The silent treatment: Perpetual in-school suspension and the education rights of...
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
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. Part II of this Note explains the dynamic tension between the essential need to control the classroom environment through discipline and the states' constitutional mandate to provide an education to every child. In doing so, it surveys the various types of state constitutional guarantees to an education. Part III explains why the education of students who are perpetually placed in ISS classrooms does not usually meet state constitutional requirements of due process and equal protection. Part IV examines how the deprivation of an education through ISS is an unnecessarily restrictive alternative to meet the state's disciplinary interest. Finally, because of practical difficulties in securing legal remedies, Part V turns to policy matters, calling on legislators and school administrators to implement local changes that will bring school districts into compliance with state constitutional requirements. These suggested changes include requiring qualified instructors in ISS classrooms and moving recalcitrant students to alternative education facilities after a specific number of ISS-level infractions.
II. Discipline and the Right to an Education
Discipline serves a number of functions in the educational system. The power of teachers and school administrators to eject troublesome students from classrooms promotes safety and reinforces the authority granted to educators.7 Discipline also teaches children fundamental lessons on how to follow societal rules.8 Students learn that there are consequences for actions, and-like in the criminal justice system of society at large-misconduct will be punished. Above all, discipline is crucial for an educational system to serve its primary function: the instruction of students. The removal of distractions from the classroom helps create an environment conducive to learning, allowing the teacher to proceed with the lesson for the rest of the class.
But both teachers and school administrators are frustrated by the amount of time that they must devote to disciplinary issues.9 Time spent disciplining students is time that could otherwise be devoted to preparing lesson plans or instructing other students. To address the panoply of behavioral issues that arise in America's schools, administrators have a limited number of correctional tools at their disposal. Efficiency calls for swift, decisive discipline that will fix the immediate problem.
Because available punishments for recalcitrant schoolchildren are determined at the state level by statute, actual discipline practices vary by jurisdiction.10 School districts derive the power to implement rules and regulations from state legislatures.11 And, in turn, those school districts typically imbue school personnel with the authority and responsibility of enforcing specific rules.12 Therefore, local school boards and school principals have wide discretion, not only in the formation of conduct rules and regulations, but also in determining appropriate punishments for students who break those rules.
A. Disciplinary Alternatives
Teachers generally have the discretion to remove disruptive students from the classroom as punishment for inappropriate behavior.13 Contrary to what many contemporary students would probably like to believe, the majority of states actually still permit moderate corporal punishment when it is necessary to enforce discipline.14 But to avoid the potential liability that comes with corporal punishment,15 school districts more often employ expulsion, suspension, and in-school suspension to address the behavior of an offending student.16
Expulsion and suspension are among the disciplinary measures most frequently employed to control student behavior.17 Both punishments remove the student from the school for a period of time. The length of time depends on the specific infraction and the type of discipline imposed on the student.
The more serious punishment is expulsion. The expulsion of a student from school is the complete removal of that student for a lengthy period of time, generally until the end of the school term.18 By and large, school authorities have the power to define the offenses for which a student may be expelled from school; that power can be exercised with wide discretion, so long as it is reasonably exercised.19 Even so, school board regulations that describe behavior calling for expulsion are usually very specific.20 Misconduct that can result in expulsion varies from school to school, but as a rule the offenses are serious.21 For instance, in a typical school district, expulsion could be warranted for intoxication, sexual misconduct, theft, or possession of weapons or drugs.22
When a student's offensive conduct does not rise to a degree that mandates expulsion, an out-of-school suspension is frequently imposed. A suspension does not strike the severe blow to a student's record that expulsion does. While the due process considerations are the same,23 a suspension typically involves only the short-term removal of a student from school or the denial of participation in school activities and classes, usually for no more than ten school days.24 Suspensions can be imposed by the authority of a school principal, unlike expulsions, which generally require action by the superintendent of schools.25
The sanctions of expulsion and suspension from school are not reserved for major infractions of the rules.26 But for most minor offenses, in-school suspension is employed. While a student who is either suspended or expelled from school is denied the right of coming to school, a student who is given in-school suspension is denied the privilege of attending classes but is still required to come to the school building.27 Therefore, in-school suspension is a compromise sanction meant to remove a troublesome student from the classroom while largely preserving the student's discipline record. Typical infractions that might result in ISS include fighting with another student, talking rudely to a teacher, or habitual tardiness to class.28
Students who are repeatedly sentenced to ISS are not the students who are guilty of distributing drugs or making bomb threats. Such acts would plainly warrant expulsion, or at least suspension, even for otherwise model students in the vast majority of school districts.29 Students sentenced to ISS are in the gray area between well-mannered children and those who are too dangerous to keep in the schools.30 They are the "habitual offenders" of public school rules who repeatedly surrender their privilege to be in the classroom.
B. State-Guaranteed Rights to an Education
As countless teachers have asserted, it is indeed a privilege, and not a right, to attend class-at least under the federal constitution. The United States Supreme Court has long recognized the importance of education in our society31 and the impact that education has on the exercise of fundamental rights.32 But the Court has never declared that the right to an education is a fundamental right under the United States Constitution. Consequently, the education rights of students are primarily grounded in state constitutions.
1. Supreme Court Jurisprudence on the Right to Education.-The Supreme Court has determined that the right to education is neither a fundamental right nor a fundamental liberty under the Constitution.33 A class action brought on behalf of minority schoolchildren challenged Texas's school financing scheme on equal protection grounds in San Antonio Independent School District v. Rodriguez.34 The Court explicitly stated that Texas's school finance system-which relied on local property taxes and admittedly resulted in large disparities in per-student expenditures between school districts-passed the rational basis test.35 Because the school funding system was rationally related to the legitimate state purpose of controlling educational programs at the local level, there was not an equal protection violation.36
Since that decision, however, the Supreme Court has lent more substance to the right to education. Even though education is not a fundamental right or liberty, the Court has granted students a property right to the education that is provided by the government.37 This property right is enough to create due process concerns if the state attempts to deprive students of their entitled education.38
Claims for procedural due process raise two issues: (1) is the party entitled to Fourteenth Amendment Due Process; and (2) if so, what measure of due process is actually due in a particular situation?39 The Supreme Court addressed these two questions of due process regarding the right to education in Goss v. Lopez.40
The Goss case dealt with nine students who were suspended for ten days from a Columbus, Ohio public school. Pursuant to an Ohio school suspension statute, the students were suspended without any hearing prior to the suspension or within a reasonable time after the suspension was imposed.41 After completing their out-of-school suspensions, the students filed suit against the Columbus Board of Education and school officials and claimed that the school suspension statute should be declared unconstitutional because it permitted the students to be deprived of their right to education without a hearing required by the Due Process Clause of the Fourteenth Amendment.42 The school board argued that education was a privilege, not a constitutionally protected right, and that the Due Process Clause did not apply because the suspensions were for short periods of time. In the school board's opinion, the students' loss of ten days of class was neither "severe nor grievous."43
The Court rejected the school board's argument. Addressing the constitutional ramifications of the school discipline, the Court found that a proper review of the state action required an examination of the "nature," rather than the "weight," of the interest at stake.44 The Court held that the Fourteenth Amendment forbids the deprivation of a student's right to education without due process of law, confirming that there was, indeed, a property interest in the right to education:
The authority possessed by the State to prescribe and enforce standards of conduct in its schools, although concededly very broad, must be exercised consistently with constitutional safeguards. Among other things, the State is constrained to recognize a student's legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that Clause.45
The Court further stated that the Due Process Clause also prohibits "arbitrary deprivations of liberty."46 '"Where a person's good name, reputation, honor, and integrity is at stake because of what the government is doing to him,' the minimal requirements of the Clause must be satisfied."47 The Court established that suspending a student from school deprives him of both liberty and property by injuring his reputation and education.48 So before a student can be suspended for any period of time, he or she must be given "some kind of notice and afforded some kind of hearing."49 Therefore, a student deprived of a right to education through suspension or expulsion is permitted to make a procedural due process claim to be reinstated in the school and to have the offense erased from his or her record.50
Although the procedures outlined in Goss are minimal51-informal notification and a chance to respond to the charges-the Goss case is instrumental to students' rights because it confirmed that the deprivation of education required due process of law.
More recently, the Court has indicated that education may be a sufficiently important interest to require a higher level of scrutiny than the mere rational basis test that was applied in Rodriguez.52 In another case out of Texas, Plyler v. Doe,53 the plaintiffs were illegal immigrant school-age children who sought injunctive and declaratory relief against the state.54 Specifically, they challenged Texas education laws that required undocumented children to pay a tuition fee to enroll in classes.55 Ostensibly applying the rational basis test, the Supreme Court found that the government could not demonstrate a "substantial goal of the State" by denying a free public education to undocumented children.56 The Court accordingly held that the law violated the Equal Protection Clause.57
While the Court reiterated that education is not a fundamental right, it did state that education is more than "some governmental 'benefit' indistinguishable from other forms of social welfare legislation."58 Without explicitly conceding that it was doing so, the majority seemed to impose a higher level of scrutiny than the rational basis test for evaluating a state regulation that affected education.59 The Court required the state to show a "substantial state interest"60 to justify abridging the right to an education, rather than requiring a mere "rational relationship to a legitimate state purpose," which is mandated by the rational basis test.61 This implies an "intermediate" level of scrutiny for state regulation of education.62 The concurring opinions of Justices Blackmun and Powell acknowledged the shift in the level of scrutiny and maintained that the Court applied or could have applied a stricter constitutional analysis.63 The majority in Plyler, however, did not explicitly acknowledge any change to a higher level of review.
