Wednesday, July 16, 2014

Toledo Makes Strides in Improving Discipline: From Reactive to Proactive

The Toledo Public School District has added itself to the ranks of large school districts revisiting their approach to student discipline.  The district has implemented a preventive approach.  Its plan was to to be more proactive than reactive and have an open dialogue with students about what they did wrong and how they can behave better in the future. If the numbers reflect reality, it appears to be working.  Under the new system, the number of suspensions at one school dropped from 260 to 41, and no students have been expelled.

Limiting the amount of time students spend outside the classroom was one of the main goals of the program, but the district also removed its detention and the demerit system.  Now, students are provided with educational incentives for good behavior. And, when students do misbehave, they are first given an opportunity to explain themselves and why they acted out, rather than beginning with a conversation about punishment. This is intended to open a dialogue of what an appropriate reaction or behavior would have been in the situation, making it a learning experience for the student.

The district was originally motivated to make change because of its drastic racial disparities. There is no indication those have entirely vanished, but the district appears to be making significant progress.  More on the story here.

July 16, 2014 in Discipline | Permalink | Comments (0)

Tuesday, July 15, 2014

Supreme Decision Probably Makes Student Cell Phone Searches Off Limits in the Average Student Discipline Case by Jason Nance

The United States Supreme Court recently issued a watershed decision that limited the reach of police officers to conduct searches under the Fourth Amendment. In Riley v. California, the Court unanimously held, overturning a prior California Supreme Court decision, that police officers generally must obtain a search warrant before searching through digital information that may be accessed on the cell phone of someone who has been arrested. In issuing this ruling, the Court declined to extend a warrantless search exception that allows police officers to search the area within arrestees’ immediate area of control to ensure the officers’ safety and prevent the loss of evidence. This decision has been hailed as a monumental victory by privacy rights activists who are concerned with the government’s growing ability and inclination to search digital information. Although its full ramifications are unclear, it undoubtedly will affect how searches of digital information are evaluated in other contexts, including how courts will evaluate searches by school officials of information stored on students’ smartphones.

To be clear, the Supreme Court held in T.L.O. v. New Jersey that school officials need not obtain a warrant before searching a student; nor must a school official’s level of suspicion meet the probable cause standard normally required to obtain a warrant. Rather, the legality of a student search depends on (1) whether the school official has a reasonable suspicion that the student engaged in wrongful behavior, and (2) whether the search was reasonably related in scope to the circumstances that justified the search to begin with. Further, the Court held in Safford United School District v. Redding, a strip search case, that the content of the suspicion must match the degree of intrusion, and this is why the Riley decision may have a significant impact on searches of students’ smartphones.

There are several statements that demonstrate the Court’s view of the significant privacy interests one has with respect to the vast information that may be stored on a smartphone. For example, the Court explained that searching a smartphone implicates “privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.” Because the average smartphone has a capacity to store 64 gigabytes, which is equivalent to millions of pages of text, thousands of photos, or hundreds of videos, a smartphone might store in one place a host of private information including bank statements, personal notes, prescriptions, personal videos, personal photographs, search history on the Internet, apps, and addresses and phone numbers of acquaintances that date back to the time of the purchase of the smartphone. The Court further observed that “a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form.”

Now that the Court has clearly annunciated its view on the robust privacy interest of information stored on a smart phone, and how intrusive it would be for government officials to dig through all of the information that may be accessed through a smartphone, it would seem that school officials must be extremely cautious about searching through information contained on a students’ cell phones, even when school officials have a reasonable suspicion that a student engaged in some type of wrongdoing. As in other legal contexts, the “reasonableness” standard makes it extremely difficult to pinpoint where a court will fall when examining a certain set of facts. Nevertheless, consistent with the test laid out in T.L.O. and Redding, if a school official has a reasonable suspicion that the student engaged in minor wrongdoing, rummaging through all the information contained on that student’s cell phone in search of evidence of additional wrongful behavior, would appear to violate the Fourth Amendment. In contrast, if the school official has a reasonable suspicion that a student had engaged in serious wrongdoing, such as threatening another student with a firearm on campus, and that the search of information contained on the cell phone would uncover more evidence of this wrongful and harmful behavior, it seems likely that a court would grant school officials more leeway to conduct a search on a student’s cell phone. It will be interesting to follow how the lower courts apply Riley in this context (and others), and it seems likely that more lower courts will address the issue of searching students’ cell phones as students’ use of these devices at school becomes ever more commonplace.

