Case: DOJ Investigation of Pennsylvania Department of Education

This case is an investigation into allegations of discriminatory placement of students in Pennsylvania’s Alternative Education for Disruptive Youth (AEDY) programs. On August 7, 2013, the Education Law Center (ELC) filed a formal complaint with the Civil Rights Division of the United States Department of Justice. The ELC complaint alleged that the Pennsylvania Department of Education’s (PDE) policies and practices regarding placement in AEDY programs had resulted in a disproportionate number of Black students and students with disabilities in the programs. The ELC argued that the AEDY programs were significantly more limited in educational opportunities and thus inferior to traditional public schools. The ELC filed their complaint with the Department of Justice for alleged violations of Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act of 1990, and Title VI of the Civil Rights Act of 1964. Relatedly, the ELC argued that PDE had neglected its duty to ensure that all students with disabilities in the AEDY programs received an appropriate public education under the Individuals with Disabilities Education Act. 

The ELC also alleged that the PDE had not monitored non-AEDY disciplinary programs, and as such there was no information on whether those programs disproportionately and adversely affected students with disabilities or Black students. The ELC requested that the Department of Justice investigate these alternative disciplinary programs to determine whether the students placed in these programs receive a quality education. 

Under Title II of the Americans with Disabilities Act, which prohibits schools from discriminating on the basis of a disability, the Department of Justice conducted an investigation into the practices of PDE. On March 25, 2019, the Department of Justice and the United States Attorney’s Offices for the Western, Middle, and Eastern districts of Pennsylvania announced that they had reached a settlement agreement with PDE. While the agreement prohibited discriminatory placement in broad terms, it did not directly address issues of race or ethnic discrimination that were raised by the ELC. Instead, the agreement focused on enforcing requirements of the Americans with Disabilities Act and the Educational Opportunities Act for students with disabilities. The settlement agreement also failed to address any potential Title VI issues.

Prior to the settlement agreement, PDE had already implemented an AEDY supervisor who was responsible for overseeing the preparation of all data, reports, and information that would be submitted pursuant to the settlement agreement. PDE also hired an AEDY coordinator who served as the primary administrator of the AEDY programs. As part of the agreement, PDE was required to hire additional regional coordinators who would report directly to PDE. 

The settlement agreement required that the PDE develop and implement a complaint process through which students with limited English proficiency and students with disabilities and their guardians could resolve any concerns regarding the AEDY programs. These concerns could include placement and exiting decisions, the quality of instruction in the programs, the provision of language assistance services, and reasonable accommodations for students with disabilities. The Equal Education Opportunities Act §1703(f) requires that the AEDY programs utilize teachers holding ESL Teaching Credentials and use materials that are appropriate for a student’s level of English proficiency. The settlement agreement required that these accommodations be met and that the AEDY programs establish service plans for all students that were adequately translated and interpreted to the students’ parents. 

In order to ensure non-discriminatory referrals and placements in AEDY programs, the settlement agreement required that any student with a disability be assessed to determine whether the behavior that was causing a potential placement in the AEDY was a manifestation of a disability. In the event that the behavior was caused by the student’s disability, that student could not be placed into an AEDY. 

The settlement agreement also addressed the complaints of inadequate educational opportunities in the AEDY programs. The agreement prohibited PDE from approving any AEDY program applicant who would not operate for the same number of hours a day that General Education Programs were required to operate under Pennsylvania law. PDE also agreed to require that all AEDY programs be capable of providing necessary special education services to students with disabilities, including having certified staff, programs, and services. 

The settlement agreement also outlined the procedure for students exiting the AEDY programs. Within 5 school days of placement of a student with a disability in an AEDY program, the administrators were required to set clear exit criteria with measurable behavioral goals that could be achieved by a clearly expressed exit date. To prepare for a situation in which a student was able to exit the program early, the administrators were required to meet at least once a semester to re-assess the student’s presumptive exit date. 

PDE was also required to develop an electronic system to streamline data collection and reporting. PDE was required to, on at least an annual basis, collect and synthesize data on the student and state-wide levels. Because PDE already had a framework for monitoring AEDY programs that included site visits to AEDY programs, the Department of Justice asked that the additional data collection be used in conjunction with ongoing site visitation. PDE also agreed to conduct additional site visits in the event complaints relating to specific AEDY programs. 

The settlement agreement became effective on May 31, 2019. The initial term of the agreement was three years with a presumptive termination date of 60 days after the filing of a final annual report by PDE on April 1, 2022. At any point after the agreement had been in effect for two years, PDE had the opportunity to demonstrate that it was in compliance with the Americans with Disabilities Act and the Equal Educational Opportunities Act regarding the matters covered by the agreement. 

On June 1, 2022, the Department of Justice announced that it had concluded its oversight of PDE and the AEDY programs. The Department of Justice reported that PDE had fully implemented the settlement agreement. After reviewing their final report, PDE was found to have achieved substantial compliance and monitoring ended on May 31, 2022.