Thursday, October 20, 2016

Turning School Discipline Over to the Police Does Not Work

The ACLU of California has released a new report titled The Right To Remain a Student: How California School Policies Fail to Protect and Serve.  The report begins:

Over the past two decades, police officers in the United States have increasingly displaced school administrators as disciplinarians, responding to minor offenses and conduct violations that pose no direct threat to personal safety. This increase in student-police interactions has funneled thousands of students into the school-to-prison pipeline and created adverse legal consequences for school districts. The Right to Remain a Student: How California School Policies Fail to Protect and Serve details these consequences and describes the current state of school district policies in California that pertain to police on campus. Additionally, it shares model policies that both promote school safety and protect student rights. These model policies are designed to ensure that school staff will manage police encounters safely and equitably for all students—no matter their race, class, disability status, gender, or where they go to school.

It finds:

  • Many districts have conflicting, vague, or absent law enforcement policies that provide little to no meaningful guidance to school staff on when to call police to campus or how to interact with police.
  • Most school districts give staff complete discretion to call police to address student misbehaviors that should be handled by school staff such as administrators or counselors, including: a. General school rule violations (62% of districts give staff discretion), b. Bullying and harassment (60.7% of districts give staff discretion), c. School disruption (57.4% of districts give staff discretion), and d. Vandalism (66.7% of districts give staff discretion or even require reporting to police).
  • Very few schools (4% or less in each category) have policies limiting police contact for rule-breaking or minor offenses.
  • California school districts provide inadequate guidance to school staff on what they should do when police officers question students on campus. a. Of school districts statewide, 70.9% allow police officers to interview students immediately upon demand, stating that staff “shall not hinder or delay” interrogations. b. Less than 1% provide that an adult (not a police officer) must be present to make sure the student’s civil rights are observed during police questioning. c. Only 1.3% of districts have a police ensuring that staff or police advise students of their constitutional right to remain silent.
  • California school districts similarly do not protect students who are arrested or removed from campus by police. a. Of California school districts, 30% have no barriers to police removing a student from campus and 8% provide no guidance whatsoever about police officers removing students from campus. b. Only 18.3% of California school districts require a school administrator to ascertain the reason the officer must remove the student from school. c. Only 5.6% of school districts maintain any procedures governing the enforcement of arrest warrants on campus.

A key thesis of the report is the need to distinguish between every day misbehavior of students and other behavior that may actually justify police involvement.  As I emphasize in the book Ending Zero Tolerance, many schools do not even distinguish between these types of behavior in their own suspension and expulsion policies, which has also caused a dramatic increase in school exclusion.  In other words, it is hard to preach lessons to law enforcement when schools are not even following those lessons themselves.

October 20, 2016 in Discipline | Permalink | Comments (0)

Thursday, October 13, 2016

Study Finds That Harsh School Discipline Costs Nation $35 Billion, Showing Connection to Much Larger Education and Social Issues

Yesterday, the Civil Rights Project released a new report, The High Cost of Harsh Discipline and Its Disparate Impact.  The study attempts to quantify the cost of harsh school discipline through the dropouts and social costs it produces.  It looks closely at California and Florida to create a baseline of costs and then extrapolates them nationwide.  The abstract explains:

School suspension rates have been rising since the early 1970s, especially for children of color. One body of research has demonstrated that suspension from school is harmful to students, as it increases the risk of retention and school dropout. Another has demonstrated that school dropouts impose huge social costs on their states and localities, due to lost wages and taxes, increased crime, higher welfare costs, and poorer health. Although it is estimated that reducing school suspension rates in Texas would save the state up to $1 billion in social costs, only one study to date has linked these two bodies of research. The current study addresses some of the limitations of that study by (1) estimating a stronger causal model of the effects suspension has on dropping out of school, (2) calculating a more comprehensive set of the social costs associated with dropping out, and (3) estimating the cost of school suspensions in Florida and California, and for the U.S. as a whole. The results show that suspensions in 10th grade alone produced more than 67,000 dropouts in the U.S. and generated social costs to the nation of more than $35 billion. These results are undoubtedly conservative, since the California and U.S. estimates were limited to 10th-grade students, while the Florida estimates were limited to 9th-grade students. Thus, they did not capture the effects of suspensions in earlier grades.

The study is reminiscent of (albeit distinct from) a 2013 report by law enforcement officials titled I'm the Guy You Pay Later.  That report emphasized that a 

10-year investment in preschool will produce over 2 million additional high school graduates. And if we can reduce the number of young people who commit felonies and the number who are incarcerated by 10 percent each – roughly half the reduction achieved by the Chicago Child-Parent Center program – we can reduce the number of individuals who are locked up by 200,000 each year. The resulting savings – $75 billion over the 10-year investment – could pay the federal costs of the preschool program.

Together, these two studies further the core thesis of my book, Ending Zero Tolerance, which is that school quality and discipline are inextricably intertwined.  A primary solution to school quality failures is improving the school discipline system (which means taking approaches that are the opposite of zero tolerance) and a primary solution to school discipline is improving school quality and services.  The back-end payoffs are enormous.  Unfortunately, the dominant narratives treat these issues as separate and distinct.

October 13, 2016 in Discipline | Permalink | Comments (0)

Wednesday, October 12, 2016

Court Rejects Attempt to Use Constitution to Force More Charter Schools on Massachusetts

Last year, advocates filed a lawsuit in Massachusetts that attempted to use the state education clause and school finance precedent to declare a cap on charter schools unconstitutional. The theory was that many current schools were so bad that they deprived students of a quality education.  Since quality charter schools were down the road and could be expanded, the remedy was to grant students the access to more charter schools, which would require lifting the statutory cap on them.  The theory, in many respects, resembled the strategy of the constitutional challenge to teacher tenure in California.  

Last week, the trial court in Massachusetts dismissed the charter case.  The court reasoned that the education clause does not create an individual right to education and, thus, does not create an individual right to demand access to other school opportunities and facilities.  Rather, the education clause creates a duty on the part of the state to create a constitutionally adequate education system.  Exactly how it does that is a matter of legislative policy and discretion, to which courts should defer.  Plaintiffs' attempt to have the court insert their legislative preferences for those of the state is misguided.

