Wednesday, February 7, 2018
Yesterday, Bloomberg published an editorial that summed up the views of those who want the U.S. Department of Education to rescind its guidance on racial disparities in school discipline. The editorial argued:
When students misbehave in the classroom -- and, so long as the prefrontal cortex continues to be the last part of the human brain to develop, they will -- they should have to answer to their teachers. The federal government need not get involved.
Yet federal policies currently discourage schools from suspending chronically disruptive kids, harming the vast majority of students who actually want to learn. In 2014, the federal government warned school districts that they could be investigated for civil rights violations if their disciplinary policies were found to have a disparate impact on students based on race.
The most remarkable lines of the editorial admit that "black students are suspended at nearly four times the rate as white students, and that African-American students are more likely to receive heavier punishments for the same offenses." I cannot fathom how this is not the business of the federal government.
Title VI of the Civil Rights Act of 1964 prohibits racial discrimination in all programs receiving federal funds. Department of Education regulations further prohibit policies whose effect is to discriminate based on racial. As a practical matter, these regulations are say that if a school's policies produce large racial disparities, the school should have a good explanation for those disparities. If it does, fine. If not, the district should change.
When districts suspend African Americans at four times the rate of whites, they should have to explain the disparity. If the answer is that African Americans are misbehaving more and the districts need to suspend them, fine, they can continue as is. But if African Americans are receiving heavier punishments for the same offenses--which the editorial admits--the district must change because the district is discriminating.
I cannot imagine a theory under which the federal government would say, "that's okay. You guys figure out a solution that suits you." We certainly would not say that the very people who are engaging in discrimination--whether it is conscious or subconscious bias--are the ones best suited to devise a solution. Yet, that is exactly what the Bloomberg editorial says: "Student discipline should be handled at the local level -- and as much as possible, left to the discretion of individual principals and teachers."
Wednesday, December 6, 2017
New Report on Racial Bias in School Discipline Offers Great Prelude for Confirmation Hearing for the Head of the Office for Civil Rights
The NAACP Legal Defense and Educational Fund, Inc. (LDF) released a new report last week on implicit bias in school discipline. It is a particularly efficient and straightforward report that should be easily accessible to the educators and the general public. They, more than attorneys and policy wonks, seem to be the intended audience. It also includes some clear "how to" steps, aimed at minimizing the effects of bias. LDF offered this in their press release:
The report not only explains the ways in which implicit bias – subtle, subconscious beliefs on race – held by teachers, administrators, and school resource officers (SROs) leads to the over-disciplining of students of color, but offers a range of recently developed interventions that have been effective in limiting the harmful effects of implicit bias.
“Addressing implicit bias in schools is essential to dismantling the school-to-prison pipeline, which wreaks havoc on students of color,” said Ajmel Quereshi, Senior Counsel at LDF and co-author of the report. “Instead of readily excluding students from the learning process, educators should heed our recommendations to create an environment that promotes social belonging for all students regardless of race.”
Civil rights advocates, as well as the general public, have long been aware of racial disparities in school discipline. As early as 1974, civil rights advocates highlighted that Black students were two to three times more likely to be suspended than white students. Sadly, little progress has been made in reducing these disparities. In 2012, for example, Black students made up only 17 percent of students in the United States but accounted for 40 percent of out-of-school suspensions and were three times more likely than white students to be suspended or expelled from school. While six percent of all K-12 students received one or more out-of-school suspensions during the 2013-14 school year, the percentage was 18 percent for black boys; 10 percent for black girls; five percent for white boys; and two percent for white girls. This wide racial disparity persists despite gender and age differences.
The disparate punishment for Black students in our nation’s schools can have dire consequences beyond their K-12 school experiences. Once a Black student is suspended, the chances that he or she will drop out of school, become unemployed, and enter the criminal justice system rises dramatically.
New interventions that put more attention on student-teacher relationships and the social and psychological factors contributing to these relationships have begun to lessen the extreme levels of discipline administered to Black children. The report discusses a number of these strategies, including the “wise feedback” intervention, which focuses on providing clear feedback in a manner that prevents students from believing that the teacher may harbor a negative bias against them. Another technique detailed in the report is the “empathic discipline” intervention, which exposes teachers to their kids’ personal stories so that they can gain insight into the experience of racially stigmatized students in school. This exposure encourages teachers to use discipline as a chance to build a relationship with the student and cultivate a learning opportunity.
“The over-disciplining of students of color presents a crisis for our young people, our schools, and our criminal justice system,” said Jason Okonofua, Assistant Professor of Psychology at the University of California, Berkeley and co-author of the report. “The interventions and recommendations offered in our report could significantly improve the fairness of school discipline, helping to ensure that every student has a meaningful opportunity to succeed.”
Beyond these interventions, the report also offers specific recommendations for school districts on how to better address implicit bias, and how to mitigate the harm caused by discretionary offenses and school resource officers. These recommendations have already shown promise in ameliorating the over-disciplining of students of color, and in creating a safer learning environment where all students feel inspired to succeed.
The report was published with the guidance of the Legal Strategies Collaborative, a group of 15 organizations that focus on limiting the school-to-prison pipeline, and was made possible by a grant from the Open Society Foundations.
