems, schools would refer students with shortterm suspension, poor grades, and chronic absenteeism for more intensive 
27

general education or special education services. Recommended systems 

include school-wide RTI as well as FAPE trigger systems specifically for 

students receiving services under IDEA Parts B or C. Schools 

implementing these frameworks must pay specific attention to race and 

ethnicity data.64

3.5. ED should require schools with certain characteristics (e.g., racial 

disproportionality in rates of identification or in discipline, high use of 

placements segregated by race or by disability), to use federal Coordinated 

Early Intervening Services (CEIS) to implement evidence-based approaches 

to RTI. 

3.6. ED and SEAs must make RTI pilot programs a priority and continue to 

utilize RTI and other early intervention systems as corrective actions in 

complaints brought pursuant to IDEA, Section 504, ADA, and Title VI. 

3.7. ED and SEAs must monitor LEA implementation of RTI, including as a 

means of assessing special education eligibility for some students (e.g., 

SLD under 20 U.S.C. § 1414(b)(6)(B)), as part of their IDEA monitoring and 

enforcement responsibilities to ensure schools are not violating their IDEA 

child find requirements by using RTI to deny or delay special education 

assessments. 

FAPE Enforcement Actions 

The Departments of Education and Justice could significantly improve SEA and LEA 

provision of FAPE by bringing or intervening in School-to-Prison Pipeline litigation and

investigations. NCD believes that one cannot separate suspensions from the provision 

of FAPE. If schools provided FAPE to students with disabilities, suspensions would be 

the exception rather than the rule to deal with nonconforming behavior. Failing grades 

and lack of educational success can lead to behaviors that result in suspension. If a 

student served under IDEA or Section 504 is suspended frequently, the cause may well 

lie in the lack of supports or services delivered with fidelity. 
28

Dealing with the suspension issue without looking at the underlining cause is the 

ultimate example of dealing with the symptoms rather than the disease. The disease is 

an educational system focused on paper compliance and that does not value all 

students equally or have proper accountability standards. ED- or DOJ-ordered remedies 

should not focus solely on discipline but on the underlying failure of schools to provide 

FAPE to students subject to punitive discipline.65

Recommendation: 

3.8. ED and DOJ should bolster their efforts to enforce the provision of FAPE to 

students with disabilities by: 

 Bringing enforcement actions or intervening in private-party lawsuits 

regarding: (1) Failure to provide FAPE including academic and 

behavioral supports in the general education classroom (2) the lack of 

educational equity in some or all of a school district’s programs; (3) 

attempts to institute evidence-based programs that enhance or expand 

services to at-risk youth (e.g., RTI); (4) unnecessary segregation of 

students with disabilities; and (5) disproportionate suspensions and 

expulsions. 

 Filing statements of interest in private lawsuits that take helpful 

positions on the law, specifically drawing attention to the improper use 

of the “10-day rule” to eviscerate the requirement for behavioral 

interventions at the IEP stage; and 

 Ensuring that charter schools recruit, enroll, support, and provide 

opportunities for students with disabilities and ELLs to benefit and 

succeed. 

School-Based Mental Health and Behavioral-Related Services 

The quality and delivery of school-based mental health and behavioral-related services 

must improve for IDEA to realize its potential as a vehicle for breaking the School-toPrison Pipeline. IDEA regulations define the related services available to students under 

the law66 but do not give schools guidance on what these services must look like in 
29

practice. The lack of quality standards coupled with the inadequacy of monitoring from 

state and federal oversight agencies has allowed schools to ―comply‖ with IDEA while 

providing ineffective services. OSERS could effectively ―raise the bar‖ regarding what it 

means to receive a FAPE by issuing administrative guidance articulating standards for 

school-based mental health and behavioral-related services and then strictly enforcing 

these standards. 

Mental Health Services 

Among the special education and related services available to eligible students under 

IDEA to ensure a FAPE are school-based mental health services.67 When delivered 

appropriately, these services enable students with behavioral, emotional, and mental 

health needs to learn in general education classrooms, progress from grade to grade, 

and earn high school diplomas. 

Advocates are now turning to ADA and Section 504 to reform systems for delivering 

school-based mental health and behavior services. A recent example is the federal 

class action lawsuit S.S. v. Springfield Public Schools68 filed in June 2014. The S.S. 

complaint alleges that the public schools of Springfield, Massachusetts, violate Title II of 

the ADA by placing children with mental health needs in ―public day schools,‖ where 

they are subjected to dangerous physical restraints, forced isolation in padded rooms, 

and repeated arrests and suspensions for minor offenses.69 To contrast the district‘s 

practices, the complaint describes professional standards for delivering quality schoolbased mental health services.70

Courts have held that ADA and Section 504 protections are independent of, and not 

coextensive with, the basic floor of access to education guaranteed by IDEA under the 

Supreme Court‘s decision in Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. 

Rowley.

71 ED and DOJ have affirmed this interpretation through involvement in private 

suits such as S.S.72 and joint guidance explaining that schools may have to provide 

services under ADA and Section 504 that are not required under IDEA.73 The continued 

support of the ED and DOJ in efforts to use ADA and Section 504 to improve the quality 
30

and delivery of special education and related services is essential to achieving Schoolto-Prison Pipeline reform. 

Recommendations: 

3.9. OSEP should issue a guidance document explaining school districts’ 

obligation under IDEA to provide FAPE to students with disabilities 

exhibiting problematic behaviors. This guidance should describe the 

special education and related services schools should provide to these 

students to ensure FAPE, including: 

 Standards for school-based mental health and behavior services. As 

described in the S.S. v. Springfield Public Schools complaint, 

professionals agree that school-based mental health and behavior 

services should include: (a) a comprehensive assessment, including 

determination of the purpose and triggers for the child’s behavior; (b) a 

school-based intervention plan that relies on positive support, social 

skills training, a care coordinator, and adjustments as needed to 

curriculum or schedules; (c) training for school staff and families in 

implementing the plan; and (d) coordination with nonschool providers 

involved with the child. 

3.10. ED, SEAs, and LEAs should increase technical assistance and training on 

the substantive and procedural requirements for school-based mental 

health and behavior services. Oversight agencies must review the quality 

and delivery of these services whenever a district has an excessive or 

disproportionate use of discipline. 

3.11. ED and the DOJ should continue administrative activities that support 

advocacy efforts to use ADA and Section 504 to improve the quality and 

delivery of special education and related services. 
31

Barriers to Accessing Appropriate FBAs and BIPs 

Although research continues to prove the efficacy of appropriate FBAs and BIPs in 

addressing problematic behaviors,74 schools rarely use these interventions or 

implement them with fidelity. In practice, schools ignore the requirement to ―consider‖

such supports in the IEP meeting or deal with it in a cursory manner. As discussed 

earlier, LEAs have no incentive to provide these interventions until they are required to 

do so by IDEA safeguards for students incurring long-term removals.75

Case law, state special education laws, and federal administrative guidance have only 

served to maintain this status quo. Predictably, administrative law judges (ALJs) and 

federal judges have interpreted the term ―consider‖ in the IEP provisions as not 

requiring access to an FBA or BIP.76 Some courts have further limited access by 

interpreting failures to provide these supports as procedural violations. This is a crucial 

distinction because a procedural violation is subject to the defense-friendly, harmlesserror approach to FAPE.77

States are also moving away from more expansive FBA and BIP standards. In July 

2013, California—which previously had the most expansive FBA and BIP requirements 

in the country—repealed its regulations regarding the use of behavioral interventions in 

favor of the baseline standards articulated in IDEA and its implementing regulations.78

The repeal coincided with the release of data showing that the state suspended 

students with disabilities at more than twice the rate of students without disabilities 

(13.4% to 6.4%) in 2009–2010, including a staggering 28 percent of all African 

American students with disabilities.79

Federal administrative guidance is similarly limiting. Since 1997, OSEP and OSERS 

have consistently stated that IDEA does not ―require‖ an FBA for cumulative removals of 

less than 10 days in a school year, but that IEP teams ―could‖ proactively conduct an 

FBA to address misconduct when it first appears.80 Aside from this straightforward 

interpretation of the statute and its regulations, the agencies have not called for broader 

access to FBAs and BIPs.81
32

Even when students do receive FBAs and BIPs, these interventions are often 

inadequate and poorly implemented. LEAs rarely conduct FBAs consistent with 

professional norms.82 Many FBAs involve nothing more than a record review, and are 

often boiler-plate and not individualized or based on ongoing data.83 These cursory 

assessments provide little useful information for the IEP team to use in crafting 

behavioral interventions. Moreover, LEAs rarely perform FBAs before drafting BIPs 

despite the fact special education experts regard an FBA as inseparable from an 

effective BIP.84 Without the baseline data an FBA provides, students receive ineffective, 

cookie-cutter BIPs that fail to reduce problem behaviors. Advocates have been unable 

to contest this practice because courts have consistently held that IDEA does not 

require an FBA prior to a BIP.85

Far too often, BIPs are sloppily written and poorly implemented. IDEA does not provide 

BIP standards, but in 2001 an Iowa ALJ created a four-pronged appropriateness test for 

BIPs that ALJs in other jurisdictions quickly adopted. Under this test, BIPs must: 

i. Be based on assessment data; 

ii. Be individualized to meet the child‘s needs;

iii. Include positive behavioral change strategies; and 

iv. Be consistently implemented as planned and its effects monitored.86

Despite the popularity of this test, the Seventh Circuit later rejected it in Alex R. v. 

Forrestville Valley Community School District 87 due to the lack of specific substantive 

requirements for BIPs in IDEA or its regulations: 

Although we may interpret a statute and its implementing regulations, we 

may not create out of whole cloth substantive provisions for the behavioral 

intervention plan contemplated by [IDEA]. In short, the District‘s [BIP] 

could not have fallen short of substantive criteria that did not exist, and so 

we conclude as a matter of law that it was not substantively invalid under 

the IDEA.88

Since 1997, OSEP has issued several guidance documents encouraging schools to 

adhere to best practices,89 but must increase monitoring and enforcement especially in 
33

the face of excessive suspensions and expulsions. LEAs must also avail themselves of 

the myriad professional development resources available to them, including OSEP‘s 

Technical Assistance Center on Positive Behavioral Interventions and Supports.90

Recommendations: 

3.12. In addition to school-based mental health and behavior services, OSERS 

guidance should describe standards for FBAs and BIPs, including: 

 The minimal substantive components of an FBA; 

 When to conduct an FBA prior to crafting a BIP; and 

 The minimal substantive components of a BIP. 

3.13. IEP teams must follow Congress’ intent to proactively “consider” behavior 

through the use of FBAs, BIPs, and other individualized positive behavior 

interventions and supports at the IEP stage. 

3.14. ED, SEAs, and LEAs should increase technical assistance and training on 

the substantive and procedural requirements for FBAs and BIPs. 

3.15. ED and SEAs should increase enforcement and monitoring of preventative 

behavioral interventions in the face of excessive suspensions and 

expulsions. 

Least Restrictive Environment and the Integration Mandate 

Perhaps the biggest contributor to the poor reputation of IDEA and special education is 

the widespread belief that special education is a place where students are sent, never 

to return to general education. This segregation is a cause for shame and taunting by 

other students. The harshest critics of IDEA see it as another way to segregate students 

with disabilities post Brown.

91 The disproportionate segregation of disabled students of 

color feeds this belief. The federal agencies charged with special education and civil 

rights enforcement must develop a robust accountability and monitoring strategy on 

segregation if special education is ever to be a viable alternative for students of color. 
34

Inclusion/Integration Mandates 

IDEA has a strong integration mandate that has yet to be fully realized, even 40 years 

after its passage. IDEA requires states to ensure that every student with a disability is 

educated in the LRE to the ―maximum extent appropriate.‖92 This means that the 

removal of a student with a disability may only occur ―when the nature or severity of the 

disability of a child is such that education in regular classes with the use of 

supplementary aids and services cannot be achieved satisfactorily.‖

93 Similarly, Title II 

of the ADA includes an ―integration mandate‖ that requires public entities to ―administer 

services, programs, and activities in the most integrated setting appropriate to the 

needs of qualified individuals with disabilities.‖94

Government enforcement of the respective inclusion and integration requirements of 

IDEA, Section 504, and ADA, performed in conjunction with FAPE enforcement, is 

essential in breaking the School-to-Prison Pipeline. The overall inclusion of students 

with disabilities in the general education classroom has increased over the last 

decade,95 but current statistics show that enforcement activities have not adequately 

targeted students with disabilities at risk of entering the School-to-Prison Pipeline. Many 

students with disabilities who could be educated in regular classes with behavioral 

interventions remain needlessly segregated in classrooms where they are more likely to 

receive inferior services and are subjected to physical restraints, forced seclusion, and 

repeated arrests and suspensions.96 Students placed in segregated settings also have 

far worse educational outcomes than those who are mainstreamed.97

As shown by the most recent IDEA Section 618 data, students of color with disabilities 

in particular have not benefitted from increased inclusion:
35

Percentage of Students Ages 6 through 21 Served Under IDEA, Part B, Within 

Racial/Ethnic Groups, By Educational Environment: Fall 201298

Regular 

school: 80% 

or more

Regular 

school: 

40–79%

Regular 

school: Less 

than 40%

Other 

Environments

All Students 61.5 19.5 13.8 5.2

American Indian or 

Alaska Native 62.6 23.9 10.6 2.9

Asian 56.6 16.7 21.1 5.7

Black or African 

American 55.6 20.4 17.9 6.1

Hispanic/Latino 60.1 19.7 16.3 3.9

Native Hawaiian or 

Other Pacific Islander 53.9 27.4 15.2 3.4

White 64.5 19.0 10.9 5.6

Two or More Races 63.3 19.3 13.0 4.4

It is clear from these figures that LRE/integration enforcement must target racial 

disparities to break the School-to-Prison Pipeline. Current federal and state 

enforcement systems do not directly address race despite the availability of placement 

data disaggregated by race.99 For example, compliance with the LRE requirements is a 

priority area for federal monitoring and enforcement,100 but OSEP Indicator 5 only 

measures an LEA‘s overall percentage of children with IEPs served in various 

placements. It does not require LEAs to meet any race-related benchmarks. 