Because the Supreme Court has found that the right to an education is a property right, but not a fundamental right or liberty protected by the United States Constitution, a federal claim arising from a deprivation of education through perpetual in-school suspension would still probably fail.64 Even so, a student might proceed on a claim under a state constitution where a fundamental right to education has been recognized by the state.65
2. State Jurisprudence on the Right to Education.-Proponents of substantive due process rights have often said that the Fourteenth Amendment of the federal constitution is a floor-not a ceiling-for the protection of substantive rights.66 This phrase encapsulates the idea that the states may provide more protection of a right than that afforded at the federal level, but not less protection.67 Because a state supreme court is the final authority on that state's constitution, a decision based solely on the state constitution is not subject to review by the United States Supreme Court.68 Accordingly, a state court can hold that its state constitution offers greater protection than the federal constitution provides for a right.69 And moreover, a state court can protect rights that the federal constitution does not even recognize.70 Many state courts have explicitly acknowledged this principle of constitutional interpretation.71 Legal scholars term the movement as "state constitutionalism" or "new federalism."72
Every state constitution contains an education clause that generally requires the state legislature to establish a system of free public schools.73 State courts can use these provisions to expand the right to education at the state level. While the strength of that right to education has typically been defined through equal protection analysis,74 students who are being deprived of a meaningful education in in-school suspension are not limited to equal protection claims. They could also bring claims under the due process clauses of the federal and state constitutions because, to the extent that there is a minimal constitutional right, both equal protection and due process issues are implicated. And because these constitutional claims are dependent on the strength of the underlying right, the success of a student's claim will be largely dependent on the state's definition of the right to education.
As might be expected, state courts that have interpreted the right to education under their constitutions have determined varying degrees of protection for the right. By invoking state constitutionalism, grounding a right to education in the state constitution, some states have described the right to education as very strong, expanding the right described by the United States Supreme Court. At the same time, some state courts have avoided the issue altogether, and others have explicitly held that the state constitution does not confer additional rights beyond the federal constitution. Massachusetts became an example of this last treatment of the right, when, despite strong precedent in favor of an enforceable right to education,75 the Massachusetts Supreme Judicial Court found that the state constitution did not provide children with a fundamental right to education.76
Similarly, Maryland's highest court explicitly held that there is not a fundamental right to an education.77 Maryland's constitution contained a clause requiring an "efficient" statewide system of public schools.78 A group of school boards, taxpayers, students, and public officials sued for a declaratory judgment that the state's system of financing schools was unconstitutional because it inefficiently resulted in gross disparities in per-pupil expenditures by school districts and consequently violated the equal protection of students in the poorer school districts.79 Following the analysis in Rodriguez, the court held that the state education clause was not enough to create a fundamental right to education.80 The state's system of financing its schools was found constitutional.81
While the Texas Supreme Court has recognized that the Texas Constitution can provide more protection than the federal constitution,82 the court has never directly addressed the issue of what protection is afforded under the state constitution's education clause.83 A Texas appellate court refused to recognize a fundamental right to education as grounds to declare the state's school financing scheme in violation of the Texas Constitution.84 Upon review of the case, the Texas Supreme Court avoided addressing the status of the right to education in an equal protection analysis. Instead, it found that the state financing system was unconstitutional because it was not "efficient."85
On the other hand, many states have held that their state constitutions do provide a fundamental right to education that is enforceable through equal protection analysis.86 These courts have, however, differed in the breadth of that right and the degree of protection that it warrants.87
Several state courts have declared that their constitutions provide a fundamental right to education and that any state practice attacked as an alleged violation of that right requires justification under strict scrutiny. For instance, in Horton v. Meskill,88 the Connecticut Supreme Court declared that "the right to education is so basic and fundamental that any infringement of that right must be strictly scrutinized."89 Similarly, in Rose v. Council for Better Education, Inc.,90 the Supreme Court of Kentucky held that a "child's right to an adequate education is a fundamental one" under the state constitution.91 In School District of Wilkinsburg v. Wilkinsburg Education Ass'n,92 the Supreme Court of Pennsylvania announced that the state constitution protects public education as a fundamental right.93 The court reiterated that it had "consistently examined problems related to schools in the context of that fundamental right."94 California's highest court also found that education was a "fundamental interest" under the state education clauses of California.95 Accordingly, it applied a strict scrutiny equal protection analysis to find that the state's school financing system was unconstitutional.96
Other courts have found a fundamental right to education under their constitutions but have limited the degree of protection they have afforded the right. For example, in Bismarck Public School District No. 1 v. State,97 the North Dakota Supreme Court found education to be a fundamental right under the state's constitution.98 But the court refused to apply strict scrutiny analysis to the state's public school funding system because doing so would "essentially require the judiciary to micro-manage and second guess difficult policy decisions in the legislative arena" regarding financial planning and taxation.99 Instead of strict scrutiny analysis, the court applied an intermediate level of scrutiny to declare the state's public school funding system unconstitutional.100
Like North Dakota, Minnesota has determined that the standard of review for laws impacting the right to education will vary, depending on the type of challenge that is brought. In Skeen v. State,101 the Minnesota Supreme Court held that there was a fundamental right to education because the state constitution placed an affirmative duty on the government to provide a "general and uniform system of education."102 At the same time, there was no fundamental right to a "thorough and efficient" funding of that system.103 Accordingly, the court determined that while strict scrutiny should be applied to determine if the state met its obligation to provide a student's fundamental right to "a general and uniform system of public school," a lower standard should apply to the determination of whether the school finance system was "thorough and efficient."104 The state's finance system passed the rational basis test.105 The supreme courts of Virginia106 and Wisconsin107 have also held that their respective state constitutions protect a fundamental right to education, but the state constitutions do not require strict scrutiny of disproportionate funding of school districts.108
In summary, the federal judiciary and each of the states' highest courts have their own constitutions to interpret. The United States Supreme Court has sharply curtailed the right to education under the federal constitution, but most states have chosen to follow the state constitutionalism doctrine on this issue and confer more protection of students' education rights.
III. Deprivation of Constitutionally Mandated Minimum Education During Perpetual In-School Suspension
The minimum education that students are due is unsettled. Even while it denied a fundamental right to education in Rodriguez, the Supreme Court suggested that some minimal level of education might be entitled to constitutional protection.109 And in Plyler, Justice Blackmun's concurrence asserted that the complete denial of education was a federal issue calling for strict scrutiny.110
State courts have been more explicit than the Supreme Court and have defined the right to education in terms of required results, regardless of the level of scrutiny that they accord the right.111 Careful not to formulate specific educational policies or agendas, some state courts have nevertheless justified themselves in promulgating general, aspirational guidelines for the minimal public education mandated by their state constitution.112 For example, the Supreme Court of Kentucky set down seven capabilities-ranging from communication skills to knowledge of economic and political systems-which it deemed to be the minimum skills that the government is required to teach its students.113 Kentucky's enumeration of skills has served as a model for other courts defining a "sound basic education."114
Considering these constitutionally mandated minimums for education, it is surprising that so few claims have been made for a deprivation of the right to education due to in-school suspension. Magistrates and judges have rendered countless decisions on due process violations of the right to education for students who have been expelled or suspended from school.115 But claims for the deprivation of education by students sentenced to in-school suspension seem few and far between. The probable reason for this is that the typical in-school suspension usually results in a minimal impact on academics.116
The generally accepted view is that missing one or two days of class is not extraordinary. After all, students miss one or two days of class for minor illnesses, and it is neither unreasonable nor uncommon for students to catch up once they are back in the classroom. This is a valid analogy-one that holds true for the typical student who is sentenced to in-school suspension on rare occasions. But for those students who are repeatedly sentenced to in-school suspension, this is not an accurate characterization of the experience and the disadvantages brought on them.117
A. The Perpetual ISS Experience Is Not a Constitutionally Sufficient Education
The theory behind in-school suspension is a well-intentioned one. Disruptive students need to be removed from the classroom for the benefit of the class as a whole.118 So a mild punishment was designed that serves the teacher's interest in educating the rest of class and that narrowly infringes on the student's education interest.
A student's ISS punishment includes being isolated from classmates and being denied the privilege of attending class. Rather than removing the student from his school, he will only be removed from his classrooms. The offending student is then put in an insulated environment away from the general population of the school.119 Typically, this is a room designated for in-school suspension.120
When assigned to in-school suspension on a given day, a student arrives at school with his classmates. Instead of going to his first class, he reports to the in-school suspension room. There, a supervisor121 assigns each student a desk or cubicle for the day and takes attendance, comparing the students in the room with a list prepared by the vice principal's office on the previous school day.122 The students in the ISS classroom are counted present; they are not absent from school that day.123
The student then picks up a folder of assignments that his teachers have prepared for him. The assignments substitute for the work that the other students in each of his regular classrooms will be doing that day. The suspended student is expected to remain quiet and work diligently on his assignments, completing them by the end of the day.124 When not scheduled to teach a class, the student's teachers may come by to offer him guidance on assignments or answer questions.125 In this manner, the student sentenced to in-school suspension keeps up with the rest of the class and does not fall behind on the syllabus. When he returns to his classroom after his punishment is over-presumably in just a few days-he will not be behind the rest of the class.
This is, at least, how ISS is supposed to work. In reality, the premise that the student will comprehend the material as well as the rest of the class is not sound. It is based on some underlying assumptions that in practice fail to survive the process.
