This unregulated disciplinary tool is of dubious value and could violate students’ due process rights.

An analysis of data from the federal Civil Rights Data Collection, which includes every public school in the nation, found that student suspension rates have been declining in America’s schools. Specifically, researchers from the nonprofit group Child Trends found that K-12 schools suspended, on average, 4.5% of their students in 2017-18, compared to 5.6% in 2011-12 (Ryberg et al., 2021).

At face value, this is a heartening trend. It implies that student behavior has improved and that schools are safer. But what if neither of those conclusions is accurate? What if the data available don’t tell the whole story?

A potential gap in the data involves abeyance agreements (AAs). Schools across the United States use AAs as a disciplinary option, yet little is known about them. AA data isn’t reported to any monitoring agency, including state or federal departments of education or the U.S. Department of Education’s Office for Civil Rights (OCR). This means that they operate outside the system designed to ensure schools are treating students fairly and without discrimination. Is this disciplinary tool enabling school officials to mete out consequences for violations of code of student conduct without any oversight or accountability?

What is an abeyance agreement?

It’s difficult to find a clear definition of an abeyance agreement, in part because districts and schools use different terms to describe them. The countless variations might include such parent-appeasing terms as “pre-expulsion agreement” or “second-chance program.” You’re more likely to identify an AA by its functional characteristics than from its label.

In the school context, AAs are behavior contracts laid out before a suspension or expulsion in which the school agrees to halt the disciplinary action as long as the student does not engage in any further misconduct during a specified period. These agreements have the seemingly positive effect of allowing the student to continue attending either the neighborhood school or an alternative school, but they require the student to waive all rights to procedural due process, including the right to a hearing or to an appeal.

Origin of the abeyance agreement

In the criminal justice setting, the practice of abeyance is associated with a plea deal. According to motion and appellate attorney Lisa Linney, “In the U.S., abeyance (more commonly known as probation) began in Boston in 1841, but it dates back to the Middle Ages in England. In 1925, the Probation Act created probation in federal courts” (personal communication with author, June 16, 2022).

Discretion doesn’t justify the application of a faulty discipline practice, especially when that practice requires the waiving of students’ rights.

Each state has its own system of probation. For example, the Utah courts define a “plea in abeyance agreement” as an agreement between the prosecuting attorney and the defendant that sets forth specific terms and conditions upon which a charge or conviction can be removed from the defendant’s record (Utah Courts, n.d.). A defendant pleads “guilty” or “no contest” to the charges and, after completing the conditions of the plea in abeyance agreement, the charges are dismissed and there is no conviction on the person’s record.

If you enter into a plea in abeyance agreement, the Utah courts state that you are waiving nearly all the rights that you have as a criminal defendant. That includes your presumption of innocence, right to counsel, right to a jury trial, and right to appeal.

AAs in the school context

Criminal justice AAs and school AAs are unsettlingly similar. A simple Google search brings up a variety of school AA templates. One such agreement requires that the student agree to give their “best effort” in all subjects every day (NEOLA, n.d.) to avoid suspension or expulsion. How does one measure “best effort”? Who gets to determine whether the effort level meets the standard — the student, the teacher, or the administration? Will the clock reset if a student puts forth merely a “moderate effort” during Tuesday’s 7th-hour social studies class? Or will a moment of daydreaming trip the “best effort” provision and usher in a suspension or expulsion without a right to appeal (because the student waived that right in the agreement)?

Although the titles and language may differ, there are five components that regularly appear on AAs:

• An acknowledgement of the student’s wrongdoing.
• Duration of the agreement.
• An attendance policy.
• A restatement of school rules.
• A waiver of due process.

First, the student must explicitly acknowledge that they violated the code of conduct. In contrast to the U.S. justice system, there is usually not a “no contest” option, only a guilty plea. Next, the AA limits the duration of the agreement to a specified period of time during which the student typically agrees to attend every class every day and to obey all school rules, and often little more. But the most concerning element is the requirement that the student and their parent or legal guardian agree to waive the student’s right to a hearing on the suspension and/or to any subsequent appeal.