The separate IDEA significant disproportionality framework101 requires SEAs to monitor 

significant disproportionality based on race and ethnicity in the placement of children 

with disabilities, but SEAs often set the bar so high that few if any LEAs are ever 

identified.102 OSERS received over 80 comments in response to its June 2014 RFI on 

significant disproportionality but had not issued a formal response as of April 1, 2015. 
36

OSERS must ensure that changes to the significant disproportionality framework 

effectively address racial disparities in special education placement. 

The segregation of students of color with behavioral issues should also trigger an 

investigation into whether schools use segregated special education classrooms as a 

dumping ground for students that schools could serve in the general education 

classroom with RTI or IDEA services. There is a correlation between segregation and 

the tremendous overrepresentation of students of color in special education. The 

premise of challenges to overrepresentation of students of color in special education is 

that schools use special education to get ―problem‖ students out of the general 

education classroom, regardless of whether the child has a disability or whether the 

segregated special education placement is designed to address those problems. By 

uncovering instances of improper segregation of students of color, these investigations 

could curb the overrepresentation of students of color in special education while also 

ensuring that students who do need services will receive them in the general education 

classroom. 

Recommendations: 

3.16. The Federal Government and SEAs must increase LRE/integration 

enforcement to ensure that schools do not place students of color in more 

restrictive settings instead of providing general education interventions. 

For example, ED and DOJ should bring formal enforcement actions or 

intervene in private party lawsuits regarding the unnecessary segregation 

of students with disabilities.103
37

3.17. Federal and state monitoring activities must directly address race to 

remedy longstanding racial disparities in the placement of students with 

disabilities. OSEP should amend Indicator 5 to include compliance 

benchmarks to ensure LEAs are not disproportionately segregating 

students of color with disabilities. OSERS should enforce the requirement 

of SEAs to address significant disproportionality in the placement of 

children with disabilities in particular educational settings. The current 

system is opaque and does not reflect the glaring racial disparities in the 

placement of students with disabilities. 

3.18. LEAs should provide behavioral services and supports to students with 

disabilities in the general education classroom. Too often, schools only 

deliver these services in more restrictive settings. Federal and state 

enforcement should include a review of where schools are providing 

behavioral services and if parents are aware that students do not have to 

be segregated to receive such services. Many parents are currently 

unaware that schools can offer these services in the general education 

classroom. 

General Education Reform 

We are in a unique moment in history to promote the integration mandate of IDEA. My 

Brother‘s Keeper, the primary federal initiative to combat the School-to-Prison Pipeline, 

advocates for the use of strategies developed in special education for youth without 

disabilities at risk of entering the Pipeline.104 The initiative hails PBIS, developed and 

tested for over two decades in special education, as a primary strategy for school-wide 

discipline reform, and acknowledges that schools can use strategies developed in 

special education to benefit everyone. 

The School-to-Prison Pipeline crisis has highlighted the failure of "one size fits all" education. 

ED should seize this moment in educational reform to ensure that strategies developed in 

special education like positive behavioral supports, differentiated education, and supportive 

services such as mental health counseling benefit all students in the general education 
38

classroom. Special educators should take leadership positions in implementing these 

strategies in general education for all children, with and without disabilities. 

Recommendations: 

3.19. ED should issue Requests For Proposals (RFPs) and guidance and 

disseminate information on demonstration projects that utilize universal 

design for learning and other similar frameworks that ensure all students 

receive the supports and services they need to succeed in school and 

divert the School-to-Prison Pipeline.105

3.20. ED must take more responsibility for initiating and funding research on the 

School-to-Prison Pipeline. The research should focus on policies, 

practices, and procedures that contribute to the School-to-Prison Pipeline 

and their consequences. The Institute of Education Sciences’ National 

Center for Education Research could lead this important initiative. 

Destigmatizing Disability in Diverse Communities 

If parents and communities of color view special education as a stigmatizing segregated 

dumping ground with no educational benefit, it stands to reason that they will continue 

to avoid special education. Thus the promise of using disability laws to break the 

School-to-Prison Pipeline hinges on the disability community‘s and the schools‘ ability to 

engage communities of color in meaningful dialogue on the principles and benefits of 

school inclusion for students with disabilities. The disability rights community has not 

adequately conveyed the promise of proper IDEA and Section 504 implementation or 

explained the fundamental disability rights principles of LRE, integration, and inclusion 

to parents in general, but especially to parents of color and parents of ELLs. Federal 

agencies should prioritize funding toward helping disability rights organizations foster 

disability awareness in these communities. 
39

Recommendation: 

3.21. Federal agencies should prioritize making funds available for the disability 

rights community to more fully engage communities of color and take

intersectional approaches to School-to-Prison Pipeline reform for students 

with disabilities. 

Child Find 

The IDEA ―child find‖ mandate requires each state to ensure that all children with 

disabilities are ―identified, located, and evaluated.‖106 Research on the characteristics of 

students in juvenile detention suggests systemic violations of this requirement. For 

example, an oft-cited study found that up to 85 percent of children in juvenile detention 

facilities have disabilities that make them eligible for special education, yet only 37 

percent receive services while in school.107 However, discussing child find violations in 

the context of the School-to-Prison Pipeline is controversial due to the historical misuse 

of special education identification, placement, and discipline as a means of excluding 

poor and students of color. Clearly more research is needed to reconcile anecdotal 

reports of underrepresentation with the statistical reality of persistent 

overrepresentation. 

OSEP Child Find Monitoring 

In practice, failing grades and suspensions can be the results of an unaddressed 

disability. However, the current IDEA monitoring model does not ensure SEAs and 

LEAs identify these at-risk students. The only current measures of LEA compliance with 

child find is Indicator 11, which monitors the timeframe between evaluation and 

identification, and Indicator 12, which monitors transition between Part C and Part B. As 

the Court Monitor in Emma C. explained, ―an LEA can be fully compliant with these 

indicators yet still have children with disabilities in its jurisdiction who need special 

education and related services but who have not been identified, located, and 

evaluated.‖108
40

OSEP should expand its child find monitoring activities, particularly through the linkage 

of discipline and school failure with child find. Although IDEA monitoring is behind in this 

regard, some states have taken a proactive approach. For example, Connecticut law 

requires the ―prompt referral to a Planning and Placement Team of all children who 

have been suspended repeatedly or whose behavior, attendance, including truant 

behavior, or progress in school is considered unsatisfactory or at a marginal level of 

acceptance.‖109 Guidance should encourage all states to take similar action to ensure 

that students with unaddressed needs are referred for RTI, IDEA, or other similar 

services.110

Recommendations: 

3.22. ED should increase enforcement of the IDEA child find mandate, including 

investigating the connection between excessive discipline and child find 

violations. 

3.23. OSEP should expand the IDEA child find monitoring system and require 

SEAs to collect data on the number of students with failing grades or 

disciplinary records referred for IDEA or RTI services. LEAs should use 

this data to create systems for referring general education students with 

failing grades or disciplinary records for IDEA or RTI services. 

Teachers Versus Parent Referrals 

The source of a special education referral—for example, a parent, teacher, doctor, or 

social worker—is an overlooked aspect of the disproportionality equation. The collection 

and study of referral data by source and race would lead to a better understanding of 

both overrepresentation and underrepresentation because a student is less likely to be 

―dumped‖ in special education when it is his or her parent requesting services.

It is well-established that teacher referral is a strong predictor of disproportionality for 

special education. Some 73 to 90 percent of the students referred by teachers for 

special education evaluations due to academic problems are found eligible.111 Less is 

known about the impact of parent referrals on disproportionality in special education, 
41

although anecdotal evidence from special education advocates suggests that schools 

react much differently to referrals from parents.112 As explained by Cannon, Gregory, 

and Waterstone (2013), three clinical professors of law who have experience 

representing students with disabilities in special education matters, schools often take 

on a gatekeeping role when parents initiate referrals: 

[W]hen parents express concern about their children‘s development to 

school officials or request special education evaluations, school officials 

sometimes discourage parents from proceeding with the special education 

process, ignore parental requests altogether, encourage parents to 

explore interventions outside of school or lower level school-based 

interventions short of the necessary special education services, or delay 

far longer than the timelines prescribed by the state in initiating the 

evaluation process. Not only can these responses dishearten and alienate 

parents who are often already frustrated, they also cause delays in the 

evaluation process that need to begin so that students can receive the 

special education services they require to make meaningful academic 

progress.113

There is a dearth of research on special education referrals in general, let alone parentinitiated referrals. Scholars have attributed this to the fact that there are no databases 

that track referrals, particularly compared to the numerous large, national databases 

tracking eligibility data.114 The few studies where scholars have analyzed special 

education referrals by source were limited to individual school districts.115 NCD

encourages further research and federal monitoring of this important yet overlooked 

aspect of the disproportionality equation. 

Recommendations: 

3.24. ED should require SEAs and LEAs to keep data on both the race of 

students referred for IDEA assessments and the source of these referrals, 

paying particular attention to parental referrals. 
42

3.25. More research on the source of special education referrals is needed to 

better understand both overrepresentation and underrepresentation. 

Researchers should explore the impact of parent referrals on 

disproportionality in special education and use this data to investigate 

correlations between race, the source of referral, and ultimate eligibility 

outcomes. 

Transition Planning 

Successful transition to higher education, competitive integrated employment, and other 

value-added postschool activities is another key to breaking the School-to-Prison 

Pipeline for students with disabilities. In the 2004 reauthorization of IDEA, Congress 

required that, beginning no later than age 16, a student‘s IEP must include measurable 

postsecondary goals related to training, education, employment, and, where 

appropriate, independent living skills.116 The IEP also must specify the transition 

services needed to assist the student in reaching those goals.117 The term ―transition 

services‖ means a coordinated set of activities for a child with a disability that—

(A) Is designed to be within a results-oriented process, that is focused on 

improving the academic and functional achievement of the child with a 

disability to facilitate the child‘s movement from school to postschool 

activities, including postsecondary education, vocational education, 

integrated employment (including supported employment), continuing and 

adult education, adult services, independent living, or community 

participation; 

(B) Is based on the individual child‘s needs, taking into account the child‘s 

strengths, preferences, and interests; and 

(C) Includes instruction, related services, community experiences, the 

development of employment and other postschool adult living objectives, 

and, when appropriate, acquisition of daily living skills and functional 

vocational evaluation.118
43

For this framework to ensure successful transition, SEAs and LEAs must first and 

foremost maintain high expectations for students with disabilities. Many general and 

special educators often underestimate the potential of students with disabilities and 

steer them toward noncompetitive and segregated work placements, such as sheltered 

workshops. Educators must hold high expectations for all students with disabilities and 

provide the type of transition services that will assist students in meeting these high 

expectations. 

SEAs and LEAs must also strengthen the nexus between the student‘s IEP and 

IEP/transition planning. Although a student‘s IEP must include transition goals by age 

16, the actual transition planning should start much earlier. Middle school is an 

appropriate starting point, and a student‘s IEP should have transition goals and services 

in place by eighth or ninth grade that reflect high expectations and that will continue 

throughout his or her high school career. 

Schools‘ focus on compliance with required IEP procedures prevents them from 

identifying the real needs of children and their families and collaboratively developing 

services to meet those needs. For example, the composition of an IEP team may satisfy 

the IEP requirements, but is often not the group of people who are most knowledgeable 

about the child and his or her family. This is a problem at all stages of the IEP process, 

but it particularly impacts transition planning because of the emphasis on the student‘s

strengths, interests, and postschool objectives. 