The first presumption made by the ISS system is that teachers are aware that one of their students is in the in-school suspension classroom and is not simply absent. If a teacher does not know that one of his or her pupils has been suspended, then the teacher will not prepare any assignment for the student to work on while in the ISS classroom. This may seem unlikely, but the propensity for a breakdown in communication within the school staff is very real.126 Even in schools that have Internet or intranet capabilities, privacy concerns for the student may outweigh the utility of broadcasting the punishment to all teachers in the school.127 If a student is sentenced to ISS at the very end of a school day, the student's other teachers may or may not become aware of his impending absence from class in time to gather class materials to substitute for the next day's lesson.
The second presumption is that a teacher can create an assignment that substitutes for classroom instruction. Teachers almost universally agree that there is no substitute for interactive learning in a classroom. Often, a teacher's lecture will encompass material outside the scope of a textbook-a science demonstration that dramatically illustrates chemical properties, an analogy in algebra class that clarifies a mathematical principle, an historical anecdote that adds vivid color to the dry text. A student cannot learn the same things from a worksheet that his classmates can learn through an active exchange of ideas with the instructor. And a teacher cannot realistically create a self-administered individual lesson plan that will substitute for time in a laboratory. Furthermore, for students that are in the ISS classroom for extended periods of time, teachers may have difficulty coming up with new assignments.128
The third presumption of the in-school suspension system is that the students can do the work largely on their own. The supervisor of the ISS classroom is rarely certified to teach even a single school subject and therefore can typically only offer speculation about instructions for the assignment, if anything. Although a teacher could theoretically be expected to tutor the student whenever he or she is not teaching a class, the practical problems associated with this expectation are unrealistic. A teacher is already expected to use non-teaching periods to prepare for upcoming classes and to handle administrative responsibilities.129 Expecting teachers during that same period to also tutor their students that are sentenced to ISS is unreasonable. Such an expectation also assumes that none of a punished student's teachers have the same non-teaching period during the day.
The fourth and final presumption of an ideal in-school suspension system is that a student will actually do the work that he is assigned to do. This presumption is also misplaced. Often, students in the ISS classroom will spend the day talking with one another or sleeping.130 Aside from the assignment folder, the ISS supervisor has little opportunity to know what the student is required to do, and the student probably has little personal incentive to hunt down homework that is not included in the folder.131 The supervisor's priority is often keeping the room silent. If a student sleeps after completing his assignment, then the room's supervisor is likely to be satisfied.
These failures lead to one inexorable conclusion. Students that are perpetually placed in ISS classrooms are not being provided with an education that meets typical state constitutional guidelines. At best, these students are being told to teach themselves. It is a de facto deprivation of the right to an equal education.
B. Procedures Usually Sentencing Students to Perpetual ISS Do Not Meet the Requirements of Due Process
So what of the counterargument that the students who find themselves perpetually sentenced to in-school suspension have sacrificed their right to education? Certainly, no one would argue that all students have the right to be in the classroom, regardless of their behavior. As I have discussed, a student's right to education is not absolute,132 and it may be taken away.133
When a student is suspended or expelled from school, the school authorities must follow specific procedures outlined by the jurisdiction before the student can be deprived of the right to education.134 A school district must follow these administrative procedures if sentencing a student to in-school suspension is more than a de minimis deprivation of the right to education.135
Literally hundreds of cases dealing with school suspension and expulsion have followed the Goss decision.136 And many states have passed legislation detailing extensive procedures that must be followed by school districts when a student is punished with suspension or expulsion.137 Much of this litigation and legislation has been made in an attempt to address concerns that the Court did not answer in Goss.138 The particular method of procedure that is required for due process varies with the specifics of each case, but the following is generally required: "(1) Adequate notice of the charges; (2) Reasonable opportunity to prepare for and meet them; (3) An orderly hearing adopted to the nature of the case; and (4) A fair and impartial decision."139 Nevertheless, the due process requirements for long-term (or perpetual) in-school suspensions have not been widely addressed by the courts.
It is unclear whether the Supreme Court, confronted with a case of long-term ISS, would require the due process protections of Goss. In Goss, the Supreme Court did not state that all student infractions require procedural due process-only those that involve a significant student interest, akin to "the total exclusion from the educational process for more than a trivial period."140 Deprivations that are less than legally significant do not implicate a property interest, and thus there is no requirement of constitutional due process. The Court in Goss v. Lopez explicitly indicated that a ten-day suspension from school is significant, but it left open the possibility that a shorter suspension may be de minimis and legally insignificant.141
Because the Court in Goss expressly addressed only long-term, out-of-school suspensions exceeding ten days, considerations of long-term, in-school suspensions were untouched. Lower courts have been left to extend the spirit of the law as outlined in Goss, but only a handful of courts have confronted the issue of the process that is due for in-school suspensions.
A federal district court in the Fifth Circuit has found in-school isolation in a detention room to be a deprivation of education like the effect of an out-of-school suspension.142 The court in Cole indicated that not all in-school detentions would be equivalent to out-of-school suspensions, but determinations would depend on the extent of the deprivation of normal educational opportunities.143 The court stated, "The primary thrust of the educational process is classroom instruction; in both [in-school and out-of-school suspension] situations the student is excluded from the classroom."144 If exclusion from the educational process was "a total exclusion from the educational process" within the school, then it would be equivalent to an out-of-school suspension.145 And, if that were the case, then the more formal procedures of Goss would be required if the total time of suspension exceeded ten days.146
The Eighth Circuit, on the other hand, curtailed an in-school suspension due process claim. In a case from Arkansas, a special education student brought suit when he received a three-day in-school suspension due to tardiness and was isolated in a special classroom.147 The student completed all of the assignments his teachers gave him and was not behind in his studies when he returned to his regular classroom.148 The Eighth Circuit determined that the student's lack of access to his teacher was "of no consequence" and the fact that he completed his class assignments indicated that he was not actually excluded from the educational process.149 Therefore, his property interest in a public education was not infringed.150 The court added that procedural due process was not implicated because the student's three-day in-school suspension was a de minimis interference with his liberty and property interests.151
Similarly, a United States district court in Pennsylvania determined that a student who was given a three-day in-school suspension and an eleven-day restriction (including exclusion from extra-curricular activities) did not receive a punishment sufficient to constitute the deprivation of a property or liberty interest.152 Because the student was expected to do assigned school work while serving the in-school suspension, the court considered the punishment to be de minimis.153 The exclusion of the student from the senior class outing and extra-curricular activities did not infringe protected civil rights, and his alleged liberty interest in his reputation was likewise summarily dismissed.154 Categorizing the in-school suspension as a "trivial disciplinary sanction[]," the court found that the student's graduation indicated that he "did not receive any material educational injury."155
With the exception of the Cole decision, these courts failed to recognize the importance of instruction as part of the educational process. Because of decisions like these, the procedures for sentencing a student to in-school suspension are generally less formal than those required to expel or suspend a student from school. No action is required by the school board or superintendent to give a student in-school suspension. The process is much more streamlined and localized to the school building.
Typically, a teacher who seeks to address a discipline problem in his or her classroom will complete a short disciplinary form, often called a "referral,"156 and send the form to the vice principal's office.157 There, the vice principal or one of a number of assistants will review the referral and, upon summoning the student, may hear the student's version of the story. At that point, the school administrator will determine the appropriate punishment and contact the student's parents as necessary. If a determination is made that the student should receive in-school suspension, the student may be sent to ISS immediately or the punishment could commence the next day.158
So could a student punished with in-school suspension successfully sue for an improper deprivation of his right to education through repeated sentences of in-school suspension? Depending on the precise circumstances, the answer may be "yes." Action by school authorities in their official capacities is clearly state action within the meaning of the Fourteenth Amendment.159 If a long-term suspension-even if it is imposed on the school grounds-is tantamount to "the total exclusion from the educational process for more than a trivial period," then the requirements of Goss must be respected.
But even if students are provided with the requisite notice and hearing, they are being deprived of more than what the school districts claim. School administrators and legislators (and some courts) believe that students in ISS are not being deprived of education and that no significant right has been "taken" from them. This Note militates against that point of view. Students that are perpetually in the ISS classroom are certainly being deprived of daily instruction, but no one is talking about it.
IV. Less Restrictive Alternatives to Perpetual In-School Suspension
Given the clear absence of any meaningful instruction or learning in the study-hall environment of in-school suspension, why would school districts choose to implement this punishment? In my estimation, there are two main reasons: (1) teachers have limited options when trying to maintain order in the classroom and promote an environment conducive to learning; and (2) many states base school funding on average daily attendance.160
Every day our country's educators are charged with instructing students who disrupt the classroom. In the interests of educating the well-behaved students, teachers do one of the only things that they can do when classroom order breaks down-they repeatedly remove the disruptive children from the classroom.161 This is necessary from a utilitarian standpoint, to preserve the majority of students' right to education. But at the same time, the disruptive students' individual minor infractions do not warrant complete removal from the school.162 In theory, this scheme meets state constitutional education requirements. In practice, this scheme forecloses any substantial opportunity for these students to learn because there is not a qualified instructor in the ISS classroom and because the students miss too many days of regular instruction.
