Tuesday, March 4, 2014
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.
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.
Thursday, January 30, 2014
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).
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.
Tuesday, January 21, 2014
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.
Tuesday, January 14, 2014
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
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.
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.
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.
Tuesday, December 31, 2013
A new report out on discipline in Virginia's school details racial disparities consistent with those found in the various other state reports that I have posted on in recent months. As in other states, African American and white students experience discipline at far different rates. Statewide, African Americans are twice as likely to be suspended, even when controlling for independent factors. Yet, this is not the "two different" worlds the title of this post references. Rather, the study distinguishes between schools that have implemented Virginia's Student Threat Assessment Guidelines versus those who have not. The guidelines are intended to prompt schools to not react with zero tolerance or knee jerk reactions to student misbehavior, but to assess whether a student is actually a threat. The report found that schools that implemented the guidelines imposed 15% fewer short-term suspensions and 25% fewer long term suspensions. Schools implementing the guidelines still had racial disparities in discipline, but they were smaller than other schools in the state. In fact, the students who saw the largest reduction in suspensions pursuant to the guidelines were African American males, whose long-term suspension rate fell from 11.2 percent to 7.6.
The rates are still incredibly high for all students and indicate that, with or without guidelines, schools are willing to exclude students from school under questionable circumstances, but those using the guidelines may be on the path to creating a different disciplinary world for some.
Thursday, December 26, 2013
A new report by the University of Virginia’s Curry School of Education and the Legal Aid Justice Center show racial disparities in school suspension in Virginia and that reformed threat assessment standards used in 35 schools reduced that racial discipline gap. Zero-tolerance school discipline policies have come under scrutiny for many reasons, prominently because across the board, black students get suspended at up to twice the rates of white students and because suspensions consistently correlate with “disengagement, truancy, poor academic performance, and ultimately, dropping out of school.” (Curry & Lovegrove, 2012). Zero tolerance policies eliminate judgment calls, but also allow little room for common sense appraisals of misbehavior, so students have been suspended for yelling, “firing” a gun with their fingers, and bringing plastic knives to school.
To reduce the negative educational outcomes of school suspensions, UVA’s Curry School of Education created the Virginia Student Threat Assessment Guidelines. The Guidelines were modeled on the Secret Service’s methods to assess when a person actually poses a threat (as opposed to having made one). With the caveat that the school’s faculty also authored the standards, the study finds that schools using the Virginia Guidelines have lower rates of school suspensions, including a smaller racial discipline gap among black males. The study notes:
Schools implementing threat assessment had smaller racial disparities in their long-term suspension rates; and
Threat assessment was associated with lower rates out-of-school suspension overall: 15%fewer students receiving short-term suspensions & 25%fewer students receiving long-term suspensions for schools using threat assessment.
For more, click the image or read the study here.
Monday, December 16, 2013
The New York Daily News reports that KIPP Star Washington Elementary Charter School has repeatedly used a padded cell to hold a kindergarten and a first grade boy in time out for 15 to 20 minute stretches. The boys' parents say their children have subsequently experienced anxiety attacks. One boy's anxiety reaction to being in the cell was reportedly so severe that that he was removed from the room and taken to the hospital.
Although the notion of putting children in a padded cell--particularly ones so young--is shocking to most, the question of whether it is legal is not as clear cut. Some states, like Washington, for instance, specifically include isolation rooms in the list of the state's permissible disciplinary measures. See, e.g., Wash. Admin. Code § 180–40–235. In the context of special education, several parents have brought suit against school districts for their use of isolation cells. The results have been mixed. Most courts appear willing to sanction the use of isolation in theory, as a means of allowing kids to cool off and not hurt themselves or others. See, e.g., Melissa S. v. School Dist. of Pittsburgh, 183 Fed.Appx. 184 (3rd Cir. 2006); Payne v. Peninsula School Dist., 653 F.3d 863 (9th Cir. 2011). But when the isolation rooms have been used purely as punishment devices, some courts have been willing to intercede. See, e.g., CJN v. Minneapolis Public Schools, 323 F.3d 630, (8th Cir. 2003). In short, the limited use of isolation to allow a student to cool off is probably legal, even if it is in a closed room, but the use of isolation as a means of punishment may cross the line. We will have to wait for more facts to determine which way KIPP uses its rooms.
Monday, December 2, 2013
Just before Thanksgiving, a fight broke out between two students at Millennium High School in Goodyear, Arizona, over one student displaying a confederate flag on his car. The school's response: suspend both students for five weeks and ban the student from displaying the confederate flag. The student who displayed the flag still objects, arguing that the flag does not represent racism, but freedom. He offered the standard high school distinction: “The flag means basically more independence, less government. It didn’t mean racism, it didn’t mean slavery, it didn’t mean any of that. It basically meant what they were fighting for was their right to be independent and not have the government control them.”