I would generally agree with this basic rationale and certainly agree that plaintiffs' claims were a misguided use of the education clause.  Their claim was really policy advocacy masquerading and constitutional analysis.  With that said, I would caution the need for a little more nuance in dismissing such cases.  

First, as I outline here, the notion of an education duty with no corresponding education right is highly problematic.  If the state has a duty, it should be to someone or some group. While the Massachusetts trial court is correct that this does not mean that each individual student can demand individualized education, the constitution should require that the state create policies that ensure that the educational needs of individual students and students as a whole are met.  If a policy is consistently denying students education, they should be able to challenge it and receive some sort of remedy.  The duty-right distinction in other cases has been used as subterfuge to release the state from doing anything.  Since there is no right, court can reason there is no basis for compelling the state to undertake its duty.  The idea that this court might be adding support for that argument is worrying.

Second, the problem is particularly acute in school discipline and school finance cases.  In discipline cases, some courts have used the duty-right distinction to flatly reject plaintiffs attempts to rely on their state's education clause to challenge suspension and expulsion.  As a result, states can operate discipline systems that I argue here and here are entirely inconsistent with their duty to deliver equal and adequate education opportunities.  In addition, in the traditional school finance case, there are numerous examples of states simply refusing to implement the remedies that courts have ordered.  South Carolina, Kansas, and Washington immediately come to mind as examples in the past year.  James Ryan and I have separately argued that when the state refuses to carry out its duty to implement a remedy to constitutional violations, it is within courts' power and responsibility to grant students immediate relief.  This might be in the form of the right to exit their current public school and enroll in another public school.  In other words, it should be beyond the state's discretion to force a student to remain in a school that the state refuses to bring up to constitutional standards.  To be clear, however, this is not to say that caps on charters or student assignment statutes are unconstitutional or that students or their attorneys have the right to dictate where they should go to school. The point is simply that if the conditions in a particular school are unconstitutional, the state owes the students a remedy.  If states, after the opportunity to do so, refuse to implement a remedy, courts can and should exercise injunctive relief on behalf of students.

For those less interested in doctrinal nuances, the trial court holding got it right: the cap on charter schools does not present a constitutional problem.  Nonetheless, the initial lawsuit was enough to help get the issue of eliminating the cap on the ballot this November.  So voters will get the final say.  Recent polls indicate voters are against lifting the cap.

October 12, 2016 in Charters and Vouchers, Discipline, School Funding | Permalink | Comments (0)

Friday, September 23, 2016

Is Discipline Reform Heating Up in Connecticut?

The issue of discipline reform is beginning to gain traction in Connecticut and WNPR in Connecticut put together a nice hour-long show on school discipline.  My opinion is slightly biased since I was able to participate, but I was joined by a lot of great people who add real depth to the issues.  The guests include:

Download or listen to the show here.

September 23, 2016 in Discipline | Permalink | Comments (0)

Tuesday, September 13, 2016

ACLU Files Suit against School That Handcuffed a Seven-Year-Old, Hearing Impaired Boy Who Cried Instead of Responding

The Missouri Branch of the American Civil Liberties Union has filed a lawsuit against Kansas City Public Schools in regard to the arrest of a Kalyb Primm Wiley.   At the time, Kalyb was 7 years old, about 50 pounds and 4 feet tall. According to the complaint,

He had committed no crime, had threatened no one, and posed no imminent danger to anyone that necessitated Defendant Craddock to restrain plaintiff in handcuffs.

. . . .

Continue reading

September 13, 2016 in Discipline | Permalink | Comments (0)

Ending Zero Tolerance: The Crisis of Absolute School Discipline By Derek Black

9781479877027_FullBlog editor Derek W. Black's new book, Ending Zero Tolerance, The Crisis of Absolute School Discipline, is now available on Amazon and New York University Press. In the new book, Black challenges the judiciary to check schools' overreliance on severe disciplinary measures. From the book's summary:

In the era of zero tolerance, we are flooded with stories about schools issuing draconian punishments for relatively innocent behavior. One student was suspended for chewing a Pop-Tart into the shape of a gun. Another was expelled for cursing on social media from home. Suspension and expulsion rates have doubled over the past three decades as zero tolerance policies have become the normal response to a host of minor infractions that extend well beyond just drugs and weapons. Students from all demographic groups have suffered, but minority and special needs students have suffered the most. On average, middle and high schools suspend one out of four African American students at least once a year. 

The effects of these policies are devastating.  Just one suspension in the ninth grade doubles the likelihood that a student will drop out. Fifty percent of students who drop out are subsequently unemployed. Eighty percent of prisoners are high school drop outs. The risks associated with suspension and expulsion are so high that, as a practical matter, they amount to educational death penalties, not behavioral correction tools. Most important, punitive discipline policies undermine the quality of education that innocent bystanders receive as well—the exact opposite of what schools intend.  

Ending Zero Tolerance answers the calls of grassroots communities pressing for integration and increased education funding with a complete rethinking of school discipline. Derek Black, a former attorney with the Lawyers’ Committee for Civil Rights Under Law, weaves stories about individual students, lessons from social science, and the outcomes of courts cases to unearth a shockingly irrational system of punishment. While schools and legislatures have proven unable and unwilling to amend their failing policies, Ending Zero Tolerance argues for constitutional protections to check abuses in school discipline and lays out theories by which courts should re-engage to enforce students’ rights and support broader reforms.

September 13, 2016 in Analysis, Discipline | Permalink | Comments (0)

Friday, September 9, 2016

NYT Education Issue: An Effective but Exhausting Alternative to High-School Suspensions

In keeping with Derek's post yesterday on the ED's guidance to reduce violent interactions between students and school resource officers, the New York Times' annual education issue has an article by Susan Dominus, An Effective but Exhausting Alternative to High-School Suspensions, focusing on a school that is trying to implement a restorative-practices model of school discipline. The article describes the efforts in Leadership and Public Service High School in Manhattan’s Financial District to reduce its student suspensions (230 in 2013 and in 140 in 2014). Leadership's principal and dean recruited staff who were trained in restorative justice practices and coached teachers on how to use non-punitive language with students, among other efforts. The article is online here.