Improved collaboration between the federal agencies that serve students with 

disabilities during transition would also improve the School-to-Prison Pipeline trajectory. 

A 2012 report from the U.S. Government Accountability Office (GAO) found that the 

Departments of Education, Health and Human Services (HHS), and Labor (DOL) and 

the Social Security Administration (SSA) coordinate transition activities to some degree, 

but their coordination has limitations and they also do not assess the effectiveness of 

their efforts. The GAO further found that it is difficult for all students with disabilities and 

their families to navigate the multiple federal programs that provide transition services, 

but that students with disabilities in the juvenile justice or criminal justice systems are 
44

more likely to face difficulties because they tend not to be aware of or connected to 

adult service providers.119

The GAO urged these agencies to adopt a broader interagency strategic approach to 

addressing longstanding challenges in providing transition services to students with 

disabilities: 

Given the multiple agencies involved in supporting this population, in 

conjunction with multiple eligibility criteria and definitions established in 

statute, the lack of such a strategy is a missed opportunity to break down 

coordination barriers and work across agency boundaries. Only then can 

agencies systemically address persistent transition challenges and 

improve outcomes for students with disabilities.120

NCD supports this call for an interagency approach to improving transition 

outcomes for at-risk students with disabilities but also calls for greater 

collaboration between federal agencies and state and local entities such as 

Centers for Independent Living, Councils on Developmental Disabilities, or state 

departments of social services and rehabilitation. Many explained that they have 

clients who are involved in several systems at once (e.g., special education and 

child welfare), yet there is no coordination between the respective agencies 

providing services, and at times the agencies actually work at cross-purposes 

with each other. The federal agencies must prioritize efforts to integrate these 

agency efforts. 

Recommendations: 

3.26. ED and SEAs must maintain high expectations for students with disabilities 

and provide the type of transition services that will assist students in 

meeting these high expectations. They must also require schools to begin 

transition planning earlier than age 16 to help students better prepare for 

their chosen postschool objectives. 
45

3.27. LEAs must ensure that IEP team members participating in transition 

planning are knowledgeable about the child and his or her family, 

including, for example, school staff who may have a strong relationship 

with the student but who are not required IEP team members under IDEA. 

3.28. ED, HHS, DOL, SSA, and other agencies coordinating transitions services 

must form an interagency body to brainstorm and adopt a broader 

interagency strategic approach to addressing longstanding challenges in 

providing transition services to students with disabilities. The agencies 

must solicit input from and prioritize improved collaboration with state and 

local entities as well. 
46
47

Section 4: Addressing Racial Disparities in 

Special Education 

NCD believes that robust special education and related services and strict adherence to 

IDEA procedural protections are critical to breaking the School-to-Prison Pipeline for 

students with disabilities. Yet persistent racial disparities within the class of students 

with disabilities caught in the pipeline raise questions of unconscious racial bias that 

may combine with discrimination on the basis of disability to contribute to the crisis.121

Efforts to break the pipeline must then also address these unconscious, or implicit, 

racial biases in a straightforward manner. 

Stereotyping and Implicit Bias 

During the Atlanta meeting, Dan Losen, Director of the Center for Civil Rights Remedies 

at UCLA, provided a practical example of how stereotyping and implicit bias may 

influence an educator‘s perception of a student behavior: 

[Implicit bias] affects our perceptions. So here I am a white male teacher; I 

did teach for 10 years. I see kids in the hallway milling about. If they're a 

bunch of white kids, I'm a white male, maybe I think they're loitering. I will 

approach them and say, ―Come on, move on to your class.‖ If I'm a white 

male and these are black or Latino youth, I might think there is gang 

activity. Maybe I'll call the school resource officer. Maybe that kid has a 

weapon. I'm not so comfortable. I don't know these kids‘ parents. I don't 

feel comfortable calling their parents. . . . I may not be thinking this 

consciously, but it might affect what I'm actually seeing. 

A growing body of research on stereotyping and implicit bias supports this notion that 

implicit bias influences educators‘ perceptions and contributes to racial disparities in 

discipline. A number of studies have shown that administrators dole out harsher 

punishment to students of color than white students for the same or similar behavior.122
48

The potential for these unconscious stereotypes and biases to influence decision 

making is higher when subjective judgments are involved.123

The various special education processes, including child find, assessment, and IEP 

development, are similarly susceptible to implicit racial biases. With regard to child find, 

advocates report that school districts often cite the ―social maladjustment‖124 or 

―environmental, cultural, or economic disadvantage‖

125 exceptions to IDEA eligibility 

when refusing initial parent, guardian, or caretaker requests to evaluate students of 

color. For example, the Disability Rights Education and Defense Fund (DREDF) cited a 

letter from a Northern California school district to their client, an African American foster 

child with severe emotional and learning issues that discounted a possible disability 

because of the student‘s ―frequent moves,‖ ―limited school experience,‖ and ―social 

maladjustment.‖126 A child‘s harsh life circumstances should not be used as the reason 

to refuse to assess for IDEA eligibility, just as it should not be used as a proxy for 

disability. 

Another area vulnerable to implicit racial biases is assessment. School psychologists 

often find students of color ineligible for special education because their behavior is 

believed to be willful or purposeful and not related to a disability.127,128 Instead, 

psychologists will diagnose these students with conditions such as oppositional defiant 

disorder (ODD) and conduct disorder (CD), which are inappropriately classified as nonIDEA eligible conditions.129 In other instances, schools violate IDEA by refusing to 

assess students until their families submit medical documentation from a physician.130

Even when families are able to submit medical proof of learning difficulties such as 

ADHD, schools still deny IDEA eligibility on the basis that these conditions are ―comorbid‖ with ODD or CD. The fact that over half of youth in the juvenile justice system 

have ODD or CD suggests that schools are failing to serve many students with 

coexistent IDEA-eligible conditions.131

Fortunately, research suggests that it is possible to recognize implicit bias in oneself 

and learn techniques to overcome such perceptions and increase positive social 

interactions.132 For example, police training often incorporates these methods.133

Schools however have been much more resistant to such training due to the current 
49

lack of proven, school-based methodologies. At the Atlanta meeting, DREDF Directing 

Attorney Arlene Mayerson stated that advocates could establish the efficacy of schoolbased implicit bias interventions by ―developing experts in this field to give us more 

insight into how bias actually operates in school systems.‖134 With proven 

methodologies, school administrators will likely be more open to addressing the impact 

of implicit bias. 

Another barrier is the general difficulty educators, particularly white educators, have in 

discussing race and racism. In a recent briefing paper for the influential Discipline 

Disparities: Research-to-Practice Collaborative explained that this reticence to talk 

frankly about issues of race prevents schools from even considering the steps needed 

to fix racial discipline disparities: 

Imagine a school district with consistently low reading achievement 

scores; yet within that district, an unwritten code prevented staff from 

explicitly discussing the topic of reading. Obviously, the failure to address 

the central problem would guarantee that reading deficits would persist 

over time. In the same way, when we don‘t discuss and then address the 

racial dynamics of our racially disproportionate discipline, racial disparities 

in discipline continue to worsen over time.135

Addressing this attitudinal barrier is critical. School personnel must understand that 

addressing implicit biases is not an admission that one is racist. Implicit biases are 

deep-seated attitudes that operate outside conscious awareness and may even be in 

direct conflict with a person‘s stated beliefs and values.136 As this cutting-edge body of 

research grows, researchers will need schools to be willing participants in their efforts to 

reduce racial disparities. 

Recommendations: 

4.1. ED, DOJ, and SEAs should issue RFPs to develop instruments and 

procedures to evaluate implicit racial and disability bias in schools where 

minorities are overrepresented in identification, discipline, or segregated 

settings. It is critical that we understand how implicit bias works in the 
50

school environment if we are ever to remedy the overrepresentation of 

minorities in these areas. For underrepresentation, scholars should 

examine whether racial bias influences school district gatekeeping, 

particularly with regard to denials of IDEA eligibility on the basis of “social 

maladjustment,” “environmental, cultural, or economic disadvantage,” or 

“willful or deliberate conduct.”

4.2. ED, DOJ, and SEAs should make implicit bias training a core requirement 

of enforcement agreements and compliance reviews by: 

 Including implicit bias training requirements for schools and school 

districts found to have racial disparities in discipline, juvenile justice 

referrals, or access to programs and resources; 

 Require SEAs receiving federal dollars with schools or school districts 

that have high levels of disproportionality to provide quarterly training 

and professional development on implicit bias; 

 Issue guidance or develop training materials on the relationship 

between school discipline and exposure to harassment, violence, and 

trauma (i.e., criminalization of victims’ response to this exposure); and

 In grant making, target funds and give priority to districts that do 

cultural competence and implicit bias training, do training on the impact 

of trauma on student behavior, and that have mental health services 

integrated into school settings (e.g., universal screenings). 

4.3. Schools should voluntarily implement implicit bias and stereotyping 

training to enhance staff awareness of their implicit or unconscious biases. 

Race-Conscious Positive Behavioral Interventions and Supports 

Separate from the individualized positive behavioral interventions and supports 

available under IDEA is School-wide Positive Behavioral Interventions and Supports 

(SWPBIS), a systemic and data-driven approach to improving school discipline 

environments. SWPBIS emphasizes changing the underlying attitudes and policies 

concerning how student behavior is addressed.137 Advocates have had success 
51

implementing SWPBIS systems pursuant to IDEA, ADA, and Section 504 administrative 

complaints.138 ED similarly supports this framework and offers grants and technical 

assistance to help schools with its implementation.139

ED should continue to support SWPBIS for students with disabilities but must 

encourage schools implementing this framework to do so in a racially and culturally 

competent manner. SWPBIS has been successful in reducing office disciplinary 

referrals, decreasing rates of school suspension, and improving school climate. But 

research shows that without specific attention to issues of race and culture, 

implementation has not always successfully reduced racial/ethnic disparities in office 

referrals and suspension.140 For example, very few districts that currently receive IDEA 

funding to implement SWPBIS disaggregate their data by race and ethnicity. Schools 

implementing SWPBIS or other similar frameworks such as RTI must pay specific 

attention to race and ethnicity data.141

Recommendation: 

4.4. OSEP must require grantees implementing SWPBIS to disaggregate data 

by race and ethnicity to ensure that reductions in total disciplinary actions 

coincide with reductions in racial and ethnic disparities. 
52
53

Section 5: Data Collection Enforcement and 

Expansion 

The availability of accurate, disaggregated data is invaluable for advocates and 

policymakers working to break the School-to-Prison Pipeline for students with 

disabilities. Although access to data has increased over the last decade, public entities 

often fail to enforce and comply with existing data collection and reporting requirements. 

Moreover, there are a number of areas where Congress and relevant administrative 

agencies should expand current data collection systems to include certain groups of 

students, such as students with disabilities who have Section 504 plans, who are largely 

unaccounted for. 

Enforcement and Compliance Issues 

Many statutes and regulations affecting students with disabilities contain strong data 

disaggregation, collection, and reporting requirements. However, noncompliance with 

these provisions is common and enforcement lacking. To facilitate the identification of 

problems and areas to target solutions, the Federal Government, SEAs, LEAs, and 

individual schools must fulfill their respective data collection and reporting duties. 

Civil Rights Data Collection 

The Civil Rights Data Collection (CRDC) is a mandatory data collection conducted by 

ED.

142 The CRDC‘s purpose is to obtain data related to the nation's public schools143

and school districts‘ obligation to provide equal educational opportunity. To fulfill this 

goal, the CRDC collects a variety of information disaggregated by race/ethnicity, sex, 

limited English proficiency, and disability. 

Although CRDC data reporting is mandatory, many public schools and school districts 

grossly underreport data relating to students with disabilities. This is particularly evident 

in several categories relevant to the School-to-Prison Pipeline, including retention, 

bullying and harassment, suspensions and expulsions, incidents of restraints and 

seclusion, and school-based arrests. The lack of access to this data prevents both 
54

advocates and the schools themselves from identifying problems and instituting much 

needed interventions. Districts and schools currently face no ramifications from the 

Department for underreporting. 

Recommendations: 

5.1. ED should take affirmative steps to enforce the mandatory CRDC data 

reporting requirements. 

5.2. Public schools (including charter schools) and LEAs must fully comply 

with the mandatory CRDC data reporting requirements, including the 

requirements to submit data on suspensions, expulsions, incidents of 

restraints and seclusion, and school-based arrests disaggregated by 

disability. 

IDEA Discipline Data Collection and Reporting Requirements 

Among the comprehensive data collection and reporting provisions in Section 618 of 

IDEA is the directive for SEAs to provide the Department with data on the ―incidence 

and duration of disciplinary actions by race, ethnicity, limited English proficiency status, 

gender, and disability category, of children with disabilities, including suspensions of 1 

day or more.‖144 As explained below, many SEAs neither report nor examine this data in 

a manner consistent with IDEA requirements. 

