Wednesday, October 1, 2014
California has passed a new discipline statute eliminating suspensions of kindergartners through third graders for disruption and defiance. I applaud them for taking a step in the right direction, but cannot help but point out how small of a step it is. The statute will still authorize any number of other unnecessary school exclusions. The full statute is after the jump. More on the story here.
Tuesday, September 30, 2014
California is now the first state to adopt an affirmative consent standard in regard to sexual assault claims. This change comes "as states and universities across the U.S. are under pressure to change how they handle rape allegations." The bill was originally introduced by Senator Kevin de Leon, who hopes this new law will begin a paradigm shift across the country as to how colleges and universities prevent and respond to sexual assault reports. Now, "[r]ather than using the refrain 'no means no,' the definition of consent under the bill requires 'an affirmative, conscious and voluntary agreement to engage in sexual activity.'" Thus, according to the legislature, under the new law "silence or lack of resistance does not constitute consent. Under the bill, someone who is drunk, drugged, unconscious or asleep cannot grant consent." The bill also requires counseling and health services for victims, as well as training for the faculty and staff who handle these reports, so that they do not inadvertently overreach when interviewing victims. Moreover, support for this bill came from both sides of the aisle, with no opposition in the Senate. In the general assembly, some Republicans questioned whether statewide legislation is really the best way to address the issue. Nevertheless, the bill passed and was signed into law by the governor on Sunday.
Wednesday, September 17, 2014
I have applauded the Departments of Justice and Education on their steps to reduce overly punitive discipline and racial disparities. Their joint guidance in January was a major step forward. On the other hand, the Department of Justice's 1033 program, which funnels military gear and weapons from the Department of Defense to localities, including school districts, is a step in the wrong direction. The Washington Post reports:
Law enforcement agencies affiliated with at least 120 schools, colleges and universities have received gear through the program, according to a Washington Post review of data from 33 states. The items received include at least five grenade launchers, hundreds of rifles and eight mine-resistant, ambush-protected vehicles, the hulking machines designed to withstand the kind of roadside attacks seen in Iraq and Afghanistan.
Tuesday, September 16, 2014
In July, Jason Nance concluded, based on the Court's decision in Riley v. California holding officers generally need a warrant to search an individual's cell phone, that most school searches of students' cell phones would be off limits as well. The lower reasonable suspicion standard applied to school searches would not save administrators on this point. Last month, a district court judge agreed with Nance in Gallimore v. Henrico Cnty. Sch. Bd., 2014 WL 3867557 (E.D. Va. Aug. 5, 2014).
School administrators, Turpin and Saunders, had "received reports from two parents that a longhaired student had smoked marijuana on a Hermitage High School bus that morning. That afternoon, Turpin brought W.S.G. to Saunders' office. W.S.G. did not know why Turpin summoned him to the office. W.S.G. emptied his pockets, and, before offering an explanation, Turpin initiated a search. Turpin patted down W.S.G.'s person and searched W.S.G.'s backpack, shoes, and pockets. Saunders searched W.S.G.'s Vaseline jar, a sandwich wrapper, and cell phone. Saunders broke the lid of the Vaseline jar while searching it, but did no other damage. Saunders and Turpin found no marijuana on W.S.G., and they sent him back to class."
Friday, September 12, 2014
Well, it is not so simple as the title suggests, but yesterday I posted on a new Missouri law permitting teachers to carry concealed weapons at school. In total, ten states have enacted legislation to permit teachers to carry guns at school. A few hours after my post came news that a teacher carrying a concealed weapon at Westbrook Elementary in Utah had accidentally shot herself in the leg (not the foot). Gun advocates estimate that about one percent of teachers in Utah, which amounts to 240 teachers, have gun licenses and are eligible to carry a gun to school.
While this incident is a tragedy for the teacher, I quip about it because it is the exact sort of thing that any policymaker in his or her right mind should expect, but seems to have ignored. Bringing more guns into school is necessarily going to increase the chances of an accident and having non-professionals bring guns makes that risk exponential. And a lot worse than just an accidental shot in the leg is possible. Even if the increased presence of armed personnel in schools decreases the risk of a Sandy Hook situation--and I am far from convince that it does, or does significantly--does that decrease outweigh the risk of new accidents? I am pretty confident that the answer is no.