The other reason ISS is a popular punishment is financial. After several state public school finance systems were struck down under state equal protection claims,163 many states established school-funding schemes based on average daily attendance.164 For instance, in Texas, if more students are in attendance at a certain school, then it receives more state funds than another school that has fewer students.165 This impacts the decision to give an unruly student in-school suspension. Recall that a student who is sentenced to in-school suspension is counted present at school for the day. The student does not receive an unexcused absence. He is not considered absent at all. Even though he is not in class, the student still counts towards a school's daily attendance average, and thus earns the school more funding than if he were expelled or suspended out of school. This is a purely political and economic reason to sentence a student to in-school suspension, but it is certainly a real factor when determining how to discipline students.166 With these considerations, it is easy to see why a school district would be hesitant to disturb the silent balance in the system.
As I have discussed, every state's constitution includes an education clause guaranteeing children of the state a measure of education.167 But "in light of compulsory attendance laws, school districts [also] have a legal and moral obligation, acting as parens patriae, to take action in dealing with undisciplined youths which may potentially threaten the welfare and safety of the other children in attendance."168 Still, as employees of the state, the school principal, the teachers, the coaches, and all other school staff members are also under a legal duty to treat students fairly by not violating students' constitutional rights to equal education and due process.169 Any state action that impinges on the exercise of fundamental constitutional rights or liberties must be the least restrictive alternative.170 State courts generally follow this federal tenet of constitutional interpretation.171
When the United States Supreme Court addressed the issue of procedural due process in Goss v. Lopez, it balanced the suspended students' interest in "avoid[ing] unfair or mistaken exclusion from the education process" against the school's interest in maintaining "some modicum of discipline and order" so that the education function could be performed.172 Thus, while validating the students' interest in education, the Court also affirmed school discipline as an accepted method to control student behavior.173
In the context of long-term or perpetual in-school suspension, this tension between competing interests has resulted in a chimera of education in the ISS classroom, with teachers and school administrators walking a precarious line between their legal requirements to provide a free public education to students and their practical need to maintain order in the classroom.174 Some jurisdictions have successfully created remedies to address these competing interests when dealing with suspension and expulsion from school.175 But the ISS situation remains problematic.
Educators most likely feel justified in sentencing students to in-school suspension because the students need to be removed from the classroom and, in all likelihood, the requirements of due process were met. The problem is that the minimum that the law requires in equal protection and due process does not provide what these students need: actual instruction. Even if the legal standards for a particular jurisdiction are met, the education system is disserving these students.
In this section, I put forth policy alternatives that are less restrictive on the right to education than repeatedly sentencing wayward students to ISS. Through these alternatives, school districts can reconcile their interest in maintaining classroom order with the constitutionally required minimum education to which all children are entitled. I see three different options for school disciplinary policy that would address the lack of substantive education for students sentenced to ISS:
Option 1: Eliminate in-school suspension as a punishment and require students who commit offenses that are currently punished with ISS to stay in their normal classrooms and be instructed by their regular teachers.
Option 2: Eliminate in-school suspension as a punishment for habitual offenders and require school administrators to impose transfers to alternative education programs.
Option 3: Modify in-school suspension to provide for meaningful instruction to the students there.
The first proposal would certainly provide the recalcitrant child with a qualified instructor, but the preservation of that right would probably be at the cost of the educational opportunities of the rest of the pupils in the classroom.176 The removal of a student from class is typically a last-resort response to a disruptive student's actions, so any punishment not including the removal of the student from the regular classroom will probably be ineffectual. Even if after-school detention is employed as punishment, the student will immediately return to the classroom after a brief admonishment by the vice principal. This would not help teachers instruct their other students, so therefore, this option can be quickly discarded. The other options require more explanation.
A. Alternative Education Instead of ISS
The majority of school districts across the country have implemented alternative educational programs (AEPs) for students who are properly suspended or expelled from their public schools.177 Under those states' expulsion provisions, students are guaranteed the opportunity to be placed in an alternative school setting during the period of expulsion.178 This setting typically provides a more supervisory atmosphere with less freedom than a normal public school.179
The strictly enforced rules and regulations of alternative schools benefit the expelled students in a number of ways. First, AEPs are designed to rehabilitate expelled students and enable them to return to a regular classroom for their education.180 Second, when dealing with extreme offenders, placement in AEPs can help reduce additional criminal activity on the streets by expelled students.181 Finally, and most importantly, these alternative schools and programs ensure that the increasing numbers of students who are expelled are not denied an education and the future benefits of an education, like the opportunity for a good career.182
For all of the benefits an alternative education program offers, they are currently unavailable to students sentenced to in-school suspension. As I have illustrated, the students serving in-school suspensions are considered present at their school for the day, even though they are not in class. Consequently, they have no statutory entitlement to be transferred to an alternative school even if they wanted to be.
Thus, in jurisdictions, like Texas, that have mandatory alternative education programs for students who are suspended or expelled from school, we are left with a bizarre and perplexing outcome. Students who commit serious offenses are expelled and sent to an alternative school, where they are provided with a structured, rehabilitating environment.183 But students who commit minor infractions of the rules or demonstrate general resistance to authority are repeatedly sentenced to in-school suspension, where they will receive no instruction and will be provided with no guidance on making better decisions. This is unacceptable.184
The proposed change would eliminate in-school suspension as an available punishment for habitual offenders and would require school administrators to impose transfers to an alternative education program. This is tantamount to a broadening of the number of offenses resulting in removal of a student from the school and a corresponding extension of the requisite due process for full removal from the school.185 But because this remedy would only need to be imposed on habitual offenders-perhaps after a cumulative sentence of ten days of ISS had accrued over a semester-the number of school suspensions would increase only as necessary to address excessive restrictions on the right to education.
The primary interest served by this policy option is the long-term benefit of the students who would otherwise be in the ISS classroom for an extended period. Under this proposal, students who would have spent several days in the study-hall environment of ISS would receive the benefits of an alternative education program.186 Such students, especially habitual ISS visitors, would profit from alternative school curriculums based on conflict management and behavior modification courses. Likewise, mandatory counseling sessions with teachers and members of the community would help emphasize the importance of an education in adult life. From a legal standpoint, this proposal addresses the due process issue raised by students who are repeatedly missing class by being sentenced to ISS.
B. Modification of ISS to Encompass Qualified Instruction
In order for school districts to deliver on the idea that children in the ISS classroom are "in attendance" and are not being deprived of their entitled right to education, local school boards could modify ISS in ways that would require the inclusion of qualified instruction. Where would these teachers come from? One option is to allow college students working on degrees in education to receive part of their student-teacher credit from tutoring students in ISS.187 Arguably, the experience with unruly students will expose the college students to problems they will encounter on a daily basis once they have a permanent teaching position. Another source of alternate teachers is older students who want to perform community service.188
The most promising source is currently employed teachers. If teachers were scheduled to rotate into the ISS classroom throughout the day, then students sentenced to in-school suspension would receive proper instruction. Rather than expect every teacher to go to the ISS classroom every day during a non-teaching period, one teacher from each department could be scheduled a day of the week in which he or she was assigned to teach and tutor the ISS students.189 Different subjects would be accorded different hours of the school day. Teachers or ISS volunteers could also serve to supervise experiments in laboratories, explain concepts in plain language, and provide the one-on-one attention that these students might require.190 This solution most directly addresses the immediate deprivation of an equal education in the ISS classroom.
C. Assessment of Solutions
The fundamental interest in seeing that every child is educated favors a movement to an alternative punishment scheme, but these solutions do have drawbacks. First, requiring school administrators to impose transfers to an AEP is contingent upon an established alternative school in the district. While AEPs are becoming more popular, they are by no means universal.191 Second, in states that base funding decisions on school attendance, the lack of students in the ISS classroom of a particular school would consequently lead to lower state funding for that school because the average daily attendance would decrease. Rather than being "in attendance" in the ISS classroom, those students would be at the alternative school. Finally, modifying ISS to include qualified instructors is easier said than done. A shortage of teachers is a perennial problem for many school districts,192 and finding qualified tutors could doubtlessly prove difficult.
These concerns must be addressed honestly. Any remedy will result in financial repercussions for school districts. It is a matter of weighing policy interests. Given the fundamental interest of educating America's youth, hopefully legislators and school board members will recognize the benefits of providing education to all students, even the ones being disciplined in-house. These policy options demand that schools meet head-on the challenges of dealing with underlying sources of misconduct or else remove the student from the school and lose funding derived from them.
The possible deprivation of funds should encourage schools to confront the source of discipline problems at their root with personal counseling and conflict management instruction-many of the same things that students encounter at alternative education facilities. To decrease the likelihood of recidivism, any form of in-school suspension punishment should be coupled with preventive student counseling to explore what underlying issues the student might be expressing through his or her behavior. Students who are habitual offenders and are regularly in the ISS classroom typically receive minimal counseling on their problems or the underlying reasons for their resistance to authority. Counseling on the significance of everyday behavioral decisions could have a profound impact on students' responsiveness to discipline.
Educational systems should go beyond maintaining safety and peace in the school; they should teach a fair system of discipline.193 Even students in the largest school districts are entitled to feel that they are individuals and that their unique situations matter. If they do not, then the discipline will have only provided a convenient way for students to get out of attending class. As part of a larger individual-focused discipline action that considers the particular circumstances in the student's life, counseling could present a valid means of keeping students from returning to in-school suspension. In this way, schools could strive to correct discipline problems before they rise to a level necessitating more drastic action.