Read the full report here.
The report could not be more timely given that Kenneth Marcus, the nominee for Assistant Secretary in the Office for Civil Rights at the U.S. Department of Education, had his confirmation hearing yesterday. Edweek reports that he was thoroughly grilled on school discipline issues. The Office issued guidance a few years ago that spelled out a clear framework for evaluating racial disparities in school discipline. Pursuant to that guidance, the Office forced corrective change in a number of school districts. The question now is whether Marcus would continue that policy. Here are a few exchanges from the hearing.
"If there is a disparity in how African-American children are being disciplined in a particular school or school district as compared to how white children are being disciplined, would that be legitimate grounds for an OCR complaint or an OCR investigation?" asked Connecticut Sen. Chris Murphy, a Democrat who was referring to the office of civil rights in the education department, which Marcus would oversee. Murphy has supported efforts to rethink school discipline and minimize the use of suspensions.
"In general, the answer is yes," Marcus said.
Murphy said he "would argue that we have a school discipline crisis in this country." He cited federal data that show significantly higher rates of suspensions and expulsions for black students compared to white students and for students with disabilities compared to their peers without disabilities. "If there was a school district that was suspending or expelling five times as many black students for the same set of behaviors compared to white students, can you perceive any legitimate reason for that disparity?" he asked.
"Let me say that if even one child is punished because of their race or punished worse because of their race, I believe that to be a significant concern," Marcus responded. "Now, if the numbers are as significant as you just described, I would consider that to be grounds for asking some very tough questions."
"I will just share my view with you," Murphy responded. "I don't believe there's any legitimate explanation. I believe that that kind of disparity in the treatment of African-American children would be on its face a violation of federal law and I think, even if you didn't find a smoking gun in which an administrator admitted that they had an intentional policy of targeting black children, on its face that kind of disparity would be a violation of the federal law. Do you agree with that statement?"
Marcus said his "experience says that one needs to approach each complaint or compliance review with an open mind and a sense of fairness to find out what the answers are." He said he has seen disparate discipline numbers in some schools that ended up being the result of paperwork errors.
"I think one needs to find out what is happening and, if there is discriminatory conduct, there needs to be consequences," said Marcus, the founder and president of the Louis D. Brandeis Center for Human Rights Under Law. He was previously delegated the authority of the assistant secretary for civil rights at the Education Department under President George W. Bush.
His answers were relatively moderate all things considered. He was not hostile to the guidance at all, which sets him apart from many others on the right. And the fact that DeVos did not rescind the guidance during her recent hatchet job on education regulations is somewhat comforting.
With that said, Marcus is extremely sophisticated and previously served in the Office during the Bush administration. I would not expect him to make a fool of himself during a hearing or even invite confrontations that he could avoid. Unlike so many other nominees, he actually understands government and what this Office is supposed to do. Marcus clearly understands the law and it is not his mission to undermine it or the Office.
He and I have debated before and we, of course, disagree on the substance of any number of important issues. Once we get past basic threshold questions or the application of the law, we begin to diverge. And the way he dealt with anti-Israel protests on college campuses a decade ago raises major red flags and has drawn a lot of letters in opposition to him, including from professors. To be fair, however, the legal rationale that he relied on with the anti-Israel protests was the same rationale that he and the Office used to protect Sikh and other religious minorities from harassment in school following the 9/11 attacks, although the harassment of Sikh's was far more direct and clear. This leads many to believe that while Marcus won't undermine the Office, he will, from time to time, use it for his own ends.
Am I happy that he will lead the Office? Absolutely not. Do his pet projects bother me? Absolutely yes. Is he competent, generally reasonable, and better than a host of other people I might have expected Trump to nominate? Absolutely yes. In short, he is a mixed bag.
Monday, November 20, 2017
Under state law, the answer is apparently yes in some places. A Time.com story reports that "Iowa is one of only five states that allow seclusion or restraints when there’s no physical threat, according to the ACLU. Twenty-nine states have banned the use of seclusion or restraints to discipline or punish a child." Apparently, Iowa City Schools had made more than an infrequent practice of it. It had sent "students to seclusion rooms for having a bad attitude, using foul language or being out of instructional control, among other reasons. The [state education] department reviewed more than 450 incidents involving more than 60 students were sent to these rooms over a one-year period starting in December 2015." The district now says it will discontinue the practice.
A handful of seclusion room stories have broken in other schools over the past year or two and districts have similarly been quick to change their practices once the stories came to light. Part of the pressure comes from the fact that many of the students subjected to this treatment have or many have disabilities, which brings federal law and limits into play.
Unfortunately, a corrective response is rarely quick or forthcoming at all for regular education students subjected to harsh school discipline. Writing of school exclusion (rather than seclusion) in Ending Zero Tolerance, I wrote:
Over the past two decades, school discipline has grown increasingly harsh and impersonal. Many schools and states are willing to exclude—temporarily and permanently—students for almost any type of behavior. Even when students’ behavior poses no real danger to school and involves the type of immature mischief parents expect of normally developing kids, schools dig in their heels and insist that they must banish students. Local communities and policy advocates have pushed back and managed some important successes in recent years, but the seriousness and scope of the problem demands a systematic long-term check.
