Monday, December 2, 2013
Just before Thanksgiving, a fight broke out between two students at Millennium High School in Goodyear, Arizona, over one student displaying a confederate flag on his car. The school's response: suspend both students for five weeks and ban the student from displaying the confederate flag. The student who displayed the flag still objects, arguing that the flag does not represent racism, but freedom. He offered the standard high school distinction: “The flag means basically more independence, less government. It didn’t mean racism, it didn’t mean slavery, it didn’t mean any of that. It basically meant what they were fighting for was their right to be independent and not have the government control them.”
The school district, of course, responded by pointing out that the confederate flag "has been proven to be patently offensive to certain groups and the courts recognize that.” Moreover, “[o]bviously there was some event that took place it was related to reaction to the flag and it did create an environment where it was disruptive.”
The school is right on courts' interpretation of the flag. Just last year, for instance, the Fourth Circuit in Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426 (4th Cir. 2013), ruled in favor of a school district that had stopped a student from wearing shirts displaying the Confederate flag because the shirts were likely to cause a substantial disruption to the school environment.
While the current student's position on the flag ignores a lot of history and, even as a high school student, I found such arguments to be silly, I often got the sense that many such students were sincere in their ignorance, which potentially makes these cases more complicated. If a student's argument is pretext, a school can easily intervene. But if the student is expressing a genuine, albiet ignorant, belief about independence, a student's argument gets a little better.
Schools have the authority to limit speech that poses a substantial disruption, but Tinker v. DeMoines, 393 U.S. 503 (1969), indicates that they must distinguish between disruptions that are a result of the person expressing himself and those that are a result of inaappropriate reactions by the listener or viewer. After all, there were some disruptions in Tinker when other students responded to Tinker's Viet Nam protest armband. If the response is, for instance, the result of the listener's immaturity, it is wrong to punish the speaker. This line, however, is far easier to draw in theory than reality, particularly when student speakers and listeners border on per se immature and ignorant in various respects.
In the context of the flag, even if the student's position is sincere, the student has to know that others do not see the flag the same as he does, which raises the question of whether such a student is just being coy in the slavery versus independence distinction. Even if the student does not support racism, the student is probably trying to incite a reaction. If the student were not hoping to incite some reaction, might not the student express his position a little differently? Then again, these are students and wisdom is not to be expected.
Rather than engage in pyscho-babble courts take the understandbly easy route out of these cases and just label the flag disruptive. As a practical matter, I suppose that is correct, but skipping analytical steps is dangerous. Consider the fact that in Hinduism a swatiska is a geometric represenation of the god Ganesha. As a general principle, a school might be inclined to perceive swatiskas as inherently disruptive, just like the confederate flag, but that rationale would quickly fall apart if the school sought to prohibit a Hindu student from displaying it.
(image with permission from Jean nguyen)
Wednesday, November 27, 2013
The ACLU of Pennsylvania released its new report on school discipline in the state, Beyond Zero Tolerance. It found that about 10 out of school suspensions “were issued for every 100 students in the 2011–2012 school year. During 2009–2010, 1 out of every 15 students was suspended from school at least once.” Black students were “almost five times more likely to be suspended than White students,” and Latinos three times more likely than whites. African Americans with disabilities were at the highest risk, with 22 out of 100 receiving a suspension. The report's website page also includes helpful information for local communities, posting the discipline and law enforcement data for each district.
The report’s recommendations for reform were:
1. Conduct school-level and district-level reviews of out-of-school suspension as well as law enforcement referral practices. Such reviews should identify which students are most likely to be impacted as well as specific schools where the differences in suspension rates for different types of students (the “suspension gap”) is greatest. Pay special attention to disciplinary actions for broad and vague behavioral categories such as disruption, disorderly conduct, and defiant behavior. Investigate disparities, and adopt corrective measures.
2. Remove students from school only when there is a real and immediate safety threat to the school community. School removal should not be permitted for minor misbehavior (such as dress-code violations).
3. Revise district codes and school-level rules to minimize the disruption in students’ continued access to education. When students must be removed from a classroom or school, establish a learning plan for them.