Of the broad policy options I have outlined, the proper solution is probably a combination of the proposed solutions. The elimination of ISS as it is currently practiced is a worthy goal-indeed, it is probably a constitutionally mandated one for students that are repetitively sentenced to ISS. Ultimately, school districts should embrace the complete discontinuance of a practice of babysitting students and pretending that they are receiving an education. Still, when many school districts lack alternative education schools or programs, a scheme that does away with in-school suspension immediately is not practical and would not help those students learn anything.
Because many school districts would not be able to immediately do away with perpetual in-school suspension punishments and concentrate on the development of their alternative education programs, a program to provide qualified instructors in the classroom could be implemented in the meantime. If school districts simply patterned a day in ISS after a model day in an alternative school, then that would be a significant step towards a meaningful education for students in the ISS classroom. Local practices could encompass many of the benefits found at AEPs without removing the student from the school campus. Placing a strong emphasis on teaching students self-control and conflict management, perhaps as part of a school's character education curriculum, would help prevent recidivism.
V. Conclusion
America's schools are ignoring a very real problem. Students that are repeatedly sentenced to in-school suspension are being deprived of meaningful education. In many jurisdictions, students sentenced to ISS are receiving less instruction than students who have been completely expelled from school.
In an educational system with strained resources and limited personnel, it is easy to understand how the schooling of these generally unruly students quickly falls from the list of priorities. But despite their rebellious behavior, these students are still entitled to education. If we expect them to become productive members of society, we should not foreclose their academic opportunities so quickly and hide behind the justification that these students received due process. Recognizing a state fundamental right to education is empty without the inclusion of adequate instruction in ISS programs.
The state certainly has an obligation to provide quality instruction to all students in normal classrooms. Granted, the removal of disruptive students from class is often necessary for the benefit of the most students, and that utilitarian argument makes sense to ensure both the safety of the classroom environment and the efficacy of the teachers in them. However, the state's responsibility should go further than an obligation to protect and educate the majority of students. States have a moral, if not legal, obligation to discipline students in a way that preserves both justice and the central function of the school system for every student. Even if state legislatures and school boards meet the skeletal due process requirements for removing a child from the regular classroom, the education system has failed if it completely forecloses opportunities for the child to learn.
School administrators should not stand idly by and claim that students in ISS classrooms are being provided with a constitutionally adequate education. School districts should acknowledge this gap in the educational system and address needed changes in disciplinary policies because the moral and legal obligations of many state constitutions include a duty to provide meaningful education-even to punished students who have received due process in their sentencing. The implementation of reform must be based on an honest assessment of educational practices, with the paramount goal of instructing and educating all of America's youth.
FOOTNOTE[dagger] This Note is dedicated to our nation's public school teachers who daily face the monumental challenge of educating America's youth with limited resources. From that group, I would particularly like to recognize those that put up with me while making an impact on my life: Susan Pittman, Dr. Wes Watters, Mary Humphrey, and, most of all, Shirley Herrin. This Note would not have been started if my sister Brenna had not brought the subject to my attention, and it would not have been completed without the insights offered by teachers and friends, including Professor David M. Rabban. My greatest gratitude goes to the staff of the Texas Law Review-especially Heidi Frahm, Heather Jones, Tara Tune, Stephanie Dreyer, David Curran, and my former students (who made me theirs)-for their conscientious editing of this Note. I would like to thank my family for their encouragement and support of me as a writer and law student. I would not be here without them. Finally, blessings go to Virginia Alverson, the idea-woman of my life, whose smile and love inspire me to be a better man.
1. Rod Paige, United States Secretary of Education, Back-to-School Address, National Press Club (Sept. 4, 2001), available at http://www.ed.gov/Speeches/09-2001/010904.html (last visited Mar. 12, 2003).
2. The name of this student has been changed to protect her anonymity.
FOOTNOTE3. This story comes from an accredited teacher in Hays Consolidated Independent School District (ISD) and from my own observations at her school on October 19, 2001. In this Note, I have drawn on my own experience and observations as both a student and a part-time educator in public schools. I first became familiar with the execution of disciplinary procedures as a substitute teacher in Humble, Texas during the 1999-2000 academic year, and I conducted numerous informal interviews with experienced teachers and administrators throughout my time there. In addition to using informal ethnographic studies to construct the arguments in this Note, I also drew upon conversations with professional educators from other independent school districts in Texas. Special thanks go to Nicole Hagerty, Brian Jones, and Brenna Troyan for their especially helpful candor.
4. Compare GERALDINE COLEMAN, ISSUES IN EDUCATION: VIEW FROM THE OTHER SIDE OF THE ROOM 134 (2001) ("While in-school suspensions are effective in dealing with students with moderate behavior problems, for students who are frequently referred to the dean's office . . . such measures fall short of serving their purpose."), with id. at 39 ("There is a high positive correlation between school attendance and academic achievement."). This assertion is supported, not by empirical research, but by every teacher with whom I spoke.
5. That is to say that many students who find themselves sentenced to ISS have no learning disabilities whatsoever. Much scholarship has been directed at the rights of school children under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. [sec][sec] 1400-1487. Because students with disabilities require special considerations, they are beyond the focus of this Note.
6. See Phillip T.K. Daniel & Karen Bond Coriell, Suspension and Expulsion in America's Public Schools: Has Unfairness Resulted from a Narrowing of Due Process?, 13 HAMLINE J. PUB. L. & POL'Y 1, 15 (1992) (quoting NAT'L SCH. BDS. ASS'N, TOWARDS BETTER AND SAFER SCHOOLS: A SCHOOL LEADER'S GUIDE TO DELINQUENCY PREVENTION 18 (1984) ("Suspended students are usually the very students who most need direct instruction.")).
FOOTNOTE7. See, e.g., Davis v. Ann Arbor Pub. Schs., 313 F. Supp. 1217, 1226 (E.D. Mich. 1970) (discussing the importance of excluding "from the student body those who are detrimental to such body"); In re C.M.J., 915 P.2d 62, 68 (Kan. 1996) ("The state has important nonpunitive purposes served by administrative expulsion.").
8. Cf. COLEMAN, supra note 4, at 165-67 (acknowledging the marked absence of values among troubled school children and asserting that schools teaching values such as honesty, responsibility, and respect for others have seen positive changes in student behavior).
FOOTNOTE9. Brooke Grona, Note, School Discipline: What Process Is Due? What Process Is Deserved?, 27 AM. J. CRIM. L. 233, 234 (2000). Every teacher interviewed for this Note shared this sentiment.
10. Paul M. Bogos, "Expelled. No Excuses. No Exceptions." Michigan's Zero-Tolerance Policy in Response to School Violence: M.C.L.A. Section 380.1311, 74 U. DET. MERCY L. REV. 357, 367 (1997). Given the wide variance in punishment practices, it is difficult to generalize about them. Grona, supra note 9, at 238. A brief survey of typical punishments will suffice for the purposes of this Note.
11. See, e.g., ALASKA STAT. [sec] 14.30.045 (Michie 1994); CAL. EDUC. CODE [sec] 35291 (West 1994); COLO. REV. STAT. ANN. [sec] 22-32-109 (West Supp. 2002); MASS. GEN. LAWS ANN. ch. 71, [sec][sec] 37H, 37H1/2 (West 1996); MO. ANN. STAT. [sec][sec] 167.161, 167.171 (West 2000 & Supp. 2003).
12. Roni R. Reed, Note, Education and the State Constitutions: Alternatives for Suspended and Expelled Students, 81 CORNELL L. REV. 582, 584 (1996).
13. Bickerstaff et al., Preserving the Opportunity for Education: Texas' Alternative Education Programs for Disruptive Youth, J.L. & EDUC., Oct. 1997, at 1, 3 (1997).
14. See Ingraham v. Wright, 430 U.S. 651, 662-63 (1977) (noting that all but two of the state legislatures to address the issue have permitted the paddling of students in public schools); see also, e.g., Dill v. State, 219 S.W. 481 (Tex. 1920) (holding that moderate corporal punishment by a teacher is permissible).
15. Moderate punishment (by paddling, for instance) may be inflicted on a student by a teacher to enforce discipline and does not constitute a violation of the Eighth Amendment bar against cruel and unusual punishment. Ingraham, 430 U.S. at 671. But in most states, if the punishment is immoderate or malicious, then the teacher may be guilty of assault, and the school district could be liable for damages through respondeat superior. For more information on corporal punishment and the legal issues that it raises, see R.D. Hursh, Annotation, Teacher's Civil Liability for Administering Corporal Punishment to Pupil, 43 A.L.R.2d 469 (1955); see also 20 AM. JUR. 2D Proof of Facts [sec] 511 (2002).
FOOTNOTE16. See Hursh, supra note 15, at 471-86 (asserting that a teacher's right to use physical punishment is limited; the evidence must show the teacher's conduct was reasonable, taking into account the nature of the punishment, the nature of the misconduct, the age and physical condition of the student, and the teacher's motive in inflicting the punishment).
17. Daniel & Coriell, supra note 6, at 7.
18. LAWRENCE F. ROSSOW & JERRY R. PARKINSON, THE LAW OF STUDENT EXPULSIONS AND SUSPENSIONS 3 (1989).
19. See, e.g., Bd. of Educ. of Covington v. Booth, 62 S.W. 872, 873 (Ky. App. 1901).
20. Daniel & Coriell, supra note 6, at 7.
21. See, e.g., id. at 8-9 (enumerating typical grounds for expulsion in Ohio school districts).
22. See AUSTIN INDEP. SCH. DIST., STUDENT CODE OF CONDUCT 9 (2002) (citing alcohol and drug-related offenses, terrorist threats, and other criminal conduct as offenses which warrant expulsion), available at http://www.austin.isd.tenet.edu/k12/docs/parent_code_of_conduct_02-03_eng.pdf (last visited Mar. 24, 2003).