Public Reporting 

IDEA requires SEAs to report disaggregated discipline data to the public.145 According 

to a July 2014 survey conducted by the Center for Civil Rights Remedies, SEA 

noncompliance with this mandate is widespread. There are only 16 SEAs that publicly 

report discipline data, and only eight of these disaggregate at least some of the data by 

race and ethnicity.146 Only one state—New Mexico—is in full compliance.147
55

Recommendation: 

5.3. ED should ensure full compliance with the IDEA provision requiring SEAs 

to publicly report discipline data disaggregated by race and ethnicity. 

State Examination of Suspension and Expulsion Rates 

IDEA requires SEAs to examine disaggregated discipline data each fiscal year to 

determine if discrepancies are occurring in the rate of long-term suspensions and 

expulsions of students with disabilities (i) among LEAs in the state; or (ii) compared to 

such rates for students without disabilities within such agencies.148 If such discrepancies 

are occurring, the SEA must require the affected LEAs to revise their policies, 

procedures, and practices relating to the development and implementation of IEPs, the 

use of positive behavioral interventions and supports, and procedural safeguards, to 

ensure that such policies, procedures, and practices comply with IDEA.149

Such annual examinations, to the extent SEAs actually perform them, are rarely 

reported to the public. Lawyers, community advocates, legislators, and other interested 

stakeholders must wait for the biennial CRDC survey results to compare the discipline 

rates of students with disabilities to students without disabilities. Moreover, the CRDC 

numbers do not present stakeholders with an up-to-date picture of a district. For 

example, ED-OCR released the 2011–2012 statistics in March 2014. 

Recommendation: 

5.4. ED must ensure SEAs comply with the IDEA requirement to examine 

discipline data disaggregated by race and ethnicity each fiscal year to 

determine if significant discrepancies are occurring in the rate of long-term 

suspensions and expulsions of students with disabilities among (i) among 

local educational agencies in the state; or (ii) compared to such rates for 

students without disabilities within such agencies. ED should report the 

results of these examinations to the public.
56

5.5. SEAs must comply with the aforementioned IDEA provision requiring 

examination of long-term suspension and expulsion rates and report the 

results of these examinations to the public. 

Restraint and Seclusion 

Statistics show students with disabilities are disproportionately restrained and secluded 

in school. Currently, students served by IDEA represent 12 percent of the student 

population but 58 percent of those placed in seclusion and 75 percent of those 

physically restrained.150 Like discipline, seclusion and restraint implicates the provision 

of FAPE. Accurate data on incidents of restraint and seclusion would shed light on this 

epidemic and force schools to reform their practices. As mentioned earlier, the CRDC 

survey only collects data on restraint and seclusion every other year.151 OSEP should 

issue guidance which explains that using seclusion and restraints instead of positive 

behavioral interventions may form the basis of a finding of noncompliance with FAPE. 

Furthermore, OSEP should clearly indicate that schools cannot use seclusion and 

restraint as punishment, and if they are, they must report such incidents as a 

disciplinary action.152

There is also a clear need for Congressional action on the issue of restraint and 

seclusion. There is no federal law, regulation, or binding guidance153 governing restraint 

and seclusion, and enforcement at the state level involves a patchwork of laws, 

regulations, nonbinding guidelines, and even utter silence (Butler 2014).154 Moreover, in 

a February 2014 report, the Senate Health, Education, Labor, and Pensions Majority 

Committee found that under current law, ―a family whose child has been injured, 

experienced trauma, or, in the worst case, has died as a result of the use of seclusion or 

restraints practices in a school has little or no recourse through school procedures or 

the courts.‖

155 A 2009 GAO report analyzed cases of alleged abuse, including 20 

deaths, related to the use of restraint, and stated that it ―could not find a single Web site, 

federal agency, or other entity that collects information on the use of these methods or 

the extent of their alleged abuse.‖

156
57

Recommendations: 

5.6. OSEP should issue policy guidance on the improper use of seclusion and 

restraints and the implications for a finding of non-compliance for failing to 

provide FAPE. 

5.7. Congress should take appropriate action to address the need for a uniform 

approach to restraint and seclusion and ensure the safety and dignity of 

every student. Restraint and seclusion legislation should, at a minimum: (1) 

limit the use of restraint and seclusion to cases where there is imminent 

danger of physical injury to the student or others at school; (2) provide 

criteria and steps for the proper use of restraint or seclusion; (3) promote 

the use of positive reinforcement and other, less restrictive behavioral 

interventions; and (4) require states to establish reporting and data 

collection standards. 

Results Driven Accountability 

NCD and the broader disability rights community support OSEP‘s recent shift to results 

driven accountability (RDA) and its increased focus on test scores and other outcomes 

for students with disabilities. However, OSEP omitted many important indicators in the 

new Part B Results Matrix. The most glaring omissions are: Indicator 1 (percent of youth 

with IEPs graduating from high school with a regular diploma compared to all youth), 

Indicators 4A and 4B (significant discrepancies, by race and ethnicity, in the rates of 

suspensions and expulsions), and Indicator 5 (LRE; in fact, the RDA does not have any 

LRE accountability measures). Graduation, discipline, and inclusion rates are just as 

important as test scores in determining successful outcomes for students with 

disabilities and should be included in the Part B Results Matrix. 

Moreover, the OSEP Part B Compliance Matrix only monitors SEA disciplinary practices 

through Indicator 4B, which measures significant discrepancies, by race and ethnicity, in 

the rates of suspensions and expulsions greater than 10 days. By limiting compliance 

monitoring to suspensions and expulsions greater than 10 days, OSEP fails to hold 

SEAs accountable for racial and ethnic disparities in total disciplinary removals. 
58

Recommendations: 

5.8. OSEP should amend its Part B Results Matrix to include Indicator 1 

(graduation rates), Indicators 4A and 4B (suspension and expulsion rates), 

and Indicator 5 (LRE). Moreover, OSEP should create a new compliance 

indicator that holds SEAs responsible for reporting all discipline 

disparities, not just disparities in suspensions and expulsions greater than 

10 days. 

Legislative and Administrative Data Collection Recommendations 

The upcoming reauthorizations of IDEA, Juvenile Justice Delinquency Prevention Act 

(JJDPA), and the Elementary and Secondary Education Act (ESEA) present 

opportunities for Congress to reinforce and expand existing data collection and 

reporting frameworks affecting students with disabilities at risk of entering the School-toPrison Pipeline. 

Amendments to IDEA Section 618 

As mentioned earlier, Section 618 of IDEA includes comprehensive data collection and 

reporting requirements.157 But to facilitate more nuanced, intersectional analyses of 

disciplinary data, Congress should amend the Section to require additional data 

collection and reporting requirements that facilitate analyses of how race, gender, ELL 

status, economic status, grade level, and type of offense affect discipline patterns 

beyond simple suspension and expulsion counts. An amendment to the disciplinary 

data provisions in Section 618 would also be a logical way for OSEP to collect and 

report disaggregated data on informal school removals, including shortened school days 

and ―sent homes.‖
59

Recommendation: 

5.9. OSEP should continue to require SEAs to collect and report discipline data 

from every school district in the country pursuant to Section 618. The 

school discipline data should include: 

 The number of suspensions, including unduplicated counts (similar to 

the CRDC), the total number of suspensions, and the duration of 

suspensions; 

 The reasons for each suspension, as incident data on less serious and 

more subjective offenses is critical in understanding the effect of school 

discipline policies; 

 Data broken down by grade (elementary, middle, and high schools); 

 Reporting of cross-sectional data (i.e., reporting data publicly to look at 

the confluence of two or more groups); 

 Discipline disaggregated by poverty; 

 Data on first-time offender by the punishment he or she received; and 

 An effective method to collect and report disaggregated data on 

informal school removals, including shortened school days and “sent 

homes.”

IDEA Part C Infant and Toddler Discipline Data 

The CRDC collected data on preschool suspensions for the first time in its 2011–2012 

survey. When released in March 2014, the data revealed shocking disparities in the 

suspension rates of black and male preschoolers. African American children make up 

18 percent of preschool enrollment, but 48 percent of preschool children were 

suspended more than once.158 African American boys received more than three out of 

four out-of-school preschool suspensions.159

The CRDC survey, however, showed that preschools are not disproportionately 

suspending students with disabilities. Students receiving IDEA services represent 22 

percent of preschool enrollment, but 19 percent of the students suspended once and 17 
60

percent of the students suspended more than once.160 It is unclear whether there are 

racial or ethnic disparities within these numbers because the available disability data is 

not disaggregated. Furthermore, it is possible that many of the suspended preschool 

students of color had unidentified disabilities. 

The 2011–2012 CRDC preschool suspension data is likely just the tip of the iceberg. 

Part C of IDEA, which covers early intervention services for infants and toddlers with 

disabilities, does not require SEAs to collect discipline data for this population, 

disaggregated or otherwise. Requiring Part C entities to report disaggregated discipline 

data would ensure yearly access to data, increase child find compliance, and prevent 

the needless suspension of young children with disabilities. 

Recommendation: 

5.10. ED should require SEAs to compile disaggregated data on the discipline of 

infants and toddlers with disabilities receiving services under IDEA Part C. 

Access to Juvenile Justice Statistics 

SEAs must include students with disabilities in correctional facilities when collecting and 

reporting data pursuant to IDEA.161 This data is limited because not all students with 

disabilities receive IDEA services. Some have Section 504 plans while others may have 

unidentified disabilities. But outside of IDEA, access to data on youth with disabilities in 

the juvenile justice and criminal justice systems is limited. For example, the statistics 

compiled by the Office of Juvenile Justice and Delinquency Prevention pursuant to the 

JJDPA do not account for disability status.162 Going forward, all major reauthorizations 

and regulatory undertakings that affect youth in the juvenile justice and criminal justice 

systems must include provisions requiring the collection of data disaggregated by race, 

ethnicity, ELL, and disability status. 
61

Recommendations:

5.11. All upcoming major reauthorizations and regulatory undertakings that 

affect youth in the juvenile justice and criminal justice systems (e.g., IDEA, 

ESEA, and JJDPA) must include provisions requiring the collection of data 

disaggregated by race, ethnicity, gender, ELL, and disability status. The 

data should address important questions such as: 

 What are the characteristics of individuals entering the juvenile justice 

system? 

 What is the quality of the education these individuals receive in juvenile 

detention facilities? 

 What are the characteristics of individuals exiting the juvenile justice 

system? 

 In what educational environments are students placed upon reentry? 

Section 504 of the Rehabilitation Act 

Section 504 requires LEAs to provide accommodations to students with disabilities who 

qualify for services under Section 504 but are otherwise not eligible for IDEA services. 

While OCR is responsible for the civil rights enforcement of Section 504 with state and 

local educational agencies,163 the Department leaves implementation and compliance to 

the state level. Consequently, there is no federal or state oversight, monitoring, or 

accountability for the services provided to students with disabilities that have a 504 plan; 

nor the educational, and ultimately, the transition outcomes achieved by these students. 

Recommendation: 

5.12. OCR should develop a Section 504 enforcement, monitoring, and technical 

assistance system to hold SEAs and LEAs accountable for the delivery of 

effective services to students with disabilities who have Section 504 plans. 
62
63

Section 6: Other Federal Laws Impacting 

Students with Disabilities 

This report primarily focuses on the potential of IDEA, Section 504, ADA, and other 

disability laws to break the School-to-Prison Pipeline. There are however other 

significant federal laws that overlap to impact students with disabilities at risk of entering 

the pipeline, including the McKinney-Vento Homeless Education Assistance Act 

(―McKinney-Vento Act‖), ESEA, JJDPA, and Title VI of the Civil Rights Act of 1964. This 

section discusses these laws and sets forth relevant policy and advocacy 

recommendations. 

McKinney-Vento Homeless Education Assistance Act 

The McKinney-Vento Act is a federal law that ensures immediate enrollment and 

educational stability for homeless children and youth.164 The Act requires schools to 

enroll and serve homeless children and youth consistent with their ―best interest,‖ even 

if the students lack normally required documents such as immunization records or proof 

of residence. It also ensures that homeless children and youth have transportation to 

and from their school of origin. 

The educational stability piece of McKinney-Vento is critical to breaking the School-toPrison Pipeline. Homeless families that lack residency documentation can assert 

McKinney-Vento protections to prevent discriminatory attempts to oust their children. 

Too many homeless families however are unaware of these protections. School districts 

must better educate families on their rights under this law and appoint knowledgeable 

McKinney-Vento coordinators who can work with families in an effective and sensitive 

manner. Schools must also cease the targeting of students with disabilities in fraudulent 

enrollment investigations. These activities could arguably amount to discrimination 

under Section 504 or Title II of the ADA. More research and advocacy is needed in this 

area to better understand the nature of these potentially discriminatory activities. 
64

Recommendation: 

6.1. SEAs and LEAs must improve implementation of the McKinney-Vento 

Homeless Education Assistance Act to ensure homeless students have a 

stable education environment and avoid truancy. LEAs in particular must 

better educate families on their rights under the law and appoint 

knowledgeable McKinney-Vento coordinators who can work with families 

in an effective and sensitive manner. 

