Not only do alternatives to out-of-school suspension work better, increase school success, funding and student outcomes, they are required by federal and state law!
In California, education is a fundamental right “at the core of our free and representatives form of government” and “necessary for full participation in the ‘uninhibited, robust, and wide-open’ debate that is central to our democracy.”
The excessively punitive disciplinary policies and practices that give rise to school push out and the “school-to-prison” pipeline are unlawful because they effectively force students out of school, denying them this fundamental right. There is no legitimate interest in employing such a system, where research shows that such policies serve no educational goals: they are ineffective at reducing misbehavior, do not make schools safer or more welcoming, and result in lower academic achievement levels for impacted students. As such, when a school district permits or supports the use of exclusionary discipline measures with frequency and for all but the most egregious misbehavior, students can be deprived of their fundamental right to an education under the California Constitution.
The Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 prohibit discrimination on the basis of race, color, or national origin. The California Education Code and other state statutes prohibit discrimination in state-financed programs and also provide that “schools have an affirmative obligation to combat racism, sexism, and other forms of bias, and responsibility to provide equal educational opportunity.” That there are gross disparities in the manner in which suspension and expulsion laws are being applied to students of color and students with disabilities is evidenced in the statewide and local data showing disproportionate suspension rates across students similarly situated from different racial and ethnic groups and with or without disabilities. All schools and the state have an obligation to address these disparities.
Moreover, the California Education Code requires that for most offenses, including where a student is threatening to disrupt instruction, suspension shall ONLY be used when other means of correction have been utilized and have failed. In order to ensure equal and consistent application of discipline, schools must have a clear and consistently applied system for providing interventions prior to out-of-school removals and to ensure that students are not receiving different punishments for the same conduct.
The whole-school strategies and systems laid out in this Toolkit are designed to help schools meet the requirements in California law and, several of them, including positive behavior supports (also known as positive behavior interventions and supports) and restorative justice, are explicitly outlined in California law as other means of correction that can and should be used across the District. In addition, federal law, the Individuals with Disabilities in Education Improvement Act, requires consideration of the use of positive behavior interventions and support when data shows disparities related to long-term suspensions and expulsion for students with disabilities and for students with disabilities struggling with behavior, and it provides that federal funding can be used to support SWPBIS implementation for all students.
The California legislature has made it clear that too many schools are overusing suspensions and expulsion and that state policy does not support unequal application of discipline practices or harsh and punitive punishments. Rather, it is state policy to “provide effective interventions for pupils who engage in acts of problematic behavior to help them change their behavior and avoid exclusion from school.” In addition, the legislature has declared that:
(b) The overuse of school suspension and expulsion undermines the public policy of this state and does not result in safer school environments or improved pupil behavior. Moreover, such highly punitive, exclusionary practices are associated with lower academic achievement, lower graduation rates, and a worse overall school climate.
(c) Failing to teach and develop social and behavior skills in pupils leads to the depletion of funding through decreased average daily attendance, increased rates of teacher turnover, and increased pupil dropout rates.
(d) School suspension and expulsion are disproportionately imposed on pupils of color, pupils with disabilities, lesbian, gay, bisexual, and transgender pupils, and other vulnerable pupil populations…and there is no evidence demonstrating that pupils of color or other pupil populations misbehave at greater rates than their peers.
In conclusion, schools and school districts must look closely at their current discipline practices, disproportionate impacts of various student groups, and ensure that they have a uniform, consistent, and clear alternative system that focuses on ways to address unwanted student behaviors and support positive behavior other than through out-of-school removals. This Toolkit will provide you with the tools to do just that!
Serrano v. Priest, 18 Cal. 3d 728, 767-68 (1976) (Serrano II)
Hartzell v. Connell, 35 Cal. 3d 899.908 (1984).
See, e.g., Skiba R., et al., Are Zero Tolerance Policies Effective in the Schools? A Report by the American Psychological Association Task Force (2006); Skiba, R. & Rausch M., Zero Tolerance, Suspension and Expulsion: Questions of Equity and Effectiveness, in C.M. Everston& C.S. Weinstein (Eds.) Handbook of Classroom Management: Research, Practices, and Contemporary Issues (2005): Skiba, R.,Zero Tolerance, Zero Evidence: An Analysis of School Disciplinary Practice (2000).
Serrano II, 18 Cal. 3d at 760-768.
 The equal Protection Clause states, in relevant part, that “[n]o State shall…deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend XIV, § 1.
 Title VI of the Civil Rights Act of 1964 provides, in relevant part, that “[n]o person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation n, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C.§ 2000(d).
Cal. Ed. Code § 200. Section 220 provides that “[n] person shall be subjected to discrimination on the basis of disability, gender, nationality, race or ethnicity, religion, sexual orientation … in any program or activity conducted by an educational institution that receives” funding from the state.
 Cal. Ed. Code § 48900.5(a), which provides: “Suspension, including supervised suspension as described in Section 48911.1, shall be imposed only when other means of correction fail to bring about proper conduct.”
 Cal. Ed. Code § 48900.5: “(b) Other means of correction include, but are not limited to, the following: (1) A conference between school personnel, the pupil’s parent or guardian, and the pupil. (2) Referrals to the school counselor, psychologist, social worker, child welfare attendance personnel, or other school support service personnel for case management and counseling. (3) Study teams, guidance teams, resource panel teams, or other intervention- related teams that assess the behavior, and develop and implement individualized plans to address the behavior in partnership with the pupil and his or her parents. (4) Referral for a comprehensive psychosocial or psychoeducational assessment, including for purposes of creating an individualized education program, or a plan adopted pursuant to Section 504 of the federal Rehabilitation Act of 1973 (29 U.S.C. Sec. 794(a)).
(5) Enrollment in a program for teaching prosocial behavior or anger management.
(6) Participation in a restorative justice program. (7) A positive behavior support approach with tiered interventions that occur during the schoolday on campus.
(8) After-school programs that address specific behavioral issues or expose pupils to positive activities and behaviors, including, but not limited to, those operated in collaboration with local parent and community groups. (9) Any of the alternatives described in Section 48900.6.”
See, e.g., 20 U.S.C. § 1465, the Secretary may support and fund activities, including training and implementation that increase behavioral supports and research-based systemic interventions for ALL students, among these positive behavior interventions and supports is explicitly included.; 20 U.S.C. § 1414 (d)(3) (B) (i), “The IEP Team shall– (i) in the case of a child whose behavior impedes the child’s learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior.”; 20 U.S.C. § 1412(a)(22)(A): “The State educational agency [shall] examine data, includingdata disaggregated by race and ethnicity, to determine if significant discrepancies are occurring in the rate of long-term suspensions and expulsions of children with disabilities. . .If such discrepancies are occurring, the State educational agency reviews and, if appropriate, revises (or requires the affected State or local educational agency to revise) its policies, procedures, and practices relating to … the use of positive behavioral interventions and supports… to ensure that such policies, procedures, and practices comply with this title [20 USCS §§ 1400 et seq.].”
Assembly Bill 1729 (Ammiano), effective date 1/1/13.