September 9, 2016 in Discipline, News | Permalink | Comments (0)

Thursday, September 8, 2016

U.S. Department of Education Takes Step to Limit Violent Interactions between Resource Officers and Students

As discussed here and here, this past year has brought too many stores of school resource officers (SRO) acting with excessive levels of force against students.  This morning, the U.S. Department of Education has taken an official step in the attempt to quell these incidents.  The Department released set of guidelines for how schools should hire and use school resource officers. The Department is calling it a rubic that

includes five common-sense action steps that can help ensure that SROs are incorporated responsibly into school learning environments. These action steps are:

1. Create sustainable partnerships and formalize [Memoranda of Understandings (MOUs)] among school districts, local law enforcement agencies, juvenile justice entities, and civil rights and community stakeholders.
2. Ensure that MOUs meet constitutional and statutory civil rights requirements.
3. Recruit and hire effective SROs and school personnel.
4. Keep your SROs and school personnel well trained.
5. Continually evaluate SROs and school personnel, and recognize good performance.

Get the full guidance document and its detailed explanations here.

September 8, 2016 in Discipline | Permalink | Comments (0)

Friday, September 2, 2016

School Resource Officers Who Were Fired for Using Excessive Force on Student Are Now Suing District in Response, Claiming Discrimination

A lawsuit between school resource officers and the Shelby County School District in Memphis is going to trial.  The resource officers had a physical altercation with and arrest of an African American student, after which they were terminated.  The officers, who are white, allege that the firing was race-based.  The district claims the officers used excessive force. The officers claim that the student initially acted "in a belligerent manner using vile language" and they then restrained her.  The school then suspended her, after which the officers allege she became "became violent."  

A school video, however, would seem to suggest nothing of the sort.  It appears the student was standing in place, eating something, or, at least, keeping her body to herself in a calm manner. An officer then reaches out toward her hand and face to take her hand or the food.  She then moves her body and hand away from him and everything goes downhill.  The officer appears to strike her in the face and another eventually takes her to the ground.  The full video can be found here.  The officers claim that the principal saw this altercation and immediately responded that he would have them fired because he was tired of "white officers beating up on my black babies."

Further complicating the case is the additional layer of school consolidation that had recently occurred in the district.  Memphis City Schools had merged with Shelby County, two demographic different school districts.  As Daniel Kiel has explained (here and here), the racial politics of the merger ran deep.  The extent to which this colors the issues in the case is unclear, but it will certainly draw attention to the case.

On the other hand, school merger politics and the race of the officers have little to do with the question of whether the officers acted reasonably or should have had action taken against them.  This case reminds me a lot of the one that occurred in South Carolina last fall and captivated the nation.  A resource officer at Spring Valley High School in Columbia, South Carolina, pulled a female student from her desk by her neck, threw her to the floor, and then dragged her across the floor to another part of the room.  The incident was caught on video and went viral.  Both the Columbia and Memphis case reveal two disturbing things: 1) officers being called on to deal with basic discipline in the school and 2) officers using significant levels of force on students whom themselves appear to pose absolutely no danger.

In my forthcoming book Ending Zero Tolerance, I explain how incidents like these harm not only the punished or arrested students, but all of those around them. The upside of having officers in place to undertake these actions is simply to small to outweigh the burden.


September 2, 2016 in Discipline | Permalink | Comments (0)

Monday, August 29, 2016

Student Surveillance, Racial Inequalities, and Implicit Racial Bias

Jason Nance's forthcoming article, Student Surveillance, Racial Inequalities, and Implicit Racial Bias, Emory Law Journal, is available here on ssrn.  His abstract offers this summary:

In the wake of high-profile incidents of school violence, school officials have increased their reliance on a host of surveillance measures to maintain order and control in their schools. Paradoxically, such practices can foster hostile environments that may lead to even more disorder and dysfunction. These practices may also contribute to the so-called “school-to-prison pipeline” by pushing more students out of school and into the juvenile justice system. However, not all students experience the same level of surveillance. This Article presents data on school surveillance practices, including an original empirical analysis of restricted data recently released by the U.S. Department of Education after the shootings at Sandy Hook Elementary School. Paralleling other disturbing trends of inequality in our public school system, these results and other empirical analyses reveal that schools serving primarily students of color are more likely to rely on more intense surveillance measures than other schools. Further, the empirical evidence suggests that these racial disparities may not be justified by legitimate safety concerns. This Article then turns to a discussion of the role that implicit racial bias may have in school officials’ decisions to rely on intense surveillance methods. Finally, it proposes legislation and strategies that federal lawmakers, state lawmakers, and school officials should adopt to counteract the effect of implicit racial bias on school officials’ decisions to implement strict security measures (and other decisions school officials make). Implementing these recommendations will help create better learning environments that benefit students of all races. 

August 29, 2016 in Discipline | Permalink | Comments (0)

Wednesday, August 24, 2016

New Corporal Punishment Data Should Remind Us That Zero Tolerance Suspensions and Expulsions Will Not Simply Fade Away

Yesterday, Ed Week reported that 109,000 students were paddled in school in the most recent year's data.  These instances of corporal punishment occurred in 21 states and 4,000 schools.  "Texas, Alabama, Mississippi, Arkansas, Georgia, Tennessee, and Oklahoma physically disciplined the most students."  Poor students, moreover, appeared to be those most at risk.  African-Americans were also at heightened risk.  While only African Americans were only "22% of overall enrollment in schools using corporal punishment,"  38% of students paddled were African American.

In my forthcoming book Ending Zero Tolerance, I make the argument that historical trends in corporal punishment offer an overall warning sign for our most vulnerable student populations: zero tolerance and excessive suspensions and expulsions will not go away simply because the general public turns against them.  There will always be holdouts, and those hold outs occur in the very places where help has always been needed the most.  And right now, suspension and expulsion has a lot further to go.  Our public schools continue to suspend and expell more than three million students a year.