Wednesday, November 6, 2013
Broward County, Florida, School District has taken a punitive approach to discipline in the past and the results have been racially disparate. African American students, for instance, were suspended at twice the rate of whites and at high levels of frequency. To make matters worse, the district frequently referred students to the criminal justice system, or sought its involvement. Yesterday, the school district entered in to a memorandum of understanding with various other state agencies and actors, including the police department, to reach different results. The goal is to do away with “zero tolerance,” involve the police only as a last resort, and rely on less punitive forms of discipline. The district and police have reduced their decision making process into a flow chart. As you will notice, the flowchart tries to route discipline into the no-arrest category, even in regard to student conduct violations that require consultation with the police. To avoid arrests, it asks whether, for instance, the matter could be resolved by talking with the parents or referring the students to problem solving team or a community based program. Of course, the success of this shift will not be borne out by simply producing a flow chart, but by the individuals administering it and their willingness to take these alternatives seriously. This agreement, however, is the first major step in that direction.
Monday, October 28, 2013
News broke last week of a 6th grade teacher at Ocean Springs Upper Elementary in Mississippi duct-taping a male student's mouth shut for talking too much. According to the student, he was taped and forced to sit in a corner for 10 minutes. Aside from the horrific nature of the act itself, the troubling question is whether it violates the constitution. In Ingraham v. Wright, 430 U.S. 651 (1977), the Supreme Court held that neither the Fourteenth nor the Eighth amendment prohibited corporal punishment of public school students. The Fifth Circuit, in which Mississippi rests, has taken Ingraham's holding and ran with it, sanctioning egregious instances of corporal punishment. See generally Deana Pollard Sacks, State Actors Beating Children: A Call for Judicial Relief, 42 U.C. Davis L. Rev. 1165, 1194-1209, 1222-23 (2009).
Of course, corporal punishment is not duct-taping, but both are subject to the same "shocks the conscience" standard (although I and others would argue that this this standard should not be extended from police cases to school cases). This standard, as current applied, places relatively few limits on outlandish school disciplinary actions. Some courts have been willing to reject student claims arising out of cases such as a teacher slapping a student or locking a student in a closet. Smith ex rel. Smith v. Half Hollow Hills Cent. Sch. Dist., 298 F.3d 168, 173 (2d Cir.2002); Bisignano v. Harrison Cent. Sch. Dist., 113 F.Supp.2d 591, 599–600 (S.D.N.Y.2000). Courts have certainly gone the other way under similar facts, JG & PG ex rel. JGIII v. Card, 2009 WL 2986640 (S.D.N.Y.,2009), but a "win" for the student is never a foregone conclusion.
Friday, October 18, 2013
We often grow so accustomed to racial disparities and horror stories in school discipline that good news comes as unexpected. Today, I have not one but four instances of good news. First, Los Angles Unified School District had a high suspension rate just six years ago and came under the heat of the Office for Civil Rights. Many of those suspensions were for "willful defiance." In 2007, the district adoped a new school discipline policy. In 2011, it entered into an agreement with OCR to make additional changes to stop suspending students for defiance. These two steps, along with a lot of hands-on work, has resulted in a dramatic change in the district. The suspension rate has fallen from 8.1% of students to 1.5% in just six years. More on that story here.
Second, Calvert County, Maryland announced a change to its weapons policy. The policy previously had been applied in an extremely broad way and had resulted in the suspenion of students who did not have weapons, but rather had pointed their fingers like guns, carried toy guns and chewed a a Pop-Tart-like pastry into the shape of a gun. The final story made national news. At least in the area of weapons, we should expect a significant drop in suspensions in the future.
Third, the Boston Public School Committee adopted a new Code of Conduct that centers on alternative discipline and intervention and rehabilitative services. With this move, Boston became the first school district to revise its Code of Conduct to implement a new state law that requires schools to exclude students only as a last resort. More information here.
Fourth, OCR confirmed that it will investigate a complaint that NAACP LDF and Texas Appleseed filed in regard to the racially “disparate impact” of Bryan Independent School District’s discipline policies. The district issues criminal citations for minor misbehaviors and African-Americans receive these tickets at four times the rate of their peers. Credit goes to OCR for stepping up in the area of discipline in recent years. It obviously played a major role in the changes in Los Angeles. Hopefully, it can do the same in Bryan.
