Alternative education: the criminalization of student behavior.(Texas)

INTRODUCTION

In an article in the New York University Law Review, Harvard Law School professor Gerald Frug proposes that from its inception, public education has been more than just a commodity parents provide their children. Rather, public education has an important social function. (1) According to education philosopher John Dewey, public schools give their students "an opportunity to escape from the limitations of the social group in which [they were] born, and to come into living contact with a broader environment ... different races, differing religions, and unlike customs." (2) Public education was intended to give students a broad perspective to prepare them for living in a complex, diverse society.

Frug only considers a school to be truly public if it is open to the heterogeneity of American life--if it enables students to encounter different groups of people in both curriculum and classroom. (3) This article will examine a relatively recent development in public education: alternative education programs (AEPs). Using Texas public schools as a case study, this article argues that AEPs defeat public education's goal of exposing students to a diverse student body. This is because AEPs segregate at-risk students--usually Latinos, African Americans, Native Americans, and poor Whites--from the rest of the student population.

This article deals with disciplinary AEPS, also known as DAEPs. Part I of the article will explore the legislative intent behind the Texas Education Code's DAEP provisions. Part II will describe the Code's DAEP provisions and how they have been supplemented by individual school district codes. Part III will describe how schools can boost their scores on accountability tests through the use of DAEPs. Part IV will discuss the author's quantitative data on DAEPs, emphasizing the race, gender, and reading ability of students placed in DAEPs. Part V will give a qualitative description of a typical DAEP. The article will conclude by arguing that individual school districts have criminalized low student achievement by sending students with academic problems to DAEPs designed for student criminals.

This article relies on quantitative and qualitative data collected from 1996 to 2000. (4) The weaknesses of this article are as follows: (1) The DAEPs in this study were established relatively recently and only limited data is available; (2) because of legal implications (potential Office for Civil Rights investigations), schools do not readily make discipline data available; (3) case study data, in this case the only data available, cannot be generalized; and (4) qualitative descriptions also cannot be generalized.

I. LEGISLATIVE HISTORY OF TEXAS DAEP LAWS

Alternative education has been in use in Texas for over twenty years. Its impetus came from an honest effort to remove serious juvenile offenders from the classroom during a juvenile crime wave in the 1980s. (5) Students awaiting trial for drug dealing or murder continued to sit in classrooms. Teachers were concerned for their safety and the safety of their students. The issue of seriously disruptive students was added to Texas' public policy agenda.

In June 1984, the Texas 68th Legislature, under pressure from H. Ross Perot, (6) passed massive school reform legislation, including laws establishing DAEPs. (7) Representative Alvin Granoff of Dallas spearheaded the DAEP legislation. (8) Granoff disliked the methods public schools used to punish students with severe discipline problems. (9) He felt that the policy in place at most schools--expelling students for three days--gave delinquent students an unsupervised furlough to commit crimes. (10) Rather than expelling students to roam the streets, schools, according to Granoff, should place students in a supervised educational setting. A Florida study convinced Granoff that DAEPs would succeed in Texas: "We had some studies, like the one I mentioned out of Florida somewhere, where alternative programs had worked, where they gave them special attention and intensive, low teacher to pupil ratio classes. At least I saw enough to convince me that it would work...." (11)

In 1984, the Texas legislature amended the Texas Education Code to require each school district to develop a DAEP for students found guilty of serious or persistent misbehavior. (12) The old punishments of expulsion and suspension were replaced with removal to a DAEP. The goal was to keep students in a supervised educational environment.

The legislative history of alternative education in Texas reveals the deliberate creation of a discipline management service. The legislative intent was to remove students who exhibited criminal-type behavior from the classroom and place them in a supervised environment to continue their education. Some legislators supported this concept because it gave those students more individual attention by greatly reducing teacher-to-pupil ratios.

II. CURRENT TEXAS DAEP LAWS

In 1995, the Texas legislature enacted detailed new legislation on DAEPs. The Texas Educational Code requires each school district to provide a DAEP for the purpose of removing dangerous students from their classrooms without interrupting their education. (13) Although the Code does not define the term "AEP," the Texas Education Agency provides administrative rules for AEPs in an alternative education manual. (14) The manual defines DAEPs as serving students "at risk of dropping out of school." (15)

The intent of the Texas DAEP legislation is evident in the kinds of conduct for which students must be placed in a DAEP. The Code mandates that schools place students in DAEPs for engaging in the following conduct:

* felonies

* assaults or terrorist threat

* using, providing, or possessing drugs

* using, providing, or possessing alcohol, glue, or aerosol chemicals

* public lewdness or indecent exposure (16)

Students must also be placed in DAEPs in the following cases:

* the student receives deferred prosecution for a felony

* a court or jury finds that the student engaged in a felony

* the school superintendent reasonably believes the student has committed murder, manslaughter, or criminally negligent homicide. (17)

If a student commits any of these acts, the Texas Education Code mandates that the student be placed in a DAEP. School administrators have no choice in the matter. The duration of the mandatory placements may be short-term (less than 80 days) or long-term (80 days or more). (18)

Students may also be placed in DAEPs when they are expelled for more serious criminal activities. Examples include weapons possession, arson, aggravated assault, murder, kidnapping, and acts of criminal mischief. (19) For such acts, students are expelled to either a regular DAEP or a juvenile justice AEP ("JJAEP").

The Texas Education Code also permits schools to place students in DAEPs at their own discretion. The Code mandates that each school district adopt its own student code of conduct. (20) The code of conduct must specify the conditions under which a student can be placed in a DAEP. (21) Discretionary placements in DAEPs may be short-term or long-term, usually at the discretion of the school administrator.

A good example of a school code of conduct is that of the Houston Independent School District. The Houston District has used its code to make its own rules for placing students in DAEPs. The District's code of conduct mirrors state law in requiring that students involved in criminal-type behavior be placed in DAEPs. (22) For example, after committing a Level IV infraction (23)--typically a…