Thanks to Jason Nance for this concise and poignant analysis above of the implications of the Supreme Court's recent cell phone search case on school searches.  Jason joined the law faculty at the University of Florida three years ago and has already become a leading expert on student searches, privacy, and discipline.  (I took the liberty of penning the title for his essay.)




July 15, 2014 in Discipline | Permalink | Comments (0)

Friday, June 13, 2014

Putting Louisiana's Education Pieces Together?: Discipline, Vouchers, Data, and the State Dept. of Ed.

In the wake of the recent filing of civil rights complaints in regard to discipline in New Orleans charter schools, there is now a call for the state superintendent of education to resign.  A local blogger, whose veracity I neither doubt nor affirm, suggests that are other problems of disfunctionality at the Department itself.  His story alleges that there is a data crisis at the Department.  In particular, he asserts the data is neither secure, nor accurate, and the Department, thus far, has been unable to clean it up.  If true, his story adds important context to the school voucher fight between the Department (and Jindal) and the US DOJ's equal educational opportunity section.  As readers may recall, that fight ultimately came down to access to basic information and data, with the state requesting extensions of time to turn over the data on more than one occassion.



June 13, 2014 in Cases, Charters and Vouchers, Discipline | Permalink | Comments (0)

Monday, May 5, 2014

School Surveillance and the Fourth Amendment

Jason Nance's new article, School Surveillance and the Fourth Amendment, 2014 Wis. L. Rev. 79, is now available on westlaw.  The abstract states:

In the aftermath of several highly publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their schools than other students, even after taking into account factors such as neighborhood crime, school crime, and school disorder. These empirical findings are problematic on two related fronts. First, research suggests that students subjected to these intense surveillance conditions are deprived of quality educational experiences that other students enjoy. Second, the use of these measures perpetuates social inequalities and exacerbates the school-to-prison pipeline.

Under the current legal doctrine, students have almost no legal recourse to address conditions creating prison-like environments in schools. This Article offers a reformulated legal framework under the Fourth Amendment that is rooted in the foundational Supreme Court cases evaluating students' rights under the First, Fourth, and Fourteenth Amendments. The historical justification courts invoke to abridge students' constitutional rights in schools, including their Fourth Amendment rights, is to promote the educational interests of the students. This justification no longer holds true when a school creates a prison-like environment that deteriorates the learning environment and harms students' educational interests. This Article maintains that in these circumstances, students' Fourth Amendment rights should not be abridged but strengthened.

May 5, 2014 in Discipline | Permalink | Comments (0)

Thursday, May 1, 2014

Texas Slowing the School to Prison Pipeline?

A new report, Kids Doing Time for What’s Not a Crime: The Over-Incarceration of Status Offenders, by the Texas Public Policy Foundation, a group focused on liberty, personal Texas youth1responsibility, and free enterprise, suggests that Texas may be slowly backing away from its punitive approach to juvenile behavior. The report focuses on the juvenile justice system and, thus, does not directly tell us of school discipline.  But given that so many juvenile justice interactions have originated in the schools over the past decade, the data would suggest that either schools are referring students more infrequently or law enforcement is refusing to prosecute the
referrals.  Either way, the data is good news for students.  The layout of the graph is not entirely intituitive (or the title misleading), but the blue line represents the number of youth committed by offense in 2001.  The red line shows the numbers for 2011.  As you will notice, the rate of commitment in 2011 was nearly half of the rate from 2001.  The chart after the jump shows a similar trend in regard to detentions.

Continue reading

May 1, 2014 in Discipline | Permalink | Comments (0)

Wednesday, April 30, 2014

Louisiana Charter School Suspends 70 Percent of Students, Advocates File Compliaints

According to a complaint filed by Anna Lellelid and Bill Quigley, Carver Collegiate charter school in New Orleans operates a demerit system, whereby students are cited for everything from not walking in a straight line to wearing too many bracelets and not smiling when shaking hands.  Accumulating too many demerits leads to suspension.  Under this system, the school suspends 68.85 percent of its students at least once a year.

