If you have children enrolled in public school, have worked in public education at any point in the past decade, or you have picked up a newspaper in the last twenty years, chances are you are acutely aware that student discipline in the public school arena has been heading down the tubes for quite some time. Perhaps some of you reading this article were like me in that, when you cut up in class, you were lucky if your mother or father didn’t come to school, jerk you out of class, and throw down their parental wrath long before you received any disciplinary action from the school. I didn’t act up very often, but when I did, I faced tough love from all angles and, for that, I am genuinely grateful, as it kept the trajectory of my future aligned in a positive direction.
So why is student discipline in America’s public schools in such a state of disrepair? As a school law attorney, I submit that the reason is two-fold: First is the obvious, poor (or lack of) parenting, which has led to an increase in student misconduct nationwide, stretching public schools thin when it comes to dealing with such a sea of misconduct. The second overarching reason can be traced to the federal educational regulations established and enforced by the U.S. Department of Education, and even more specifically, the Education Department’s Office for Civil Rights (OCR).
Let’s start with the latter and I want to be clear - the problem is not that OCR largely shields students with disabilities from significant disciplinary action. The intent behind the federal regulations is important to understand and embrace: students who genuinely have a physical or mental disability should not be punished for manifestations of their disabilities, as these are out of their control. Ultimately, these are federally-created legal parameters that require public schools to accommodate disabled students as much as reasonably possible, in an effort to put them on as close to a level playing field as possible with respect to their non-disabled peers. You will be hard-pressed to find anyone who disagrees with this premise, except for position that the federal government should not have its nose in public education at all.
The real problems that stem from these federal regulations are the many unintended consequences. Today, I will only hit on only one, but in my opinion it is one of the most impactful unintended consequences created by the federal regs: the misdiagnosis of many children with Oppositional Defiant Disorder (ODD). The vast majority of folks reading this article have never heard of this medical diagnosis, chiefly because it is a relatively newer medical condition that did not become popular within public education until the late 1990s and into the 21st Century. While I certainly wanted to bring this condition to everyone’s attention, it is more important that we understand the short and long-term impacts of having American children diagnosed with this condition. So what is Oppositional Defiant Disorder? As stated in the U.S. National Library of Medicine, ODD is characterized by children who exhibit a “pattern of disobedient, hostile, and defiant behavior toward authority figures.” Also, there must be a pattern of disobedient behavior that lasts for “at least 6 months and [the pattern] must be more than normal childhood misbehavior.”
Perhaps you know a child who has been disobedient for more than six months and perhaps they seem to be more disobedient than their friends or acquaintances at school. He or she may very well qualify for a diagnosis of ODD. As a lawyer who has the utmost respect for medical professionals – so much so that I almost pursued a career in med mal defense – I reluctantly state that doctors are handing out ODD diagnoses like Halloween candy. It is approximated that ODD affects 20% of school-age children in the United States.
So, in the school setting, what does this mean if a child has been diagnosed with ODD? Children who do not obey teachers, school administrators, and other school officials are essentially shielded when it comes to long-term disciplinary consequences at school, so long as they can show valid, written documentation of an ODD diagnosis and they successfully show that the conduct was typical of a student with ODD. I must emphasize that the student can still be suspended, but in a public school setting, once the student has accumulated over 10 out-of-school suspension days, the student’s individualized education program (IEP) or Section 504 team, is legally required to hold what is called a Manifestation Determination Review meeting, which poses one central question that the team is required to answer: was the student’s behavior caused by or substantially related to his or her disability?
Having attended dozens of MDRs, let me tell you that the answer is almost always yes when it involves a student with ODD because the range of symptomatic manifestations of ODD is so vast. The rare instances that I have witnessed in which teams have answered “no” (i.e. that the misconduct was not substantially related to the disability) are such that there was enough evidence to establish that the student clearly and deliberately planned out an act of misconduct. Very rarely is this caliber of evidence available to IEP or 504 teams when meeting to discuss the student’s behavior in light of his or her disability, as so much of the discussion requires the team to get inside the student’s head.
My point is simply that it is oftentimes extremely difficult to implement any sort of long-term, significant, or meaningful disciplinary action against a student with ODD who has engaged in serious misconduct. Well-meaning federal regulations backed by good intentions are, like many laws, flawed and this is perhaps most visible in the present era of ODD popularity. Though I cannot speak in any real or tangible numbers, I can tell you that our school district has seen substantial increases in the number of ODD diagnoses over the last four years, which makes every MDR meeting that much more difficult for school-based personnel who are trying to do the right thing when it comes to student discipline, but who are tied by a combination of the federal regs, but oftentimes even a problem so simple as a misdiagnosis.
I leave the question of whether or not ODD is a bona fide medical condition for another time and place, but it is a loaded debate that begs folks to ask “when are kids just being kids” and “when are kids simply going through typical developmental challenges”. These questions must be asked and should be debated if we care about maintaining a culture of discipline, order, and respect in our schools – not to mention safeguarding the rights of non-disabled students as well. My fear is that, through this article, I have provided readers with a medical recipe to largely shield their children from discipline at school. You would be amazed at the increasing popularity of this diagnosis. My hope and belief, however, is that most readers have the integrity to actually care about this issue to the point where they tell someone else about it, as it this is a conversation that needs to be had on a nationwide level.