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Excerpted From: Miranda Johnson and James Naughton, Just Another School?: The Need to Strengthen Legal Protections for Students Facing Disciplinary Transfers, 33 Notre Dame Journal of Law, Ethics & Public Policy 69 (2019) (351 Footnotes) (Full Document)

MirandaJohnsonJamesNaughtonOver the past decade, there has been increasing national, state, and local attention focused on the negative impacts of school expulsion and suspension. As a result of the well-documented and long-standing research showing the harm to students of exclusionary school discipline practices, states and school districts have begun reforming their policies and practices to limit the use of suspensions and expulsions. Many of these new reforms, however, have not included changes to provisions in state law and district policies allowing for students to be transferred from their neighborhood schools to alternative schools for disciplinary reasons. In this article, we argue that state and school district policies should expressly limit the use of alternative school transfers as part of overall strategies to reduce the use of exclusionary discipline practices.

Like suspension and expulsion, disciplinary placements in alternative schools can have devastating consequences for students. Alternative schools are often further from the student's home and are more likely to have high concentrations of peers with high risk factors and negative behaviors. Students who are removed from their neighborhood school to an alternative school for disciplinary reasons are separated from their friends and teachers and need to begin completely new classes in an entirely different school setting, often in the middle of the school year. Student mobility, including mobility as a result of alternative school placements, is associated with negative results that include reduced academic achievement, reduced likelihood of graduation on time, fewer years of schooling, increased risk of depression, and increased likelihood of arrest as an adult.

The paper will review social science research and data surrounding disciplinary transfers. It will also explore the legal protections governing alternative school placements for disciplinary purposes. As a case study, the paper will highlight lessons learned from implementation of a recent Illinois school discipline reform law, a large-scale overhaul to existing disciplinary provisions and one of the first of its kind across the country. Lastly, the paper will highlight recommendations to limit the use of alternative school transfers for disciplinary reasons.

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The existing data and research on alternative school transfers suggests reason to be concerned about the impact of these transfers on students. Over half a million students are receiving their education in schools that offer them a lower chance of graduation than their neighborhood schools. At the same time, alternative schools offer students less of the type of options, like extracurricular involvement, that may serve to maintain their interest and engagement in remaining in school and graduating. By concentrating a significant number of students with behavior challenges together, alternative schools may risk escalating students' behaviors. Alternative schools are also increasingly segregating students of color and students with disabilities, both groups that previously were targets of de jure segregation. At the same time, there is no evidence that the use of exclusionary discipline to remove students from the school is promoting school safety, and, indeed, the result may be the opposite of what was intended due to the corresponding negative impact on school climate. The confluence of these concerns suggests that we must fundamentally rethink the use of alternative schools. Because courts have not been receptive to legal challenges, the best opportunities for creating change are in state statutes and in school-based practices.

Making change in this area will require a mindset shift in our approach to students exhibiting challenging behaviors. In an article by James McPartland and his colleagues from the Johns Hopkins University Center for Research on the Education of Students Placed at Risk (CRESPAR), the authors noted:

[S]ome students are so hostile to authority that they need an alternative setting for their education. But at some point, a nonselective school must stop rejecting difficult cases and start finding ways to adapt school to the diverse needs of its students. A school must help to socialize young learners to work hard and adapt to academic and behavioral goals.

As this article suggests, the purpose of education is to prepare students to succeed in school and beyond, and, rather than removing students who are struggling from a school, educational systems may need to adapt their environments to meet their needs. Below we recommend several reforms to guide the way forward.

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What this research demonstrates is that there is a flaw in the underlying assumption motivating alternative school transfer for disciplinary purposes, which is that these students' behavior is somehow deviant and that, accordingly, they must be removed from the regular school environment. Rather, children's misbehavior in the form of disruption, defiance, and minor rule-breaking should be reasonably anticipated given that their brains have not yet fully matured. Accordingly, it is school-based practices that must change in order to accommodate students' needs, keep them in their neighborhood schools, and enable them to successfully graduate. 

Miranda Johnson is a Clinical Professor of Law and Director of the Educational Law and Policy Institute at Loyola University Chicago School of Law.

James Naughton graduated in May 2018 from Loyola University Chicago School of Law.