Lellelid and Quigley allege the discipline system and environment is physically and emotionally abusive.  “I’ve heard from students who say they feel so depressed to be treated this way, but they feel they can’t speak out because they will get in trouble,” said Anna Lellelid.  The complaint also alleges that that the discipline system fails to follow the proper processes mandated by law, including the general notice and opportunity to respond process required by Goss v. Lopez and the more specific process required for students with disabilities under the IDEA.  Two additional schools were named in the complaint.

This school seems to typify the type of irrational and unjustified discipline system that I argue violates substantive due process here.  In short,  I develop the argument that the constitutional precludes schools from excluding students for certain relatively innocuous or innocent behavior.

For the longer story on Carver Collegiate, see here.


April 30, 2014 in Discipline | Permalink | Comments (0)

Tuesday, April 29, 2014

California Community Pushes Back Against Punitive Discipline and Policing of Students

When the Santa Ana Unified School District's Board met last week, it faced a hostile crowd. Families and students were reacting to recent events in which a police officer had placed a 14 year old boy in a headlock at school.  The boy had just defaced school property and the officer was arresting him.  The arrest was caught on tape and horrified many residents and students.  

This aggressive show of force provided the platform for the community to raise concerns about the punitive nature of discipline in the district and the routine involvement of police in school discipline matters.  Those present at the board meeting called for strict limits on the punishment imposed for "willful defiance," as well the circumstances in which police would become involved in addressing student misbehavior.  The rationales offered by students themselves were impressive and read as though they come straight out of the social science literature: 

  • the school's discipline fosters "'huge amount of distrust' between youth and authorities"
  • "students are “'losing their right to education'"
  • “They undermine student achievement and graduate rates”

It is unfortunate that extreme events must occur before these concerns can take center stage, but it is encouraging, nonetheless, that they are taking center stage.  Ironically enough, the district's "misbehavior" has given these students the opportunity to eptimoze democracy in action and the virtues of student free speech (for those who would doubt the virtue of student speech in school).

More on the story here.

April 29, 2014 in Discipline | Permalink | Comments (0)

Tuesday, April 15, 2014

Philadelphia School District Reduces Role of Police in School

Philadelphia has added itself to the short but growing list of major school districts that are trying to draw sharper lines between school officials and the police to reduce arrests in school.  Last fall, I posted on a similar move in Broward County, Florida.  According to a local Philadelphia paper:

Philadelphia School District has directed school police officers to stop responding to calls related to Level 1 student conduct offenses. The proscribed violations range from "failure to follow classroom rules" to "truancy" to "verbal altercations" to "inappropriate touching/public displays of affection."

"These infractions are not criminal offenses; they are classroom/student management issues," wrote District Chief Inspector Carl W. Holmes to school administrators and school police in a memo dated March 10.

The memo states that school police should "respond to all calls that are criminal in nature, or where persons involved are violent or threatening."

In the event that they are called to other incidents, officers should "request the presence of an administrator, counselor, or administrative designee," the memo explains.

Some teachers, including the Philadelphia Federation of Teachers, are not happy with the policy, indicating that there are not resources in the school to deal with discipline and it is not just a classroom management issue.  

"It is say that someone else should deal with it. There is no 'someone else,'" said Amy Roat, . . . teacher at Feltonville School of Arts and Sciences.

"We don't have anyone in our building most of the time that is 'qualified' to deal with these issues," she said. "We all just have to jump in and deal with it."

While I sympathize with overworked teachers in overworked schools, school discipline is an educational issue, not a law enforcement issue.  They may be correct that the schools currently are not fully equipped to deal with the problem, but that is due to the fact the state has been starving these schools of resources, not that the state has asked them to do the police force's job.  See the full story here.

April 15, 2014 in Discipline | Permalink | Comments (0)

Tuesday, April 8, 2014

Student Drug Testing: Individualized Suspicion Versus Random Concern

In A.V. ex rel. Valichka v. Pennsgorve/ Carneys Point Regional School Dist., 2014 WL 1272119 (D. N.J. 2014), a high school baseball student took an advil for back pain during practice.  Another student then reported that A.V. was taking steroids to a school official.  The official told A.V. he could not return to school until he took a drug test.  A.V.'s parents then took him to his doctor, who screened him for drugs and determined he had not taken steroids.  The school then permitted him to return, but suspended him for taking the advil.