I argue that courts are the check of last resort. "[C]ourts must reengage on issues of discipline and enforce students’ rights. Courts cannot simply abandon students to school boards and the political process. Too often, both schools and politicians have shown themselves to be irrational and willing to sacrifice students in the expedient pursuit of other goals."
But even when courts engage, some schools cannot imagine another way of handling kids. Zero tolerance, seclusion rooms, corporal punishment and the like are examples of schools, at best, throwing their hands up in despair or, at worst, believing courts are the niavely meddling.
The Iowa City School plans moving forward do not inspire confidence. "It’s unclear what method or practice will be used in place of the rooms. [Superintendent] Murley said in his email that 'the district recognizes the role of restraint and seclusion in providing a free and appropriate public education for all students in a least restrictive environment within our schools and is seeking ways to improve our practices.'"
Part of the answer lies in understanding that student misbehavior is not just misbehavior. It is often a warning cry for help in some other area of the child's life or education. As I write here:
Normal human development can explain a lot of misbehavior. Younger children, for instance, lack the capacity to always behave; no matter the rules, elementary school students occasionally talk out of turn, push each other and disrupt class. Older students sometimes push boundaries in other, more serious, ways. Making and learning from these mistakes is simply part of growing up.
Disabilities, academic struggles, poverty, homelessness and family crises can also affect behavior. For students in these situations, misbehavior is often a sign of unmet needs – not a character flaw.
Until school officials begin to understand misbehavior for what it is, our discipline problems will continue to plague us and stories of this sort shock us.
Tuesday, November 14, 2017
The Washington Post recently reported on a mass campus lock down at Worth County High School in Georgia. Over the course of four hours,
40 uniformed officers — the entire staff of the Worth County Sheriff’s Office — fanned through the school in Sylvester, ordering students against the walls of classrooms and hallways, demanding the students hand over their cellphones.
All 900 students were searched, part of a drug sweep ordered by Sheriff Jeff Hobby, according to court documents.
He did not have a warrant. He had a “target list” of 12 suspected drug users. Only three of the names were in school that day, April 14.
When all was said and done, no drugs were found. And when controversy later arose, the attorney for the Sheriff's Department argued that the searches were legal because they were carried out while school administrators were present. "In a statement released on April 18, Hobby elaborated that in 'the weeks leading up to April 14, the Sheriff’s Office received information and complaints from the citizens of Worth County regarding illegal drugs at the high school. The Sheriff contacted the Superintendent of the Worth County School District and the Principal of the high school to inform them of the situation and the Principal and the Sheriff agreed on the day of the pat down.'”
As crazy as that sounds, it was not a bad lob, as courts have vacillated on whether searches require reasonable suspicion or probably cause, depending on schools' involvement with these searches. Regardless, school officials have since pushed back on the idea that they were participants in the searches. And now a grand jury has indicted the sheriff and two deputies for their role in the searches.
Courts have recently begun recognizing limits on police and school practices in cases such as these, but such outcomes are never a given. Victims lose these cases more often than the win them. Yet, this mass search offers another confirmation in a long line of examples of my basic thesis in Ending Zero Tolerance: Courts must reengage on issues of school discipline and the school-to-prison pipeline. Courts have stood on the sideline for the past four decades. In their absence, students have been deprived of their last line of defense--the one that is supposed to stand strong and politics waiver--their constitutional rights.
Thursday, October 19, 2017
New Federal Court Decision Should Be a Warning to Schools and Police Departments That Arrest Students
Last week, in S.R., v. Kenton County Sheriff's Office, 2017 WL 4545231 (E.D. Ky. Oct. 11, 2017), a U.S. District Court in Kentucky issued a decision that should drastically change schools' and resource officers' thinking in regard to handcuffing students. Students often lose these types of cases and when they win, the facts are so unique or egregious that other schools and officers might distinguish them or write them off. This is not to suggest that the harms the students suffered in Kenton County were minimal. They were handcuffed in painful ways. The kids also represent sympathetic plaintiffs because they were particularly small.
But in other respects, the cases were more run of the mill and suggest a court drawing a line in favor of many students. These were not entirely "innocent" students. The students had engaged in protracted violent behavior--albeit not all that dangerous. And the school officials did not jump straight to handcuffing the kids. They, as well as the officers, had attempted several deescalation techniques and even let some behavior go, so to speak. And the cases did not involve pepper spray, head locks, brute force, or other forms of generally outrageous conduct by officers. In short, they involved handcuffing students whom the school and officers had not found any clear way of calming.
The fact that the court was willing to intervene here, thus, suggests the general problem with handcuffing kids, particularly small ones. The court emphasized that officers simply are not trained to engage in this type of behavior with young children and no one recommends it. Kentucky itself recognizes as much.
Kentucky Board of Education regulations provide that "school personnel may not use physical restraints as 'punishment or discipline,' to 'force compliance or to retaliate,' as 'a routine school safety measure,' or as 'convenience for staff.'” 704 KAR 7:160 § 3(1). The regulation also prohibits school personnel from using "'mechanical restraints' on students at any time." The preamble to the regulation, however, states that the regulation "does not prohibit the lawful exercise of law enforcement duties by sworn law enforcement officers.”
