The classroom safety bill discriminates against the disabled

The following  letter to Gov. Dannel Malloy was written before he vetoed SB453 (Public Act 18-89):

On behalf of the Connecticut Association for Public School Superintendents (“CAPSS”), I write to express serious concern over the passage of Public Act 18-89: An Act Concerning Classroom Safety and Disruptive Behavior (the “Act”).  The Act would be an alarming revision to Connecticut’s education laws that would (1) discriminate against and violate the rights of students with disabilities under the IDEA, and (2) expose confidential student information to third parties in violation of federal law.  The Act is thus unconstitutional, and therefore I urgently ask you to veto this legislation.

On its face, the Act violates the Individuals with Disabilities Education Act (“IDEA”) and Section 504 of the Rehabilitation Act (“Section 504”).  Specifically, the Act would permit a teacher unilaterally to remove a student from his or her classroom “for a violation of daily classroom safety,” and a principal to then place that student in “another educational setting that is best suited to meet such student’s needs.”

This Act would then allow the student to return only with the consent of the same teacher who removed the student or by action of a crisis intervention team.  Significantly, the most likely offenders of daily classroom safety rules would be students with emotional disturbances, autism or other mental health issues that prevent the student from acting in accordance with classroom decorum.  Thus, under the Act, students with disabilities (along with regular education students) could be removed from classrooms unilaterally by an individual teacher and then be unable to return except in very narrow circumstances.

Given those provisions, the Act violates the IDEA.  The IDEA requires that a student with a disability must be educated in accordance with the student’s Individualized Education Program (“IEP”), a program developed by that student’s Planning and Placement Team (“PPT”) in accordance with extensive procedural protections concerning evaluation, identification and placement.  Only the PPT may make decisions concerning a student’s educational programming and placement, and unilateral changes outside the PPT process as contemplated by the Act are strictly prohibited by federal law.

Importantly, Connecticut’s student discipline laws — which have been revised numerous times in recent years — already provide sufficient protection for teachers, students and others from students who present a danger to the school community.  Conn. Gen. Stat. § 10-233b currently provides that teachers have the right to remove a student from a classroom temporarily if the student “deliberately causes a serious disruption of the educational process within the classroom,” and school officials can take appropriate safety measures during such temporary removal without violating the rights of the individual student.

Furthermore, the Act requires that the school principal share confidential student information with third parties in violation of the Family Educational Rights and Privacy Act (“FERPA”).  Specifically, the Act requires that, “in cases when such violation [of daily classroom safety] is witnessed by other students, [the principal must notify] the local or regional board of education and the parents or guardians of such students who witnessed such violation of the details of such violation without disclosing the identity of the student who violated daily classroom safety.”

However, FERPA prohibits disclosure to third parties of personally identifiable student information from education records.  Included in the definition of personally identifiable information is, among other things, “[o]ther information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty.”

Thus, even though the identity of the student would not be formally disclosed in the notification, the Act violates FERPA.  Clearly, the identity of the student will be revealed by sharing such information about a significant classroom incident with parents of students who were present in the classroom; parents will certainly question their children about the incident and thereby learn the individual student’s name in violation of FERPA.

The superintendents throughout the State of Connecticut are exasperated and shocked at the passage of the Act.  Not only does the Act violate the Supremacy Clause of the United States Constitution by violating federal law, but it also undermines the rights of all children in the State.  The Act should be vetoed, and we greatly appreciate your consideration of this important issue.

Fran Rabinowitz is the executive director of the Connecticut Association of Public School Superintendents.