As confirmation hearings for attorney general begin today, it is crucial to question and critically examine Sen. Jeff Sessions’ assumptions about disability — particularly in young students.
In a speech on the Senate floor in 2000, when Congress was considering reauthorizing the Individuals with Disabilities Education Act, the Alabama Republican described a boy with emotional disabilities who “could not, or would not, behave,” adding that “because he was a disabled student, he could not be disciplined in the normal way.” Disability advocates and others have expressed concern that Sessions had identified the problem as a lack of discipline.
Despite comprising approximately 12 percent of the student population, students with disabilities represent 67 percent of the students subjected to restraint or seclusion in school, and 25 percent of students with school-related arrests. Students with disabilities are more than twice as likely to be suspended from school than their non-disabled peers.
Sessions’ comments about students with emotional disabilities are problematic because they may indicate that he does not recognize suspensions in certain instances as discrimination. He has stated that “We have children we cannot control because of this federal law.”
What is missing, however, is a clear understanding of what the nominated attorney general’s opinions on both students with disabilities and the laws protecting these students mean for the future of the Americans with Disabilities Act (ADA).
The attorney general oversees the enforcement of the ADA, which prohibits discrimination against people with disabilities and provides individuals with disabilities an equal opportunity to participate in society. To effectively enforce the ADA, an attorney general must first understand what disability discrimination is, and, understand that providing equal opportunity for people with disabilities may require something more or something different than people without disabilities.
It is true that under the Individuals with Disabilities Education Act (IDEA) students with disabilities are afforded different disciplinary protections. The reasoning for this is in part historical — schools used to exclude students with disabilities, particularly those with behavior issues, from school, including through expulsion.
In 1988, the Supreme Court, in a case involving school discipline of a student with an emotional disability who had been expelled from school for behavior that was a manifestation of his disability, Honig vs. Doe, prohibited the school district from excluding such children.
The court found that “Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school.” The Court provided flexibility for school officials in the ruling, noting, “Where a student poses an immediate threat to the safety of others, officials may temporarily suspend him or her for up to 10 school days.”
After this ruling, Congress largely codified the decision, but created an additional provision. When a student with a disability is suspended for 10 or more days, educators along with the parents must determine if the behavior in question was related to or a result of the child’s disability. If the behavior was related to the disability, the child cannot be excluded from school, and instead the educators need to create a behavior plan for the student. If the behavior was not related to the disability, the student can be disciplined in the same manner as students without disabilities.
These provisions are intended to protect students from discrimination on the basis of disability. Suspending and excluding students from the opportunity to learn in school can be discrimination. For instance, it may seem obviously discriminatory to suspend a student who uses a wheelchair when he does not walk in the hall, or to suspend a student who is deaf when she could not hear the teacher’s instructions. Yet, what may be less obvious, it may also be discriminatory to suspend a student with autism or an emotional disability when the student has difficulty behaving due to their disability.
To be diagnosed with emotional disability under the law, a student may exhibit “inappropriate types of behavior or feelings under normal circumstances.” To be diagnosed, the student must have demonstrated these characteristics for a “long period of time and to a marked degree.” Much like students who have vision impairments have difficulty seeing, some students with emotional and other disabilities such as autism may have difficulty behaving in certain situations.
These labels are not easily applied to any student.
It is the role of educators, as required by IDEA and ADA, to provide individualized interventions and behavioral supports to assist students in meeting the behavioral expectations in the classroom. Even with these provisions in place, these students are considerably more likely to be disciplined and removed from the classroom than their non-disabled peers.
Suspending students with disabilities for behaviors related to their disability, rather than providing interventions, will not solve the problem. It will not create more “control.” It will simply funnel more children into the school-to-prison pipeline or mental health institutions.
If Sen. Sessions does not recognize this discrimination in young students, how will he as attorney general enforce the anti-discrimination law on the whole?
Laura Schifter is a Lecturer on Education at Harvard Graduate School of Education and previously served as a Senior Education and Disability Advisor for Representative George Miller on the House of Representatives Education and the Workforce Committee.
Thomas Hehir is the Silvana and Christopher Pascucci Professor of Practice in Learning Differences at Harvard Graduate School of Education and served as director of the U.S. Department of Education’s Office of Special Education Programs from 1993 to 1999.