Yet, the details in these sorts of cases will always matter.
The case involves a few different incidents. The first involved an eight-year old boy who was approximately 4 feet tall and weighed 54 pounds. He "had been diagnosed with attention deficit hyperactivity disorder (ADHD) and post-traumatic stress disorder (PTSD)," but he "attended regular classes and, at the time of the incidents in question, had not been identified to school administrators as having any disability." He had engaged in some hitting and kicking incidents toward his teachers. The school's deescalation efforts included holding him in a cradle restraint and locking him in an office. When that did not work, they called the Sheriff's office. By the time Officer Sumner arrived, the student was on the phone talking to his mother. When the officer engaged him, however, things escalated and the student took an elbow swing at the officer.
Sumner said “you're not allowed to swing at me like that.” Sumner handcuffed S.R. behind his back, placing the cuffs on S.R.'s biceps above the elbows. The video shows that S.R.'s arms are pulled tightly behind his back with what appears to be only approximately three or four inches between his elbows. Sumner testified that he checked the handcuffs for tightness and that, since the chain connecting the handcuffs was nearly as long as the width of S.R.'s body, he had no reason to believe it would cause him pain. The video clearly demonstrates, however, that the chain is not nearly as wide as S.R.'s body, and that his arms are extremely taut.
Sumner can be heard stating, “You can do what we've asked you to or you can suffer the consequences.” (Doc. 156 - video). S.R. can be heard saying, “Oh, God. Ow, that hurts.” (Meyer Depo. 136-37). Sumner tells S.R. that: if he wants the handcuffs off, he has to behave and “ask nicely”; “if you want them off, all you have to do is stop kicking”; and “it's up to you if you want them off or not.”
S.R. remained handcuffed for approximately fifteen minutes, crying and squirming, after which Sumner removed the cuffs.
The second student, L.G, was a nine-year old girl who weighed about 56 pounds. "L.G. had been diagnosed with ADHD and she had a 504 plan, but she attended regular classes. The plan did not address any behavioral issues or problems." She also engaging in some hitting and kicking toward adults, as well as blowing snot and attempting to bit. The school attempted deescalation techniques with her as well, including placing her in a calm room. On one occasion when Officer Sumner arrived, he
decided to place her in handcuffs. Despite the handcuffs, L.G. did not calm down and Sumner called for an ambulance because he was concerned for her medical condition.
Paramedic Jerry Mills arrived at the school and went to the calm room. Mills began talking to L.G., and he told Sumner to remove the handcuffs. Mills put his arm around L.G.'s shoulders to comfort her while Sumner removed the handcuffs. Mills hugged L.G. and she hugged him back. Mills sat and talked with L.G. in the ambulance on the way to Children's Hospital. Collins and Sumner followed the ambulance since no parent was available, and Collins waited for about an hour until L.G.'s mother arrived. L.G. was discharged later that morning without any physical injury.
On another occasion, L.G. would not go to her assigned location in the school and ran away from a school employee.
Sumner saw L.G. coming towards him as he stood with his back to the stairway leading to the second floor, and Collins and Craig were telling L.G. to go to the cafeteria.
When L.G. reached Sumner, he told her to go to the cafeteria where she was supposed to be. L.G. tried to push past him, and she dropped to her hands and knees and tried to crawl through his knees. She then pulled up his pants leg and tried to scratch him. L.G began screaming, and Craig was able to move her into the “cub store,” a room where school supplies are sold.
Once inside the cub store, L.G. became physically aggressive, hitting, kicking, and scratching Craig. Sumner pulled L.G. off of Craig and tried to hold her physically for a few minutes, but she continued the same behavior. Sumner told L.G. that if she did not stop, he would handcuff her. L.G. continued to kick and hit, and Sumner placed her in handcuffs, above her elbows behind her back.
Assistant Superintendent Wilkerson contacted L.G.'s mother, who came to school to get her. Her mother testified that when she arrived, L.G. was on her knees and Sumner was holding her arms up behind her above her head. Sumner then removed the handcuffs.
Plaintiffs later filed suit against the Sheriff and Officer Sumner, alleging "(1) Unreasonable Seizure and Excessive Force in violation of the Fourth and Fourteenth Amendments (against all defendants), pursuant to 42 U.S.C. § 1983; (2) Disability Discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132 (against Kenton County Sheriff's Office only); and (3) Failure to Accommodate under the ADA (against Kenton County Sheriff's Office only)."
The district court focused on the excessive force and found:
the severity of the “crime” committed by S.R. and L.G. – assault – weighs in their favor. While S.R. kicked a teacher and L.G. tried to and/or did hit a teacher, these are very young children, and their conduct does not call to mind the type of “assault” which would warrant criminal prosecution. Indeed, Sumner testified that “none of what they did was worthy of trying to file a criminal charge.”