In the book, I explain that in 1997 in Ingraham v. Wright the Supreme Court

held that schools were free to corporally punish students and that schools need not even afford students with any due process prior to paddling them. The Court reached this conclusion notwithstanding the unsettling facts of the case. Speaking of the lead plaintiff, the Court wrote: “Because he was slow to respond to his teacher’s instructions, Ingraham was subjected to more than 20 licks with a paddle while being held over a table in the principal’s office. The paddling was so severe that he suffered a hematoma requiring medical attention and keeping him out of school for several days.” Ingraham’s classmate was regularly paddled for “minor infractions. On two occasions he was struck on his arms, once depriving him of the full use of his arm for a week.”

The Court offered up the possibility that students could sue the teacher or school under state tort law as the reason why it need not intervene. A close examination of the case, however, reveals that the Court simply thought it unwise for courts to become further involved with discipline. Better to let schools and society work it out. In one respect, the Court’s faith in schools and society was not misplaced. In the ensuing years, much of society and the education system came to see corporal punishment as barbaric, rephrasing it as “beating” rather than paddling. With this changed perspective, the number of districts and states that authorized corporal punishment sharply declined. By 2014, over half the states prohibited corporal punishment in schools. In those states that still permit corporal punishment, many school districts or schools prohibit the practice of their own accord. But in another respect, the Court’s faith in society and schools was sadly misplaced.

The reality for actual students in many communities remains relatively unchanged since 1977. Twenty-one states still permit corporal punishment, notwithstanding the social science and national consensus against it. The practice holds on the strongest in those places where it has always been the most troubling. Today, every state in the southeast permits corporal punishment and many schools there frequently impose it. Alabama, Mississippi, and Texas all paddled more than 30,000 students in the 2006–2007 schoolyear. In Mississippi, 7.5 percent of the student population was paddled each year.

The lesson for school suspensions is simple. Even if a national consensus turns against zero tolerance and harsh discipline, the shift will have little effect on the lives of students in many communities. Only judicially enforced rights can bring justice and fairness to these communities. Even if policy could eventually resolve the problem, courts should not ask students to wait on states and schools to respect their rights. Constitutional rights exist to protect citizens against the whims of local, state, and federal majorities. Each unjustifiably imposed suspension or expulsion is a deprivation of a right that demands a response. Each suspension or expulsion represents a potential educational death sentence and second-class citizenship.

August 24, 2016 in Discipline | Permalink | Comments (0)

Thursday, August 18, 2016

Birmingham's Continued Defense for Pepper Spraying Students Shows Why Courts Are the Last Vestige of Hope for So Many Students

Last year, in a challenge to the use of pepper spray on students, the federal district court in  J.W. v. Birmingham Bd. of Educ., 143 F. Supp. 3d 1118 (N.D. Ala. 2015), wrote:

The court was profoundly disturbed by some of the testimony it heard at trial. The defendant S.R.O.s uniformly displayed a cavalier attitude toward the use of Freeze +P—in a display of both poor taste and judgment, one defendant joked that Freeze +P is a potent nasal decongestant for individuals with sinus problems. Equally disturbing, the trial revealed that the defendant S.R.O.s believe that deploying Freeze +P is the standard response even for the non-threatening infraction that is universal to all teenagers—i.e. backtalking and challenging authority. Frankly, the defendant S.R.O.s' own testimony left the court with the impression that they simply do not believe spraying a student with Freeze +P is a big deal, in spite of their own expert's testimony that Freeze +P inflicts “severe pain.” The court also heard testimony that indicated several of the officers spraystudents with Freeze +P because it is easier than more hands-on approaches, even though those approaches cause students less pain than Freeze +P. Ultimately, the court believes that it was unnecessary for the defendant S.R.O.s to spray most if not all of the plaintiffs. Unfortunately for some of the plaintiffs, behavior that is unnecessary and disturbing is not automatically unconstitutional.

The court ruled in favor of the students and issued an injunction to prevent future abuses. Quite honestly, I thought the case was over at that point.  The story, however, is back in the news.  The defendants appealed the case to the 11th Circuit Court of Appeals and yesterday defended their position in oral argument.  I have yet to get the transcripts of oral argument, but the brief argued that the district court seeks to control “(1) [school resource officer] duties; (2) SROs’ use of Spray; (3) SRO training; (4) and SROs’ decontamination of students that have been sprayed,” even though it is “the power of the City of Birmingham’s elected government to control the BPD” through the police chief."

In my new book Ending Zero Tolerance, I spend the first half of the book laying bare the irrationality and ineffectiveness of harsh discipline and policing in schools.  I acknowledge the importance of new state and federal policies designed to limit certain egregious problems, but critique many of them as too slow coming and too narrow in scope to fix an endemic problem.  In the end, I emphasize that constitution stands as the only constant final red line against abuses and irrationality in school discipline, particularly for the most marginalized students.  While advocates must continue to press for policy reform, courts must play an important role as well.  If there were any doubt in courts' role, it ought be vanquished by the fact that Birmingham for years had been spraying its students with pepper spray for minor misbehavior in the first instance and, second, that Birmingham is audacious enough to demand discretion to carry out similar actions in the future.  

This story also confirms another major premise of the book: no matter how much progress we may make in certain cities and states, there will always be a number of hold-outs.  In these hold-outs locations, students cannot turn to the political process.  They can only hope that the institution designed to protect against the tyranny of the majority--courts--will step forward. 

August 18, 2016 in Discipline | Permalink | Comments (0)

Thursday, August 11, 2016

Lawsuit Challenges South Carolina's Disturbing Schools Act, Can It Also Challenge How We Think About Schools Discipline?

Last year, the video footage of a high school female being jerked and flipped out of her desk, thrown to floor, drug across it, and then handcuffed captivated the nation.   Its shock value carried it for nearly a week and was also enough to prompt some legislative hearings on the state's Disturbing Schools Act, which was the authority under which the officer purported to act.  But alas, nothing came of it.  The law remains in place.  As is so often the case, these incidents are perceived as aberrational rather than a fundamental aspect of the discipline systems in our schools.  Once the story passes, so does the impetus for change.

