(This week’s civic education and engagement column from Danville’s The Republican newspaper.)
Last time, I responded to the common myth that local districts either pretend no bullying happens in their schools or simply choose to ignore it. (The short version is that state law contains very specific rules about how public schools must respond to bullying. It also spells out exactly what has to happen to legally be considered bullying. If an incident doesn’t check all the proverbial boxes, schools can’t call it bullying.)
Of course, Indiana’s laws are only part of what oversees student discipline. Federal laws and court decisions also play major roles. Sometimes, when those laws intersect, public schools find themselves in extraordinarily frustrating positions. Want one of the more common examples?
Imagine your 7th-grade son (or grandson) is sitting attentively in 2nd-period English when – without warning or any provocation – the student immediately to his right lurches across the aisle and begins delivering punches. You taught your son/grandson to defend himself, so he manages to land a punch of his own before the teacher pulls the boys apart.
The Dean told you exactly what happened and said he had suspended the other student. “I fully understand that your boy had nothing to do with causing the incident, but he did land a punch, so our policy says he has also to be disciplined.” You’re annoyed, but you understand. He’ll spend a day home, but with no screens or playing – and plenty of chores. After all, even though he did it with your encouragement, he broke a rule. Life’s unfair sometimes.
When your son/grandson returns to 2nd-period English, the bully’s back at his desk, grinning at him. You call the Dean, and he says, “yes, he’s in class.” He doesn’t say any more. Neither does the superintendent. And that’s when you reach out to the school board.
If you called me, I’d start by telling you I can’t do anything about the situation. Under the law, I’m not even supposed to know anything about specific disciplinary matters. And then I’d introduce you to a couple laws Congress created. The first is called the Individuals with Disabilities Education Act (IDEA). On the whole, it’s a wonderful law that has transformed opportunities for students who deal with all types of disabilities. It’s designed to protect those students and their families by making it easier to access learning that’s effective for their unique needs.
The second is the Family Educational Rights and Privacy Act. Better known as FERPA, it protects the privacy of students and their families by restricting what data can be shared and/or made public. When kids turn 18, they assume all control. That’s why your daughter’s college won’t let you see her grades even though you’re making the big payments.
There are situations when the provisions of those two laws run into each other. Students who receive services under IDEA do so through what’s known as an IEP. That stands for Individualized Education Program. It’s a legal document that spells out the specifics of the student’s disability and how that impacts learning, along with the services and accommodations the school is required to provide. For example, a student might need extra time when taking tests.
IDEA places significant limits on how schools may discipline students when a behavior is determined to be a sign of their disability. The focus often shifts from punishment to providing behavioral supports. In the case of your son/grandson’s bully, there’s a good chance his IEP states that one element of his disability involves impulse control or emotional regulation. If that’s the case, the Dean is legally limited in how he responds.
Okay, you say, that’s really frustrating, but it does explain why he’s back in class. So why didn’t the Dean or Superintendent just tell me that? Now’s when FERPA enters our scenario. Student disciplinary and IDEA-related information are considered by law to be educational records. Because of that, they can’t be disclosed to anyone but the student and their parents (if the student is under 18). The Dean can acknowledge that the student is in school – that’s public, given all the people in the building – but cannot say a word about how the matter was resolved. In fact, he’s not even supposed to say whether there was or wasn’t discipline. Although your student was clearly the victim, FERPA plus IDEA means you have zero legal right to information about the aggressor. As in none at all.
Sometimes the hardest part of public service isn’t making difficult decisions. It’s accepting the criticism that comes from decisions you weren’t legally allowed to explain. Before assuming school administrators are hiding something or simply don’t care, remember that federal law often requires them to remain silent. What looks like indifference may actually be compliance.