Elementary and Secondary Education Act 

Congress last reauthorized the ESEA in 2002 when it passed the No Child Left Behind 

Act. Reauthorization of the ESEA is long overdue but is likely to come sometime in 

2015. In February 2015, members of the NDRN Civil Rights Roundtable met to create 

legislative recommendations for the ESEA reauthorization that specifically address 

disproportionality in discipline and juvenile justice referrals. NCD supports the group‘s 

final recommendations and incorporates them into this document.165

Recommendation: 

6.2. Congress should adopt the School-to-Prison Pipeline recommendations 

drafted by the members of the NDRN Civil Rights Roundtable. 

Juvenile Justice and Delinquency Prevention Act 

The JJDPA166 is the central federal law relating to youth in contact with the juvenile 

justice system. The Act supports delinquency prevention efforts and offers financial 

incentives for states to promote youth safety at the "front end" of the juvenile justice 

system by: (1) protecting incarcerated youth from contact with adult offenders; (2) 

reducing unnecessary incarceration by diverting youth who engage in low-level 

misbehavior (e.g., status offenses); and (3) addressing the disproportionate number of 

youth of color who come into contact with the juvenile justice system. 

Congress last amended the JJDPA in 2002 and the Act is long overdue for 

reauthorization. NCD has identified the following key legislative and administrative 

recommendations for the next reauthorization: (1) eliminate the valid court order (VCO) 
65

exception; (2) improve coordination between the status offense system and the special 

education system; (3) create increased funding to juvenile justice advocates, including 

creating a Juvenile Justice Protection & Advocacy Program. 

Valid Court Order Exception 

The JJDPA prohibits the incarceration of young people who engage in status offense 

behaviors, meaning conduct that would not be a crime if committed by an adult. 

Examples of status offenses include truancy, curfew violations, incorrigibility, running 

away, and underage possession and/or consumption of alcohol or tobacco.167

In the 1980s, Congress added the VCO exception, which allowed judges to detain youth 

who commit status offenses in secure/locked facilities if they find the youth to be in 

contempt or in violation of a VCO.168 This change has had a devastating effect on the 

nation‘s youth. In 2012 alone, it was used to incarcerate children more than 7,000 times 

nationwide.169 Research shows that locking up status offenders leads to worse 

outcomes for children and their communities.170

On December 11, 2014, Senators Sheldon Whitehouse (D-RI) and Chuck Grassley (RIA) introduced S.B. 2999, a bill that requires states to phase out their usage of the VCO 

exception over three years. Going forward, the elimination of the VCO must remain a 

nonnegotiable aspect of the JJDPA reauthorization.171

Recommendation: 

6.3. Congress must amend the JJDPA to prohibit the use of the VCO exception 

to securely confine youth adjudicated for status offenses and enable 

relevant federal agencies to provide research, training, and technical 

assistance to assist state and local status offense system reform efforts. 

Status Offenses Reform for Youth with Disabilities 

JJDPA-funded reform activities must specifically target students with disabilities. Young 

people too often enter the status offense system because of unidentified or 

unaddressed disabilities. Improved coordination between the status offense and special 
66

education systems would ensure that IDEA, Section 504, and ADA violations are 

uncovered during the adjudication of status offense charges. Neither schools nor 

juvenile courts consistently follow existing safeguards designed to facilitate coordination 

between them. For example, a rarely enforced IDEA provision requires schools 

reporting a crime committed by a child with a disability to ensure that copies of the 

student‘s special education and disciplinary records are sent to the appropriate 

authorities for their consideration.172

An effective way to improve coordination between these two systems is to train juvenile 

defense attorneys, probation officers, juvenile court judges, and prosecutors in special 

education and civil rights law. With improved understanding of their clients‘ special 

education rights, these attorneys could identify child find or FAPE violations and pursue 

special education services to divert status offense system involvement.173 For example, 

after implementing an intensive, special education law training program for courtappointed delinquency and child welfare attorneys, Washington, D.C., became the only 

jurisdiction in the country in which a substantial percentage of low-income parents had 

access to counsel willing and able to provide special education representation.174 The 

availability of counsel to these families enabled them to prevail in the majority of due 

process complaints filed, an experience that stands in contrast to that in most other 

jurisdictions where success with the filing of due process complaints is much less 

prevalent.175

Recommendations: 

6.4. OSEP and SEAs must enforce, and LEAs must comply, with 20 U.S.C. Sec. 

1415(k)(6)(B), a provision that requires schools reporting a crime 

committed by a child with a disability to ensure that copies of the student’s 

special education and disciplinary records are sent to the appropriate 

authorities for their consideration. 

6.5. Congress should amend the JJDPA to include funding for status offense 

reform that targets students with disabilities and encourages coordination 

between the status offense and special education systems. 
67

6.6. Congress should create and support programs that train probation officers, 

juvenile court judges, prosecutors, court-appointed attorneys representing 

youth, and public defenders on special education and civil rights laws. 

Improved understanding of these laws could help divert at-risk from the 

juvenile justice system and ensure they receive necessary education 

services. 

Creation and Funding of JJDPA Juvenile Advocacy Programs 

Due to economic and other related issues, there is a dearth of advocates and attorneys 

available to assist youth with juvenile justice and discipline issues. Congress and 

administrative agencies should create and support programs that increase the number 

of attorneys available to represent youth at risk of entering the School-to-Prison 

Pipeline. For example, ED could increase funding to Parent Training and Information 

Centers (PTIs) and Community Parent Resource Centers (CPRCs) and encourage 

them to create juvenile justice-focused projects. Bar associations could also implement 

mandatory pro bono hour rules and offer continuing legal education (CLE) credits in 

exchange for taking juvenile justice cases. Increased use of law school clinics is yet 

another way to increase at-risk youth‘s access to attorneys.

NDRN has set forth a viable proposal for the creation of a federal Juvenile Justice 

Protection and Advocacy (JJ P&A) program in the reauthorized JJDPA.176 The need for 

a JJ P&A is clear. An overwhelming number of youth with special education needs 

come into contact with the juvenile justice system, clogging the courts and overcrowding 

juvenile justice facilities at great expense to state and local governments. Adding a JJ 

P&A program to the JJDPA would increase oversight and accountability for compliance 

with the Act and promote public safety by identifying youth with disabilities and the 

services they need to reduce delinquent conduct, recidivism, and future contact with the 

juvenile justice system. 

Creating a JJ P&A program taps into an existing nationwide Protection & Advocacy 

(P&A) system177 for individuals with disabilities—a well-established, federally mandated 

network in every state that has a proven track record of success for 40 years. P&A 
68

agencies have the expertise, experience, and infrastructure to increase their advocacy 

in the juvenile justice system immediately but have been unable to expand because of a 

lack of resources.178

Recommendations: 

6.7. ED should increase funding to PTIs and CRPCs and encourage them to 

target services toward youth at risk of entering the School-to-Prison 

Pipeline. 

6.8. State and local bar associations should implement mandatory pro bono 

hour rules and offer CLE credits in exchange for taking juvenile justice 

cases. 

6.9. Congress should create a Juvenile Justice Protection & Advocacy program 

in the JJDPA Reauthorization Act of 2015 (S. 1699). The system would tap 

into the disability expertise of the P&A network to improve the ability of the 

overburdened juvenile justice system to effectively meet the needs of 

youth with disabilities.

Title VI of the Civil Rights Act of 1964 

There are ample opportunities for administrative agencies and advocates to use Title VI 

of the Civil Rights Act of 1964 in conjunction with special education laws to improve 

outcomes for students of color with disabilities. ED, DOJ, and other relevant agencies 

must coordinate their enforcement efforts and specifically target the disproportionate 

discipline and juvenile justice referrals of students of color with disabilities. Moreover, 

ED-OCR and DOJ should target Title VI complaints toward addressing special 

education disparities and resource inequity.

Coordination of Federal Title VI and IDEA Enforcement 

For Title VI to improve outcomes for students of color with disabilities, the various 

administrative agencies enforcing the law must coordinate enforcement of Title VI and 
69

IDEA/Section 504/ADA and target enforcement efforts on the specific issue of 

disproportionality in school removals and juvenile justice referrals. 

Recommendations: 

6.10. Representatives from OSEP, ED-OCR, and DOJ’s Civil Rights Division, 

among others, should meet to coordinate enforcement of Title VI and 

IDEA/Section 504/ADA and bolster enforcement efforts on the specific 

issue of disproportionality in school discipline and juvenile justice 

referrals. One goal of the meetings should be to ensure that all agencies 

are utilizing the full range of enforcement options, including but not limited 

to: 

 Directed funding; 

 Partial withholding; 

 Compliance agreements; and 

 Referrals for litigation. 

6.11. ED should make referrals to DOJ for litigation enforcing these laws. 

Litigation could be an alternative to withholding of funds, which can be 

difficult to effectuate and counterproductive in some circumstances. 

6.12. ED and DOJ should enforce Title VI regulations for every entity receiving 

federal financial assistance, especially those that do not receive the funds 

directly. Enforcement must apply to both disparate treatment (whether 

intentional or not) and disparate impact. 

6.13. ED and DOJ should expand the scope of Title VI investigations to include: 

 The extent to which school discipline policies disproportionately impact 

girls of color and conduct litigation to remedy school disciplinary 

practices that specifically involve the intersection of race and gender 

discrimination or stereotypes (i.e., improved coordination between Title 

VI and Title IX of the Education Amendments of 1972 enforcement 

activities); and 
70

 Either encourage or support the efforts of U.S. Attorneys who 

investigate possible civil rights violations by public, charter, and private 

schools. 

Title VI and Special Education Resource Equity 

One potential way for advocates to address the racial disparities in special education is 

through Title VI resource inequality complaints. On October 1, 2014, ED-OCR issued a 

policy letter to public schools on their legal obligation under Title VI to provide students 

with equal access to resources without regard to race, color, or national origin.179

Although the letter did not directly address disability, OCR made it clear it would analyze 

the quality of IDEA services during its Title VI investigations: 

Equal educational opportunity requires that all students, regardless of 

race, color, or national origin, have comparable access to the diverse 

range of courses, programs, and extracurricular activities offered in our 

Nation‘s schools. . . . Therefore, OCR assesses the types, quantity, and 

quality of programs available to students across a school district to 

determine whether students of all races have equal access to comparable 

programs both among schools and among students within the same 

school. . . . OCR may consider the overall quality and adequacy of special 

education programs at the school level, including identification, evaluation, 

and placement procedures as well as the quality and appropriateness of 

services and supports provided to students with disabilities to determine 

whether schools serving more students of color have comparable supports 

and services in place for students with disabilities.180

OCR also stated that it would consider staff-to-student ratios and the training, 

certification, and years of experience of special education support staff such as 

paraprofessionals, school psychologists, specialized therapy providers (e.g., speech, 

physical, and occupational therapists), and social workers to determine whether these 

critical personnel are supporting students with disabilities on a nondiscriminatory 
71

basis.181 OCR also vowed to investigate the quality of both physical buildings and 

educational technologies to ensure they are accessible to students with disabilities.182

The OCR resource inequality policy letter presents a number of creative and strategic 

opportunities for advocates. For example, advocates could combine resource inequality 

and discriminatory school discipline allegations in one OCR complaint. Discipline cases 

can be stigmatizing and uncomfortable for students and their families. Advocates could 

ease these fears by connecting disciplinary actions with a lack of adequate resources. 

Title VI allegations could also of course be combined with Section 504 and ADA Title II 

allegations. Advocates must explore these ideas and other types of creative approaches 

to more effectively address race and disability issues together. 