Yesterday, the ACLU revived the issue and the prospects of change, at least, on the issue of the Disturbing Schools Act.  It filed a case in federal district court arguing that the criminal statute authorizing the arrest and punishment of individuals who disturb school violates due process.  The Act is so broad that it, in effect, permits law enforcement to arrest students at their discretion for almost anything.  With such broad power, students and teachers have no way of know exactly what does or does not violate the law.  This, the ACLU argues, violates basic due process and liberty principles.

The story of one of the plaintiffs in the case, Niya Kenny, makes this point clearly.  Niya was in the classroom last year when the officer drug the other student to the ground.  Niya, understandably shocked by the incident, did what almost every other person under the age of thirty or so does in America when they see something like this: she pulled out her phone and videotaped it.  For this, she too was arrested and charged under the Disturbing Schools Act.  Regardless of whether school rules prohibit the possession of cellphones, their use during class time, or anything else, the idea that this type of activity could be construed as a crime is surely something I, a law professor, never would have considered.  I could only imagine what Niya must have thought when the cuffs went on.

Maybe the most shocking aspect of this story, however, has been those who have defended the expansion of law enforcement inside schools and their use of violence on students over the past year.  The response I have gotten is that I do not know how dangerous schools really are and, even if they are not, we should err on the side of caution.  It is, after all, our children we are talking about. My position would purportedly leave our children defenseless against marauders and gun-carrying high schoolers.  

Continue reading

August 11, 2016 in Discipline | Permalink | Comments (1)

Wednesday, August 10, 2016

Tenth Circuit Upholds Arrest and Handcuffing of Burping Student by Jason Nance

On May 19, 2011, F.M., a thirteen-year-old seventh grade student at Cleveland Middle School of Albuquerque Public Schools, generated several fake burps during class, causing several students to laugh. The teacher ordered F.M. to stop, but F.M. ignored her. The teacher then asked F.M. to leave the classroom and sit in the hallway. F.M. complied, but once in the hallway, he continued to disturb the classroom by leaning into the entranceway of the classroom to burp and laugh. At that point, the teacher requested assistance with the student on a school-issued radio. A school resource officer (SRO) appeared in response to her request. Based on what the SRO observed and heard from the teacher, the SRO decided to arrest F.M. for violating N.M. Stat. Ann. § 30-20-13(D), which says that “[n]o person shall willfully interfere with the educational process of any public or private school by committing . . . any act which would disrupt, impair, interfere with or obstruct the lawful mission, processes, procedures or functions of a public or private school.” The SRO conducted a pat-down search on F.M. and found nothing, handcuffed him, put him in a patrol car, drove him to a juvenile detention center, and booked him. The SRO later admitted that F.M. did not pose a flight risk and was not combative, but was cooperative. After the juvenile detention center completed its risk assessment of F.M., it released him to the custody of his mother with no further actions. The school, however, imposed a one-day suspension. F.M. served his suspension and did not return for the remainder of the school year.

F.M.’s mother filed a suit against the SRO on behalf of her son claiming that his Fourth Amendment rights were violated when her son was arrested and handcuffed. She claimed that any reasonable officer should have known that burping was not a criminal offense and that the force used to facilitate the arrest was unnecessary. The United States Court of Appeals for the Tenth Circuit, however, upheld the lower court’s dismissal of the case, awarding the SRO qualified immunity. According to the court, the plaintiff had failed to establish that the SRO violated a constitutional right of F.M.’s that was clearly established at the time of the alleged unlawful activity. The Tenth Circuit based its ruling primarily on its determination that the SRO’s understanding that he had probable cause to arrest F.M. under section 30-20-13(D) was “objectively reasonable—even if mistaken.”

While one could disagree with the majority over whether the SRO violated F.M.’s “clearly established” constitutional right (as one circuit judge on the panel did), to me a larger question remains that the court could not address: why do allow law enforcement officers to become involved in student behavioral matters that do not endanger other members of the school community? This is not to say that we shouldn’t hold students accountable for misbehaving in the classroom. We should. But as I explain here, the consequences of involving a youth in the justice system are severe for both the youth involved and for our nation as a whole. In fact, even an arrest that does not ultimately result in an incarceration can have detrimental, life-altering effects on students. Several empirical studies confirm that just an arrest often leads to lower academic achievement, dropping out of school, and future involvement in the justice system. Furthermore, overly-punitive school environments generally do not lead to positive outcomes, even for those students at the school who do not misbehave. Empirical studies suggest that an overly-punitive school environment can alienate students, destabilize the learning climate, foster more disorder in the long run, and impede academic achievement for all students at the school.

As I explain elsewhere, schools do not have to (and should not) over-rely on SROs, harsh surveillance measures, and exclusionary tactics to maintain safe and orderly learning climates. Rather, there are other evidence-based measures that schools can implement to promote student discipline and safety without putting more students on a pathway from school to prison. But if schools do choose to rely on SROs, it is essential that they enter into memorandums of understandings (MOUs) to ensure that SROs do not involve themselves in routine discipline matters with students, like burping in a classroom.

August 10, 2016 in Discipline | Permalink | Comments (0)

Friday, July 8, 2016

New Federal Study Suggests Public Education Being Sacrificed to Incarceration

The growing common refrain, urged on by no less than candidates for the presidency, has been to contrast our nation's investments in education versus incarceration.  Civil rights advocates have, likewise, lamented the school-to-prison pipeline that is, no doubt, affected by these investments.  Yesterday, the U.S. Department of Education released some cold hard facts substantiating these notions.  Quite frankly, the numbers were shocking even to me.