While it may seem simple to require students to follow the code of conduct, those codes are often quite complicated. For example, Arizona’s Tucson Unified School District’s (TUSD) Student Code of Conduct is a 26-page thicket requiring high reading comprehension levels, time, and a winner’s attitude. It also states, that for long-term suspension or expulsion, “[t]he District shall provide more formal due process as a legal safeguard to protect the constitutional rights of students and parents/guardians” (TUSD, 2020). However, TUSD’s AA template contradicts and nullifies this statement by requiring that the student and parent or legal guardian agree to waive their right to hearings and appeals (TUSD, 2012). Thus, a student under an abeyance agreement who fails to follow a single rule may be subject to suspension without due process.

Reasons for abeyance agreements

It’s easy to understand the appeal of these kinds of agreements for students who are on the brink of suspension or expulsion. School officials champion AAs as a way to offer a second chance for typically rule-abiding students who were unjustly snared by zero-tolerance discipline policies by, for example, bringing a small toy gun to school. The AA also might act as a discreet mechanism for social justice in a school environment striving to offer support to students who need it, rather than taking punitive measures. While these are well-intended motivations, there is no empirical evidence to support the efficacy of AAs in education. In fact, the AA is a magic wand that makes discipline records disappear.

School officials must be afforded professional discretion. As I’ve written elsewhere (Perrodin, 2019), “There is a longstanding legal standard that educators should act ‘in the best interests’ of students, which means teachers have the right to use their discretion to determine what is in the students’ best interests”; furthermore, “[t]he discretion and authority afforded to school officials must enhance student rights beyond what is provided for in the Constitution” (p. 134). But discretion doesn’t justify the application of a faulty discipline practice, especially when that practice requires the waiving of students’ rights.

An AA’s allure is not just about giving students second chances. Because AAs do not have to be reported to local, state, or federal agencies, districts using AAs avoid creating public discipline data and keep their actions “off the books.” Theoretically, outside entities could seek these records through a Freedom of Information Act request/disposition, but school officials or legal counsel might legally refuse to fulfill the request, citing that the discipline information is protected by the Family Educational Rights and Privacy Act.

AAs also are simple and quick, requiring far less paperwork and reporting than a suspension or expulsion. The AA is usually a one- or two-page fill-in-the-blank contract completed and signed in a short meeting. The options are usually limited, with little room for negotiation.

Parents tend not to complain about the process because of the power differential between them and the school, a government institution represented by authorities with advanced degrees and initials after their names. The school might even have its legal counsel attend the meeting during which the student and their guardians see the AA for the first time, without the opportunity or the means to bring in their own legal representation. In these instances, parents may well perceive the AA as a “gift” from the school and sign it to bring the matter to a close and scrub their child’s behavioral record clean. Parents with high status or who’ve threatened to unleash negative publicity against the school may even believe that the AA offer means they’ve browbeat the school into making a deal.

Circumventing reporting requirements and due process

School choice policies and federal reporting requirements, which brought reportable school discipline incidents to the forefront of public scrutiny, have made abeyance agreements even more appealing. Too many suspensions and the state department of education might flag your school and assign the cumbersome, embarrassing homework of a corrective action plan. At the same time, it would be a hit to the school’s reputation. The No Child Left Behind Act offered parents options to remove their children from “dangerous schools” (U.S. Department of Education, 2004), and what parent would choose to send their child to a dangerous school? These shifts led some school officials to manipulate all available levers to dampen reportable school discipline figures.

Even more substantial shifts occurred when the Office for Civil Rights (2014) issued detailed guidance on “how to identify, avoid, and remedy” what it called “discriminatory discipline.” When that guidance was released, “more than 50 of America’s largest school districts instituted discipline reform. More than half the states revised their laws to try and reduce suspensions and expulsions” (Kamenetz, 2018). Although disciplinary reform was no doubt needed, AAs allow for the appearance of reform while violating due process.

Once an AA is signed, the investigation ends — often without any understanding of the root cause of the disciplinary violation.

Due process in the disciplinary arena of education is guaranteed by statute. In general, students’ parents or guardians have the right to request an expulsion hearing, have an attorney present at the hearing, plead their case, and so on. If they disagree with a hearing decision, they can appeal to the school board and then to district court. In the context of AAs, due process is violated for the student both when the AA is initially signed and if it is violated. Because an AA may require a transfer to an alternative setting and the waiving of rights (making it just as serious as a regular suspension or expulsion), there should be a due process hearing before the agreement is signed. Remember that if a student violates the terms, they are then automatically suspended or expelled because they waived their rights.

