Thursday, October 30, 2014
Early this month, I posted the story of a five year old special needs student in a New York City public school that was restrained with his hands behind his back in velcro handcuffs for fifteen or more minutes because of his outburst in gym class. Although the 9th Circuit's opinions are obviously have no binding effect on New York City, the 9th Circuit's recent opinion in C.B. v. City of Sonora, 2014 WL 5151632 (Oct. 15, 2014), portends bad new for the New York City schools and others that make it a practice of handcuffing students. The Court in Sonora pointed out that two other circuits had applied T.L.O. v. New Jersey's, 469 U.S. 325 (1985), "reasonableness standard to evaluate whether a school official was entitled to qualified immunity from an excessive force claim" in cases of this sort. But whether applying T.L.O. or Graham v. Connor, 490 U.S. 386 (1989), the Ninth Circuit made it relatively clear that the routine handcuffing of students would be hard to justify. The court reasoned:
Tuesday, October 28, 2014
A new Hechinger Report article offers a compelling narrative and social science review of the connection between emotional-behavioral disabilities and prison. We typically call this the pipeline, which is catchy, but often strikes me as vague or a rough characterization of a conglomeration of statistics (albeit an effective one). Jackie Mader and Sarah Butrymowicz's article, like others, discusses how children with special education needs are disproportionately involved in the juvenile justice system. Of the thousands of children caught up in the system every year, "[a]t least one in three of those arrested has a disability, ranging from emotional disability like bipolar disorder to learning disabilities like dyslexia, and some researchers estimate the figure may be as high as 70 percent." Moreover, students with emotional disabilities are three times as likely to be arrested before leaving high school than their peers. Beyond those numbers, however, this article struck me as doing something different--revealing more than just a pipeline from point A to B to C. Rather, it suggests a systematic approach to special needs and discipline that is ill-equipped to do anything other than drive a substantial portion of special needs students to incarceration.
Raul R. Calvoz, Bradley W. Davis, and Mark A. Gooden's new article, Constitutional Implications of School Punishment for Cyber Bullying, 2014 Cardozo L. Rev. de novo 104, is available. It addresses the constitutional and legal challenges that may stand in the way of administrators and legislators' attempts to combat cyber bullying. First, since the acts most frequently associated with cyber bullying involve written words, a student's First Amendment right to free speech is implicated. Second, due to the mobile nature of technology, a student's actions outside of school grounds, even if they have an incidental impact on school grounds, raise the question of whether schools have jurisdiction to discipline the students.
The authors frame their analysis within the context of the substantial disruption test from Tinker v. Des Moines. In Tinker, the Supreme Court held that school administrators may regulate student speech if the regulation aims at preventing a foreseeable: (1) material or substantial disruption in the school environment; or (2) invasion of the rights of others. The authors reason that school administrators may, without violating students' constitutional rights, regulate and prohibit any bullying (including cyber bulling) which falls into either of those two categories. However, the jurisdictional question complicates matters.
Wednesday, October 22, 2014
The guidance letter on bullying and harassment of students with disabilities that was issued this week by the Office for Civil Rights of the U.S. Department of Education is noteworthy for a number of reasons. First, it reinforces the point made in other Department of Education communications that bullying of these students, if not adequately addressed by school districts, amounts to a violation of the law even if the conduct is not directly tied to the students’ disabilities. Although unaddressed bullying that is related to the disability is a clear violation of the protection against hostile environments established by the law, there is a separate violation when bullying, of any kind or for any reason, interferes with a disabled child’s receipt of an appropriate education. Second, with regard to hostile environment violations, the letter stresses that even if the conduct of the school officials does not rise to the level of deliberate indifference to known deprivation of rights, a violation of the disability discrimination laws still occurs when, as OCR puts it: “(1) a student is bullied based on a disability; (2) the bullying is sufficiently serious to create a hostile environment; (3) school officials know or should know about the bullying; and (4) the school does not respond appropriately.” There are reasons to be skeptical of the use of a deliberate-indifference standard copied without any modification from Title VI and Title IX in Section 504 and ADA damages cases. As Derek Black pointed out in his illuminating article at 15 Wm. & Mary Bill of Rts. J. 533 (2006), even in equal protection cases courts should apply a standard that is lower than the Title VI-Title IX deliberate-indifference standard. But in any case a deliberate-indifference standard does not limit when OCR should act to stop and prevent violations of the law. Third, OCR provides a helpful set of examples of hostile-environment violations, non-disability-based bullying that nevertheless leads to violation of the discrimination laws, and an appropriate response to bullying that avoids violating the law. The letter should make a strong contribution to remedying disability discrimination.
