Abstract

Expelled students have intense educational needs, yet few states protect their rights to alternative education during the period of expulsion or reinstatement to mainstream education following the period of expulsion. Instead of strengthening those rights, the No Child Left Behind Act (NCLB) creates an incentive structure that encourages the exclusion of expelled students from all access to educational opportunity.The lack of educational access for expelled students is a serious concern. Students of color are expelled at rates that far exceed their representation in the school population. As a result, denying expelled students access to education exacerbates the equitable harms caused by racial disparities in the application of school discipline and widens the achievement gaps caused by discrimination and inequality in the school system. Moreover, the widespread adoption of zero tolerance policies has created a situation in which American public schools expel tens of thousands of students each year, often for minor, first-time offenses. Depriving these students of access to education has a devastating impact on their lives, and ultimately leads to public expenditures that far exceed the cost of public education.This Comment examines legal strategies for counteracting NCLB's exclusionary incentives and expanding expelled students' access to education. Changes to the implementation of the NCLB accountability framework could change the incentive structure from the top, while litigation challenging exclusion at the school level could change the incentive structure from the bottom. In addition, strengthening the educational guarantees provided by the state constitutions could close the loopholes through which too many expelled students are deprived of educational opportunity.