Recommendation: 

6.14. Advocates should use Title VI administrative complaints to address racial 

disparities in special education. Examples include strategically combining 

racial inequality and discriminatory discipline allegations into one 

complaint. 
72
73

Section 7: Participant List 

NCD Stakeholder Forum to Receive Testimony about the 

School-to-Prison Pipeline 

Monday, October 6, 2014 

Shepherd Center, 2020 Peachtree St, Atlanta, GA 30309 

Meeting Participants: 

Alice Abrokwa, Skadden Fellow 

Judge Bazelon Center for Mental Health Law 

Washington, DC 

Gary Blumenthal, Council Member 

National Council on Disability 

Sudbury, MA 

Robert Borrelle, Equal Justice Works Fellow

Disability Rights Education & Defense Fund

Berkeley, CA

Courtney Bowie, Senior Staff Attorney 

American Civil Liberties Union – Racial Justice Program

New York, NY

Ira Burnim, Legal Director

Judge Bazelon Center for Mental Health Law

Washington, DC 

Lawrence Carter, Public Affairs Specialist 

National Council on Disability 

Washington, DC 

Thomas Chapman, MPH, ED

The HSC Foundation

Washington, DC
74

Isaiah Chase II, College Student 

Atlanta, GA 

Rebecca Cokley, Executive Director 

National Council on Disability 

Washington, DC 

Jonathan Feldman, Attorney

Empire Justice Center

Rochester, NY

Chester A. Finn, Council Member 

National Council on Disability 

Albany, NY 

Janel George, Education Policy Counsel 

NAACP Legal Defense and Educational Fund

Washington, DC

Susan Henderson, Executive Director

Disability Rights Education & Defense Fund

Berkeley, CA

Debra Jennings, Co-Director

Statewide Parent Advocacy Network/ 

Center for Parent Information & Resources (CPIR)

Newark, NJ

Talina Jones, Chair 

NY Early Intervention Coordinating Council

Syracuse, NY

Narell Joyner, Consultant

Charlotte, NC

Jerri Katzerman 

Southern Poverty Law Center

Montgomery, AL

Bill Lann Lee, Partner 

Lewis Feinberg Lee Renaker & Jackson

Oakland, CA

Janice Lehrer-Stein, Council Member 

National Council on Disability 

San Francisco, CA

Talila Lewis 

Helping Educate to Advance the Rights of the Deaf (HEARD)

Rochester, NY
75

Daniel Losen, Director

Center for Civil Rights Remedies at UCLA's Civil Rights Project

Boston, MA

Kamilah Oni Martin-Proctor, Council Member 

National Council on Disability 

Washington, DC 

Arlene Mayerson, Directing Attorney 

Disability Rights Education & Defense Fund

Berkeley, CA

Robin Miller, Education Advocate 

Disability Rights Education & Defense Fund

Berkeley, CA

Ari Ne'eman, Council Member 

National Council on Disability 

Silver Spring, MD 

Benro T. Ogunyipe, Council Member 

National Council on Disability 

Chicago, IL 

Curtis Richards, Director

Center for Workforce Development

Washington, DC 

Jeff Rosen, Chairperson 

National Council on Disability 

Rockville, MD 

Lynnae Ruttledge, Council Member 

National Council on Disability 

Vancouver, WA

Thomas Saenz, President and General Counsel 

MALDEF

Los Angeles, CA

Katherine D. Seelman, Co-Vice Chair 

National Council on Disability 

Pittsburgh, PA

Brenda Shum, Director, Educational Opportunities 

Lawyers' Committee for Civil Rights 

New York, NY
76

Diane Smith Howard, Senior Staff Attorney

National Disability Rights Network

Washington, DC

Clyde Terry, Council Member 

National Council on Disability 

Concord, NH 

Cheryl Theis, Education Advocate

Disability Rights Education & Defense Fund

Berkeley, CA

Royal P. Walker, Jr., Co-Vice Chair 

National Council on Disability 

Jackson, MS

Michael Yudin, Acting Assistant Secretary 

Office of Special Education and Rehabilitative Services 

Washington, DC 
77

Section 8: List of Acronyms 

ADA Americans with Disabilities Act 

ADHD Attention Deficit/Hyperactivity Disorder 

ALJ Administrative Law Judge 

BIP Behavioral Intervention Plan 

CD Conduct Disorder 

CDE California Department of Education 

CLE Continuing Legal Education 

CPRC Community Parent Resource Center 

CRDC Civil Rights Data Collection 

DOJ U.S. Department of Justice 

DOL U.S. Department of Labor 

DREDF Disability Rights Education and Defense Fund 

ED U.S. Department of Education 

ELL English Language Learner 

ESEA Elementary and Secondary Education Act 

FAPE Free and Appropriate Public Education 

FBA Functional Behavioral Assessment 

GAO U.S. Government Accountability Office 

HHS U.S. Department of Health and Human Services 

ID Intellectual Disability 
78

IDEA Individuals with Disabilities Education Act 

IEP Individualized Education Plan 

JJ P&A Juvenile Justice Protection and Advocacy Program 

JJDPA Juvenile Justice Delinquency Prevention Act 

LEA Local Education Agency 

LRE Least Restrictive Environment 

NAEP National Assessment of Educational Progress 

NCD National Council on Disability 

NDRN National Disability Rights Network 

OCR U.S. Department of Education Office for Civil Rights 

ODD Oppositional Defiant Disorder 

OSEP Office of Special Education programs 

OSERS Office of Special Education and Rehabilitative Services 

P&A Protection and Advocacy 

PTI Parent Training and Information Center 

RDA Results Driven Accountability 

RTI Response to Intervention 

SEA State Education Agency 

SLD Specific Learning Disability 

SSA Social Security Administration 

SWPBIS School-wide Positive Behavioral Interventions and Supports 

VCO Valid Court Order 
79

Section 9: Endnotes 

 

1

 National Council on Disability. ―National Disability Policy: A Progress Report.‖ 2011, 

http://www.ncd.gov/progress_reports/Oct312011#_edn92. 

2

 The American Civil Liberties Union (ACLU). ―What is the School-To-Prison Pipeline?‖

accessed May 1, 2015, https://www.aclu.org/what-school-prison-pipeline. 

3

 In 2010–2011, the national graduation rate for students with disabilities was 61 

percent, compared to 80 percent for all students. Stetser, Marie C., and Robert Stillwell. 

―Public High School Four-Year On-Time Graduation Rates and Event Dropout Rates: 

School Years 2010–11 and 2011–12.‖ April 2014, accessed April 30, 2015, 

http://nces.ed.gov/pubs2014/2014391.pdf. Moreover, in 2011–2012, students with 

disabilities were more than twice as likely to receive an out-of-school suspension (13%) 

than students without disabilities (6%). U.S. Department of Education Office for Civil 

Rights, ―Civil Rights Data Collection, Data Snapshot: School Discipline‖ Issue Brief, 

March 2014, accessed April 30, 2015, 

http://www2.ed.gov/about/offices/list/ocr/docs/crdc-discipline-snapshot.pdf. 

4

 Nationally, 36 percent of all African American male secondary students with disabilities 

were suspended at least once in 2009–2010 compared to 17 percent of white male 

secondary students with disabilities. Losen, Daniel J., and Tia Elena Martinez. ―Out of 

School and Off Track: The Overuse of Suspensions in American Middle and High 

Schools.‖ Civil Rights Project/Proyecto Derechos Civiles (2013), accessed April 30, 

2015, http://civilrightsproject.ucla.edu/resources/projects/center-for-civil-rightsremedies/school-to-prison-folder/federal-reports/out-of-school-and-off-track-theoveruse-of-suspensions-in-american-middle-and-high-schools/OutofSchoolOffTrack_UCLA_4-8.pdf. 

5

 National Council on Disability, 79 Fed. Reg. 56,830 (Sept. 23, 2014). 

6

 Kim, Catherine, Daniel Losen, and Damon Hewitt. 2010. The School-to-Prison 

Pipeline: Structuring Legal Reform. New York: New York University Press. 

7

 20 U.S.C. § 1415(k)(1)(B). 

8 My Brother‘s Keeper Task Force. ―My Brother‘s Keeper Task Force Report to the 

President.‖ May 2014. 

http://www.whitehouse.gov/sites/default/files/docs/053014_mbk_report.pdf

9 Hing, Julianne. ―Race, Disability and the School-to-Prison Pipeline.‖ Colorlines, May 

13, 2014, 

http://colorlines.com/archives/2014/05/race_disability_and_the_school_to_prison_pipeli

ne.html. 
80

 

10 Erevelles, Nirmala. Disability and difference in global contexts: Enabling a 

transformative body politic. Palgrave Macmillan, 2011. (―Why do supporters of Brown 

not recognize how the assigned status of disability could serve as a mechanism for resegregating students of color in otherwise desegregated schools?‖).

11 Civil Rights Data Collection. Data Snapshot: School Discipline. 

12 Ibid. 

13 Stetser and Stillwell, ―Public High School Four-Year On-Time Graduation Rates and 

Event Dropout Rates: School Years 2010–11 and 2011–12.‖ 

14 U.S. Department of Education. ―2013 Mathematics and Reading: Grade 12 

Assessments.‖ The Nation’s Report Card. 

http://www.nationsreportcard.gov/reading_math_g12_2013/#/reaching-proficient. 

15 Civil Rights Data Collection. Data Snapshot: School Discipline. 

16 U.S. Department of Education. 36th Annual Report to Congress on the 

Implementation of the Individuals with Disabilities Education Act, 2014. 

http://www2.ed.gov/about/reports/annual/osep/2014/parts-b-c/36th-idea-arc.pdf. 

17 IDEA Data Center. 2012 IDEA Part B Child Count and Educational Environments. 

https://ideadata.org/resource-library/#public-data. 

18 Ibid. 

19 Federal law dubs special education teachers ―highly qualified‖ even if they are still 

working on their certification through an alternative training program like Teach for 

America. 20 U.S.C. § 1161f. 

20 Southern Poverty Law Center. ―Palm Beach County Schools Reach Agreement with 

SPLC, Advocates to Reduce Exclusionary School Discipline.‖ February 5, 2009. 

http://www.splcenter.org/get-informed/news/palm-beach-county-schools-reachagreement-with-splc-advocates-to-reduce-exclusiona. 

21 Complaint, S.S. v. Springfield Public Schools, No. 14-30116 (D. Mass, Jun. 27, 2014). 

Available at: 

http://www.bazelon.org/portals/0/In%20Court/Current%20Cases/Current%20Cases/Spri

ngfield%20MASS%20School%20System_Filed%20062714.pdf. 

22 Southern Poverty Law Center. ―Calcasieu Parish Public School System.‖ 

http://www.splcenter.org/get-informed/case-docket/calcasieu-parish-public-schoolsystem. 

23 Advocates for Children. ―Complaint Filed before the New York State Education 

Department by Advocates for Children of New York against the New York City 

Department of Education.‖ http://www.advocatesforchildren.org/litigation/afc. 
81

 

24 The intent of the report is to question and explore how special education and the 

disability laws can be is part of the solution, instead of part of the problem to the Schoolto-Prison Pipeline. Because the report focuses on the entry points to the Pipeline, it 

does not address the education of students with disabilities currently in juvenile 

facilities. Two helpful resources on this important topic are: National Council on 

Disability, ―Addressing the Needs of Youth with Disabilities in the Juvenile Justice 

System,‖ and Office of Special Education and Rehabilitative Services (OSERS). ―Dear 

Colleague Letter.‖ December 5, 2014. http://www2.ed.gov/policy/gen/guid/correctionaleducation/idea-letter.pdf. Nor does the report address the over-representation of 

students of color in special education, as this important topic dominates the literature 

and discussions on the topic. For in-depth, historical explorations of the 

overrepresentation problem, read Artiles, Alfredo J., Elizabeth B. Kozleski, Stanley C. 

Trent, David Osher, and Alba Ortiz. ―Justifying and explaining disproportionality, 1968–

2008: A critique of underlying views of culture.‖ Exceptional Children 76, no. 3 (2010): 

279–299; and Cross, Christoper T., and M. Suzanne Donovan, eds. Minority students in 

special and gifted education. National Academies Press, 2002. 

25 S. Rep. No. 94-168 (1975).

26 Education for All Handicapped Children Act, PL 94–142, 89 Stat 773 (1975). 

27 Mills v. Bd. Of Educ. Of the Dist. of Columbia, 348 F.Supp. 866 (1972). 

28 10 days is ―too long and creates significant barriers to reengagement, students‘ ability 

to keep pace with their peers, and other related problems.‖ Morgan, E., Nina Salomon, 

Martha Plotkin, and Rebecca Cohen. The School Discipline Consensus Report: 

Strategies from the Field to Keep Students Engaged in School and Out of the Juvenile 

Justice System. New York: The Council of State Governments Justice Center, 2014. 

http://csgjusticecenter.org/wpcontent/uploads/2014/06/The_School_Discipline_Consensus_Report.pdf. 

29 Civil Rights Data Collection. Data Snapshot: School Discipline. 

30 Losen, Daniel J., and Jonathan Gillespie. ―Opportunities suspended: The disparate 

impact of disciplinary exclusion from school.‖ 2012. 

http://civilrightsproject.ucla.edu/resources/projects/center-for-civil-rightsremedies/school-to-prison-folder/federal-reports/upcoming-ccrr-research. 

31 Ibid. 

32 Losen, Daniel, Tia Martinez, and Jon Gillespie. ―Suspended Education in California.‖ 

2012. http://civilrightsproject.ucla.edu/resources/projects/center-for-civil-rightsremedies/school-to-prison-folder/summary-reports/suspended-education-incalifornia/SuspendedEd-final3.pdf. 