Thursday, October 17, 2013
My prior posts have tried to nail down the exact facts in the ongoing saga of a student suspended from her volleyball team and stripped of her postion as captain for coming to a party to pick up a drunk friend and drive her home. Relying on news reports and attorney attestations make me nervous, but, at this point, there does not seem to be a dispute over what actually happened. The student was not drunk, was released by the police at the party that night and, although summoned to court later, was not charged or convicted of anything. Thus, the dispute in this case is over the legality and rationality of the school's decision to suspend the student from the volleyball team. I was rather shocked to red Bryan Toporek's defense of the school in EdWeek Tuesday. He wrote:
Despite a police officer vouching for her sobriety in writing, Cox was one of those 15 summoned to court. Once that happened, the school acted accordingly.
The high school's student handbook specifies that "from the earliest fall practice date to the conclusion of the academic year or final athletic event (whichever is latest), all student-athletes must not "use, consume, possess, buy/sell, or give away any beverage containing alcohol; any tobacco product; marijuana; steroids; or any controlled substance." Once the school's principal confirms a violation of this policy, following "an opportunity for the student to be heard," the student loses eligibility for 40 percent of the season.
Additionally, per the handbook, "a captain who is disciplined or involved in any incident involving an alcohol/drugs (controlled substance) violation at ANY TIME, including Summer Vacation," will lose his/her captaincy in addition to any other consequences."
Long story short: The handbook is pretty cut-and-dry here. By virtue of Cox being summoned to court for drinking (even though she didn't consume alcohol that evening), the school had little choice, based on the way their policy is currently written, to strip her of her captaincy.
Toporek, like the school, jumps to a lot of false conclusions. The Supreme Court has rejected attempts to scrutinize school rules in the same manner as criminal codes, but the Court has never indicated that the rules do not matter or that schools can apply them irrationally. First, it is far from clear that simply being summoned to court constitutes involvement with drugs or alcohol. The summons could be false, incorrect, or necessary for the court to obtain information from a witness. Testifying in drug case, for instance, is not involvement with drugs; it is involvement with the court system, a far different thing. Surely, involvement with the court system is not a punishable offense. If so, the school rule would amount to an obstruction of justice.
Wednesday, October 16, 2013
I still have not placed my fingers on the pleadings, but I was able to speak with Erin Cox’s attorney, Wendy Murphy. For those who missed it, yesterday I posted on Massachusetts high school that suspended (from athletic opportunities) a student who drove to a party to come to the aid of an intoxicated friend who needed a ride home. The initial story was that the school suspended Cox for violating its zero tolerance policy in regard to drugs and alcohol even though Cox was not intoxicated. The police were there when she arrived and released her to go home because she had not been drinking. She later put forward evidence to verify her story.
The school suspended her anyway and she brought suit in a local state district court to enjoin the suspension. Thinking it would be an open and shut case of mistake, Cox’s mother appeared without an attorney. The school board, however, arrived with its attorney, who alleged that the school suspended her because she was arrested. The initial basis for suspension, as I understood it, was that she had violated the zero tolerance policy on alcohol. According to school’s student handbook, student athletes are forbidden from “knowingly being and remaining in the presence of other minors using alcohol or illegal drugs or controlled substances.” But since the police were there and blocked her from “being at the party,” suspending her on that ground seems problematic. The school must have realized the logical problem at some point because in court it defended on slightly different grounds. The school’s attorney asserted that Cox had been arrested at the party, suggesting that the arrest was a basis for suspension. At that point, the mother protested that the daughter was not arrested and, when the other side pressed its point, she said they were lying.
Tuesday, October 15, 2013
A North Andover, Massachusetts high school senior was suspended from school's volleyball team and stripped of her position as captain for violating the school's zero tolerance drug and alcohol policy. Erin Cox went to a party to pick up a friend who needed a ride because she was too drunk to drive herself. The police were already there when Cox arrived, but the police cleared her to leave. Nonetheless, the school suspended her from the team. As one might imagine, this story has been lighting up social media and the subject of national news, but my question is where are the courts?
