November 28 — 12:00 am, 2002

Law unfairly excludes students from their regular school

Why Pennsylvania's Act 88 is being challenged in court

As Pennsylvania’s legislative session was drawing to a close on June 28, the General Assembly passed Act 88, a law with a profound impact on Philadelphia’s youth.

With Act 88, the legislature amended the Pennsylvania School Code, mandating that all youth who are adjudicated delinquents in Philadelphia, whether on probation or returning from a delinquency placement, be referred to a transition center for assessment and then to either an alternative school for disruptive students, a "Twilight " educational program, or a G.E.D. program.

The act specifies that under no circumstances are these adjudicated students to return directly to their regular public schools.

The new language applies regardless of the student’s offense history, academic record, or school discipline record. The act was purportedly passed to address a perceived problem of excessive violence and disruptive behavior in Philadelphia’s public schools.

In September, students represented by the Juvenile Law Center and the Education Law Center challenged the act in a class action lawsuit filed in the Philadelphia Court of Common Pleas.

The students challenged Act 88 on several grounds. The central theme of the students’ challenge was that Act 88 unlawfully treats Philadelphia adjudicated students differently from all other students in the Commonwealth Ð and from all other allegedly disruptive students in Philadelphia.

As a consequence of Act 88, Philadelphia becomes the only school district in Pennsylvania (distinct even from public charter schools in Philadelphia) where a child can be excluded from regular school without an individualized determination that he or she has actually violated school rules. For the first time in Pennsylvania, Act 88 establishes a presumption that certain students adjudicated delinquent youth in Philadelphia are "disruptive" students unfit to attend regular school.

The students’ lawsuit thus claimed that the act:

  • unconstitutionally singled out Philadelphia adjudicated delinquents for removal from the regular classroom,

  • unconstitutionally denied Philadelphia adjudicated delinquents the same rights to due process prior to assignment to an alternative school that all other students throughout the Commonwealth receive,

  • unconstitutionally stigmatized these students, and

  • jeopardized their rights to special education as guaranteed by federal law.

While the act was touted by its drafters and school administrators as a tool to remove violent students from Philadelphia’s public schools, only about one in four youth adjudicated delinquent in Philadelphia are actually adjudicated for violent crimes.

Approximately 75 percent of the youth are adjudicated for property crimes, other non-violent offenses, or drug offenses. Additionally, the vast majority of crime committed by youth takes place outside of the school setting.

Moreover, for the 2000-2001 school year, the rate of acts of violence or weapons offenses in the Philadelphia School District was no worse than elsewhere in the state and, in fact, was slightly lower than the rate for all students in all counties.

Rather than a carefully crafted law aimed at a particular class of dangerous students, Act 88 is a blunt instrument that will likely sweep up vast numbers of students who pose no threat to school safety or classroom disruption at all.

Apparently members of the state legislature took note of at least some of the challenges. At the end of the most recent legislative session in late November, the General Assembly passed another bill, which now amends Act 88. The new bill limits the harsh provisions of the act to adjudicated students returning from placement only – students placed on probation have been excluded from the section’s coverage – and allows some discretion in some cases for students to be returned to their regular classrooms.

Under the new language, however, all those adjudicated students will still be required to report first to a transition center for assessment. In addition, students whose offenses involved weapons, sale or possession of controlled substances, sale or possession of alcohol or tobacco on school property, and certain violent offenses must still be referred to an alternative school for disruptive students, a G.E.D. program, or a Twilight program.

While these proposed amendments have at least spared youth on probation, they still fail to address key questions posed by the students’ lawsuit.

Why is such a law necessary at all, when Pennsylvania currently has in place adequate mechanisms to remove any and all disruptive students from the regular classroom? Why single out Philadelphia students? Why deny students fundamental due process protections to match school placement with their actual behavior?

By mandating the removal of students charged with drug offenses or the sale or possession of alcohol or tobacco on school property, the drafters still fail to connect purported concerns about school violence with the actual scope of the act.

Assuming the governor signs the new bill, the Juvenile Law Center and Education Law Center will go forward with the challenge to the amended act. The law still unfairly brands a broad group of Philadelphia students as dangerous.

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