33 20 U.S.C. § 1415(k)(1)(B). 

34 20 U.S.C. § 1401(9). 
82

 

35 Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 247-248 (5th Cir. 

1997), cert. denied, 522 U.S. 1047 (1998). 

36 Martin, Jose L. ―The Relationship Between Discipline and FAPE.‖ 

http://www.ksde.org/Portals/0/SES/legal/conf12/03b-DisciplineAndFAPE.pdf. 

37 143 Cong. Rec. S4318 (daily ed. May 12, 1997) (statement of Sen. Edward 

Kennedy). 

38 20 U.S.C. § 1414(d)(3)-(4); 34 C.F.R. § 300.324(a)-(b). 

39 20 U.S.C. §1454(a)(3)(B)(iii)(I). 

40 Grants can be used to: (1) Ensure that pre-service and in-service training, to general 

as well as special educators, include positive behavior interventions and supports (20 

U.S.C. §1464 (a)(6)(D) and (f)(2)(A)(iv)(I)); (2) Develop and disseminate PBIS models 

for addressing conduct that impedes learning (20 U.S.C. §1464(b)(2)(H)); and (3) 

Provide training and joint training to the entire spectrum of school personnel in the use 

of whole school positive behavioral interventions and supports (20 U.S.C. §1483(1)(C & 

D)). Positive Behavioral Interventions and Supports. ―PBIS and the Law.‖ 

https://www.pbis.org/school/pbis-and-the-law.

41 Zirkel, Perry A. ―Case Law for Functional Behavior Assessments and Behavior 

Intervention Plans: An Empirical Analysis.‖ Seattle UL Rev. 35 (2011): 175. 

42 Ibid. 

43 20 U.S.C. § 1415(k)(1)(F). 

44 National Council on Disability to Secretary of Education Arne Duncan, February 14, 

2014. http://www.ncd.gov/publications/2014/01402014/ 

45 My Brother‘s Keeper Task Force. ―My Brother‘s Keeper Task Force

Report to the President,‖ at 40. 

46 Although the Title VI guidance did not directly address disability discrimination, the 

Departments noted their particular concern over significant disparities in the discipline of 

students with disabilities and stated they were ―developing resources to assist schools 

and support teachers in using appropriate discipline practices for students with 

disabilities.‖ U.S. Departments of Education and Justice. ―Dear Colleague Letter on the 

Nondiscriminatory Application of School Discipline.‖ January 8, 2014. 

http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.html. 

47 The most obvious solution would be to amend IDEA to eliminate the 10 ―free‖ days of 

suspension. However, NCD does not believe that this is a good time to open IDEA for 

revisions in the disciplinary provisions. 

48 34 C.F.R. § 300.324(a)(2). 

49 20 U.S.C. § 1415(k)(1)(B). 
83

 

50 In Limestone County (AL) School District, 114 LRP 48956 (OCR 06/10/14), OCR 

determined that the LEA violated 504 by setting universal rules governing who was 

eligible for the homebound services and limiting students to three hours of instruction 

per week. ED-OCR explained that, under Section 504 and Title II, a district must provide 

students with disabilities with the regular or special education and related aids and 

services that meet their needs as adequately as the needs of nondisabled students are 

met. 

51 20 U.S.C. § 1416(a)(3); 34 C.F.R. § 300.600(c). 

52 Ibid. 

53 See Section 3, supra. 

54 Emma C. v. Eastin, No. 96–cv–04179–TEH (N.D. Cal. 1996). 

55 The Court Monitor‘s Report is on file with the authors.

56 Emma C. v. Eastin, 2014 WL 2989946 (N.D. Cal., July 2, 2014). 

57 Of course, participants acknowledged that the best solution would be to repeal the 10 

day rule in the statute, but are not confident that Congress would do so. 

58 Jackson (MS) Public Schools. ―Support Services/Child Find.‖ 

http://www.jackson.k12.ms.us/content.aspx?url=/page/eessupport. 

59 Morgan, Salomon, Plotkin, and Cohen. The School Discipline Consensus Report: 

Strategies from the Field to Keep Students Engaged in School and Out of the Juvenile 

Justice System. 

60 RTI Action Network. ―What Is RTI?‖ http://rtinetwork.org/learn/what/whatisrti. 

61 Office of Special Education Programs. ―Policy Memorandum 11-07.‖ January 2011.

https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/osep11-07rtimemo.pdf. 

62 Gresham, Frank M. "Response to Intervention and Emotional and Behavioral 

Disorders Best Practices in Assessment for Intervention." Assessment for Effective 

Intervention 32, no. 4 (2007): 214-222. 

63 Office of Special Education Programs. ―Policy Memorandum 11-07.‖ (―States and 

LEAs have an obligation to ensure that evaluations of children suspected of having a 

disability are not delayed or denied because of an RTI strategy‖).

64 See the discussion on Race-Conscious Positive Behavioral Interventions and 

Supports in Section 4, supra. 

65 There is a particular need for formal Federal Government enforcement of FAPE in 

charter schools. Despite being subject to IDEA, Section 504, and ADA, charter schools 

often deny admission to students with disabilities and ELLS, citing them as ―bad fits‖ or 

claiming they do not serve these populations. 

66 34 C.F.R. § 300.34(c). 
84

 

67 In many states, these IDEA services are medically necessary under the Early and 

Periodic Screening, Diagnostic and Treatment (EPSDT) benefit of the Medicaid Act and 

are reimbursable for students enrolled in Medicaid. 42 U.S.C. §§ 1396a and 1396d. 

68 Complaint, S.S. v. Springfield Public Schools, No. 14-30116 (D. Mass, Jun. 27, 2014). 

69 Ibid. 

70 The S.S. complaint states that the following services are necessary to afford children 

with significant emotional disturbance ―equal educational opportunity and the 

opportunity to be educated in neighborhood schools alongside their peers without 

disabilities‖: (a) a comprehensive assessment, including determination of the purpose 

and triggers for the child‘s behavior; (b) a school-based intervention plan that relies on 

positive support, social skills training, a care coordinator, and adjustments as needed to 

curriculum or schedules; (c) training for school staff and parents in implementing the 

plan; and (d) coordination with non-school providers involved with the child. Complaint, 

S.S. v. Springfield Public Schools, No. 14-30116 (D. Mass, Jun. 27, 2014). 

71 See, e.g., K.M. v. Tustin Unified Sch. Dist., 725 F.3d 1088 (9th Cir. 2013).

72 Statement of Interest of the United States of America, S.S. v. Springfield Public 

Schools, No. 14-30116 (D. Mass, Aug. 27, 2014). 

73 U.S. Departments of Education and Justice. ―Dear Colleague Letter.‖ November 12, 

2014. http://www2.ed.gov/about/offices/list/ocr/letters/colleague-effectivecommunication-201411.pdf. 

74 National Council on Disability, ―National Disability Policy: A Progress Report.‖ 2014. 

http://www.ncd.gov/progress_reports/10312014. 

75 See Discussion of IDEA 10-day rule, supra.

76 Zirkel. ―Case Law for Functional Behavior Assessments and Behavior Intervention 

Plans: An Empirical Analysis.‖

77 Professor Zirkel recommended determining access to FBAs and BIPs via the 

established IDEA standard for ―related services.‖ According to Professor Zirkel, this 

standard is preferable to the weak mandate to ―consider‖ such supports because courts 

and ALJs will ask whether access to FBAs and BIPs is required to ―assist a child with a 

disability to benefit from special education[.]‖ Moreover, the broad definition of related 

services in IDEA is sufficiently flexible to cover FBAs and BIPs. 

78 California Assembly Bill No. 86 (2013). Available at: 

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB86. 

79 Losen, Martinez, and Gillespie. ―Suspended Education in California.‖

80 Office of Special Education Programs. ―Policy Memorandum No. 97-7.‖ September 

19, 1997. https://www2.ed.gov/policy/speced/leg/idea/97-7.pdf. 

81 IDEA Regulations Commentary, 71 Fed. Reg. 46,683 (Aug. 14, 2006). 
85

 

82 Experts generally recommend that FBAs include: (1) operational definitions of 

problem behaviors; (2) descriptions of the assessment conditions that may reliably 

predict the occurrence and nonoccurrence of problem behaviors; (3) descriptions of the 

consequence events that maintain problem behaviors; (4) direct observation of the 

problem behaviors across the assessment conditions; and (5) a BIP based on the 

analysis of this information. Zirkel. ―Case Law for Functional Behavior Assessments and 

Behavior Intervention Plans: An Empirical Analysis.‖ 

83 A DREDF client received a BIP that included inappropriate interventions such as, 

―Student will stop bringing candy to school‖; ―Student will ask himself,  ̳Am I paying 

attention?‘‖; and ―Student will obey all school rules.‖ The BIP is on file with DREDF.

84 Ibid. 

85 See, e.g., R.P. ex rel. R.P. v. Alamo Heights Independent Sch. Dist., 703 F.3d 801, 

813 (5th Cir. 2012). 

86 Mason Cty. Cmty. Sch. Dist. 36 IDELR ¶ 50 (Iowa 2001). 

87 Alex R. v. Forrestville Valley Community School District, 375 F.3d 603, 615 (7th Cir. 

2004). 

88 Ibid. 

89 Office of Special Education Programs. ―Behavior Assessment and Behavior

Intervention Plans.‖ November 1998. http://files.eric.ed.gov/fulltext/ED429420.pdf. 

90 Office of Special Education Programs. Positive Behavioral Interventions and 

Supports. www.pbis.org. 

91 Erevelles, Nirmala. Disability and difference in global contexts: Enabling a 

transformative body politic. Palgrave Macmillan, 2011. (―Why do supporters of Brown 

not recognize how the assigned status of disability could serve as a mechanism for resegregating students of color in otherwise desegregated schools?‖).

92 20 U.S.C. § 1412(a)(5)(A). 

93 20 U.S.C. § 1412(a)(5)(A). 

94 28 C.F.R. § 35.130. 

95 The percentage of students with disabilities educated inside the regular class 80 

percent or more of the day has increased from 49.9 percent in 2003 to 61.5 percent in 

2012. U.S. Department of Education. 36th Annual Report to Congress on the 

Implementation of the Individuals with Disabilities Education Act, 2014. 

96 Currently, students served by IDEA represent 12 percent of the student population 

but 58 percent of those placed in seclusion, 75 percent of those physically restrained, 

and 25 percent of those arrested at school. Civil Rights Data Collection. Data Snapshot: 

School Discipline. 

97 National Council on Disability, ―National Disability Policy: A Progress Report,‖ 2011.
86

 

98 U.S. Department of Education. 36th Annual Report to Congress on the 

Implementation of the Individuals with Disabilities Education Act, 2014. 

99 20 U.S.C. § 1418(a)(1)(A) 

100 20 U.S.C. § 1416(a)(3)(A); 34 C.F.R. § 300.646(d)(1). 

101 20 U.S.C. § 1418(d); 34 C.F.R. § 300.600. 

102 Request for Information on Addressing Significant Disproportionality Under Section 

618(d) of the Individuals With Disabilities Education Act (IDEA), 79 Fed. Reg. 35,154 

(2014). http://www.gpo.gov/fdsys/pkg/FR-2014-06-19/pdf/2014-14388.pdf. 

103 The rise of disability-only charter schools is a recent example of a potential 

circumvention of the IDEA LRE mandate. 

104 My Brother‘s Keeper Task Force. ―My Brother‘s Keeper Task Force Report to the 

President.‖ 

105 An example is the OSEP-funded SWIFT Center (School Wide Integrated Framework 

for Transformation), a national technical assistance center dedicated to implementing a 

model for educating general and special education students together to improve schoolwide academic outcomes. Swift Schools. ―Transforming Education.‖ 

http://www.swiftschools.org/ 

106 20 U.S.C. § 1412(a)(3)(A). 

107 National Council on Disability, ―National Disability Policy: A Progress Report,‖ 2011.

108 Emma C. v. Eastin, 2014 WL 2989946 (N.D. Cal., July 2, 2014). 

109 Regs., Conn. State Agencies §10-76d-7. 

110 See RTI discussion, supra. 

111 Harry, Beth, and Janette K. Klingner. Why are so many minority students in special 

education?: Understanding race & disability in schools. Teachers College Press, 2005. 

112 See, e.g., Ending the School-to-Prison Pipeline: Hearing Before the Subcomm. on 

the Constitution, Civil Rights, and Human Rights of the S. Comm. on the Judiciary, 

112th Cong. 300-308 (2012) (statement of Arlene B. Mayerson), 

http://www.gpo.gov/fdsys/pkg/CHRG-112shrg86166/pdf/CHRG-112shrg86166.pdf. 

113 Cannon, Y. Z., Michael Gregory & Julie Waterstone, A Solution Hiding in Plain Sight: 

Special Education and Better Outcomes for Students with Social, Emotional, and 

Behavioral Challenges, 41 Fordham Urb. L.J. 403, 438-439 (2013). 