The school district, of course, responded by pointing out that the confederate flag "has been proven to be patently offensive to certain groups and the courts recognize that.” Moreover, “[o]bviously there was some event that took place it was related to reaction to the flag and it did create an environment where it was disruptive.”
The school is right on courts' interpretation of the flag. Just last year, for instance, the Fourth Circuit in Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426 (4th Cir. 2013), ruled in favor of a school district that had stopped a student from wearing shirts displaying the Confederate flag because the shirts were likely to cause a substantial disruption to the school environment.
While the current student's position on the flag ignores a lot of history and, even as a high school student, I found such arguments to be silly, I often got the sense that many such students were sincere in their ignorance, which potentially makes these cases more complicated. If a student's argument is pretext, a school can easily intervene. But if the student is expressing a genuine, albiet ignorant, belief about independence, a student's argument gets a little better.
Schools have the authority to limit speech that poses a substantial disruption, but Tinker v. DeMoines, 393 U.S. 503 (1969), indicates that they must distinguish between disruptions that are a result of the person expressing himself and those that are a result of inaappropriate reactions by the listener or viewer. After all, there were some disruptions in Tinker when other students responded to Tinker's Viet Nam protest armband. If the response is, for instance, the result of the listener's immaturity, it is wrong to punish the speaker. This line, however, is far easier to draw in theory than reality, particularly when student speakers and listeners border on per se immature and ignorant in various respects.
In the context of the flag, even if the student's position is sincere, the student has to know that others do not see the flag the same as he does, which raises the question of whether such a student is just being coy in the slavery versus independence distinction. Even if the student does not support racism, the student is probably trying to incite a reaction. If the student were not hoping to incite some reaction, might not the student express his position a little differently? Then again, these are students and wisdom is not to be expected.
Rather than engage in pyscho-babble courts take the understandbly easy route out of these cases and just label the flag disruptive. As a practical matter, I suppose that is correct, but skipping analytical steps is dangerous. Consider the fact that in Hinduism a swatiska is a geometric represenation of the god Ganesha. As a general principle, a school might be inclined to perceive swatiskas as inherently disruptive, just like the confederate flag, but that rationale would quickly fall apart if the school sought to prohibit a Hindu student from displaying it.
(image with permission from Jean nguyen)
Wednesday, November 27, 2013
The ACLU of Pennsylvania released its new report on school discipline in the state, Beyond Zero Tolerance. It found that about 10 out of school suspensions “were issued for every 100 students in the 2011–2012 school year. During 2009–2010, 1 out of every 15 students was suspended from school at least once.” Black students were “almost five times more likely to be suspended than White students,” and Latinos three times more likely than whites. African Americans with disabilities were at the highest risk, with 22 out of 100 receiving a suspension. The report's website page also includes helpful information for local communities, posting the discipline and law enforcement data for each district.
The report’s recommendations for reform were:
1. Conduct school-level and district-level reviews of out-of-school suspension as well as law enforcement referral practices. Such reviews should identify which students are most likely to be impacted as well as specific schools where the differences in suspension rates for different types of students (the “suspension gap”) is greatest. Pay special attention to disciplinary actions for broad and vague behavioral categories such as disruption, disorderly conduct, and defiant behavior. Investigate disparities, and adopt corrective measures.
2. Remove students from school only when there is a real and immediate safety threat to the school community. School removal should not be permitted for minor misbehavior (such as dress-code violations).
3. Revise district codes and school-level rules to minimize the disruption in students’ continued access to education. When students must be removed from a classroom or school, establish a learning plan for them.
Wednesday, November 6, 2013
Broward County, Florida, School District has taken a punitive approach to discipline in the past and the results have been racially disparate. African American students, for instance, were suspended at twice the rate of whites and at high levels of frequency. To make matters worse, the district frequently referred students to the criminal justice system, or sought its involvement. Yesterday, the school district entered in to a memorandum of understanding with various other state agencies and actors, including the police department, to reach different results. The goal is to do away with “zero tolerance,” involve the police only as a last resort, and rely on less punitive forms of discipline. The district and police have reduced their decision making process into a flow chart. As you will notice, the flowchart tries to route discipline into the no-arrest category, even in regard to student conduct violations that require consultation with the police. To avoid arrests, it asks whether, for instance, the matter could be resolved by talking with the parents or referring the students to problem solving team or a community based program. Of course, the success of this shift will not be borne out by simply producing a flow chart, but by the individuals administering it and their willingness to take these alternatives seriously. This agreement, however, is the first major step in that direction.