A.V. sued the school for a violation of his Fourth Amendment rights.  The school defended on the notion that it did not need reasonable suspicion to drug test A.V.  given that Veronia v. Acton recognized schools' authority to randomly drug test all students.  The district court rejected this argument, pointing out that the testing of A.V. was based on individualized suspicion and, thus, Veronia is inapposite.  The court was nice in not pointing out that Veronia was explicit in distinguishing the individualized suspicion case from random drug testing.  The Supreme Court in Veronia indicated that a school might very well prefer random testing because when it acts on individualized suspicion it runs more of a risk of subjecting itself to suit (and losing), as appears to be the case in A.V.

Although not raised by the complaint, this case could have also implicated my continuing concern about the limit of school authority to punish students.  The advil that A.V. took was given to him by his father specifically for back pain at baseball practice.  Of course, baseball practice is a school activity and presumably was on school grounds (or school liscenced grounds), which means the school does have general authority here.  For that reason,  I would not contest the schools authority to regulate this activity, but I do question whether, under these circumstances, it should be permitted to exclude a student from school.

April 8, 2014 in Discipline | Permalink | Comments (0)

Friday, April 4, 2014

Emotional and Physical Harms Through the Lens of Substantive Due Process by Emily Frances Suski

On Tuesday, Derek posted about the recent 5th Circuit case Clayton ex rel. Hamilton v. Tate County School Dist., 2014 WL 1202515 (5th Cir. 2014), in which the Court found that a student subjected to corporal punishment did not have a substantive due process claim under the Constitution. Although in general the other Circuits that have heard students’ substantive due process claims have not distinguished between those claims that are based on corporal punishment and those that are not, the 5th Circuit is the outlier in this respect. To wit, in Jefferson v. Ysleta Indep. Sch. Dist., 817 F.2d 303 (5th Cir. 1987), the Court heard the claim of a second grade student who was tied to a chair for a day and a half at school for no apparent reason. The 5th Circuit found the claim could go forward because the alleged emotional and physical harm to the student was not the result of corporal punishment.

The Court decided the case on qualified immunity grounds. In doing so, it had to decide whether a state official has violated a clearly established right “known or knowable by a reasonable person.” Concluding the student’s substantive due process right was clearly established, the Court said “[w]e are persuaded that in January 1985, a competent teacher knew or should have known that to tie a second-grade student to a chair for an entire school day and for a substantial portion of a second day, as an educational exercise, with no suggested justification, such as punishment or discipline, was constitutionally impermissible. A young student who is not being properly punished or disciplined has a constitutional right not to be lashed to a chair through the school day and denied, among other things, the basic liberty of access to the bathroom when needed.” So, the 5th Circuit will recognize a student’s substantive due process claim based on abuse by school personnel, just like all the other Circuits to have taken up the issue. But unlike the rest, in the 5th Circuit the student’s harm can’t be the result of corporal punishment. For more on this and related issues see my forthcoming article Dark Sarcasm in the Classroom: The Failure of the Courts to Recognize Students’ Severe Emotional Harm as Unconstitutional, 62 Clev. St. L. Rev. – (2014).

April 4, 2014 in Discipline | Permalink | Comments (0)

Monday, March 31, 2014

School Excludes Student for Shaving Head in Solidarity with Friend Undergoing Chemotheraphy

This spring, a 9-year-old student shaved her hair in support of her best friend, who was undergoing chemotheraphy and had lost her hair.  The student, Kamryn Renfro, was  student at a public charter school in Grand Junction, Colorado.  Kamryn's mother alerted the school in advance, but was told by the school that dress code prohibitted shaved heads and Kamryn could not return to school until her hair grew back.  Under public outcry, the school buckled.  Whether this case falls under a liberty deprivation or property is questionable, although I would tend to characterize it as both and as a constructive, if not actual, suspension.  Regardless, it highlights the absurdity of school discipline and conduct rules, which schools insist they have a right to pass and enforce, and which courts hold that the constitution affords almost no recourse.  Here's my paper on why actions of this sort are unconstitutional, even if not yet recognized as such.