Consider a student who agreed to a 90-day AA as a consequence of fighting. A month later, that student is involved in another fight. Under the terms of the agreement, school officials could suspend or expel them without a due process hearing. And there’s a bettor’s chance that none of this would end up being reportable data to any oversight agency.

No guidelines exist for implementing AA policies. Because the practice is entirely unregulated, there are no set definitions, and school boards can simply write the practice into their policies. With no reporting requirement, oversight, accountability, or efficacy research, most AAs are expunged from school databases after they expire, unlike school suspensions and expulsions, which must be reported to the state and federal government.

Further, because there are no records maintained, there is no evidence that AAs are applied fairly. We know that minority students, particularly Black students and students with disabilities, are subjected to exclusionary discipline at higher rates than their white or abled counterparts (Ryberg et al., 2021), so they are likely to be disproportionately subject to AAs. For a student with a disability, an AA also might circumvent processes required by law (see Underwood, 2020) or under the student’s individualized education program (IEP).

Quick resolution without long-term remedy

The AA is a conclusive action to a disciplinary investigation that diverts school resources from other educational efforts. Once an AA is signed, the investigation ends — often without any understanding of the root cause of the disciplinary violation. The “why” behind student behavior often remains unanswered.

The needs of students aren’t met when school officials substitute a suspension or expulsion with an abeyance agreement. AAs do not teach new skills or remediating behaviors to the student. There is a low threshold to fulfill the AA. There are no learning objectives for the student, merely expected compliance.

AAs also destroy a student record that might reveal a skill deficit, pattern of behavior, or even a systemic practice of institutional bias. In most cases, because schools do not keep records of AAs, this practice can have implications down the line if a student brings harm to self or others and there’s no record of related incidents. Students who engage in violence at school often provide clues to their intentions, even making others aware well before carrying out the act, a phenomenon known as leakage (O’Toole, 1999). AAs are not sensitive to leakage and cannot be used in threat assessments that might uncover leakage. We have no data on whether students who committed acts of egregious school violence were currently serving out or previously participated in an AA.

The use of AAs robs society of essential discipline data. Do they help improve students’ behavior? Do they make schools safer? Are those the perceptions of students, teachers, school officials, and parents? Probably not.

Abeyance agreements must be abated

Abeyance agreements are an objectionable school discipline practice. They coerce students and their parents or guardians to sign away due process rights, and they impede the work of violence prevention. Although school officials and their legal counsel may affirm the process, there’s no evidence that AAs benefit students, families, or schools.

Is it possible to reform AAs so they provide the second chance some hope for when signing them? An overhaul of AAs would require the following, at a minimum:

• Standardization of state or federal definitions and implementation guidelines.
• Elimination of the option to waive due process.
• Creation of a reporting system for transparency and data tracking.

These steps would essentially create a new category of discipline, a “stayed” suspension, which might be worth considering if the goal is to keep students in school. However, I believe the most ethical course of action is to pass federal legislation to abolish the AA as a disciplinary option for educators. We cannot continue to condone something that impinges on constitutionally guaranteed rights.

References

Kamenetz, A. (2018, December 17). Suspensions are down in U.S. schools but large racial gaps remain. NPR.

NEOLA. (n.d.). Agreement to hold expulsion (suspension) in abeyance (Sample). Author.

Office for Civil Rights. (2014, January 8) Dear colleague letter on the nondiscriminatory administration of school discipline. U.S. Department of Education.

O’Toole, M.E. (1999). The school shooter: A threat assessment perspective. FBI.

Perrodin, D.P. (2019) School of errors: Rethinking school safety in America. Rowman & Littlefield.

Tucson Unified School District. (2012) Abeyance contract for a long-term suspension. Author.

Tucson Unified School District. (2020). Student code of conduct. Guidelines for student rights and responsibilities. Author.

Underwood, J. (2020). Disciplinary policies for students with special needs. Phi Delta Kappan, 101 (8), 64-66.

U.S. Department of Education. (2004, June 17). Public school choice: Quick reference for parents. Author.

Utah Courts. (n.d.). Pleas in abeyance. Author.

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This article appears in the November 2022 issue of Kappan, Vol. 104, No. 3, pp. 24-28.