114 Hosp, John L., and Daniel J. Reschly. "Referral rates for intervention or assessment 

a meta-analysis of racial differences." The Journal of Special Education 37, no. 2 

(2003): 67-80. 
87

 

115 Gottlieb, Jay, Barbara W. Gottlieb, and Sharon Trongone. "Parent and teacher 

referrals for a psychoeducational evaluation." The Journal of Special Education 25, no. 

2 (1991): 155–167. 

116 20 U.S.C. § 1414 (d)(1)(A)(i)(VIII).

117 Ibid. 

118 20 U.S.C. § 1401(34). 

119 Ibid. 

120 Ibid. 

121 Kim, Losen, and Hewitt. The School-to-Prison Pipeline: Structuring Legal Reform. 

122 Nicholson‐Crotty, Sean, Zachary Birchmeier, and David Valentine. ―Exploring the 

Impact of School Discipline on Racial Disproportion in the Juvenile Justice 

System.‖ Social Science Quarterly 90, no. 4 (2009): 1003–1018; Skiba, Russell J., 

Robert H. Horner, Choong-Geun Chung, M. Karega Rausch, Seth L. May, and Tary 

Tobin. "Race is not neutral: A national investigation of African American and Latino 

disproportionality in school discipline." School Psychology Review 40, no. 1 (2011): 85. 

123 Hart, Melissa. ―Subjective decisionmaking and unconscious discrimination.‖ Alabama 

Law Review 56 (2005): 741. 

124 34 C.F.R. § 300.8(c)(4)(ii) (emotional disturbance). 

125 34 C.F.R. § 300.8(c)(10)(ii) (specific learning disability). 

126 This Prior Written Notice is on file with the authors. 

127 Courts have interpreted the IDEA social maladjustment exception as a distinction 

between deliberate, purposeful behavior and disability-related behavior. See Torrance 

Unified Sch. Dist. v. E.M., No. CV 07-2164 (C.D. Cal. Aug. 28, 2008) (―[A] student is 

socially maladjusted, when the student acts in deliberate noncompliance with known 

social demands or expectations . . . or when the student‘s behavior is controlled, 

predictable, and purposeful‖); E.S. v. Fairfax County Sch. Bd., 134 F.3d 659, 664 (4th 

Cir. 1998), citing In re Sequoia Union High Sch. Dist., 1987-88 ELHR Dec. 559:133, 135 

(N.D. Cal. 1987) (―[S]ocially maladjusted [is] a persistent pattern of violating societal 

norms with lots of truancy, substance . . . abuse, i.e., a perpetual struggle with authority, 

easily frustrated, impulsive, and manipulative‖).

128 Stereotypes of course also contribute to the overrepresentation of students of color 

in special education. Students of color are more likely to be found eligible under the 

categories of ―emotional disturbance‖ and ―intellectual disability.‖ IDEA Data Center. 

2012 IDEA Part B Child Count and Educational Environments. 

129 Merrell, K. W. and Hill M. Walker. ―Deconstructing a definition: Social maladjustment 

versus emotional disturbance and moving the EBD field forward.‖ Psychology in the 

Schools 41 (2004):899. 
88

 

130 N.B. V. Hellgate Elementary Sch. Dist., 541 F.3d 1202, 1209 (9th Cir. 2008).

131 National Collaborative on Workforce and Disability, ―Improving Transition Outcomes 

for Youth Involved in the Juvenile Justice System: Practical Considerations.‖ Info Brief 

25 (March 2010). http://www.ncwdyouth.info/sites/default/files/Improving_Outcomes_for_Youth_Involved_in_Juvenile_Just

ice.pdf. 

132 Carter, Prudence, Russell Skiba, Mariella Arredondo, and Mica Pollock. ―You Can‘t 

Fix What You Don‘t Look At: Acknowledging Race in Addressing Racial Discipline 

Disparities.‖ Discipline Disparities: A Research to Practice Collaborative (December 

2014). http://www.indiana.edu/~atlantic/wp-content/uploads/2014/12/AcknowledgingRace_121514.pdf. 

133 Ibid. 

134 Oral statement of Arlene Mayerson during discussion at the Stakeholder Forum to 

Receive Testimony about the School-to-Prison Pipeline of the National Council on 

Disability. October 6, 2014. Atlanta, GA. 

135 Carter, Skiba, Arredondo, and Pollock. ―You Can‘t Fix What You Don‘t Look At: 

Acknowledging Race in Addressing Racial Discipline Disparities.‖

136 Ibid. 

137 Losen, D., D. Hewitt, and I. Toldson. ―Eliminating excessive and unfair exclusionary 

discipline in schools: Policy recommendations for reducing disparities.‖ (2014). 

138 Southern Poverty Law Center. ―Palm Beach County Schools Reach Agreement with 

SPLC, Advocates to Reduce Exclusionary School Discipline.‖ 

139 Office of Special Education Programs. Positive Behavioral Interventions and 

Supports. www.pbis.org. 

140 Carter, Skiba, Arredondo, and Pollock. ―You Can‘t Fix What You Don‘t Look At: 

Acknowledging Race in Addressing Racial Discipline Disparities.‖

141 Losen, Hewitt, and Toldson. ―Eliminating Excessive and Unfair Exclusionary

Discipline in Schools.‖

142 The CRDC is authorized under the statutes and regulations implementing Title VI of 

the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 

of the Rehabilitation Act of 1973, and under the Department of Education Organization 

Act (20 U.S.C. § 3413). The regulations implementing these provisions can be found at 

34 CFR § 100.6(b); 34 CFR § 106.71; and 34 CFR § 104.61. 

143 In the CRDC, ―public schools‖ refers to traditional public schools (preschool through 

12th grade), alternative schools, career and technical education schools, and charter 

schools. U.S. Department of Education, Office for Civil Rights. ―About the Civil Rights 

Data Collection.‖ http://ocrdata.ed.gov/downloads/AboutTheCRDC.pdf.
89

 

144 20 U.S.C. § 1418(a)(1)(D). 

145 20 U.S.C. § 1418(a). 

146 Center for Civil Rights Remedies. ―Nation-wide Survey of State Education Agencies‘ 

Online School Disciplinary Data for Students with Disabilities,‖ (2014). 

http://civilrightsproject.ucla.edu/resources/projects/center-for-civil-rightsremedies/school-to-prison-folder/online-data-resources/nation-wide-survey-of-stateeducation-agencies2019-online-school-disciplinary-data. 

147 Ibid. 

148 20 U.S.C. § 1412(a)(22). 

149 Ibid. 

150 Civil Rights Data Collection. Data Snapshot: School Discipline. 

151 U.S. Department of Education, Office for Civil Rights. ―About the Civil Rights Data 

Collection.‖

152 In a 2007 policy memorandum, OSEP clarified that the definition of ―disciplinary 

incident‖ encompasses much more than formal suspension or expulsion: ―The type of 

disciplinary action refers to, at a minimum, data on both in-school and out-of-school 

suspensions and expulsions, but could also include other disciplinary actions (e.g., 

exclusion from extracurricular activities).‖ Office of Special Education Programs. ―Policy 

Memorandum 07-09.‖ April 2007. 

https://www2.ed.gov/policy/speced/guid/idea/letters/2007-

2/osep0709disproportionality2q2007.doc. 

153 In ―Restraint and Seclusion: A Resource Document,‖ the U.S. Department of 

Education states that the document ―does not set forth any new requirements, does not 

create or confer any rights for or on any person or require specific actions by any state, 

locality, or school district.‖ U.S. Department of Education, Restraint and Seclusion: 

Resource Document, Washington, D.C., 2012. 

https://www2.ed.gov/policy/seclusion/restraints-and-seclusion-resources.pdf. 

154 Butler, Jessica. ―How Safe Is The Schoolhouse? An Analysis of State Seclusion and 

Restraint Laws and Policies.‖ Autism National Committee (2014). 

http://www.autcom.org/pdf/HowSafeSchoolhouse.pdf. 

155 U.S. Senate Health, Education, Labor, and Pensions Committee. ―Dangerous Use of 

Seclusion and Restraints in Schools Remains Widespread and Difficult to Remedy: A 

Review of Ten Cases,‖ (2014). 

http://www.help.senate.gov/imo/media/doc/Seclusion%20and%20Restraints%20Final%

20Report.pdf. 

156 U.S. Government Accountability Office, ―Seclusions and Restraints: Selected Cases 

of Death and Abuse at Public and Private Schools and Treatment Centers‖ (2009). 

http://www.gao.gov/new.items/d09719t.pdf. 
90

 

157 20 U.S.C. § 1418. 

158 Civil Rights Data Collection. Data Snapshot: Early Childhood Education. March 21, 

2014. http://www2.ed.gov/about/offices/list/ocr/docs/crdc-early-learning-snapshot.pdf. 

159 Ibid. 

160 Ibid. 

161 34 C.F.R. § 300.2(b). 

162 Office of Juvenile Justice and Delinquency Prevention (OJJDP). ―Easy Access to 

Juvenile Populations, 1990–2013.‖ http://www.ojjdp.gov/ojstatbb/ezapop/. 

163 34 C.F.R. Part 104. 

164 42 U.S.C. § 11431 et seq.

165 See ESEA policy recommendations from the NDRN Civil Rights Roundtable task 

force. 

http://www.ndrn.org/images/Documents/Issues/Education/Hearing_Testimony_STPP_1

21212_FINAL_edb_thoughts.pdf. 

166 Pub. L. No. 93-415 (1974). 

167 National Disability Rights Network. ―Including a Juvenile Justice Protection & 

Advocacy Program in the JJDPA Reauthorization Act.‖ 

http://www.ndrn.org/issues/juvenile-justice/327-juvenile-frequently-asked-questions-

.html. 

168 Coalition for Juvenile Justice (2014). ―Making the Case for Status Offense Systems 

Change: A Toolkit.‖ Washington, DC: Coalition for Juvenile Justice. 

http://www.juvjustice.org/sites/default/files/resourcefiles/Judicial%20Leadership%20Toolkit%20Web.pdf. 

169 Coalition for Juvenile Justice. Juvenile Justice Monitor: December 2014/January 

2015. http://campaign.r20.constantcontact.com/render?ca=49892347-ac92-4fb2-8a95-

cdacae0e5acf&c=3021a2f0-7e49-11e3-a163-d4ae529a8639&ch=30dd2ac0-7e49-11e3-

a1a3-d4ae529a8639. 

170 Coalition for Juvenile Justice (2014). ―Making the Case for Status Offense Systems 

Change: A Toolkit.‖

171 Coalition for Juvenile Justice. Juvenile Justice Monitor: December 2014/January 

2015. 

172 20 U.S.C. §1415(k)(6)(B) 
91

 

173 Tulman, Joseph B. 2010. ―Using Special Education Advocacy to Avoid or Resolve 

Status Offense Charges.‖ In Representing Juvenile Status Offenders. Edited by Sally 

Small Inada & Claire S. Chiamulera. Washington, DC: American Bar Association. 

http://www.americanbar.org/content/dam/aba/migrated/child/PublicDocuments/rjso_cha

pter6.authcheckdam.pdf. 

174 Tulman, Joseph B., et al., Reversing the School-to Prison Pipeline: Initial Findings 

from the District of Columbia on the Efficacy of Training and Mobilizing Court-Appointed 

Lawyers to Use Special Education Advocacy on Behalf of At-Risk Youth, 18 U.D.C. 

L.Rev ___ (2015) (forthcoming).

175 Id. 

176 National Disability Rights Network. ―Including a Juvenile Justice Protection & 

Advocacy Program in the JJDPA Reauthorization Act.‖ 

177 Since 1975, P&As have been mandated by various federal statutes to provide legal 

representation and other advocacy services to adults and children with any type of 

disability—including but not limited to those with intellectual, emotional, sensory, and 

physical disabilities. There is a P&A agency in every state, the District of Columbia, and 

five U.S. territories. Additionally, there is a Native American P&A in the Four Corners 

region of the United States. Each year, the P&A system serves approximately 100,000 

individuals with disabilities through individual case representation and systemic 

advocacy. P&As pursue legal, administrative, and other appropriate remedies under all 

relevant federal, state, and local laws, such as the Americans with Disabilities Act 

(ADA), the Individuals with Disabilities Education Act (IDEA), and Section 504 of the 

Rehabilitation. 

178 National Disability Rights Network. ―Including a Juvenile Justice Protection & 

Advocacy Program in the JJDPA Reauthorization Act.‖

179 U.S. Department of Education, Office for Civil Rights. ―Dear Colleague Letter,‖ 

October 1, 2014. http://www2.ed.gov/about/offices/list/ocr/letters/colleagueresourcecomp-201410.pdf. 

180 Ibid. 

181 Ibid. 

182 Ibid.