The second factor, whether the children posed an immediate threat to themselves or others, weighs in S.R.'s favor. At the time he was handcuffed, S.R. had largely calmed down, Sumner had escorted him to the restroom without incident, and they had returned to the office. While Sumner testified that S.R. swung his elbow towards Sumner, such can hardly be considered a serious physical threat from an unarmed, 54-pound eight-year-old child.
This factor weighs less in favor of L.G., who was engaging in more physical abuse towards her teachers and Sumner.
Nonetheless, the age and stature of these children is highly relevant to this analysis.
Finally, the method of handcuffing that Sumner employed leads this Court to conclude that his actions were unreasonable and constituted excessive force as a matter of law. The video of S.R. shows that his arms were pulled tightly behind him, with only inches between his elbows. While Sumner testified that the chain between the cuffs was as wide as S.R.'s torso, the video belies that assertion. Where a witness's version of the facts “cannot be countenanced based upon what the video shows,” the Court must adopt the video as fact.
Upon being cuffed in this manner, S.R. cried out, “Ow, that hurts.” It was thus immediately apparent that this method – which, it is undisputed, was the same method by which L.G. was cuffed – was causing pain. S.R. was left in this position to cry and squirm for fifteen minutes.
Plaintiff's handcuffing expert, Robert Rail, testified that he does not know of any police instructor in the United States who would allow the elbow cuffing of children such as was used on S.R. and L.G., nor does he know of any program that teaches that method.
Even defendants' handcuffing expert, William A. Payne – who has been conducting handcuffing training for law enforcement for over 20 years –testified that he has never trained law enforcement to use handcuffs above the elbow. He further testified that he was not aware of any law enforcement agency that trains their officers to use such a technique.
. . .
Therefore, under the totality of the circumstances, the Court concludes as a matter of law that Sumner's manner of handcuffing S.R. and L.G. was an unconstitutional seizure and excessive force.
On the question of qualified immunity, however, the court was far more forgiving: "plaintiffs have not shown that it was “clearly established” in 2014 that Sumner's handcuffing of S.R. and L.G. was unconstitutional, and Sumner is thus entitled to qualified immunity." The court also granted the defendants' motion for summary judgment on the ADA claims.
Plaintiffs most significant victory was against the county. The court found that Sheriff "Korzenborn has not implemented any changes in the training of his SROs since these incidents. Given this undisputed testimony, Kenton County is liable as a matter of law for Sumner's unlawful handcuffing of S.R. and L.J."
Wednesday, October 18, 2017
Missouri Schools Suspend Black Students More Than Four Times As Often As Whites, While Disparities Curiously Drop with Other Forms of Punishment
The ACLU of Missouri has released a new report on school discipline and the school to prison pipeline there. The report finds:
The racial discrepancy in school discipline isn’t limited to teens. Our youngest and most vulnerable students in preschool and elementary grades are subject to excessive and harsh punishment. Nationwide, Black preschoolers are 3.6 times more likely to be suspended one or more times than White preschool students. Missouri has the eighth highest expulsion rate for preschoolers. From the very start of their education, the youngest students of color already face an uphill battle to stay in school.
The reality that specific students are punished more frequently and with greater severity is deeply troubling. A recent report from the U.S. Department of Education’s Office for Civil Rights found during the 2013-2014 school year, Black students across the nation are nearly four times as likely to be suspended than White students. During the same school year in Missouri, Black students were 4.5 times more likely to be suspended than White students. In Missouri, students with documented learning or behavioral disabilities under the federal Individuals with Disabilities Education Act (IDEA) were given out-of-school suspensions more than three times as often as non-IDEA students.
Despite making up only 14 percent of the student population in Missouri, Black, non-IDEA students represented about 17 percent of all referrals to law enforcement and 18 percent of all school-related arrests in the 2013-2014 school year.
In-school referrals to law enforcement are not trivial. A 2015 report from the Missouri Juvenile and Family Division found referrals from schools represent 21 percent of all law
referrals in Missouri for youth. Black children account for 26 percent of all referral types in the state. We also found an alarming increase of students in Missouri expelled from school. Between 2011 and 2014, the expulsion rate in Missouri doubled. This resulted in a greater number of expulsions for Black students, who faced expulsion at a higher rate than White students.
Another great concern is Missouri’s continued use of corporal punishment in school. Across the nation, few states continue to use corporal punishment, yet, in Missouri, Black students are almost twice as likely to be hit in school as their White peers.
This disparity between enrollment rates and discipline rates is not reflected among White students, a population in which discipline rates are consistently below enrollment rates.
Disproportionate discipline has both physical and mental consequences for young people. Beyond missed classroom time, when students, particularly younger students, are singled out for discipline, they are taught that they are “bad.” Their peers and educators internalize the same message. Studies show that by the time students move from pre-K to kindergarten, children can identify which of their peers exhibit “problem behaviors.” This perception is consistently shared between peers and teachers, creating a label for specific students that follows them throughout their academic careers.
What I found most interesting, however, may have been the report's data on in-school suspensions. This has traditionally been the most unreliably and difficult data to get. The report found that the in-school suspension rate for African American students received special education services was 26%. For other African Americans it was nearly 19%. Interestingly, however, the racial disparity between African Americans and whites was smaller in regard to in-school suspension and expulsions than it was in regard to suspensions. This raises a few interesting possibilities: 1) that schools are more likely to skip past in-school suspension for African Americans and just suspended them and 2) so as to avoid high expulsion rates, schools may be just handing out more suspensions. Both possibilities could be wrong, but something appears to be occurring with suspensions that is not occurring with other forms of discipline.