23. ROSSOW & PARKINSON, supra note 18, at 3; see discussion infra subpart III(B).
24. Daniel & Coriell, supra note 6, at 10-11. Of course, a suspension can be imposed that lasts longer than ten days. If a suspension lasts that long, it is typically referred to as a "long-term suspension." But if the suspension extends beyond the end of the school term, then it becomes an expulsion. ROSSOW & PARKINSON, supra note 18, at 3.
FOOTNOTE25. Daniel & Coriell, supra note 6, at 11.
26. Id. at 15.
27. For a more in-depth explanation of the in-school suspension experience, see infra subpart III(A).
28. See, e.g., SCH. DIST. OF HARTFORD, THE HARTFORD MIDDLE SCHOOL HANDBOOK: IN-SCHOOL SUSPENSION (1999-2000), at http://www.hartfordjtl.k12.wi.us/cen_indx/cmshand/chandbkinsch.html (last visited Mar. 14, 2003) (providing a list of behaviors that will warrant ISS).
29. As an admittedly dramatic example, in 1995, Fort Worth honor student Peter Koh successfully delayed a calculus exam by parking a Ryder truck outside his school a month after the Oklahoma City bombing. He was expelled from school and served two years in a federal penitentiary. Nancy Calaway, Arrest Made in '95 Bomb Threat; Suspect in FW School Hoax Found, DALLAS MORNING NEWS, May 3, 2001, at 21A.
30. Another group on this spectrum is composed of students who choose to drop out of school. This Note does not touch on the right to education for students that have willfully abandoned their privilege to attend public schools (whether because they are exceptionally bright or because they are exceptionally unruly). Rather, like Grona, I argue for a "meaningful" right to education for students who have not dropped out of school. See generally Grona, supra note 9 (discussing the nuances of due process in school disciplinary policies).
31. See, e.g., Meyer v. Nebraska, 262 U.S. 390, 400 (1923) ("The American people have always regarded education and [the] acquisition of knowledge as matters of supreme importance which should be diligently promoted."); Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) ("[E]ducation is perhaps the most important function of state and local governments . . . . [I]t is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education."); Plyler v. Doe, 457 U.S. 202, 221 (1982) ("[E]ducation has a fundamental role in maintaining the fabric of our society."); Zelman v. Simmons-Harris, 122 S.Ct. 2460, 2480 (2002) (Thomas, J., concurring) ("Frederick Douglas once said that '[education . . . means emancipation. It means light and liberty. It means the uplifting of the soul of man into the glorious light of truth, the light by which man can only be made free.'") (quoting The Blessings of Liberty and Education: An Address Delivered in Manassas, Virginia (Sept. 3, 1894), in 5 THE FREDERICK DOUGLAS PAPERS 623 (J. Blassingame & J. McKivigan eds. 1992).
FOOTNOTE32. See Wisconsin v. Yoder, 406 U.S. 205, 221 (1972) ("[A]s Thomas Jefferson pointed out early in our history, . . . some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence. Further, education prepares individuals to be self-reliant and self-sufficient participants in society."); Abington Sch. Dist. v. Schempp, 374 U.S. 203, 230 (1963) (Brennan, J., concurring) (recognizing "the public schools as a most vital civic institution for the preservation of a democratic system of government").
33. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973).
34. Id. at 5-6. The district court found that disparities in the values of assessable property among the school districts resulted in substantial differences in per-pupil expenditures and constituted discrimination in the way the state educated its people. Id. at 15-16. The court held that classifications based on wealth were inherently suspect and that the right to education was a fundamental interest. Id. at 16. Either of those rulings would have triggered strict scrutiny of the state's law under constitutional analysis, but the Supreme Court disagreed with both findings of the district court. Id. at 17-18. The Supreme Court only required a rational basis for the school-financing system. Id. at 40.
35. Id. at 55.
36. Id. The Court left open the notion that a total deprivation of education might trigger constitutional concerns impacting the fundamental right to free speech and the right to vote. Id. at 37.
FOOTNOTE37. Goss v. Lopez, 419 U.S. 565, 574 (1975).
38. Id.
39. JOHN E. NOWAK & RONALD D. ROTUNDAL, CONSTITUTIONAL LAW 8 [sec] 13.1-13.2, 13.7-13.9 (3d ed. 1986 & Supp. 1988). Unless a plaintiff can show that he or she has been deprived of a "property" or "liberty" interest, then there is no right to due process. Id.
40. 419 U.S. 565 (1975).
41. Id. at 568.
42. Id. at 569. The Fourteenth Amendment of the federal constitution guarantees that the government shall not "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV, [sec] 1.
43. Goss, 419 U.S. at 575.
44. Id.
FOOTNOTE45. Id.
46. Id.
47. Id. (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971)).
48. Id. at 574-75.
49. Id. at 579 (emphasis omitted). The Court provided an exception for students who posed "a continuing danger to persons or property or an ongoing threat of disrupting the academic process." Id. at 582. These students can be suspended without a prior hearing, but a hearing should follow as soon as reasonably possible. Id. at 582-83.
50. It is important to note that even in jurisdictions where education is considered a fundamental right, it can be outweighed by a school's interest in protecting others or in creating an environment conducive to learning. The North Carolina Court of Appeals has stated as much. In re Jackson, 352 S.E.2d 449, 455 (N.C. Ct. App. 1987). The court decided that unruly students can be deprived of their constitutional right to an education because the students' behavior acts as a waiver of their right to be in school. Id. The court expressed that "[r]easonable regulations punishable by suspension do not deny the right to an education but rather deny the right to engage in the prohibited behavior." Id. Still, students who have been suspended or expelled continue to bring claims of a deprivation of procedural due process. See, e.g., Baxter v. Round Lake Area Schs., 856 F. Supp. 438, 443 (N.D. Ill. 1994) (finding no violation of due process to have occurred); D.B. v. Clarke County Bd. of Educ., 469 S.E.2d 438, 439 (Ga. Ct. App. 1996) (holding that permanent expulsion did not violate due process); Lake Cent. Sch. Corp. v. Scartozzi, 759 N.E.2d 1185, 1189-90 (Ind. Ct. App. 2001) (holding that students have no right to legal counsel at an expulsion hearing).
51. One researcher has aptly characterized the requirements as "skeletal" at best. J. Harrie Wilkinson, Goss v. Lopez: The Supreme Court as School Superintendent, 1975 SUP. CT. REV. 25, 40. Although the Court evaluated the three-factor balancing test that it adopted in Mathews v. Eldridge, 424 U.S. 319 (1976), the Court did not apply Mathews to the short-term school suspension that was in dispute. See Goss, 419 U.S. at 577-84. Other courts have followed this lead. See, e.g., Palmer v. Merluzzi, 868 F.2d 90, 95 (3d Cir. 1989) (acknowledging the Mathews due process test, but applying Goss to a school suspension of less than ten days and suspension from the school football team for sixty days); Paredes v. Curtis, 864 F.2d 426, 428-29 (6th Cir. 1988) (deciding not to apply Mathews to a normal school suspension of less than ten days); Atcitty v. Bd. of Educ. of the San Juan County Sch. Dist., 967 P.2d 1261, 1263 n.1 (Utah 1998) (refusing to apply the Mathews balancing test to a school-suspension due process claim).
FOOTNOTE52. Reed, supra note 12, at 590 (stating that the Court implicitly imposed a "higher level of scrutiny" in Plyler v. Doe, 457 U.S. 202 (1982)).
53. 457 U.S. 202 (1982).
54. Id. at 206.
55. Id.
56. Id. at 224.
57. Id. at 230.
58. Id. at 221.
59. See Ronald Kahn, The Supreme Court as a (Counter) Majoritarian Institution: Misperceptions of the Warren, Burger, and Rehnquist Courts, 1994 DETROIT C.L. REV. 1, 32 (discussing how the Court used polity principles and a concern for individual rights in Plyler to find a "near-right" to education that is analogous to "intermediate" scrutiny).
60. See Plyler, 451 U.S. at 230.
61. Id. at 248 (Burger, C.J., dissenting).
62. See id. at 218 n. 16 ("Only when concerns sufficiently absolute and enduring can be clearly ascertained from the Constitution and our cases do we employ this standard to aid us in determining the rationality of the legislative choice.").
63. Id. at 235 (Blackmun, J., concurring) ("[T]he voting decisions suggest that the State must offer something more than a rational basis for its classification."); id. at 238 (Powell, J., concurring) ("Our review in a case such as these is properly heightened.").
FOOTNOTE64. See Reed, supra note 12, at 591 n.74 (making a similar argument for students who have been expelled or suspended from school).
65. Id.
66. JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW 391-92 (5th ed. 1995).
67. Not surprisingly, more and more litigants are bringing suits under state constitutions to protect their civil rights, rather than pursuing federal claims. Helen Hershkoff, State Constitutions: A National Perspective, 3 WIDENER J. PUB. L. 7, 7-8 (1993).
68. JENNIFER FRIESEN, STATE CONSTITUTIONAL LAW: LITIGATING INDIVIDUAL RIGHTS, CLAIMS, AND DEFENSES [sec] 1.07, at 1-57 (1994).
69. To guard against the possibility of Supreme Court reversal or remand, a state court must plainly state that its decision was made on the basis of independent and adequate state law, not federal law that might also favor its judgment. Id. [sec] 1.07, at 1-59.