Thursday, August 28, 2014
Derek posted yesterday about a case that shows how school-related juvenile charges can derail a student's education. The Los Angeles Unified School District announced last week that it is taking steps to alleviate some of those consequences by decriminalizing school discipline. Cribbed from the L.A. Times: L.A. school police will no longer issue citations for minor offenses such as campus fights, petty thefts, and tobacco possession and will instead use alternatives to arrest. The district says that the move is a recognition that zero tolerance polices are not making schools safer but are instead pushing out struggling students who then may drop out and get in more serious trouble. L.A. Unified developed the graphic to the left to guide schools towards internal discipline and when to call the police. Click the graphic to see the full chart and read the L.A. Times story here.
Wednesday, August 27, 2014
Getting to the bottom of what would otherwise be a simple suspension appears to be a complex task in J.A. ex rel. Swain v. Talladega City Bd. of Educ., 2014 WL 4185137 (N.D. Ala. Aug. 15, 2014) because of the statutory and constitutional context in which it arises. The court does not chronologically or clearly articulate the facts, but it appears that J.A. and his Assistant Principal were involved in some type of physical altercation. As a result, J.A. was referred to the police and charged with assault in juvenile court. Pursuant to Alabama statute, a school shall not readmit a student charged with drugs, weapons, physical harm, or threats until the juvenile charges are disposed of. As a result, J.A. was suspended from school and assigned to an alternate school.
J.A. filed suit against the principal and district, alleging the principal assualted him and that he was deprived of his substantive due process rights. He also filed for a preliminary injunction, requesting that he be readmitted. Beyond that, things get complicated. J.A.'s juvenile proceedings are apparently dragging out and, thus, he remains excluded from school based on the statute. He points out the illogic of this statute, as it would permit a student quickly found guilty or delinquent to return to school in short order, but would indefinitely exclude the innocent student who holds out for or requires more complex deliberations. In other words, the readmission is not triggered by substantive facts, guilt, or innocence, but simply the length of time it takes for juvenile proceedings to run.
Tuesday, August 26, 2014
Nashville Schools Ordered to Cease Searches and Examinations by Nurses Until Proper Training and Policy in Place
A school nurse in the Davidson County public schools in Nashville, Tennessee, subjected a female student to a medically unjustified genital examination in the presence of a school official. The girl's parents challenged the examination as a violation of her rights under the Fourth and Fourteenth Amendments. The case went to trial and the jury found for the defendants. The parents moved for a new trial, which the court in Hearring v. Metro. Gov't of Nashville & Davidson Cnty., 2014 WL 3924520 (M.D. Tenn. Aug. 11, 2014), denied. The court, however, did grant the plaintiff an injunction as to future examinations by the district. The court found that the staff were insufficiently trained and the district had adopted insufficient standards to prevent unwarranted invasions of privacy.
Thursday, July 31, 2014
To read several of my recent posts, one might get the impression that overly harsh discipline is on the way out. While it is true the Departments of Justice and Education have made important statements and a substantial number of large districts are promising to reform their discipline policies, the prevailing reality is still one of extremely high rates of harsh discipline in most places. As demonstrative evidence, I offer the following from the Columbia Journalism School's investigative paper, New York World:
In more than 40 New York City public schools, long-term suspensions of students for disciplinary infractions are the norm, not the exception.
Last week, the Obama administration announced an expansion of the My Brother's Keeper Initiative, which is aimed at improving educational and life opportunities for African American and Latino boys. Sixty of the nation's largest school districts, which educate about 40 percent of the nation's low income African American and Latino boys, agreed to join the President's initiative. They are committing to expand preschool education, expand positive interventions, increase the number of minority boys in advanced courses, reduce their suspension rates, and increase graduation rates.
More on the story here.
Monday, July 28, 2014
The American Bar Association is hosting a School to Prison Pipeline Town Hall meeting in Boston on Friday August 8, 20014 at Hynes Convention Center, 900 Boylston Street from 9 am - 11 am. A great lineup is scheduled to speaking, including Professor Sarah E. Redfield;Bob Fleischner, Center for Public Representation; Damon Hewitt, Open Society Foundation; Dan Losen, Civil Rights Project UCLA; Mike Ortiz, attorney Lowell Public Schools; Marlies Spanjaard, Public Counsel; and Gloria Tan.
Their program description states:
The “School-to-Prison Pipeline” has been a crucial concern of parents, educators,
lawyers, judges, ministers, civil rights leaders, and youth advocates for a number of
years. Recently, it has become a major concern of the public across the country due in
large part to the spiraling statistics and the negative impact on children of color. Some
youth advocates have defined the problem as a systematic way of siphoning children
out of public schools and funneling them into the juvenile and criminal justice system.