Monday, October 20, 2014
The DC Office of Human Rights' (OHR) report on bullying in DC schools is now available. Its particular focus is an assessment of schools' compliance with the District's 2012 anti-bullying law, which required that schools adopt specific policies.
Based on school responses to OHR's survery, the report found:
- 57 of 61 (93.4 percent) of DC Public Charter LEAs as well as DC Public Schools submitted a bullying prevention policy to the DC Office of Human Rights by September 30, 2014.
- 42 of 61 DC Public Charter LEAs (70.5 percent) and DC Public Schools had policies compliant with the Youth Bullying Prevention Act of 2012 by September 30, 2014.
- 17 charter school policies were deemed compliant upon submission, all of which adopted the mayor’s Bullying Prevention Task Force’s model policy (“model policy”). The remaining 25 compliant policies were revised and resubmitted.
- On initial submission, LEAs were most often non‐compliant on:
- Coverage of electronic bullying off‐campus that interferes with students’ participation in or benefit from schools’ services,
- Having the verbatim definition of bullying as defined in the YBPA,
- Stating that consequences are to be applied in a flexible manner based on students’ developmental age, the nature of the incident, and disciplinary history, and
- Providing a consistent appeals process as defined in the YBPA.
Thursday, October 16, 2014
Earlier this year, I applauded the Departments of Justice and Education for their stated policies in their new discipline guidance. The question there (and with the recent resource equity guidance) was whether they would enforce the policies. Since then, the Office for Civil Rights at the Department of Education appears to have stayed the course. As just one more example, OCR recently reached a settlement agreement with Tupelo, Mississippi. The press release follows my comments below.
Pay particular attention to the steps the district is required to take. The steps are explicitly aimed at reducing harsh discipline overall, which presumably will bring down the disparities, and improve the educational climate. Now that several of these settlements are in place and OCR is monitoring the data in these districts, OCR should be in a position within the next year to emphasize the efficacy of their efforts. A report comparing pre-settlement and post-settlement outcomes not just in discipline, but in overall educational outcomes, could be a powerful tool in convincing more districts to act.
Wednesday, October 15, 2014
Process versus Substance in Affording Students with Behavioral Disabilities a Free Appropriate Public Education
Susan C. Bon and Allan G. Osborne's new article, Does the Failure to Conduct an FBA or Develop a BIP Result in a Denial of a FAPE Under the IDEA?, 307 Ed. Law Rep. 581 (October 5, 2014), is now available on westlaw. The article analyzes a number of recent cases "decided in the federal trial courts in New York over the question of whether school boards' failure to conduct [functional behavioral assessments (FBAs)] or implement [behavioral intervention plans (BIPs)] denied children the free appropriate public educations (FAPEs) guaranteed by the IDEA." Currently, the IDEA requires that school administrators ensure that FIPs are completed and that BIPs are implemented whenever students with disabilities are removed from their programs for more than 10 days due to disciplinary measures. A number of states, however, including New York, have expanded on these federal requirements and "[e]ven though these cases were primarily concerned with state requirements, which are more comprehensive and specific than the IDEA, there are important implications that can be garnered from this litigation."
Wednesday, October 1, 2014
California has passed a new discipline statute eliminating suspensions of kindergartners through third graders for disruption and defiance. I applaud them for taking a step in the right direction, but cannot help but point out how small of a step it is. The statute will still authorize any number of other unnecessary school exclusions. The full statute is after the jump. More on the story here.
Tuesday, September 30, 2014
California is now the first state to adopt an affirmative consent standard in regard to sexual assault claims. This change comes "as states and universities across the U.S. are under pressure to change how they handle rape allegations." The bill was originally introduced by Senator Kevin de Leon, who hopes this new law will begin a paradigm shift across the country as to how colleges and universities prevent and respond to sexual assault reports. Now, "[r]ather than using the refrain 'no means no,' the definition of consent under the bill requires 'an affirmative, conscious and voluntary agreement to engage in sexual activity.'" Thus, according to the legislature, under the new law "silence or lack of resistance does not constitute consent. Under the bill, someone who is drunk, drugged, unconscious or asleep cannot grant consent." The bill also requires counseling and health services for victims, as well as training for the faculty and staff who handle these reports, so that they do not inadvertently overreach when interviewing victims. Moreover, support for this bill came from both sides of the aisle, with no opposition in the Senate. In the general assembly, some Republicans questioned whether statewide legislation is really the best way to address the issue. Nevertheless, the bill passed and was signed into law by the governor on Sunday.