March 31, 2014 in Discipline | Permalink | Comments (0)

Monday, March 24, 2014

Office for Civil Rights Finds Stark Racial Inequities in Suspensions and Access to Pre-K Education

For those who missed it Friday, the U.S. Department of Education's Office for Civil Rights released the results its civil rights data collection.  OCR is calling it the most comprehensive look at civil rights in education in 15 years.  "This data collection shines a clear, unbiased light on places that are delivering on the promise of an equal education for every child and places where the largest gaps remain. In all, it is clear that the United States has a great distance to go to meet our goal of providing opportunities for every student to succeed," U.S. Secretary of Education Arne Duncan said. "As the President's education budget reflects in every element—from preschool funds to Pell Grants to Title I to special education funds—this administration is committed to ensuring equity of opportunity for all."

"This critical report shows that racial disparities in school discipline policies are not only well-documented among older students, but actually begin during preschool," said Attorney General Eric Holder. "Every data point represents a life impacted and a future potentially diverted or derailed. This Administration is moving aggressively to disrupt the school-to-prison pipeline in order to ensure that all of our young people have equal educational opportunities."

The most troubling findings, according to OCR, were: 

  • Access to preschool. About 40% of public school districts do not offer preschool, and where it is available, it is mostly part-day only. Of the school districts that operate public preschool programs, barely half are available to all students within the district.

  • Suspension of preschool children. Black students represent 18% of preschool enrollment but 42% of students suspended once, and 48% of the students suspended more than once.

  • Access to advanced courses. Eighty-one percent (81%) of Asian-American high school students and 71% of white high school students attend high schools where the full range of math and science courses are offered (Algebra I, geometry, Algebra II, calculus, biology, chemistry, physics). However, less than half of American Indian and Native-Alaskan high school students have access to the full range of math and science courses in their high school. Black students (57%), Latino students (67%), students with disabilities (63%), and English language learner students (65%) also have less access to the full range of courses.

  • Access to college counselors. Nationwide, one in five high schools lacks a school counselor; in Florida and Minnesota, more than two in five students lack access to a school counselor.

  • Retention of English learners in high school. English learners make up 5% of high school enrollment but 11% of high school students held back each year.

March 24, 2014 in Discipline, Federal policy, Pre-K Education | Permalink | Comments (0)

Tuesday, March 4, 2014

Pat-Down of Students Entering Prom Found Unconstitutional

In the Spring of 2011, Capital High School in Santa Fe, New Mexico, subjected students entering the high school prom to random, suspicionless pat-downs.  The goal of the searches were to prevent students from bringing drugs, alcohol, or other contraband to the prom.  One of the students testified that:

[The ASI New Mexico security guard] had me spread my arms and legs out, and she patted along my arms, touched along the waist. And then she grabbed the outer part of my bra and moved it here. And then she grabbed the inner part of my bra and moved it here. And then she cupped my breasts and shook them.... [T]hen afterwards she moved down to my waist and then she went all the way down my leg. And then she felt over my dress and then she pulled the dress up to about mid-thigh and she felt up the bare leg, as well.

Other students testified similarly. Four students brought suit against the school district and the principal.  In its latest opinion, the district court in Herrera v. Santa Fe Public Schools, 956 F.Supp.2d 1191 (D. New Mexico 2013), held that search violated students' rights, but the principal was entitled to qualified immunity.  

The school had attempted to extend the rationale of  Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), and Board of Education of Independent School District No. 92 v. Earls, 536 U.S. 822 (2002)-which upheld suspicionless drug testing of students participating in sports and extracurriculars--to these pat-down searches.  The district court reasoned that those cases were inapposite because they involved a special needs exception to the general reasonable suspicion requirement in schools.  Moreover, the searches in those cases applied to a subsection of the student body, whereas the prom search potentially applied to any student in the school.  Applying the reasonable suspicion test from New Jersey v. TLO, the court easily found it lacking and the searches unconstitutional.  In an earlier opinion, the court had also catalogued other lower courts applying similar rationales to suspicionless searches.  See Herrera v. Santa Fe Public Schools, 792 F.Supp.2d 1174 (D.N.M. 2011).  This earlier opinion was particularly revealing in showing that several recent courts have pushed back against random student searches.

The school district had also argued that the students consented to the searches, but the court applied the unconstitutional conditions doctrine to find that consent was invalid.