A number of civil rights lawyers regard the journey from “school- to-prison pipeline,”
as the most critical civil rights issue facing our country today.
Friday, July 25, 2014
African Americans accounted for 70 percent of suspensions and 76 percent of expulsions in the Nashville public schools, while being less than half of the school population. That means that one out of every five African American students was suspended or expelled last year. The numbers for African American males, while not noted in recent releases, are surely higher and, thus, shocking.
To the district's credit, it has realized that enough is enough. It is partnering with a service center for at-risk youth to identify a new discipline, mental health and community outreach model. It is also joining Chicago, Los Angeles and New York in the Positive & Safe Schools Advancing Greater Equity initiatives, through which they will support one another in developing solutions.
I suspect that the Department of Justice and the Office for Civil Rights' joint guidance on discipline disparities also played an important role in their thinking.
More on the story here.
Wednesday, July 16, 2014
The Toledo Public School District has added itself to the ranks of large school districts revisiting their approach to student discipline. The district has implemented a preventive approach. Its plan was to to be more proactive than reactive and have an open dialogue with students about what they did wrong and how they can behave better in the future. If the numbers reflect reality, it appears to be working. Under the new system, the number of suspensions at one school dropped from 260 to 41, and no students have been expelled.
Limiting the amount of time students spend outside the classroom was one of the main goals of the program, but the district also removed its detention and the demerit system. Now, students are
Tuesday, July 15, 2014
Supreme Decision Probably Makes Student Cell Phone Searches Off Limits in the Average Student Discipline Case by Jason Nance
The United States Supreme Court recently issued a watershed decision that limited the reach of police officers to conduct searches under the Fourth Amendment. In Riley v. California, the Court unanimously held, overturning a prior California Supreme Court decision, that police officers generally must obtain a search warrant before searching through digital information that may be accessed on the cell phone of someone who has been arrested. In issuing this ruling, the Court declined to extend a warrantless search exception that allows police officers to search the area within arrestees’ immediate area of control to ensure the officers’ safety and prevent the loss of evidence. This decision has been hailed as a monumental victory by privacy rights activists who are concerned with the government’s growing ability and inclination to search digital information. Although its full ramifications are unclear, it undoubtedly will affect how searches of digital information are evaluated in other contexts, including how courts will evaluate searches by school officials of information stored on students’ smartphones.
Friday, June 13, 2014
Putting Louisiana's Education Pieces Together?: Discipline, Vouchers, Data, and the State Dept. of Ed.
In the wake of the recent filing of civil rights complaints in regard to discipline in New Orleans charter schools, there is now a call for the state superintendent of education to resign. A local blogger, whose veracity I neither doubt nor affirm, suggests that are other problems of disfunctionality at the Department itself. His story alleges that there is a data crisis at the Department. In particular, he asserts the data is neither secure, nor accurate, and the Department, thus far, has been unable to clean it up. If true, his story adds important context to the school voucher fight between the Department (and Jindal) and the US DOJ's equal educational opportunity section. As readers may recall, that fight ultimately came down to access to basic information and data, with the state requesting extensions of time to turn over the data on more than one occassion.
Monday, May 5, 2014
Jason Nance's new article, School Surveillance and the Fourth Amendment, 2014 Wis. L. Rev. 79, is now available on westlaw. The abstract states:
In the aftermath of several highly publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their schools than other students, even after taking into account factors such as neighborhood crime, school crime, and school disorder. These empirical findings are problematic on two related fronts. First, research suggests that students subjected to these intense surveillance conditions are deprived of quality educational experiences that other students enjoy. Second, the use of these measures perpetuates social inequalities and exacerbates the school-to-prison pipeline.
Under the current legal doctrine, students have almost no legal recourse to address conditions creating prison-like environments in schools. This Article offers a reformulated legal framework under the Fourth Amendment that is rooted in the foundational Supreme Court cases evaluating students' rights under the First, Fourth, and Fourteenth Amendments. The historical justification courts invoke to abridge students' constitutional rights in schools, including their Fourth Amendment rights, is to promote the educational interests of the students. This justification no longer holds true when a school creates a prison-like environment that deteriorates the learning environment and harms students' educational interests. This Article maintains that in these circumstances, students' Fourth Amendment rights should not be abridged but strengthened.