Among the highlights were the following: 

  • From 1979–80 to 2012–13, public PK–12 expenditures increased by 107 percent (from $258 to $534 billion),4 while total state and local corrections expenditures increased by 324 percent (from $17 to $71 billion) ― triple the rate of increase in education spending.
  • Over the same 33-year period, the percentage increase in state and local corrections expenditures varied considerably across the states, ranging from 149 percent in Massachusetts to 850 percent in Texas. PK–12 expenditure growth rates were considerably lower, but still varied widely across states, ranging from 18 percent in Michigan to 326 percent in Nevada.
  • All states had lower expenditure growth rates for PK–12 education than for corrections, and in the majority of the states, the rate of increase for corrections was more than 100 percentage points higher than the rate for education.
  • From 1989–90 to 2012–13, 46 states reduced higher education appropriations per full-time equivalent (FTE) student. On average, state and local higher education funding per FTE student fell by 28 percent, while per capita spending on corrections increased by 44 percent.

The study also drew on social science literature to suggest the effects of these funding trends:

Researchers have found connections between poor educational outcomes and incarceration. Among state prison inmates, available data suggests that two-thirds have not completed high school (BJS 2009). . . . Researchers have estimated that a 10 percent increase in high school graduation rates may result in 9 percent decline in criminal arrest rates (Lochner and Moretti 2004). A variety of studies have suggested that investing more in education, particularly targeted toward at-risk communities, could achieve crime reduction without the heavy social costs that high incarceration rates impose on individuals, families, and communities (Belfield et al. 2006; Reynolds et al. 2001; Heckman et al. 2010).

Investments in education can reduce criminal activity by altering student behavior and improving labor market outcomes (CEA 2016). Investments in early childhood education can lead to reduced incarceration later in life, in part through improving educational attainment (Currie 2001). . . .Evidence also shows that education provides a pathway to help justice-involved people restore full participation in their communities. For example, one study found that incarcerated individuals who participated in high-quality correctional education — including post-secondary correctional education — were 43 percent less likely to return to prison within three years than those who did not participate in correctional education programs (Davis et al. 2013). Furthermore, researchers estimate that for every dollar invested in correctional education programs, four to five dollars are saved on three-year recidivism costs (Davis et al. 2013). 

This study also dovetails perfectly with yesterday's post about the NEA's policy position on school discipline.  At its core, that policy statement makes two points: current discipline policy  is devastating educational outcomes for millions of students each year, and reversing that course requires specific investments in education, most notably teacher training and development.  If you buy that proposal, it is no surprise what the Department of Education's study suggested the money spent on incarceration ought to be put to:

Though many factors contribute to student success, research indicates that teacher effectiveness is perhaps the most important in-school factor related to students’ success in school (Rivkin et al. 2005). Further, research suggests that investing more in teacher salaries could result in an overall improvement in the quality of the teaching workforce and that higher salaries are associated with higher teacher retention (Dee and Wyckoff 2015; Kelly 2004; Guarino et al. 2006). 

In other words, not only are we driving money toward incarceration, the money we drive is likely a key factor in why we have unresolved discipline challenges in schools.  Those unresolved education issues fuel the school-to-prison pipeline, creating a vicious circle that we cannot seem to escape.  This vicious circle lies at the core of the final chapters of my book, Ending Zero Tolerance, and my forthcoming article, Reforming School Discipline.  In them, I argue that school quality conversations and school funding litigation must incorporate school discipline concerns.  We cannot continue to discuss them as separate issues.  Social science firmly demonstrates how closely connected discipline and school quality are.  One cannot be improved without the other.   Unfortunately, this new federal study suggests our funding patterns are making both worse.  It is time to finally start connecting the dots.

July 8, 2016 in Discipline | Permalink | Comments (1)

Thursday, July 7, 2016

Nation's Largest Teacher Union Adopts Policy Statement on School Discipline and the School-to-Prison Pipeline, Rebalancing the Politics of Reform

Yesterday, the Nation's largest professional employee organization and largest teacher union, the National Education Association (NEA), adopted an official policy position on school discipline and the school-to-prison pipeline.  The prefatory language of the policy appropriately recognizes the major issues:

The school-to-prison pipeline disproportionately places students of color, including those who identify as LGBTQ, have disabilities, and/or are English Language Learners, into the criminal justice system for minor school infractions and disciplinary matters, subjecting them to harsher punishments than their white peers for the same behaviors. The school-to-prison pipeline diminishes their educational opportunities and life trajectories. All educators—which includes every school employee—are key to ending the school-to-prison pipeline.

NEA’s Resolutions state NEA’s firm belief that schools must be safe and welcoming for all students, discriminatory toward none, and focused on educational practices that reach the whole child and disciplinary policies that emphasize prevention and rehabilitation over punishment (see, e.g., Resolutions B-6, B-14 (f – h, k) B-71, C-7, C-28, C-39). NEA’s Resolutions also reflect NEA’s belief “that all education employees must be provided professional development in behavior management, discipline, [and] conflict resolution,” (D-18) and that both education employees and parents need training “to help students deal with stress and anger.” (C-7). NEA also believes that equally important is deepening educator awareness about their actions and the impact on students. The purpose of this Policy Statement is not to modify existing NEA Resolutions, but to explain how NEA will act on its already stated beliefs to end the school-to-prison pipeline.

It then goes on to indicate that the "NEA and its members are committed to changing the policies and practices of the schools in which we work to end the school-to-prison pipeline."  It says that work will focus on five major points: "Eliminating Disparities in Discipline Practices; Creating a Supportive and Nurturing School Climate; Professional Training and Development; Partnerships and Community Engagement; and Student and Family Engagement."

The NEA's official adoption of this policy is key for several reasons.  First, teachers are regularly caught between the demands of ending harsh discipline and doing their job well.  As I emphasize in Ending Zero Tolerance, it is not enough for districts to just adopt policies that limit harsh discipline.  They must also support teachers with the training and alternative processes that make this possible at the classroom level.  If schools simply prohibit harsh discipline and do nothing else, they may very well make matters worse, as untrained teachers may feel that their only option is to overlook misbehavior.  The NEA policy statement acknowledges this and asks school districts to take the steps necessary to allow teachers to manage discipline appropriately.