March 4, 2014 in Discipline | Permalink | Comments (0)

Monday, March 3, 2014

Office for Civil Rights Reaches Voluntary Resolution of Kentucky School District’s Discipline Disparities

The Office for Civil Rights, Department of Education, had been investigating Christian County Public Schools' discipline system.  It found basic due process flaws on the front end and significant racial disparities on the back end.  "[B]lack students were consistently more likely than white students to be assigned in-school suspension and out-of-school suspension when their first disciplinary referral was for violations that were subjective in nature, such as Deliberate Classroom Disruption, Disorderly Conduct, Failure to Follow Directives, and Profanity/Vulgarity. For example, in school year 2010-2011, black students were nearly 3.5 times more likely than white students to receive out-of-school suspension for Profanity/Vulgarity."

Under the final resolution agreement reached last week, the District agreed to: 

  • Ensure to the maximum extent possible that misbehavior is addressed in a manner that does not require removal from school;
  • Collaborate with experts on research-based strategies designed to prevent discrimination in the implementation of school discipline;
  • Provide students who engage in disruptive behaviors with support services designed to decrease behavioral difficulties;
  • Review and revise the disciplinary policies, and implement disciplinary practices that will effectively promote the fair and equitable administration of discipline;
  • Provide training for staff and administrators on the disciplinary policies, and implement programs for students and parents and guardians that will explain the district’s disciplinary policies and behavioral expectations;
  • Effectively address school climate issues;
  • Improve the disciplinary data collection system in order to evaluate discipline policies and practices.

The full press release and resolution agreement is here.  I believe this is the first discipline resolution reached since the Department's new discipline guidelines.  Those guidelines seem to be reflected in this resolution, particularly the agreement to use less harsh and discriminatory alternatives to the current discipline policy.  

March 3, 2014 in Discipline, Discrimination | Permalink | Comments (0)

Thursday, January 30, 2014

School Reportedly Suspends Student for His "Gay Lifestyle"

Robert Marucci, an 18-year-old high school student, in Florida was allegedly suspended for his participation in gay pornography.  Marruci states that he started working in the industry to help his mother pay the bills.  Apparently, the family has fallen on hard times and his work does not violate any law.  Regardless, when other students at his school learned of his work, he indicates he was bullied and threatened.  If the school knew of and did not respond to this bullying, it violated Title IX's prohibitions on sexual harassment.  See Davis v. Monroe County, 526 U.S. 629 (1999). Marucci's mother says that this is exactly what the school did.  Strike one against the school.

What the school did do was suspend Marucci for ten days.  His mother says he was "expelled due to his explicit lifestyle career.”  The school indicates that it suspended him for "possible threats" he had made.  The devil is in the detail, but "possible threats" sounds vague.  If it is only "possible" that he has made threats to other students, the school lacks a basis to suspend him.  At best, if the threats were extremely serious, the school could have removed him temporarily to investigate (per a narrow exception in Goss v. Lopez).  This does not appear to be the school's claim.  Sounds like strike two against the school.  

If the school, in fact, removed him for his off-campus lifestyle choice, it may have engaged in another Title IX violation, as well as Free Speech.  Strike three (and four, I suppose). 


January 30, 2014 in Bullying and Harassment, Discipline, Gender | Permalink | Comments (0)

Complaint Challenges Policing Practices in Wake County, NC Schools Against African-American and Special Needs Students

We have seen reassessments of zero-tolerance policies at the DOJ, as Derek reported recently here,  with the State of Maryland as a standout for creating more sensible protocols to deal with non-violent student misconduct. The fallout from zero tolerance continues, however, as a complaint filed with the DOJ this week against Wake County schools and several North Carolina law enforcement agencies shows. The complaint alleges that the Wake County school system and school resource officers (SROs) violated students' rights under Titles IV and VI of the Civil Rights Act of 1964, under Section 504, and under the Americans with Disabilities Act. The complaint, filed by the Legal Aid Society on behalf of eight black schoolchildren who were receiving special needs services, alleges that "[t]he Wake County Public School System's over-reliance on unregulated school policing practices, often in response to minor infractions of school rules, results in the routine violation of students’ educational and constitutional rights," particularly "those of students with disabilities and African-American students." The harmful impact of treating minor school infractions as crimes, the Legal Aid points out, is exacerbated in North Carolina because it is "the only state that treats all 16- and 17-year-olds, in every circumstance, as adults when charged with criminal offenses, and then denies them the possibility of returning to the juvenile system regardless of the nature of the offense."

