This article was originally published in The Notebook. In August 2020, The Notebook became Chalkbeat Philadelphia.
Six years after the original complaint was filed by the Education Law Center, the U.S. Department of Justice has worked out an agreement with the Pennsylvania Department of Education that recognizes discriminatory practices in the state’s vast “alternative education” complex for students who have disciplinary infractions. The Justice Department found that students with disabilities are disproportionately sent to these programs.
In an investigation triggered by the Education Law Center (ELC) complaint, the Justice Department also found that these programs, known as AEDYs (Alternative Education for Disruptive Youth), do not provide required services to English learners.
But the finding did not address the issue of racial disparities, even though that was a major part of the original complaint. In 2013, for instance, there were 35 districts, including Philadelphia, in which the proportion of African American students in AEDYs exceeded their districtwide share by 25 percentage points or more.
Asked about this, a Justice Department spokesperson issued this statement: “We conducted a thorough investigation and the settlement agreement resolves the concerns we found during that investigation.”
As part of the agreement, the state Department of Education said, it has started implementing sweeping changes and has appointed a statewide AEDY team that includes two administrators in Harrisburg and regional coordinators.
“PDE has made changes to the approval and general oversight of AEDY and believes that these improvements will advance the goal of providing a nondiscriminatory environment for all students,” the department said in a press release.
The School District of Philadelphia, which operates several accelerated and disciplinary schools, said that it was studying the federal finding and would abide by its requirements.
“We will definitely follow any additional regulatory guidance from the Pennsylvania Department of Education and look forward to working with PDE and our AEDY partner to do so,” the District statement read.
Using data obtained through right-to-know requests, the ELC established that students with disabilities and students of color were disproportionately placed in these alternative disciplinary programs. For instance, 15 percent of students statewide have disabilities and Individualized Education Programs (IEPs). In 2011-12, nearly 44 percent of those in AEDY programs had IEPs, a proportion that had fallen to 38 percent two years later.
The Justice Department’s Civil Rights Office, which conducted the investigation, said it found violations of the Americans With Disabilities Act and of the 1974 Equal Educational Opportunities Act that prohibits discrimination based on national origin and requires states to take actions to help students overcome language barriers – the basis for the finding regarding English learners, which the ELC complaint did not include.
“The agreement requires PDE to ensure that students with disabilities receive individual assessments to determine whether they are being placed in alternative education programs because of their disability,” said a statement released by the U.S. Attorney’s Offices for the Eastern, Middle and Western Districts of Pennsylvania.
It noted that the AEDYs, which include programs in Philadelphia such as Camelot, “are separate from students’ usual general education programs and do not typically offer the same access to instructional programs or activities.”
When the complaint was filed, Pennsylvania had more than 700 AEDY programs, which the state approves. Now, that number has precipitously declined. (This system is different from the placements, usually residential, for students involved in the juvenile justice system, which included Glen Mills.)
When the original complaint was filed, more than 14,000 students had been assigned to these programs. Two years later – during an austerity period when state money and incentives available for this and other special programs had dwindled considerably – that number had fallen to just under 10,000.
There are also other disciplinary placements not approved by the state where thousands of students are assigned each year.
ELC’s data also shows that less than one-third of the students who are assigned to AEDY programs ever return to regular schools – a statistic that the center called troubling.
ELC executive director Deborah Gordon Klehr said the agreement “has the potential to significantly transform alternative education in Pennsylvania in a positive direction.”
She said she hopes that the number of students assigned to these programs continues to drop as “fewer inappropriate placements are made.”
But she expressed dismay that the Justice Department failed to address the issue of racial disparities in these disciplinary referrals, which are stark statewide. In 2013-14, about 15 percent of students in Pennsylvania schools were black, but the percentage of black students in AEDY schools was 34 percent.
In Philadelphia in 2013-14, 53.4 percent of the students were black, but 80.3 percent of students in AEDY programs were black. The disparities from other districts were also large – in Pittsburgh, for instance, 54.2 percent of the students are African American, compared to 82.9 percent of those in AEDY. In Norristown, 39.5 percent of the students are African American, compared to 71.1 percent of those in AEDY.
Gordon Klehr pointed out that the agreement says that PDE “may open” the complaint process “to all students,” and said she hoped the department would do this, with special attention to students of color.
Asked about this, PDE issued a statement that says in part: “As an underlying principle, PDE is deeply committed to the principle that all students in the Commonwealth are entitled to an equal opportunity to learn in educational environments that are free of discrimination.”
In the agreement, PDE has agreed to update program guidelines, develop an electronic system to better monitor the AEDYs, implement a complaint system, and improve communication with families and students so they understand their rights. It also will work to ensure AEDY programs have enough faculty with credentials to teach English learners and provide professional development for teachers and others in a position to refer students to disciplinary schools.
“PDE will provide supplementary technical assistance to [districts and charter schools] that PDE identifies as having unwarranted disproportionalities in referrals resulting in placements to AEDY programs on the basis of disability,” the agreement says.
“I really do think this is an incredible opportunity to make changes,” Gordon Klehr said. She pointed out that the agreement includes information about how much time students should be in a program – often, the AEDYs have shorter hours than the 990-hour yearly requirement. She also noted that parents can make complaints to PDE, and the state is emphasizing community engagement.
In a statement announcing the agreement, Assistant Attorney General Eric Dreiband of the Civil Rights Division said: “All students should be provided an opportunity to succeed and are entitled to learn in an educational environment free from discrimination.”
This story has been amended to reflect that the number of officially approved AEDY programs has declined significantly and to clarify that Camelot is the only one listed in Philadelphia.