Wednesday, September 17, 2014
I have applauded the Departments of Justice and Education on their steps to reduce overly punitive discipline and racial disparities. Their joint guidance in January was a major step forward. On the other hand, the Department of Justice's 1033 program, which funnels military gear and weapons from the Department of Defense to localities, including school districts, is a step in the wrong direction. The Washington Post reports:
Law enforcement agencies affiliated with at least 120 schools, colleges and universities have received gear through the program, according to a Washington Post review of data from 33 states. The items received include at least five grenade launchers, hundreds of rifles and eight mine-resistant, ambush-protected vehicles, the hulking machines designed to withstand the kind of roadside attacks seen in Iraq and Afghanistan.
Tuesday, September 16, 2014
In July, Jason Nance concluded, based on the Court's decision in Riley v. California holding officers generally need a warrant to search an individual's cell phone, that most school searches of students' cell phones would be off limits as well. The lower reasonable suspicion standard applied to school searches would not save administrators on this point. Last month, a district court judge agreed with Nance in Gallimore v. Henrico Cnty. Sch. Bd., 2014 WL 3867557 (E.D. Va. Aug. 5, 2014).
School administrators, Turpin and Saunders, had "received reports from two parents that a longhaired student had smoked marijuana on a Hermitage High School bus that morning. That afternoon, Turpin brought W.S.G. to Saunders' office. W.S.G. did not know why Turpin summoned him to the office. W.S.G. emptied his pockets, and, before offering an explanation, Turpin initiated a search. Turpin patted down W.S.G.'s person and searched W.S.G.'s backpack, shoes, and pockets. Saunders searched W.S.G.'s Vaseline jar, a sandwich wrapper, and cell phone. Saunders broke the lid of the Vaseline jar while searching it, but did no other damage. Saunders and Turpin found no marijuana on W.S.G., and they sent him back to class."
Friday, September 12, 2014
Well, it is not so simple as the title suggests, but yesterday I posted on a new Missouri law permitting teachers to carry concealed weapons at school. In total, ten states have enacted legislation to permit teachers to carry guns at school. A few hours after my post came news that a teacher carrying a concealed weapon at Westbrook Elementary in Utah had accidentally shot herself in the leg (not the foot). Gun advocates estimate that about one percent of teachers in Utah, which amounts to 240 teachers, have gun licenses and are eligible to carry a gun to school.
While this incident is a tragedy for the teacher, I quip about it because it is the exact sort of thing that any policymaker in his or her right mind should expect, but seems to have ignored. Bringing more guns into school is necessarily going to increase the chances of an accident and having non-professionals bring guns makes that risk exponential. And a lot worse than just an accidental shot in the leg is possible. Even if the increased presence of armed personnel in schools decreases the risk of a Sandy Hook situation--and I am far from convince that it does, or does significantly--does that decrease outweigh the risk of new accidents? I am pretty confident that the answer is no.
Thursday, August 28, 2014
Derek posted yesterday about a case that shows how school-related juvenile charges can derail a student's education. The Los Angeles Unified School District announced last week that it is taking steps to alleviate some of those consequences by decriminalizing school discipline. Cribbed from the L.A. Times: L.A. school police will no longer issue citations for minor offenses such as campus fights, petty thefts, and tobacco possession and will instead use alternatives to arrest. The district says that the move is a recognition that zero tolerance polices are not making schools safer but are instead pushing out struggling students who then may drop out and get in more serious trouble. L.A. Unified developed the graphic to the left to guide schools towards internal discipline and when to call the police. Click the graphic to see the full chart and read the L.A. Times story here.
Wednesday, August 27, 2014
Getting to the bottom of what would otherwise be a simple suspension appears to be a complex task in J.A. ex rel. Swain v. Talladega City Bd. of Educ., 2014 WL 4185137 (N.D. Ala. Aug. 15, 2014) because of the statutory and constitutional context in which it arises. The court does not chronologically or clearly articulate the facts, but it appears that J.A. and his Assistant Principal were involved in some type of physical altercation. As a result, J.A. was referred to the police and charged with assault in juvenile court. Pursuant to Alabama statute, a school shall not readmit a student charged with drugs, weapons, physical harm, or threats until the juvenile charges are disposed of. As a result, J.A. was suspended from school and assigned to an alternate school.