Second, teachers who do not feel supported on these issues have pushed back against changes in central administration's changes to discipline policy.  The most notable examples of this have been in Los Angeles, Minneapolis, and Philadelphia.  In the Philadelphia, the local union formally came out against the district's new discipline policy.  In Minneapolis, a teacher's story of the horrors he was forced to watch in the classroom went viral. The NEA's new policy now provides a huge counterweight to teachers' skepticism.  It articulates a way forward that serves both the interests of teachers and students.

Third, this statement now aligns the federal government, grassroots communities, and the nation's largest teacher union against harsh discipline.  This could leave those who would oppose reform as the so-called "odd-men-out."  But as the NEA makes clear, ending harsh discipline in a way that improves education for all students and teachers will not happen by simply writing new rules or issuing statements.  It requires states and districts to invest in better discipline systems and supports.  In this respect, it places the ball in the court of legislative bodies, implicitly asking whether they will commit resources to reform. 

July 7, 2016 in Discipline | Permalink | Comments (0)

Wednesday, June 22, 2016

Maryland Judge Ensures Poptart Bandits Suffer the Consequences, But Undermines Education in the Process

Three years ago, Maryland schools suffered a debilitating rash of pop-tart bandits.  From elementary school through middle and possibly high school, public school students were chewing their pop-tarts into guns, talking about guns, and doing darn near anything they could to think about and fantasize about guns.  Maryland schools thought they would set the bandits straight. They began suspending them.  In the process, they also made national news.  One of those elementary school boys eventually sued and last week the Maryland trial judge in the case also set the boy straight.  According to the Washington Post,


Anne Arundel County Circuit Court Judge Ronald A. Silkworth ruled that the school system could reasonably consider that the boy’s actions in March 2013 were disruptive and that “a suspension was appropriately used as a corrective tool to address this disruption, based on the student’s past history of escalating behavioral issues,” according to his 11-page ruling. He upheld an earlier ruling that supported the two-day suspension from the Maryland State Board of Education.

Wait a minute.  Pop-tart bandits.  Elementary school students. The straw that broke the camel's back. Suspension. Expulsion. In my forthcoming book Ending Zero Tolerance, I use the story of suspending this student and others for pop-tarts as a prime example of how irrational discipline policy has gotten in so many jurisdictions. First,  while this young boy may have been disruptive in the past, it is far from clear that gnawing a pop-tart into a gun amounts to disruptive behavior or, even if it does, that it warrants suspension.

Second, even if the behavior was disruptive, suspending the boy is not likely to improve his behavior.  To the contrary, suspending this young boy, or any other for minor misbehavior, just makes it more likely that he will be suspended again.  He suffers a psychic break with school that undermines his incentive for good behavior.  And once the school labels him through suspension, it will have no hesitation to suspend him again.  Forty percent of suspension each year are actually second, third, and fourth suspensions.  

Third, getting rid of one pop-tart bandits does not scare others straight.  Instead, it makes other pop-tart bandits more likely and degrades the overall learning environment for everyone, even the innocent bystanders.  Studies show that when discipline is overly harsh or punitive, student respond negatively.  They, in fact, become more likely to rebel.  The pop-tart bandit saga proves this point well.  It is no stretch to infer that Maryland schools suffered a rash of bandits because students learned of the first punishment, thought it crazy, and decided to push the boundaries themselves.

Finally, schools with overly harsh discipline undermine student learning rather than improving it.  Studies show that well behaved students in these schools achieve at lower levels as a result.  In other words, rather than protecting the students that schools say they want to help, they hurt them.


The solution is not for schools to do more of the same or courts to turn a blind eye.  The solution is for schools to alter their approach to discipline and, when they will not, for courts to engage.  More here.

June 22, 2016 in Discipline | Permalink | Comments (0)

Monday, June 20, 2016

Court Overturns Zero Tolerance Punishment Based on Stand Your Ground Law, But New Book Details Even Bigger Problems

In a battle of absurd public policies, a Georgia stand your ground law has trumped a school discipline policy of zero tolerance toward fighting.  Last week, a Georgia court found that school administrators violated the state’s “stand your ground” self-defense law when they expelled a student for fighting.  Matt Smith writes that

S.G. . . . threw the first punch in the January 2014 scuffle — but only after her antagonist had pursued her across the school’s parking lot and backed her up against a brick pillar, according to court records. Her lawyers argued that the resulting expulsion violated state law, which lets someone use force to respond to a threat without having to retreat first.

Georgia’s Court of Appeals has agreed, ruling that the student had the right to defend herself. State law “did not require S.G. to be hit first before defending herself; nor was S.G. required to have lost the fight in order to claim self-defense,” the judges concluded. And they found school officials in Henry County, in the Atlanta-area suburbs, have a policy of expelling students “regardless of whether the student was acting in self-defense.”

The irony here is that courts so often upheld suspensions and expulsions for equally, if not more, compelling circumstances.  In other words, only a student availing him or herself of a stand your ground law has a reasonable chance of challenging zero tolerance and overly harsh discipline policies.  A student who just accidentally does the wrong thing, misbehaves in the exact way we expect of young students, or even tries to do the "right" thing can be thrown out of school with no recourse. Take Benjamin Ratner, for instance.  As I detail in my forthcoming book Ending Zero Tolerance

in the outer suburbs of our nation’s capital, an average thirteen-year-old boy named Benjamin Ratner received a note from one of his friends. In the note, Benjamin’s friend told him that she had felt suicidal over the weekend and had contemplated slitting her wrists with a knife. Apparently, the feelings persisted. She told Benjamin she brought a knife to school that morning in her bookbinder.

Benjamin took the note seriously. He knew his friend had previously attempted suicide and had even been hospitalized to deal with ongoing issues. Benjamin was worried she would use the knife to hurt herself that morning. Benjamin was smart enough to know that a real solution for her long term well-being was beyond him.  He planned to tell both her family and his own about the incident at the end of the school day and let them determine what to do in the coming days and hours. But in the short-term, he was not going to leave her safety—and in his mind possibly her life—to chance. So Benjamin asked his friend if he could take the bookbinder from her locker and put it in his own for safekeeping. She agreed.

