Schooling at Risk

103 Iowa Law Review 872 (2018)

UNC Legal Studies Research Paper

53 Pages Posted: 20 Jul 2018

See all articles by Barbara Fedders

Barbara Fedders

University of North Carolina School of Law

Date Written: March 18, 2018


For much of the nation’s history, states excluded entire groups of students from mainstream public-school classrooms based on classifications of race or disability. Although Brown vs. Board of Education and its progeny, as well as the Individuals with Disabilities Education Act, now prohibit the most blatant and egregious forms of this type of exclusion, a new version has emerged. Over the last thirty years, schools have suspended, and transferred into separate schools known as Alternative Education Programs (“AEPs”), a significant and growing number of students.

Proponents of this new version of exclusion argue that these practices can help to curb misbehavior, promote school safety, and assist students in obtaining academic success. Yet research shows that suspending students does little to improve behavior; nor does it necessarily improve school safety. And while policymakers intend for AEPs to re-engage students at risk of educational failure, they are often demonstrably inferior to regular public schools and thus unable to accomplish these stated objectives. Perhaps most troubling, the individual students at greatest risk of suspension and transfer to AEPs are from those groups once subject to de jure segregation and outright bans from classrooms: African-American students and students with disabilities.

This Article contextualizes suspension and AEP transfer within the longer history of exclusion of Black students and students with disabilities. It describes how pre-civil rights school districts justified group-based exclusion of African-American students and students with disabilities on the basis that they were undeserving of the full promise of public education. It then analyzes the rise in suspensions and growth of AEPs and outlines their problematic features, while drawing important parallels between the new exclusion and the historical trope of the underserving child. It shows the ways in which suspension resists legal challenge, as well as how traditional tools for promoting educational equity are likely to be inadequate in addressing the flaws of AEPs. Looking forward toward possible solutions, the Article commends the small but growing number of schools finding non-exclusionary ways to address misbehavior and suggests that rather than seek to reform AEPs, policymakers should consider abandoning this failed educational innovation.

Keywords: Education, Juvenile Justice, Civil Rights

Suggested Citation

Fedders, Barbara, Schooling at Risk (March 18, 2018). 103 Iowa Law Review 872 (2018), UNC Legal Studies Research Paper, Available at SSRN:

Barbara Fedders (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
chapel Hill, NC 27599
United States

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