Academic journal article Texas Law Review

The Silent Treatment: Perpetual In-School Suspension and the Education Rights of Students[dagger]

Academic journal article Texas Law Review

The Silent Treatment: Perpetual In-School Suspension and the Education Rights of Students[dagger]

Article excerpt

When we are asked, "What have you done for America's children?" we should be prepared to respond not with dollar figures or excuses but with pride: . . . . We made sure that every child learned.1

I. Introduction

Maria2 is an eighth-grader who has spent more time being disciplined than being taught this year. As her school's vice principal and teachers testify, Maria is a troublemaker in the classroom. Recalcitrant and irreverent, she rebels against authority, refuses to follow clear instructions, and acts out in class on a regular basis. Consequently, over the past four months, Maria has spent seventy percent of her school days in in-school suspension (ISS). She is required to come to school with her classmates, but, because of her unacceptable classroom demeanor, she spends her days in a study hall with other students who have also been dismissed from their classrooms. Even though she has not been in her regular classroom for weeks, her attendance record only shows two absences and no unexcused absences.

In the ISS classroom, Maria is given a folder each day that contains assignments from her teachers. Although she can do class worksheets and reading assignments, she is not permitted to participate in class activities, including laboratory assignments for her science class. A full-time aide to the school's vice principal keeps the ISS students quiet, but the aide is not qualified to answer substantive questions the students may have about their assignments. When exams come around, Maria and the other students in ISS will take the same tests as their classmates. All students will be held to the same standard, and Maria will be expected to do just as well as her classmates who were not in ISS.3 Understandably, the passing rate of students in ISS is much lower than that of their classmates.4

Students who receive ISS discipline are typically rebellious children who defy authority on a minor level. They are frequently the students who constantly interrupt the teacher, who use inappropriate language in class, who choose not to follow basic instructions.5 To maintain authority in the classroom, teachers rightfully remove these students from class. But because the students are not so dangerous or destructive as to warrant total removal from the school, they are given the lighter sanction of in-school suspension for a day or two.

In the case of a one-time offender, this punishment is often all that is required to chastise a student and correct the misbehavior. But for other students who are rebellious by nature and are in trouble frequently, ISS becomes a regular part of their school days. Of course, misbehaving students deserve discipline, but when this sanction is imposed repeatedly or for a prolonged period of time, the student suffers from the same learning handicap as a student who spends a large segment of the school term sick at home.

The difference is that in theory students in ISS are receiving the same education as their classmates. They are expected to perform as well as their classmates and are treated as though they had been in class. But in practice, these students are only receiving the mere shadow of an equal education, when they are the students who need instruction the most.6 To the extent that students are repeatedly sentenced to ISS without the protections granted to students who are wholly suspended from school, the students' due process rights are infringed. And to the extent that they do not receive substantive and meaningful instruction in their core classes during the ISS sentence, their right to an equal education is impacted. When a state has granted a fundamental right to a basic education, as many do, and then deprives a student of that right when less restrictive alternatives are available, the state has impermissibly infringed on the rights of that student.

School districts that affirmatively and perpetually sentence students to ISS without meaningful classroom instruction violate those students' state-guaranteed rights to education. …

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