Excerpted From: Rachael K. Cox, Obey or Abey: An Empirical Examination of Abeyance Agreements in Public School Discipline, 117 Northwestern University Law Review 1427 (2023) (172 Footnotes) (Full Document)


SchoolDisciplineA twelve-year-old boy is sitting next to his mother in his school's large, empty conference room across the table from the principal and the school district's legal counsel. This is not his first encounter with the principal, as he has a growing list of minor behavioral infractions, but it is the first time a school administrator has recommended him for expulsion. The principal slides a short contract--an abeyance agreement--and a pen in front of both mother and son, having hurriedly reviewed the contents of the document with them, and instructs them to sign. The contract, typical of abeyance agreements, reads:

The District shall hold the expulsion in abeyance as long as Student complies with the terms of this Agreement. If Student does not comply with one or more terms of this Agreement, the stay of expulsion may be lifted and Student will be expelled, effective immediately, for the remainder of the Expulsion Period. student's mother, distraught by the situation and wanting her son to remain in school at all costs, signs the agreement without further question. She hands the pen to her child and directs him to sign on the dotted line in his sixth-grade penmanship.

Such an agreement may seem harmless--perhaps even a good thing. But, about halfway down the page of the school district's boilerplate abeyance agreement comes bold text, as if the darkened font could properly convey the magnitude of the agreement's implications. The abeyance contract further states:

Parent and Student acknowledge that they are aware of Student's right to a due process hearing prior to the effectuation of an expulsion. Parent and Student affirmatively state and agree that they voluntarily and knowingly are waiving the right to an expulsion hearing in order for Student to have the opportunity to continue his/her education at District without an expulsion on his/her record.

A look beneath the surface reveals a more complicated truth: abeyance agreements appear to be more than the “second chance” school districts often frame them as. In fact, they are contractual mechanisms that evade federal and state disciplinary data-reporting requirements and circumvent due process battles. This Note proposes that abeyance agreements benefit school districts more than students and may further harm students already disproportionately impacted by exclusionary school discipline: Black students, male students, and students with disabilities. The scholarly landscape in the realm of school discipline law is robust, yet there is a crucial gap in scholarship this Note seeks to fill. The use of abeyance agreements as a disciplinary device in public schools has yet to be discussed in legal and empirical scholarship. Accordingly, at a quantitative level, this Note investigates how the use of abeyance agreements fits into the widely accepted understanding of disparate trends in exclusionary school discipline through two case studies. Building on these empirical results, this Note argues that abeyance agreements present grave legal and policy issues that warrant extensive examination of their use in public schools and some form of regulatory oversight. Specifically, abeyance agreements implicate issues of Fourteenth Amendment due process rights and contract unconscionability in the legal context. Policy concerns include the lack of regulation of these agreements, their role in impeding student agency in the discipline process, and the part they play in perpetuating the school-to-prison pipeline.

Part I of this Note defines and explains the practice of holding discipline in abeyance. Part II gives empirical context to this underresearched, underdiscussed practice by exploring how abeyance agreements operate in comparison to known trends in exclusionary discipline. Specifically, Part II compares two original case studies of two public school districts--one in the Midwest and one in the Northwest--with a control set of government-collected discipline data reflecting national trends. Against this quantitative backdrop, Part III briefly reviews the current landscape of students' procedural due process rights in public school discipline before positing two major legal problems with the use of abeyance agreements in public school discipline and their various public policy implications. Finally, Part IV suggests steps that legislators, community stakeholders, and school leadership should take to address the various law and policy issues that the use of abeyance agreements in school discipline raise.

Most importantly, because it is one of the earliest scholarly discussions of abeyance agreements in public schools, this Note establishes a baseline for further examination of the issues presented below and lays the groundwork for future efforts to shift the status quo in school discipline.

[. . .]

The national conversation around school discipline continues to develop as current events and new research shape what is viewed as acceptable for students. This progress is not insignificant, but there is still so much more to unearth, to learn, and to understand about the ways in which abeyance agreements fit into the broader scheme of school discipline. As stakeholders contemplate reforms to school discipline at every level, it is crucial to understand and consider the current landscape on exclusionary discipline in full--a landscape that includes the use of abeyance agreements.

Though the scope of abeyance practices in public school discipline must be further investigated, this Note provides a step toward understanding how abeyance agreements impact students' academic progress, outcomes, and well-being. Bringing this topic out from the shadows and into the nationwide discourse about school discipline puts us one step closer to an education system in which all students are protected and can thrive--one in which children are seen as more than the discipline they receive and the contracts they sign.

J.D. Candidate, Northwestern Pritzker School of Law, 2023; B.A., Quinnipiac University, 201