Cox filed a lawsuit to enjoin the school from suspending her, but, according to local media reports, the court ruled on Friday that it lacked jurisdiction to hear the case. I have not been able to lay my hands on the complaint or the court order. It is possible the student filed in the wrong court or some other procedural anomaly is depriving the court of jurisdiction. If so, that sounds like an error on the part of her attorney. It not, this may be just another case in a long line where courts abdicate their responsibility to assess the constitutionality of school discipline. While the Court in Wood v. Strickland, 420 U.S. 308 (1975), stressed that it is not the role of courts "to set aside decisions of school administrators which the court may view as lacking a basis in wisdom or compassion," the Court in Goss v. Lopez, 419 U.S. 565 (1975), held that due process applies to students' property interest in education (although there is some question as to whether denying students athletic opportunites implicates the property right to education). Moreover, in the state of Massachusetts, where Cox was suspended, the state supreme court held in McDuffy v. Secretary (1993) that students have a constitutional right to education under state law. If schools can suspend students on grounds as irrational as those alleged in Cox's case, then the rights articulated in Goss and McDuffy become meaningless. Substantive due process does place limits, albeit narrow ones, on school discipline and courts must apply those limits in good faith. Of course, none of this means a court can or should ignore jurisdictional problems, but in reading hundreds of discipline cases, courts' rationale for disposing of cases is often muddled at best.
Note: This post was updated to reflect that the suspension was from athletics only, not school, which I learned when I later was able to get the complaint.
Sunday, October 13, 2013
Barring a settlement in the next year, the U.S. Department of Justice will go to trial against the city of Meridian and Lauderdale County in Mississippi. DOJ argues that local authorities lock up students for minor infractions like disrespect or vulgar language. The suit also alleges that students--disproportionately African American and disabled--are routinely detained without probable cause and denied legal counsel.
DOJ was also set to try the Meridian Public School District, but was able to reach a settlement agreement with the district this past summer. The district agreed to take various steps to end discrimination in its discipline program. It is not clear why the criminal justice system is holding out, but if this goes to trial and DOJ wins, which are both big ifs, the case could have a monumental impact in the fight against the pipeline.
Monday, October 7, 2013
This summer Olesya Baker and Kevin Lang released a study through the National Bureau of Economic Research that analyzes the effect that high stakes testing has had on graduation rates, employment and incarceration. The study found that high stakes testing had a negative effect on graduation, but that the effect was minimal and potential only transitory during the period of high stakes testing implementation. The study found no effect on employment outcomes. The major finding of the study was "a robust adverse effect of standards-based exams on the institutionalization rate." High stakes exams "increase incarceration" by "about 12.5 percent." The National Education Association and the Congressional Black Caucus are also pressing this line of argument as a critique of current federal policy and the school-house-to-prison pipeline. Also of concern is the fact that low test scores are now also being used to create "parent triggers," whereby parents can transfer their children out of a school, which tends to adversely affect the school and community they leave.
Friday, October 4, 2013
South Carolina Appleseed just released its report on teacher and student dropouts in the state. It begins with an alarming assessment from Education Week: "Public high schools in South Carolina graduate on 61.7 percent of their students. This is 12 percent less than the national average and 26 percent less than the state's federally-defined graduation performance goal." The report attributes the state's dropout problem to its harsh approach to student discipline. State statutes, for instance, include standards that authorize the expulsion of students based on vague and relatively minor misbehavior. The report's proposed solutions are directed at parents, school officials and employees, and the state legislature. As to the legislature, the report recommends:
The legislature must repeal or significantly amend the “Disturbing Schools” statute to remove the current catch-all wording that permits the arrest of students for any number of typical misbehaviors, including “acting obnoxiously.”
The legislature must amend state law so that school boards do not have the discretion to expel a student for vague infractions, such as “gross misbehavior,” “persistent disobedience” or “other acts as determined by local school authorities.”
School districts should be required to disaggregate and report data by school on suspensions, expulsions and criminal charges against students. This information should include the duration of each exclusion from school and the reason for the discipline. Districts also should be required to report the number of students readmitted to school after the end of their punishment.
The report is South Carolina specific, but these recommendations would be good medicine for most other states as well. It also includes a good overview of the current research on positive behavioral interventions and supports.