Monday, October 28, 2013
News broke last week of a 6th grade teacher at Ocean Springs Upper Elementary in Mississippi duct-taping a male student's mouth shut for talking too much. According to the student, he was taped and forced to sit in a corner for 10 minutes. Aside from the horrific nature of the act itself, the troubling question is whether it violates the constitution. In Ingraham v. Wright, 430 U.S. 651 (1977), the Supreme Court held that neither the Fourteenth nor the Eighth amendment prohibited corporal punishment of public school students. The Fifth Circuit, in which Mississippi rests, has taken Ingraham's holding and ran with it, sanctioning egregious instances of corporal punishment. See generally Deana Pollard Sacks, State Actors Beating Children: A Call for Judicial Relief, 42 U.C. Davis L. Rev. 1165, 1194-1209, 1222-23 (2009).
Of course, corporal punishment is not duct-taping, but both are subject to the same "shocks the conscience" standard (although I and others would argue that this this standard should not be extended from police cases to school cases). This standard, as current applied, places relatively few limits on outlandish school disciplinary actions. Some courts have been willing to reject student claims arising out of cases such as a teacher slapping a student or locking a student in a closet. Smith ex rel. Smith v. Half Hollow Hills Cent. Sch. Dist., 298 F.3d 168, 173 (2d Cir.2002); Bisignano v. Harrison Cent. Sch. Dist., 113 F.Supp.2d 591, 599–600 (S.D.N.Y.2000). Courts have certainly gone the other way under similar facts, JG & PG ex rel. JGIII v. Card, 2009 WL 2986640 (S.D.N.Y.,2009), but a "win" for the student is never a foregone conclusion.
Friday, October 18, 2013
We often grow so accustomed to racial disparities and horror stories in school discipline that good news comes as unexpected. Today, I have not one but four instances of good news. First, Los Angles Unified School District had a high suspension rate just six years ago and came under the heat of the Office for Civil Rights. Many of those suspensions were for "willful defiance." In 2007, the district adoped a new school discipline policy. In 2011, it entered into an agreement with OCR to make additional changes to stop suspending students for defiance. These two steps, along with a lot of hands-on work, has resulted in a dramatic change in the district. The suspension rate has fallen from 8.1% of students to 1.5% in just six years. More on that story here.
Second, Calvert County, Maryland announced a change to its weapons policy. The policy previously had been applied in an extremely broad way and had resulted in the suspenion of students who did not have weapons, but rather had pointed their fingers like guns, carried toy guns and chewed a a Pop-Tart-like pastry into the shape of a gun. The final story made national news. At least in the area of weapons, we should expect a significant drop in suspensions in the future.
Third, the Boston Public School Committee adopted a new Code of Conduct that centers on alternative discipline and intervention and rehabilitative services. With this move, Boston became the first school district to revise its Code of Conduct to implement a new state law that requires schools to exclude students only as a last resort. More information here.
Fourth, OCR confirmed that it will investigate a complaint that NAACP LDF and Texas Appleseed filed in regard to the racially “disparate impact” of Bryan Independent School District’s discipline policies. The district issues criminal citations for minor misbehaviors and African-Americans receive these tickets at four times the rate of their peers. Credit goes to OCR for stepping up in the area of discipline in recent years. It obviously played a major role in the changes in Los Angeles. Hopefully, it can do the same in Bryan.
Thursday, October 17, 2013
My prior posts have tried to nail down the exact facts in the ongoing saga of a student suspended from her volleyball team and stripped of her postion as captain for coming to a party to pick up a drunk friend and drive her home. Relying on news reports and attorney attestations make me nervous, but, at this point, there does not seem to be a dispute over what actually happened. The student was not drunk, was released by the police at the party that night and, although summoned to court later, was not charged or convicted of anything. Thus, the dispute in this case is over the legality and rationality of the school's decision to suspend the student from the volleyball team. I was rather shocked to red Bryan Toporek's defense of the school in EdWeek Tuesday. He wrote:
Despite a police officer vouching for her sobriety in writing, Cox was one of those 15 summoned to court. Once that happened, the school acted accordingly.
The high school's student handbook specifies that "from the earliest fall practice date to the conclusion of the academic year or final athletic event (whichever is latest), all student-athletes must not "use, consume, possess, buy/sell, or give away any beverage containing alcohol; any tobacco product; marijuana; steroids; or any controlled substance." Once the school's principal confirms a violation of this policy, following "an opportunity for the student to be heard," the student loses eligibility for 40 percent of the season.
Additionally, per the handbook, "a captain who is disciplined or involved in any incident involving an alcohol/drugs (controlled substance) violation at ANY TIME, including Summer Vacation," will lose his/her captaincy in addition to any other consequences."