One plaintiff's experience with SROs reads like a criminal procedure law exam issue spotter: T.W., while standing in line for his schedule on the first day of 11th grade, was questioned by an officer about whether T.W. attended the high school. The officer then asked T.W. his name and apparently did not like the way that the student said it. T.W. was immediately placed in handcuffs by two officers. The complaint then describes what followed:

T.W. was then taken to the principal’s office where the SRO searched T.W. and said something to the effect of, “I love to find drugs.” Other than that flippant comment, the SRO offered no information regarding how he had reasonable suspicion to suspect T.W. had drugs in his possession. Nonetheless, the SRO continued the search, making T.W. take off his shoes and hand over his wallet, and then patted him down. The SRO then interrogated T.W. At no point was T.W. read his Miranda rights. Instead, the SRO continuously made statements to T.W., such as: “If you help me, I can help you;” “If you give a tip that leads to arrest, you can get paid;” “When you come to school your rights are forfeited.” During the course of the illegal search, the SRO found a lighter in T.W.’s pocket. The principal suspended T.W. out-of-school for two school days and the SRO finished his attack against T.W. with a citation to adult criminal court for interfering with a police investigation. 

T.W.’s mother filed a grievance with the school regarding the SRO’s mistreatment of her son. However, she realized that her efforts to convince the principal to remedy the situation were futile as he asserted that he had no control over SROs. So, that afternoon she went to the Raleigh Police Department and filed an Internal Affairs complaint against the SRO. Months later she received a form letter with no individualized findings, stating only that the department viewed the SROs actions to be “proper conduct” consistent with Department policies and training. 

After the grievances were filed, the SRO continued to harass T.W. A few weeks after the incident, T.W. missed the school bus. While T.W. was walking to school the SRO pulled up beside him in his patrol car. He pointed a video camera at T.W. and asked T.W. why he was late for school. T.W. explained that he had missed the bus. The SRO said something to the effect of, “You better not have cigarettes or you’ll get in trouble, and you get rid of that lighter.”

Ultimately, T.W. and his mother had to appear in court at least four times as a result of the initial incident at school. ... At one of the court appearances, the SRO testified that the reason he approached T.W. while he was in line to get his schedule was because he looked older than the other kids. The judge responded, “That’s just like walking on the sidewalk while being black.” All charges were subsequently dropped, and the case was dismissed. However, unfortunately, T.W. never finished high school, in part due to the trauma caused by school policing policies and practices in Wake County.

Read the complaint here.

January 30, 2014 in Discipline, K-12 | Permalink | Comments (0)

Tuesday, January 21, 2014

School Resource Officers with Rifles?

The Gainesville, Georgia School District has approved a measure that would allow their school resource officers to carry rifles.  The deal came as part of an agreement with the local police department, which will share half of the cost of the safes in which the rifles are to be kept at school. The discussions began shortly after the Newton shootings, when the police department approached the district about safety measures.   At risk of stating the obvious, it is problematic when police departments help set school policy, even when that policy pertains to safety.  Police expertise is certainly important on such matters, but should not "steer the bus."  This sounds like a militarization of an environment that is supposed to be education.  Second, it has never been my understanding that any of these mass school shootings are a result of insufficient firepower at school.  Rather the problem is that weapons entered the school in the first instance.  I know Jason Nance has written a lot around these issues right in recent months.  See here for his most recent article.

January 21, 2014 in Discipline, State law developments | Permalink | Comments (0)

Tuesday, January 14, 2014

Oklahoma to Limit Zero Tolerance "Weapons" Policies?

An Oklahoma legislator is making news with his introduction of a bill that would prohibit schools from suspended or taking other negative action against students for

Ok bill

I am definitely sympathetic to limiting the senseless suspension and expulsion of students who pose no real threat to school, but this bill may go too far.  As I argue in my forthcoming paper "To End Zero Tolerance," constitutional principles should limit the expulsion of the student with, for instance, a pastry gun, but that is not to say the school is prohibited from taking any action against the student.  This bill seems to suggest schools cannot do the latter either.  Regardless, the immediate reaction of Oklahoma Education Association baffles me, as it seems to object to any limits on their authority to suspend and expel.  Its president asserts that educators should be left to make these determinations on a case by case basis.  If, in fact, zero tolerance was leading to case-by-case judgments, I might tend to agree, but zero tolerance has  more often lead to a refusal by schools to consider circumstances.  The rationale of suspending students with pastry guns has been that they violated the weapons policy and, thus, must be expelled.  I hope to share my paper and the details of why this is constitutionally irrational within the next week or so.