Wednesday, September 25, 2013
For those interested in analyzing senseless exclusions, suspensions and expulsions, you might find this link interesting. It captures the stories of individual students. The saddest to me were a low income student sent home for violating the dress code and truant girl sent to jail. A five-year-old low income student in Mississippi was sent home in a police car because he didn't have on black shoes. According to the story, his parents could not afford to buy him new shoes and, instead, had used a magic marker to make his red and white shoes black. In Texas an 11th grader was placed in jail for 24 hours and charged with a misdemeanor for truancy. As I understand it, this punishment is not aberrational in Texas. But the reason behind her crime reveals its absurdity. She exceeded the permissible absences because she was holding down two jobs to support her two siblings. In an exercise of wisdom and judgment that the state and schools seem to lack too often, the court dismissed the charges against her.
Thursday, September 12, 2013
This past April, the documentary Bully was released. Last night, I finally got the chance to watch it. While the stories in the documentary were not "news" to me, it was very difficult to watch. The movie follows the lives of five different children in four different states: two, seemingly middle class, white children; a white female, who came out as gay in middle school; an African-American female, who was an honor student and basketball player; and a white middle school boy, who had been born premature and had some physical effects as result (I am not sure whether they would qualify as disabilities). The two middle class kids had committed suicide. The white female was subject to physical assault, and verbal harassment by both teaches and students. The African American female had apparently be subjected to harassment, but her story focuses on her response, which was to bring a gun to school to stop the harassment (prior to the documentary). The other white student was subject to severe verbal harassment, threats, and physical violence.
Friday, July 12, 2013
In Scott B. v. Bd. Of Trustees of Orange Cnty. High School of Arts, 158 Cal.Rptr.3d 173 (Ct.App. Calif. 2013), a student challenged his dismissal/expulsion from a charter school. He had accumulated enough demerits under the school code to be removed and then, on top of that, brought a knife to school. Prior to his removal, the school conducted a manifestation review, per the IDEA, to determine whether his behavior was a manifestation of his disability. Finding that it wasn't, the school dismissed/expelled him. He then appealed to the school board, but was denied a hearing. His challenge before the court was that this denial of a hearing was in violation of the state's disciplinary statutes and federal due process.
The court, however, reasoned that:
Dismissal from a charter school does not implicate these concerns to the same degree as expulsion. Unlike public schools generally, “OCHSA is a school of choice. No student is required to attend.” When a student is dismissed from OCHSA, the student is free to immediately enroll in another school without the loss of classroom time. Thus, dismissal from OCHSA need not and should not delay Scott's education. The May 16, 2011 letter informing Scott's mother of his dismissal instructed her to immediately enroll Scott in another school. Scott's transcripts from OCHSA were attached to the letter. The parties have not cited us to any statute requiring a new school be notified of a dismissal from a charter school.
I find this reasoning spurious for a couple of reasons. First, analogous arguments have been made in regard to students who are expelled from a regular school, but who then are assigned to an alternative school. Some courts have found that due process is not triggered, while others have seen through this argument. The latter are far more persuasive and intellectually honest. Second, numerous state legislatures and local school districts recognize that treating assignment to alternative school as something other than an expulsion or suspension is a fiction. Thus, they affirmatively extend due process rights to these students. See Maureen Carroll, Racialized Assumptions and Constitutional Harm: Claims of Injury Based on Public School Assignment, 83 Temp. L. Rev. 903, 914 (2011). These states outweigh the number of courts finding otherwise. Third, if charters are fully public schools, removing a student from the school should implicate due process in the same way that it would in a regular public school. Finally, the fact that a student can enroll in another school after being dismissed from the charter does not end the matter. Many state statutes allow an expelled student to enroll in another school or district, assuming the school or district will accept the student. I am not aware of the opportunity or potential to enroll elsewhere as ever having been a basis a court to hold due process is not triggered.
Monday, July 8, 2013
My new collague, Josh Gupta-Kagan, shared an interesting post with me yesterday on the intersection of school law and the recent debate over electronic communication monitoring. Some of you might remember Josh's article, Reappraising TLO’s “Special Needs” Doctrine in an Era of School-Law Enforcement Entanglement, 33 J.L. & Educ. 291 (2004). Since then, he has continued to write in and around the area. He is now starting a juvenile justice clinic at the University of South Carolina.