The disparity in regard to corporal punishment is also very low, but it is used so infrequently that conclusions may be less reliable there.
Tuesday, September 5, 2017
Last week, in Henry v. S.G., the Supreme Court of Georgia placed a significant dent in the logic of zero tolerance discipline. The case involved a fight between two high school students. In typical fashion, Locust Grove High School automatically suspended both students. After all, there was a video of the fight and both students were involved. "The [school] hearing officer found S.G. guilty of violating the rules with which she was charged 'for being involved in a fight on the school grounds.'”
The problem is that the video strongly indicates that one of the students was the victim. S.G. was chased down by another student and then tried to avoid the fight, going so far as to hold her hands up and walk away. But after she walked away, the other student lunged at her and the fight ensued.
The Georgia Supreme Court found that being a participant to a fight is not enough alone to justify an expulsion. The Court hung its analysis on the fact that a Georgia statute grants individuals the right to use self-defense and that the state board of education has also previously recognized self-defense as an affirmative defense in discipline proceedings. Readers might recall a similar case in Florida involving a student who "stood her ground" after exiting the school bus.
The troubling part of these cases is how heavily they rest on these statutory rights of self defense. In the absence of these statutes, a school might theoretically determine that self-defense is not tolerated. Significant precedent regarding school's discretion would support the schools.
As I argue in Ending Zero Tolerance, some zero tolerance policies are constitutionally irrational and should be struck down on that basis. Of course, when a statutory rationale exists, avoiding constitutional questions is appropriate. One might, however, read these statutory cases as implicitly bolstering the irrationality of zero tolerance. These state legislatures have recognized the impropriety of punishing those who may very well be victims. It is not that the state wants people to fight back, but that punishing them under these circumstances defies logic. The aggressor and the defender are simply not comparable in terms of culpability (assuming the defender does not use the occasion to overreact).
The Minnesota Supreme Court took a step toward this approach last year when it held that a student's intent in a weapons case matters. The student had accidentally left a knife in his backpack that he used for cutting twine on the farm over the weekend. The Court held that this accidental possession of a weapon did not amount to a "willful violation" of school rules.
Together, these cases confirm two points emphasized in my book. First, students seeking to challenge expulsions and suspension generally stand a better chance in state courts than federal courts. Unlike federal courts, these state cases involve courts taking the issues very seriously and trying to reach a decision that respects student rights. Second, courts can and must play a role in student discipline cases. They are the last line of defense for students. Many schools are still willing to hand out what the most extreme forms of punishment that, without courts, will go unchecked.
Monday, July 10, 2017
Deliberate Indifference to a Hostile Environment: A Call for Attorneys to Protect Vulnerable Students By Nancy Willard
Public school districts violate federal civil rights laws when discriminatory harassment of students based on race, color, national origin, sex, or disability is sufficiently serious to create a hostile environment that is interfering with the students’ rights to receive an education, and school staff encourage, tolerate, do not adequately address, or ignore such harassment.
An unacceptably high number of students in public schools in the U.S. are suffering from daily bullying and harassment by their peers--and sometimes school staff. This emotional, and sometimes physical, abuse is known to have a life long harmful impact and to significantly interfere with the targeted students’ ability to receive an education.
While bullying and harassment of students has received a higher degree of focus in recent years, there is no evidence of any significant decrease in the number of students reporting being bullied and harassed. In fact, in some states, it appears that the approach promoted by the state’s anti-bullying statute is having an opposite effect.
For example, in the state of New York, the much-touted Dignity Act for All Students (DASA) was enacted in 2010. On the Youth Risk Behavior Survey in 2011, 18% of New York students reported being bullied. By 2015, this rate had increased to 21%. Under DASA, schools are required to make annual public reports of the number of bullying incidents--a black-mark on the school. In the 2015-16 school year, 71% of New York City schools reported zero bullying incidents.
The approach incorporated into state statutes has created the misperception that all educators must do is have rules in place against bullying, tell students to report, and have the principal investigate, respond with discipline if appropriate, and keep records. This approach has been set into place at the same time that schools are under strong pressure to reduce disciplinary consequences. Thus, there is strong pressure on principals and staff to avoid ever considering hurtful acts of students to constitute “bullying.”
Students and their parents do not know how to retain data and report these incidents in accord with the tight definition in the statutes. Students who are being treated badly, sometimes on a daily basis, are too often told they are overreacting and there is nothing the school can or will do. It is no wonder that the majority of students who are harassed have often gotten to the point where they will not report these incidents. They know from experience that there is nothing the school will do--or reporting could make things far worse.
Under federal civil rights regulations, if a hostile environment is known to exist, schools are required to both investigate and intervene in the specific instances of which they have knowledge and to take necessary steps to correct the hostile environment that underlies the hurtful behavior.