J.A. filed suit against the principal and district, alleging the principal assualted him and that he was deprived of his substantive due process rights. He also filed for a preliminary injunction, requesting that he be readmitted. Beyond that, things get complicated. J.A.'s juvenile proceedings are apparently dragging out and, thus, he remains excluded from school based on the statute. He points out the illogic of this statute, as it would permit a student quickly found guilty or delinquent to return to school in short order, but would indefinitely exclude the innocent student who holds out for or requires more complex deliberations. In other words, the readmission is not triggered by substantive facts, guilt, or innocence, but simply the length of time it takes for juvenile proceedings to run.
Tuesday, August 26, 2014
Nashville Schools Ordered to Cease Searches and Examinations by Nurses Until Proper Training and Policy in Place
A school nurse in the Davidson County public schools in Nashville, Tennessee, subjected a female student to a medically unjustified genital examination in the presence of a school official. The girl's parents challenged the examination as a violation of her rights under the Fourth and Fourteenth Amendments. The case went to trial and the jury found for the defendants. The parents moved for a new trial, which the court in Hearring v. Metro. Gov't of Nashville & Davidson Cnty., 2014 WL 3924520 (M.D. Tenn. Aug. 11, 2014), denied. The court, however, did grant the plaintiff an injunction as to future examinations by the district. The court found that the staff were insufficiently trained and the district had adopted insufficient standards to prevent unwarranted invasions of privacy.
Thursday, July 31, 2014
To read several of my recent posts, one might get the impression that overly harsh discipline is on the way out. While it is true the Departments of Justice and Education have made important statements and a substantial number of large districts are promising to reform their discipline policies, the prevailing reality is still one of extremely high rates of harsh discipline in most places. As demonstrative evidence, I offer the following from the Columbia Journalism School's investigative paper, New York World:
In more than 40 New York City public schools, long-term suspensions of students for disciplinary infractions are the norm, not the exception.
Last week, the Obama administration announced an expansion of the My Brother's Keeper Initiative, which is aimed at improving educational and life opportunities for African American and Latino boys. Sixty of the nation's largest school districts, which educate about 40 percent of the nation's low income African American and Latino boys, agreed to join the President's initiative. They are committing to expand preschool education, expand positive interventions, increase the number of minority boys in advanced courses, reduce their suspension rates, and increase graduation rates.
More on the story here.
Monday, July 28, 2014
The American Bar Association is hosting a School to Prison Pipeline Town Hall meeting in Boston on Friday August 8, 20014 at Hynes Convention Center, 900 Boylston Street from 9 am - 11 am. A great lineup is scheduled to speaking, including Professor Sarah E. Redfield;Bob Fleischner, Center for Public Representation; Damon Hewitt, Open Society Foundation; Dan Losen, Civil Rights Project UCLA; Mike Ortiz, attorney Lowell Public Schools; Marlies Spanjaard, Public Counsel; and Gloria Tan.
Their program description states:
The “School-to-Prison Pipeline” has been a crucial concern of parents, educators,
lawyers, judges, ministers, civil rights leaders, and youth advocates for a number of
years. Recently, it has become a major concern of the public across the country due in
large part to the spiraling statistics and the negative impact on children of color. Some
youth advocates have defined the problem as a systematic way of siphoning children
out of public schools and funneling them into the juvenile and criminal justice system.
A number of civil rights lawyers regard the journey from “school- to-prison pipeline,”
as the most critical civil rights issue facing our country today.
Friday, July 25, 2014
African Americans accounted for 70 percent of suspensions and 76 percent of expulsions in the Nashville public schools, while being less than half of the school population. That means that one out of every five African American students was suspended or expelled last year. The numbers for African American males, while not noted in recent releases, are surely higher and, thus, shocking.
To the district's credit, it has realized that enough is enough. It is partnering with a service center for at-risk youth to identify a new discipline, mental health and community outreach model. It is also joining Chicago, Los Angeles and New York in the Positive & Safe Schools Advancing Greater Equity initiatives, through which they will support one another in developing solutions.
I suspect that the Department of Justice and the Office for Civil Rights' joint guidance on discipline disparities also played an important role in their thinking.
More on the story here.
Wednesday, July 16, 2014
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