Here is his post:
School Law Meets the FISA Court
The NY Times reports that the Foreign Intelligence Surveillance Act Court has approved monitoring electronic communication without warrants or probable cause because they are “special needs” searches. The special needs doctrine arises from a school search case – New Jersey v. T.L.O. – in which Justice Blackmun wrote that in school disciplinary contexts, “special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.” (The Times mistakenly attributed the special needs doctrine to a later employment case which relied on T.L.O.) The FISA Court’s justification significantly stretches the special needs doctrine (as the Times’ quoted expert said) – with education consequences as well.
T.L.O. approved an assistant principal’s search of a student caught violating a school rule; such searches had to be quickly and flexibly done to achieve school discipline ends. So long as the school officials don’t do anything extreme – like, say, strip search a teenager suspected of having prescription strength ibuprofen – they have great leeway in searching students. But this leeway depended on the assistant principal having school disciplinary and not law enforcement purposes. Many academics (myself included) have argued that the doctrine has been applied even when law enforcement purposes are paramount. And using NSA searches to identify, prevent, and prosecute terrorist conspiracies, a law enforcement purpose is plain. (That doesn’t mean NSA searches were necessarily unconstitutional – only that the FISA Court needs some other 4th Amendment doctrine to justify them.)
In the education space, the special needs doctrine has been applied too simplistically to justify a range of searches without considering their purposes, only because they occur in schools. T.L.O. should apply only when the search serves school disciplinary purposes and does not threaten law enforcement consequences or other invasions of fundamental constitutional rights. However, in Camreta v. Greene (which reached the Supreme Court in 2011), state officials argued that a sheriff’s deputy and CPS investigator could seize a child at school as part of their effort to enforce both criminal and civil child abuse laws – with no connection to school disciplinary goals – simply because the seizure occurred at school.
More generally, the special needs doctrine has been read to give schools a free pass on searching students – permitting police officers to search children, and turning over the fruits of school searches to law enforcement for juvenile prosecution. What originated as a means of enforcing school discipline has expanded into a tool to build the school-to-prison pipeline.
Education law – and apparently national security law too – would be well served by a deeper analysis about when the special needs doctrine ought to apply.
Wednesday, June 12, 2013
The Connecticut Department of Education just released its annual report on school discipline. The good news in the report is that suspensions are down overall statewide. The bad news is that the suspension rate for minorities continues to be off the charts, as does the suspension rate in charter schools. The suspension rate for African Americans is just short of 20% and nearly 4 times the rate as whites. The data on charter schools was even more shocking. The suspension rate in charter schools was almost 10 times the rate of regular elementary schools. While I have heard charges for some time that charter schools push out children, I had never examined data to substantiate the charge. The data in this report, however, is not conclusive on that point. First, comparing all elementary schools to charters is probably unfair, as charters tend to draw disproprotionately poor and minority students in many places. If one compared the suspension rates of charters to similarly situated regular schools, they disparaty would likely be smaller. Second, these suspensions may not lead to push outs. Rather, it could be evidence of new student populations adjusting to new environments (as many charters are new and have more strict behavior expectations). For more analysis of the report, see here.
Monday, May 20, 2013
On Friday, the Nebraska Supreme Court in J.P. v. Millard Public Schools struck down a school's search of a student's car, which had turned up drug paraphernalia. Because the car was parked off-campus (across the street from the school), the court was able to distinguish the case from various other decisions that had upheld searches of student cars that are parked on campus.
Cases striking down student searches were nearly non-existent a decade ago, and now have begun to appear with some minimal level of regularity (at least in comparison to prior years). The U.S. Supreme Court in Safford Unified School Dist. v. Redding, 557 U.S. 364 (2009), struck down a strip search of a student. It followed that with a non-search, but related case, JDB v. North Carolina, in which it struck down the interrogation of a student on school grounds. Several state courts have also been willing to find searches unconstitutional on state grounds, even if not on federal grounds. York v. Wahkiakum Sch. Dist. No. 200, 163 Wash. 2d 297 (2008).
The recent Nebraska decision is easy enough to limit to its facts and, thus, would be relatively inconsequential. The same could be said of many of the other cases striking down searches. The quesion I continue to ponder is whether these cases represent examples where the courts have no choice but limit state action or whether the represent a willingness on the part of courts to gradually roll back the expansive power given to them in New Jersey v. TLO and which schools have argueably abused over the past two and a half decades.