Ben Atlee

Now is the time to end the discriminatory use of abbreviated school days in Maine

Posted on August 31, 2021

by Benjamin Y. Jones, Esq. Atlee Reilly, Esq.

Maine students with disabilities are routinely subjected to abbreviated school days due to disability-related behaviors. While federal law requires that schools provide supportive services when a student’s disability-related behaviors interfere with their learning or the learning of others, many schools choose instead to respond by asserting that these students actually need less services and less time in school. DRM is committed to working with others across Maine to put an end to this absurd practice. And the Kids Team at DRM will continue prioritizing these cases for representation.

DRM reviewed its calls for assistance from families for the 2018-2019 and 2019-2020 school years (preceding the COVID-19 pandemic disruption on 3/15/2020). More than 50 families called for help with students whose school days were reduced for disability-related reasons. The calls came from across the state – small districts, large districts, and everything in between, covering 14 of Maine’s 16 counties.

Some students were simply sent home every day after an hour or two at school, which denied them access to the educational opportunities enjoyed by their peers. Many students and families were told that they needed to earn their way back to school, sometimes in 15-minute increments – a process which led to shortened days for an entire school year or more. Other students were removed from their school programs altogether, in the form of segregated tutoring instruction which was often provided after school for two hours per day. In addition to the clear denial of educational opportunities, this discriminatory practice has significant impacts on the ability of parents to maintain employment.

Although it should go without saying, we are aware of no research to support the proposition that less education is an effective way to address the social, emotional and behavioral difficulties that often lead schools to impose shortened school days on families. By contrast, as the United States Department of Education stated in a 2016 Dear Colleague Letter, “Research shows that school-wide, small group, and individual behavioral supports that use proactive and preventative approaches, address the underlying cause of behavior, and reinforce positive behaviors are associated with increases in academic engagement, academic achievement, and fewer suspensions and dropouts.” This letter is an excellent resource for families and advocates and clearly identifies the responsibilities of Individualized Education Program (IEP) Teams in the face of challenging disability-related behaviors. The letter can be found here: https://sites.ed.gov/idea/files/dcl-on-pbis-in-ieps-08-01-2016.pdf

The practice of imposing shortened school days is not limited to Maine. And DRM is joining advocates around the country in placing renewed focus on ending this practice. For example, Disability Rights Oregon is working on a class action to address this issue in a systemic way. Information about that litigation is available here: https://www.droregon.org/litigation-resources/jn-v-ode An expert declaration from Dr. Melody Musgrove was submitted in that case, which contains the following: “There is no research showing that removing students from school improves a child’s behavior or provides any academic or social-emotional benefits. Instead, research confirms my opinion that the overwhelming majority of students with disability-related behaviors can be effectively and safely included in school and in the general education classroom if they receive the behavior supports they need to obtain meaningful academic benefits.” J.N. v. Oregon Dep't of Educ., Case No. 6:19-cv-00096-AA, Decl. of Melody Musgrove ¶ 24 (doc. 67).

The Department of Justice (DOJ) has also taken an interest in this practice, which often violates the rights of youth under the Americans with Disabilities Act. DOJ recently reached a resolution with the Lewiston Public Schools after an investigation based on a complaint filed by Disability Rights Maine in coordination with the ACLU of Maine, Kids Legal at Pine Tree Legal Assistance, and the Cumberland Legal Aid Clinic, a program of the University of Maine School of Law.[1] In a press release, DOJ summarized: “The department’s investigation found that the district routinely shortened the school day for students with disabilities without considering their individual needs or exploring supports to keep them in school for the full day. The district’s lack of training for staff on how to properly respond to students’ disability-related behavior contributed to the over-reliance on “abbreviated” school days.” For more information, see the press release, available here: https://www.justice.gov/opa/pr/justice-department-settles-maine-school-district-protect-educational-rights-students

The resulting settlement agreement requires Lewiston to end its systemic and discriminatory practice of excluding students from full school days because of behavior related to their disabilities. The settlement agreement is available here: https://www.justice.gov/crt/case-document/lewiston-public-schools-settlement-agreement

The Lewiston agreement should be a clear indication to other Maine school districts that providing a student with disabilities with less than a full day of school is an often improper practice and has the potential to violate the students’ federally protected rights.[2] When it is apparent a student requires additional behavioral supports or services, the IEP team should meet to discuss any changes needed to the IEP and maintain a full school day. The decision to shorten a student’s day cannot be based on staff availability, purported safety concerns, or the lack of an appropriate placement. And, as the Lewiston agreement highlights, districts should not use abbreviated school days as transitional placements for students with disabilities while those students are awaiting other placements.

As students return to classrooms after over a year of disrupted learning opportunities, and as additional disruptions loom large due to the ongoing pandemic, it is more important than ever to put an end to the discriminatory practice of providing students with less education when they are demonstrating that they actually need more services and supports.

If your child is currently on an abbreviated or shortened school day, you should consider requesting an IEP Team meeting to demand a return to a full school day with the specialized instruction, related services and other supports required to support equal access to educational opportunities. And if your self-advocacy attempts are unsuccessful, please consider calling DRM to request an intake appointment, or use our online intake form: https://drme.org/online-intake-form

[1] https://drme.org/news/2021/press-release-052821

[2] Though there may be students who have difficulty accessing a full school day due to a documented medical need, those circumstances are rare.

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