70. Id.
71. See, e.g., Serrano v. Priest, 557 P.2d 929, 950 (Cal. 1976) ("[O]ur state equal protection provisions, while 'substantially the equivalent of' the guarantees contained in the Fourteenth Amendment to the United States Constitution, are possessed of an independent vitality which, in a given case, may demand an analysis different from that which would obtain if only the federal standard were applicable."); Horton v. Meskill, 376 A.2d 359, 371 (Conn. 1977) ("[D]ecisions of the United States Supreme Court defining fundamental rights are persuasive authority to be afforded respectful consideration, but they are to be followed by Connecticut courts only when they provide no less individual protection than is guaranteed by Connecticut law."); Skeen v. Minnesota, 505 N.W.2d 299, 313 (Minn. 1993) ("Minnesota is not limited by the United States Supreme Court and can provide more protection under the state constitution than is afforded under the federal constitution."); Davenport v. Garcia, 834 S.W.2d 4, 11 (Tex. 1992) ("Our constitution has independent vitality, and this court has the power and duty to protect the additional state guaranteed rights of all Texans." (quoting LeCroy v. Hanlon, 713 S.W.2d 335, 339 (Tex. 1986))); Washakie County Sch. Dist. No. 1 v. Hersehler, 606 P.2d 310, 332 (Wyo. 1980) ("A state may enlarge rights under the Fourteenth Amendment announced by the Supreme Court of the United States, which are considered minimal, and thus a state constitutional provision may be more demanding than the equivalent federal constitutional provision.").
FOOTNOTE72. For comprehensive discussions of this "new federalism," see James A. Gardner, The Failed Discourse of State Constitutionalism, 90 MICH. L. REV. 761 (1992); Ellen A. Peters, Capacity and Respect: A Perspective on the Historic Role of the State Courts in the Federal System, 73 N.Y.U. L. REV. 1065 (1998); see also Davenport, 834 S.W.2d at 12 (noting that the "trend toward 'state constitutionalism' and 'new federalism' has been met with broad approval").
73. Molly McUsic, The Use of Education Clauses in School Finance Reform Litigation, 28 HARV. J. ON LEGIS. 307, 311 n.5 (1991); see, e.g., ALA. CONST. art. XIV, [sec] 256; FLA. CONST. art. IX, [sec] 1; GA. CONST. art. VIII, [sec] 1; HAW. CONST. art. X, [sec] 1; MASS. CONST. pt. 2, ch. V, [sec] 2; MICH. CONST. art. VIII, [sec] 2; PA. CONST. art. III, [sec] 14; TEX. CONST. art. VII, [sec] 1; UTAH CONST. art. X, [sec] 1; WASH. CONST. art. IX, [sec] 1. As McUsic explains, some observers have asserted that Mississippi does not have an education clause, per se, because the state constitution allows the legislature to avoid the creation of a school system. Mississippi's education article states in part: "The Legislature shall, by general law, provide for the establishment, maintenance and support of free public schools upon such conditions and limitations as the Legislature may prescribe." MISS. CONST. art. VIII, [sec] 201. Like McUsic, I believe the Mississippi article requires the state legislature to create a school system, although it does not mandate the type of schools that will be provided.
74. Most state courts have interpreted the education clauses of state constitutions in the context of equal protection lawsuits challenging the constitutionality of a state's system of financing public schools. Reed, supra note 12, at 593-94.
75. See McDuffy v. Sec'y of the Executive Office of Educ., 615 N.E.2d 516, 526-27 (Mass. 1993) (finding that the plain language and constitutional structure of Massachusetts's education clause impose a duty on the state government to provide for the education of the people).
FOOTNOTE76. Doe v. Superintendent of Sch. of Worcester, 653 N.E.2d 1088, 1095 (Mass. 1995). The education clause of the Massachusetts Constitution states:
Wisdom, and knowledge, as well as virtue, diffused generally among the body of the people, being necessary for the preservation of their rights and liberties; and as these depend on spreading the opportunities and advantages of education in the various parts of the country, and among the different orders of the people, it shall be the duty of legislatures and magistrates, in all future periods of this commonwealth, to cherish the interests of literature and the sciences, and all seminaries of them; especially the University of Cambridge, public schools and grammar schools in the towns; to encourage private societies and public institutions, rewards and immunities, for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and a natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and frugality, honesty and punctuality in their dealings; sincerity, good humor, and all social affections, and generous sentiments among the people.
MASS. CONTS, pt. 2, ch. V, [sec] 2.
77. Hornbeck v. Somerset County Bd. of Educ., 458 A.2d 758, 786 (Md. 1983).
78. The education clause of the Maryland Constitution states, "The General Assembly, at its first session after the adoption of this Constitution, shall by Law establish throughout the State a thorough and efficient System of Free Public Schools . . . ." MD. CONST. art. VIII, [sec] 1.
79. Hornbeck, 458 A.2d at 764.
80. Id. at 786.
81. Id. at 790.
82. Davenport v. Garcia, 834 S.W.2d 4, 11-12 (Tex. 1992).
83. The Texas Constitution states, "A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools." TEX. CONST. art. 7, [sec] 1.
84. Kirby v. Edgewood Indep. Sch. Dist., 761 S.W.2d 859, 863 (Tex. App.-Austin 1988), rev'd on other grounds, 777 S.W.2d 391 (Tex. 1989) ("[E]ducation, although vital, does not rise to the same level as the right to engage in freedom of speech or to exercise religion free of governmental interference, both rights which have long been recognized as fundamental and entitled to protection under both the federal and state constitutions.").
FOOTNOTE85. Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391, 398 (Tex. 1989) (Edgewood I).
86. Some states have begun the practice of relying solely on education clauses to invalidate school financing statutes when a claim has been made that the system deprives lower-income school district children of an equal education. McUsic, supra note 73, at 311-12. But most state courts depend on a state constitution's education clause only as the source of the right to education and then apply equal protection analysis to enforce that right. Id.
87. Reed, supra note 12, at 597.
88. 376 A.2d 359 (Conn. 1977).
89. Id. at 373. The Connecticut Constitution provides, "There shall always be free public elementary and secondary schools in the state." CONN. CONST. art. VIII, [sec] 1.
90. 790 S.W.2d 186 (Ky. 1989).
91. Id. at 212. The Kentucky Constitution's Education Clause states, "The General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the State." KY. CONST. [sec] 183. Like Texas in Edgewood I, Kentucky was invalidating the state's school financing system because it was inefficient. Rose, 790 S.W.2d at 213. But unlike Texas, Kentucky explicitly found a fundamental right to education. Id.
92. 667 A.2d 5 (Pa. 1995).
93. Id. at 9. Pennsylvania's constitution states, "The General Assembly shall provide for the maintenance and support of a thorough and efficient system of public education to serve the needs of the Commonwealth." PA. CONST. art. III, [sec] 14.
94. Wilkinsburg, 667 A.2d at 9.
FOOTNOTE95. Serrano v. Priest, 557 P.2d 929, 951 (Cal. 1976). The California Constitution's Education Clause provides, "A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement." CAL. CONST. art. IX, [sec] 1. Furthermore, it states, "The Legislature shall provide for a system of common schools by which a free school shall be kept up and supported in each district at least six months in every year . . . ." Id. art. IX, [sec] 5.
96. Serrano, 557 P.2d at 952-53.
97. 511 N.W.2d 247 (N.D. 1994).
98. Id. at 256. The North Dakota Constitution provides:
A high degree of intelligence, patriotism, integrity and morality on the part of every voter in a government by the people being necessary in order to insure the continuance of that government and the prosperity and happiness of the people, the legislative assembly shall make provision for the establishment and maintenance of a system of public schools which shall be open to all children of the state of North Dakota and free from sectarian control. This legislative requirement shall be irrevocable without the consent of the United States and the people of North Dakota.
N.D. CONST. art. VIII, [sec] 1. The North Dakota Constitution goes on to state, "This legislative assembly shall provide for a uniform system of free public schools throughout the state . . . ." Id. art. VIII, [sec] 2.
99. Bismarck Pub. Sch. Dist. No. 1, 511 N.W.2d at 257.
100. Id. In a suit involving a student claiming that his fundamental right to education had been deprived through his suspension from classes, the North Dakota court would presumably apply a strict scrutiny analysis to the equal protection claim, since it would probably not include the same types of "legislative determinations" as that case.
101. 505 N.W.2d 299 (Minn. 1993).
102. Id. at 315 (emphasizing the "duty" placed on the government by the state's education clause). The Minnesota Constitution's Education Clause states:
The stability of a republican form of government depending mainly upon the intelligence of the people, it is the duty of the legislature to establish a general and uniform system of public schools. The legislature shall make such provisions by taxation or otherwise as will secure a thorough and efficient system of public schools throughout the state.
MINN. CONST. art. XIII, [sec] 1.
FOOTNOTE103. Skeen, 505 N.W.2d at 315 (quoting MINN. CONST. of 1857 art. VIII, [sec] 1 (current version at art. XIII, [sec] 1)).