Within a few hours, Roberta Griffith, the assistant principal, heard rumors that Benjamin’s friend “had brought a knife to school and . . . may have given it to [Benjamin].” Griffith alerted the dean of the school, Fanny Kellogg, who called Benjamin to the office to question him. Benjamin told her that he had the binder in his locker, although it is unclear that he had actually seen or touched the knife inside the binder. What was clear, however, was that Kellogg knew that Benjamin did not pose any real threat to himself or others. Kellogg sent Benjamin by himself to go get the binder and bring it back to the office. When Benjamin returned, Kellogg acknowledged that Benjamin “acted in what he saw as the girl’s best interest and that at no time did Ratner pose a threat to harm anyone with the knife.” But from then on, the school system’s thoughtfulness ended and its disciplinary process took over.

The school’s policy approach to weapons was zero tolerance. Regardless of the danger his friend faced, his desire to protect her, or any other circumstances, Benjamin’s possession of a knife was deemed a violation of school policy. The assistant principal responded to his admittedly good deed by suspending him for ten days. The principal of the school then escalated the situation and referred Benjamin to the superintendent for potential further punishment. Both the superintendent and two different school district hearing panels decided to increase his punishment. No one questioned Benjamin’s story, but they all insisted they must suspend him for the remainder of the semester—approximately three months. Benjamin would later ask the court system to reverse his punishment as irrational, but no court ever took his case seriously, claiming their hands were tied.

The U.S. Court of Appeals for the Fourth Circuit, however, saw nothing unreasonable about the Ratner's expulsion.  It held it was well within the school's power and there was nothing it could do.  The thrust of my forthcoming book is to unravel the irrationality of school policies like these and the courts' response to them.

June 20, 2016 in Discipline | Permalink | Comments (1)

Monday, June 13, 2016

New Scholarship on Discipline in Charter Schools

Susan DeJarnatt, Kerrin C. Wolf, and Mary Kate Kalinich have posted their new paper, Charting School Discipline, on ssrn.  It focuses on discipline in charter schools and their potentially distinct approaches.  As recent civil rights complaints in New Orleans and due process litigation in California have shown, charter school discipline is of growing importance to the overall conversation regarding necessary reforms to school discipline.  DeJarnatt and her colleagues offers this abstract:

Exclusionary school discipline can steer students away from educational opportunities and towards the juvenile and criminal justice systems. As many public school systems have turned to exclusionary school discipline practices over the past two decades, they have also increasingly adopted charter schools as alternatives to traditional public schools. This research is examines the student codes of conduct for the charter schools in the School District of Philadelphia to consider the role of their disciplinary practices and the potential effects on charter students.

We analyzed every disciplinary code provided to the Philadelphia School District by charter schools within Philadelphia during the 2014-2015 school year. Our goal was to examine the provisions relating to detention, suspension, and expulsion, along with other disciplinary responses, to determine what conduct can result in disciplinary consequences, what responses are available for various types of misbehavior, and whether the code language is clear or ambiguous or even accessible to students or potential students and their parents or caregivers. We conclude that too many of the codes are not well drafted, and too many follow models of punitive discipline that can be used to push out non-compliant or challenging students. Some codes grant almost complete discretion to school administrators to impose punitive discipline for any behavior the administrator deems problematic.

We hope that this work will spur future research on implementation of charter school discipline policies to illustrate how charter schools are using their codes. Further, we hope to see the charter sector develop model disciplinary codes that move away from a zero tolerance punitive model towards disciplinary systems based on restorative principles.

June 13, 2016 in Charters and Vouchers, Discipline | Permalink | Comments (0)

Thursday, May 26, 2016

Court Appeals Decision Reveals How Even Serious Bullying Slips Through Large Gaps in the Law

According to the complaint in Morgan v. Lexington, R.M., a middle school student in Lexington, Massachusetts, was physically and mentally bullied at school. The first time he and his mother notified his principal, the principal said that R.M. had “delayed the investigation” and, as a result, would not be allowed to participate in an upcoming track meet.  After that, the bullying and assaults continued. The bullying was apparently pretty serious and included being shoved into a locker, having his pants pulled down in front of other students, suffering punches in the head and stomach. When he notified the  assistant principal, he was told to stay away from the harassing students. His mother then raised the issue, but before the school’s investigation ended,  R.M. became too scared to return to school. After missing several days of school, the principal, per state law, asked the police to go to R.M.’s house on two separate occasions.

At the conclusion of the investigation, the assistant principal reported to R.M. and his mother that students had admitted to some of the harassment, but the principal purported indicated that none of the students involved would be disciplined. R.M. decided to enroll in a private school  for the remainder of the school year. R.M., however, returned to the public school next year and the harassment continued.  Due to the harassment and anxiety, R.M. missed 112 days of school.

The lawsuit against the district alleged that the defendants deprived R.M. of a “protected liberty interest in bodily integrity, specifically, the right to be free from the abuse and injuries” under the Fourteenth Amendment. The court rejected the claim, concluding that Morgan did not present enough facts to establish that the defendants’ actions and/or inaction caused R.M. to be bullied by the other students or increased the risk to him. Moreover, it added, the First Circuit has never accepted such theory in the context of bullying. 

Likely recognizing this problem, plaintiff sought to amend the complaint to raise a Title IX claim, which, of course, does provide a cause of action sex and gender based harassment.  The trial court, however, denied plaintiff’s motion to amend, reasoning that  the complaint does not allege any sex- or gender-based animus by any of the students, and none can be inferred from the circumstances outlined in the complaint. Plaintiff argued that in some cases one could "use a substantial amount of arguably gender-neutral harassment to bolster a smaller amount of gender-based conduct," but the district court found that there was insufficient evidence to do so.  Rather, the conduct at issue involved undifferentiated bullying. The Court of Appeals affirmed on all counts.

This case offers a sad reminder of the large gaps in the law regarding bullying.  Gender, race, and disability based bullying are prohibited because they are deemed discrimination, but other bullying, even when serious, is outside the scope of civil rights protections because it does not involve discrimination.

May 26, 2016 in Discipline | Permalink | Comments (0)