January 14, 2014 in Discipline | Permalink | Comments (0)

Wednesday, January 8, 2014

Federal Guidance on Racial Disparities in Discipline Released, Calls for Vigilance in Enforcing Disparate Impact and Limiting Zero Tolerance

The new discipline guidance from the Departments of Justice and Education is now available here. The guidance breaks its analysis into disparate treatment (treating minority students and whites differently in terms of discipline) and disparate impact (a facially neutral policy that results in racially disparate outcomes).  The first amounts to identifying and stopping intentionally discriminatory discipline.  There is not much new here, but the point appears to be to encourage district to recognize that they may be treating similarly situated students differently without realizing it.  

The disparate impact analysis is where the controversy abounds.  It is directed at bringing down racial disparities in discipline even if there is no clear evidence of disparate treatment.  I would posit there there is not any new substance in the guidance here either, but there is transparency and a clear signal that the Departments are serious about enforcing the substance.  The guidance spells out very clearly how they will address racial disparities:

In determining whether a facially neutral policy has an unlawful disparate impact on the basis of race, the Departments will engage in the following three-part inquiry  

(1) Has the discipline policy resulted in an adverse impact on students of a particular race as compared with students of other races? For example, depending on the facts of a particular case, an adverse impact may include, but is not limited to, instances where students of a particular race, as compared to students of other races, are disproportionately: sanctioned at higher rates; disciplined for specific offenses; subjected to longer sanctions or more severe penalties; removed from the regular school setting to an alternative school setting; or excluded from one or more educational programs or activities. If there were no adverse impact, then, under this inquiry, the Departments would not find sufficient evidence to determine that the school had engaged in discrimination. If there were an adverse impact, then:

(2) Is the discipline policy necessary to meet an important educational goal? In conducting the second step of this inquiry, the Departments will consider both the importance of the goal that the school articulates and the tightness of the fit between the stated goal and the means employed to achieve it. If the policy is not necessary to meet an important educational goal, then the departments would find that the school had engaged in discrimination. If the policy is necessary to meet an important educational goal, then the Departments would ask:

(3) Are there comparably effective alternative policies or practices that would meet the school’s stated educational goal with less of a burden or adverse impact on the disproportionately affected racial group, or is the school's justification pretext for discrimination? If the answer is yes to either question, then the Departments would find that the school had engaged in discrimination. If no, then the Departments would likely not find sufficient evidence to determine that the school had engaged in discrimination. 

The report also focuses in on zero tolerance as one of the problematic sources of disparate impact and questions whether such policies for minor misbehavior are necessary to achieve educational goals.  The report also goes into depth in explaining what the remedies it might require for call for violations.

January 8, 2014 in Discipline, Federal policy | Permalink | Comments (0)

Big Day for School Discipline

This morning in Baltimore, the Department of Justice and Department of Education will issue new guidance on school discipline.  My expectation is that it is going to be important, if now other reasons than it is already generating a lot of buzz.  Education Next is already panning it before it is released because it will bring "the tortured logic of disparate impact to school discipline."  Others complain it will hold schools accountable for all discipline that occurs under their roofs, including that of police officers.  For those most concerned about racial disparities and overly harsh discipline, this added accountability is good news.  Reducing racial disparities is not, as Josh Dunn at Education Next, asserts a disregard for student misbehavior, but rather a recognition that what amounts to misbehavior often has a racial lens to it.

Today's release also follows a new report by the Vera Institute for Justice that concludes based on generation of research on zero tolerance:

Certain facts are clear: zero tolerance does not make schools more orderly or safe--in fact the opposite may be true.  And policies that push students out of school can have life-long negative effects.

I will follow up with DOJ's report and more commentary on it once it is released.

January 8, 2014 in Discipline, Federal policy | Permalink | Comments (0)