An excellent publication is by the U.S. Department of Education’s Office for Civil Rights (OCR), entitled Protecting Students from Harassment and Hate Crime: A Guide for Schools (now out of date due to changes in the approach to gender role stereotyping). OCR did an excellent job in explaining the importance of a focus on school climate and outlining recommended steps a school should take.
The National School Board Association (NSBA), in an endorsement statement, was in full agreement:
Research indicates that creating a supportive school climate is the most important step in preventing harassment. A school can have policies and procedures, but these alone will not prevent harassment. This is the kind of good preventive work the field needs to help ensure that schools provide a safe and welcome environment for all students.
The leading Supreme Court case addressing student-on-student harassment is Davis v. Monroe County Board of Education, 526 U.S. 629, 119 S. Ct. 1661 (1999). In this case, SCOTUS stated:
Schools can be held financially liable if they are deliberately indifferent to known acts of student-on-student harassment and the harasser is under the school’s authority so long as the harassment is so severe, pervasive, and objectionably offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.
In an early case, Vance v. Spencer Cnty. Pub. Sch. Dist. 231 F.3d 253, 261 (6th Cir. 2000), the Sixth Circuit enunciated helpful guidelines:
Although no particular response is required, and although the school district is not required to eradicate all sexual harassment, the school district must respond and must do so reasonably in light of the known circumstances. Thus, where a school district has knowledge that its remedial action is inadequate and ineffective, it is required to take reasonable action in light of those circumstances to eliminate the behavior. Where a school district has actual knowledge that its efforts to remediate are ineffective, and it continues to use those same methods to no avail, such district has failed to act reasonably in light of the known circumstances.
Unfortunately, a recent trend in the case law has been to dismiss cases upon a showing that every time the student reported, the principal investigated and applied discipline, if deemed appropriate. Stiles v. Grainger County, Tenn. MiLW, No. 01-91360 (6th Circuit, March 25, 2016) and S.B. v. Harford County, No. 15-1474 (4th Circuit, April 8, 2016).
In these two cases, despite evidence of ongoing, extensive harassment, which the students occasionally reported, all the principals did was respond to the specific reported instances. The interventions by the principals were clearly ineffective in stopping the ongoing harassment and no comprehensive steps were taken to correct the hostile environment that clearly existed.
At this time, the NSBA has switched from its prior clear statement of the ineffectiveness of sole reliance on policies and procedures and now argues that if the principal responds in any way to the incidents the harassed student has bravely reported, the school should not be considered deliberately indifferent or be held liable.
In ongoing harassment situations, this level of response by the school principal will generally be ineffective in correcting the specific hurtful situations and does nothing to correct the hostile environment that is fueling the ongoing harassment. In these kinds of cases, greater attention must be paid to the failure of the principals to follow up to ensure effectiveness of their interventions, as well as their failure to engage the school community in comprehensive efforts to correct the evident hostile environment.
The regulations and evidence that raises the importance for a more comprehensive approach, that incorporates ongoing assessment of effectiveness, is readily available in the civil rights regulations and OCR guidance, as well as current academic research and guidance for schools--along with the above NSBA quote.
Unfortunately, at this point in time, there appears to be no other mechanism to exert influence on schools to take the concerns of discriminatory harassment more seriously than increased successful litigation against school districts.
Nancy Willard, M.S., J.D., has advanced degrees in special education and law. For over the last decade, she has focused her professional attention on concerns of digital safety and bullying. She has prepared a 90-minute video training for attorneys, which may, depending on the state, qualify for CLE credit. More information is available here.
Friday, June 2, 2017
South Carolina is making progress in limiting its school-to-prison pipeline, thanks to new state Department of Education regulations growing out of a school incident which went viral nearly two years ago.
The background: in October 2015, a teenager at a Columbia, SC high school refused repeated demands to put away her cell phone. Both the cell phone and the teen were quiet, and not interfering with any other student. When she refused, her teacher involved her assistant principal. When she refused his demands to put away the phone, he involved the school resource officer (SRO). And when she refused his demands, he arrested her for the crime of “disturbing schools” and was caught on video pulling the child out of her chair and, as the local sheriff later put it, “throwing  the student across the floor,” making this another in a now-long list of questionable cases of SRO actions in school. To top it off, he arrested and charged a second student with disturbing schools for encouraging her classmates to record the incident (that is, the recordings which brought this incident to the public’s eye) and objecting to the officer’s treatment of the teenager with the cell phone.
Wednesday, May 31, 2017
Judge Temporarily Blocks Student Suspensions in Racist Instagram Case, Highlighting the Need for Higher Court Guidance
This spring, students enrolled in the Albany, California, School District sent a racist instagram message. The message reportedly depicted African American classmates and the girl's basketball coach with nooses around their necks. The district took disciplinary action against the students, but also some students who had "liked" the message. Four of the students who liked the message filed a federal lawsuit, alleging that their behavior occurred off-campus and is protected by the First Amendment. The federal judge has now temporarily blocked the suspension of these students.