104. Id.
105. Id. at 316.
106. In Scott v. Commonwealth, 443 S.E.2d 138 (Va. 1994), the court held that, despite the fundamental right to education, even strict scrutiny analysis did not require "equal, or substantially equal, funding or programs among and within the Commonwealth's school districts." Id. at 142. The Virginia Constitution's Education Article provides, "The General Assembly shall provide for a system of free public elementary and secondary schools for all children of school age throughout the Commonwealth, and shall seek to ensure that an educational program of high quality is established and constitutionally maintained." VA. CONST. art. VIII, [sec] 1. The constitution further provides, "Standards of quality . . . shall be determined and prescribed . . . by the Board of Education, subject to revision only by the General Assembly." Id. art. VIII, [sec] 2. And it goes on to state, "The General Assembly shall provide for the compulsory elementary and secondary education of every eligible child of appropriate age . . . ." Id. art. VIII, [sec] 3.
107. Wisconsin went further than Virginia with Kukor v. Grover, 436 N.W.2d 568 (Wis. 1989). There, the court held that even though education was, "to a certain degree, a fundamental right," only rational basis review should be given to school spending disparities because "a complete denial of educational opportunity" was not involved. Id. at 579-80. The Wisconsin Constitution establishes:
The legislature shall provide by law for the establishment of district schools, which shall be as nearly uniform as practicable; and such schools shall be free and without charge for tuition to all children between the ages of 4 and 20 years; and no sectarian instruction shall be allowed therein; but the legislature by law may, for the purpose of religious instruction outside the district schools, authorize the release of students during regular school hours.
WIS. CONST. art. X, [sec] 3.
108. Even though these states have not required strict scrutiny analysis of school funding systems, the fundamental right to an education is still examined under strict scrutiny. So a student's claim for the deprivation of education through in-school suspension would probably be considered under strict scrutiny, rather than the lower standard of review.
FOOTNOTE109. See San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1, 36-37 (1973) ("Even if it were conceded that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of [other fundamental rights], . . . we have no indication that the present levels of educational expenditures in Texas provide an education that falls short.").
110. See Plyler v. Doe, 457 U.S. 202, 234 (1982) (Blackmun, J., concurring) ("[C]lassifications involving the complete denial of education are in a sense unique, for they strike at the heart of equal protection values by involving the State in the creation of permanent class distinctions."); cf. Rodriguez, 411 U.S. at 115 n.74 (Marshall, J., dissenting) (emphasizing the "direct and immediate relationship" of education to "constitutional concerns for free speech and for our political processes").
111. Denise C. Morgan, What Is Left to Argue in Desegregation Law?: The Right to Minimally Adequate Education, 8 HARV. BLACKLETTER L.J. 99, 122 (1991).
112. See, e.g., Seattle Sch. Dist. No. 1 of King County v. State, 585 P.2d 71, 95 (Wash. 1978) ("While the judiciary has the duty to construe and interpret the word 'education' by providing broad constitutional guidelines, the Legislature is obligated to give specific substantive content to the word and to the program it deems necessary to provide that 'education' within the broad guidelines.").
113. Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 212 (Ky. 1989). The court declared that:
an efficient system of education must have as its goal to provide each and every child with at least the seven following capacities: (i) sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization; (ii) sufficient knowledge of economic, social, and political systems to enable the student to make informed choices; (iii) sufficient understanding of governmental processes to enable the student to understand the issues that affect his or her community, state, and nation; (iv) sufficient self-knowledge and knowledge of his or her mental and physical wellness; (v) sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage; (vi) sufficient training or preparation for advanced training in either academic or vocational fields so as to enable each child to choose and pursue life work intelligently; and (vii) sufficient levels of academic or vocational skills to enable public school students to compete favorably with their counterparts in surrounding states, in academics or in the job market.
Id.
FOOTNOTE114. See, e.g., Claremont Sch. Dist. v. Governor, 703 A.2d 1353, 1359 (N.M. 1997) (Claremont II) ("We look to the seven criteria articulated by the Supreme Court of Kentucky . . . for defining educational adequacy."); McDuffy v. Sec'y of the Executive Office of Educ., 615 N.E.2d 516, 554 (Mass. 1993) ("The guidelines set forth by the Supreme Court of Kentucky fairly reflect our view . . . .").
North Carolina offered a variation. Leandro v. State, 488 S.E.2d 249, 256 (N.C. 1997). After establishing that there was a state-protected fundamental right to equal access to education in Sneed v. Board of Education, 264 S.E.2d 106, 113 (N.C. 1980), the Supreme Court of North Carolina held that the state constitution also requires equal access to "a sound basic education" in every school district. Leandro, 488 S.E.2d at 254-57. The court defined a minimal education as one that provides students with at least:
(1) sufficient ability to read, write, and speak the English language and a sufficient knowledge of fundamental mathematics and physical science to enable the student to function in a complex and rapidly changing society; (2) sufficient fundamental knowledge of geography, history, and basic economic and political systems to enable the student to make informed choices with regard to issues that affect the student personally or affect the student's community, state, and nation; (3) sufficient academic and vocational skills to enable the student to successfully engage in post-secondary education or vocational training; and (4) sufficient academic and vocational skills to enable the student to compete on an equal basis with others in further formal education or gainful employment in contemporary society.
Id. at 255. But the court also made it clear that the constitution does not require substantially equal funding or educational opportunities in all school districts. Id. at 256.
The right to participate in extracurricular activities is not usually included in the right to education. See, e.g., Spring Branch Indep. Sch. Dist. v. Stamos, 695 S.W.2d 556, 560 (Tex. 1985) (upholding a state "no pass, no play" statute). Similarly, states typically do not grant a fundamental right to higher education. See, e.g., Richards v. League of Latin Am. Citizens (LULAC), 868 S.W.2d 306, 315 (Tex. 1993) (stating that the "constitutional directive" to maintain a free public system does not apply to higher education).
115. See supra subpart II(B)(2).
116. I could not locate any formal studies on the academic impact of typical, short-term in-school suspension, but common sense and the teachers I spoke with agreed that missing class for one or two days is not an absence from which recovery is impossible or improbable. Research is, however, available on the impact of suspension and expulsion from school. The National School Boards Association assessed that research and determined, "Suspended students lose valuable instruction and are likely to distrust the authority that has rejected them. . . . Suspension rewards teachers and others for avoiding classroom responsibilities." Daniel & Coriell, supra note 6, at 15 (quoting NAT'L SCH. BDS. ASS'N, TOWARDS BETTER AND SAFER SCHOOLS: A SCHOOL LEADER'S GUIDE TO DELINQUENCY PREVENTION 18 (1984)).
FOOTNOTE117. One teacher reported that a single two-week sentence of in-school suspension resulted in a student's class average declining from a 97 to a 70. Interview with Brenna Troyan, Teacher, Hays Consolidated Independent School District, in Austin, Tex. (Jan. 4, 2003).
118. See Goss v. Lopez, 419 U.S. 565, 580 (1975) ("Some modicum of discipline and order is essential if the educational function is to be performed.").
119. Telephone Interview with Nicole Hagerty, Teacher, Round Rock Independent School District (Mar. 26, 2003). For a detailed description of a typical ISS classroom, see Wise v. Pea Ridge Sch. Dist., 855 F.2d 560, 562 (8th Cir. 1988).
120. The ISS classroom is sometimes referred to as the "student alternative classroom," or "SAC." Id. Anecdotally, my middle school's in-school suspension classroom was dubbed "The Green Room," both for the sickly color of the walls and for the man who supervised the suspended students, Mr. Greene. See DULLES JUNIOR HIGH SCHOOL YEARBOOK 10 (1988) (on file with the author).
121. In some schools, there is a full-time school staff member in this position, like Mr. Greene (see supra note 120). Other schools rely on substitute teachers for this responsibility. Occasionally, staff teachers may be required to rotate through this classroom during periods when they are not teaching classes. Depending on the school district, this procedure might be employed only when a staff member is unexpectedly absent. Invariably, the supervisor is not a certified teacher.
FOOTNOTE122. Interview with Brenna Troyan, Teacher, Hays Consolidated Independent School District, in Austin, Tex. (Jan. 4, 2003). The other teachers I spoke with agreed with this description of a day in the ISS classroom. My own observations as a substitute teacher in Humble ISD concur, as well.
123. Id.
124. Id.
125. Id.
126. Every teacher I spoke with attested to this reality. One teacher claimed this was a daily occurrence at his inner-city high school. Interview with Brian Jones, former Teacher, San Antonio Independent School District, in Austin, Tex. (Oct. 21, 2001). Another testified that it had been a problem in her school until a new vice principal was hired. Telephone Interview with Brenna Troyan, Teacher, Hays Consolidated Independent School District (Jan. 12, 2002).
127. Telephone Interview with Nicole Hagerty, Teacher, Round Rock Independent School District (Mar. 26, 2003) (describing how an e-mail notification system was discussed and ultimately rejected on privacy grounds by school administrators).
FOOTNOTE128. Interview with Brenna Troyan, Teacher, Hays Consolidated Independent School District, in Austin, Tex. (Jan. 4, 2003) (expressing her frustration at the excessive ISS sentences that were imposed by a former vice principal).
129. In most school districts, a teacher's schedule includes at least one "off-period" every day. This time is set aside for a variety of purposes, including, among other tasks, faculty meetings, conferences with parents, grading papers, and preparing lecture materials.
130. This highly unscientific assertion comes from my own observations as a substitute teacher as well as interviews with educators. See generally COLEMAN, supra note 4 (asserting that students who are frequently referred to in-school suspension dislike the confinement so much that they deliberately misbehave in order to get themselves placed in out-of-school suspension).
131. See Bickerstaff et al., supra note 13, at 5 (describing in-school suspension classrooms as "rooms which offer little or no educational support").