Long story short: The handbook is pretty cut-and-dry here. By virtue of Cox being summoned to court for drinking (even though she didn't consume alcohol that evening), the school had little choice, based on the way their policy is currently written, to strip her of her captaincy.
Toporek, like the school, jumps to a lot of false conclusions. The Supreme Court has rejected attempts to scrutinize school rules in the same manner as criminal codes, but the Court has never indicated that the rules do not matter or that schools can apply them irrationally. First, it is far from clear that simply being summoned to court constitutes involvement with drugs or alcohol. The summons could be false, incorrect, or necessary for the court to obtain information from a witness. Testifying in drug case, for instance, is not involvement with drugs; it is involvement with the court system, a far different thing. Surely, involvement with the court system is not a punishable offense. If so, the school rule would amount to an obstruction of justice.
Wednesday, October 16, 2013
I still have not placed my fingers on the pleadings, but I was able to speak with Erin Cox’s attorney, Wendy Murphy. For those who missed it, yesterday I posted on Massachusetts high school that suspended (from athletic opportunities) a student who drove to a party to come to the aid of an intoxicated friend who needed a ride home. The initial story was that the school suspended Cox for violating its zero tolerance policy in regard to drugs and alcohol even though Cox was not intoxicated. The police were there when she arrived and released her to go home because she had not been drinking. She later put forward evidence to verify her story.
The school suspended her anyway and she brought suit in a local state district court to enjoin the suspension. Thinking it would be an open and shut case of mistake, Cox’s mother appeared without an attorney. The school board, however, arrived with its attorney, who alleged that the school suspended her because she was arrested. The initial basis for suspension, as I understood it, was that she had violated the zero tolerance policy on alcohol. According to school’s student handbook, student athletes are forbidden from “knowingly being and remaining in the presence of other minors using alcohol or illegal drugs or controlled substances.” But since the police were there and blocked her from “being at the party,” suspending her on that ground seems problematic. The school must have realized the logical problem at some point because in court it defended on slightly different grounds. The school’s attorney asserted that Cox had been arrested at the party, suggesting that the arrest was a basis for suspension. At that point, the mother protested that the daughter was not arrested and, when the other side pressed its point, she said they were lying.
Tuesday, October 15, 2013
A North Andover, Massachusetts high school senior was suspended from school's volleyball team and stripped of her position as captain for violating the school's zero tolerance drug and alcohol policy. Erin Cox went to a party to pick up a friend who needed a ride because she was too drunk to drive herself. The police were already there when Cox arrived, but the police cleared her to leave. Nonetheless, the school suspended her from the team. As one might imagine, this story has been lighting up social media and the subject of national news, but my question is where are the courts?
Cox filed a lawsuit to enjoin the school from suspending her, but, according to local media reports, the court ruled on Friday that it lacked jurisdiction to hear the case. I have not been able to lay my hands on the complaint or the court order. It is possible the student filed in the wrong court or some other procedural anomaly is depriving the court of jurisdiction. If so, that sounds like an error on the part of her attorney. It not, this may be just another case in a long line where courts abdicate their responsibility to assess the constitutionality of school discipline. While the Court in Wood v. Strickland, 420 U.S. 308 (1975), stressed that it is not the role of courts "to set aside decisions of school administrators which the court may view as lacking a basis in wisdom or compassion," the Court in Goss v. Lopez, 419 U.S. 565 (1975), held that due process applies to students' property interest in education (although there is some question as to whether denying students athletic opportunites implicates the property right to education). Moreover, in the state of Massachusetts, where Cox was suspended, the state supreme court held in McDuffy v. Secretary (1993) that students have a constitutional right to education under state law. If schools can suspend students on grounds as irrational as those alleged in Cox's case, then the rights articulated in Goss and McDuffy become meaningless. Substantive due process does place limits, albeit narrow ones, on school discipline and courts must apply those limits in good faith. Of course, none of this means a court can or should ignore jurisdictional problems, but in reading hundreds of discipline cases, courts' rationale for disposing of cases is often muddled at best.
Note: This post was updated to reflect that the suspension was from athletics only, not school, which I learned when I later was able to get the complaint.
Sunday, October 13, 2013
Barring a settlement in the next year, the U.S. Department of Justice will go to trial against the city of Meridian and Lauderdale County in Mississippi. DOJ argues that local authorities lock up students for minor infractions like disrespect or vulgar language. The suit also alleges that students--disproportionately African American and disabled--are routinely detained without probable cause and denied legal counsel.
DOJ was also set to try the Meridian Public School District, but was able to reach a settlement agreement with the district this past summer. The district agreed to take various steps to end discrimination in its discipline program. It is not clear why the criminal justice system is holding out, but if this goes to trial and DOJ wins, which are both big ifs, the case could have a monumental impact in the fight against the pipeline.