Thursday, May 1, 2014
A new report, Kids Doing Time for What’s Not a Crime: The Over-Incarceration of Status Offenders, by the Texas Public Policy Foundation, a group focused on liberty, personal responsibility, and free enterprise, suggests that Texas may be slowly backing away from its punitive approach to juvenile behavior. The report focuses on the juvenile justice system and, thus, does not directly tell us of school discipline. But given that so many juvenile justice interactions have originated in the schools over the past decade, the data would suggest that either schools are referring students more infrequently or law enforcement is refusing to prosecute the
referrals. Either way, the data is good news for students. The layout of the graph is not entirely intituitive (or the title misleading), but the blue line represents the number of youth committed by offense in 2001. The red line shows the numbers for 2011. As you will notice, the rate of commitment in 2011 was nearly half of the rate from 2001. The chart after the jump shows a similar trend in regard to detentions.
Wednesday, April 30, 2014
According to a complaint filed by Anna Lellelid and Bill Quigley, Carver Collegiate charter school in New Orleans operates a demerit system, whereby students are cited for everything from not walking in a straight line to wearing too many bracelets and not smiling when shaking hands. Accumulating too many demerits leads to suspension. Under this system, the school suspends 68.85 percent of its students at least once a year.
Lellelid and Quigley allege the discipline system and environment is physically and emotionally abusive. “I’ve heard from students who say they feel so depressed to be treated this way, but they feel they can’t speak out because they will get in trouble,” said Anna Lellelid. The complaint also alleges that that the discipline system fails to follow the proper processes mandated by law, including the general notice and opportunity to respond process required by Goss v. Lopez and the more specific process required for students with disabilities under the IDEA. Two additional schools were named in the complaint.
This school seems to typify the type of irrational and unjustified discipline system that I argue violates substantive due process here. In short, I develop the argument that the constitutional precludes schools from excluding students for certain relatively innocuous or innocent behavior.
For the longer story on Carver Collegiate, see here.
Tuesday, April 29, 2014
When the Santa Ana Unified School District's Board met last week, it faced a hostile crowd. Families and students were reacting to recent events in which a police officer had placed a 14 year old boy in a headlock at school. The boy had just defaced school property and the officer was arresting him. The arrest was caught on tape and horrified many residents and students.
This aggressive show of force provided the platform for the community to raise concerns about the punitive nature of discipline in the district and the routine involvement of police in school discipline matters. Those present at the board meeting called for strict limits on the punishment imposed for "willful defiance," as well the circumstances in which police would become involved in addressing student misbehavior. The rationales offered by students themselves were impressive and read as though they come straight out of the social science literature:
- the school's discipline fosters "'huge amount of distrust' between youth and authorities"
- "students are “'losing their right to education'"
- “They undermine student achievement and graduate rates”
It is unfortunate that extreme events must occur before these concerns can take center stage, but it is encouraging, nonetheless, that they are taking center stage. Ironically enough, the district's "misbehavior" has given these students the opportunity to eptimoze democracy in action and the virtues of student free speech (for those who would doubt the virtue of student speech in school).
More on the story here.
Tuesday, April 15, 2014
Philadelphia has added itself to the short but growing list of major school districts that are trying to draw sharper lines between school officials and the police to reduce arrests in school. Last fall, I posted on a similar move in Broward County, Florida. According to a local Philadelphia paper:
Philadelphia School District has directed school police officers to stop responding to calls related to Level 1 student conduct offenses. The proscribed violations range from "failure to follow classroom rules" to "truancy" to "verbal altercations" to "inappropriate touching/public displays of affection."
"These infractions are not criminal offenses; they are classroom/student management issues," wrote District Chief Inspector Carl W. Holmes to school administrators and school police in a memo dated March 10.
The memo states that school police should "respond to all calls that are criminal in nature, or where persons involved are violent or threatening."
In the event that they are called to other incidents, officers should "request the presence of an administrator, counselor, or administrative designee," the memo explains.
Some teachers, including the Philadelphia Federation of Teachers, are not happy with the policy, indicating that there are not resources in the school to deal with discipline and it is not just a classroom management issue.
"It is easy...to say that someone else should deal with it. There is no 'someone else,'" said Amy Roat, . . . teacher at Feltonville School of Arts and Sciences.
"We don't have anyone in our building most of the time that is 'qualified' to deal with these issues," she said. "We all just have to jump in and deal with it."
While I sympathize with overworked teachers in overworked schools, school discipline is an educational issue, not a law enforcement issue. They may be correct that the schools currently are not fully equipped to deal with the problem, but that is due to the fact the state has been starving these schools of resources, not that the state has asked them to do the police force's job. See the full story here.