Friday, May 19, 2017
A new study on bullying at school offers both good and bad news. The bad news is that bullying remains a constant aspect of daily life for many students at school. Anywhere from 13 to 29 percent of students report being bullied in the last month. Half of students indicated that they have witnessed bullying in the last month. The good news is that these numbers are down from prior years. Also, the vast majority of students feel safe at school, notwithstanding the prevalence of bullying. The study explains:
This study examined the prevalence rates of 13 bullying-related indicators in a population-based sample over 10 years. Survey data from nearly one-quarter of a million students indicated that bullying has remained a prevalent, although declining, experience for school-aged youth. Specifically, 13.4% to 28.8% of students reported experiencing bullying in the past month, and approximately half of the students reported witnessing bullying. These estimates are consistent with recent bullying-prevalence reports, and they add to the current literature with the inclusion of a younger sample of youth. Despite these fairly high prevalence rates, the covariate-adjusted results for 10 of the 13 indicators suggested things may be getting better, as indicated by a reduction in bullying prevalence and related attitudes. The effect sizes of the change were in the small-to-moderate range (ranged 0.04–0.67) when comparing the first and last years’ data.
Some forms of victimization were commonly and consistently experienced across years (eg, relational). The prevalence of cyberbullying was consistently <10% and is comparable to the National Center for Education Statistics and the Bureau of Justice Statistics data. Based on previous research, it was hypothesized that cyberbullying might increase, but consistent with the other forms of bullying, cyberbullying also decreased. However, given the rapid change of technology and new social media platforms used by youth and increasingly at younger ages, the nature and quality of cyberbullying may change; therefore, future studies should examine cyberbullying in greater detail (eg, broader definitions). Physical, verbal, and relational bullying experiences dropped ∼2% each year to below 10% in the most recent year. Rates of perpetration reduced by 1% to 2% per year and dropped below 10% in recent years. Furthermore, witnessing bullying also decreased significantly across the decade.
Approximately 80% of students reported feeling safe and like they belong at school across the decade. Interestingly, ratings of safety, but not belonging, improved significantly over time. There were clear differences regarding bullying and climate across school levels. For example, high schools showed the most improvement across time; although this is promising, bullying peaks during middle school, so additional supports may be necessary during these school years. Although the yearly changes for all of the outcomes were small, some of these changes were fairly substantial across 10 years, as indicated by the effect size estimates comparing the first and last years (average d = 0.325). Notably, the most recent years evinced the greatest improvements in school climate and reductions in bullying. This could be due to the increase in bullying policies over the past decade as well as the simultaneous increase in effective evidence-based programming aimed at reducing school-based bullying. These factors could be associated with further decreases in bullying in years to come, so it will be important to continue to surveil these indicators over time.
The significant associations between school-level covariates and the change in bullying indicators were limited and not consistent across outcomes. Given the small magnitude of the covariate estimates and the large number of outcomes examined, readers should be cautious in the interpretation of the trends regarding school-level covariates.
Although this study possesses strengths such as the population-level sampling, the large sample size, the broad age range surveyed, and the longitudinal nature of the data, some limitations should be noted. For example, student data across years were not linked, given the anonymous nature of the survey, which limited the analyses that could be conducted. The anonymity was, however, an essential part of maximizing response rates and may have contributed to students being more candid in their responses; given the sensitive nature of the data collected, anonymity decreases the chances of response bias related to social desirability, which could otherwise be a threat to validity. Although the data collection and sampling procedures were consistent across the 10 waves of data collection, the district leadership has placed greater emphasis on the collection of data in recent years; this may have contributed to a slight uptick in the number of students participating in the survey in the last year of the data collection. However, the weighting procedure allows for generalizability of the sample to the full population of students within these schools. The use of sampling weights was a strength of this study, although we were somewhat limited in the number of variables we had to use as weights; therefore, we relied largely on basic demographic information that was available at both the student and school levels. This is a common approach in large-scale survey research.
Although this study addresses the prevalence of bullying-related indicators over a decade, it does not shed light on what accounts for these changes. Information related to particular school efforts, programs, or initiatives to which reductions in bullying or related attitudes could be attributed was not assessed and, therefore, could not be examined. Future research is needed to systematically examine the implementation of antibullying programs and policies and the impact of these efforts.
Thursday, May 11, 2017
'Moonlight' schooled Hollywood on race. Can it take on school discipline, too?
This year’s Academy Award winner for best picture tackles a difficult topic in the education world today: school discipline. In “Moonlight,” high school boys taunt the main character, Chiron, with homophobic slurs before beating him. The next day, Chiron shatters a chair across the back of the ringleader. Chiron is handcuffed and sent to an alternative school, setting him on the path toward dealing drugs.
While Chiron does become the aggressor, he is ultimately the victim and suffers an utterly cruel punishment for his revenge.
This dichotomy captures the major insight of my recent research on school discipline: that suspensions and expulsions frequently ignore the causes of student misbehavior.
Why do kids misbehave?
Normal human development can explain a lot of misbehavior. Younger children, for instance, lack the capacity to always behave; no matter the rules, elementary school students occasionally talk out of turn, push each other and disrupt class. Older students sometimes push boundaries in other, more serious, ways. Making and learning from these mistakes is simply part of growing up.
Disabilities, academic struggles, poverty, homelessness and family crises can also affect behavior. For students in these situations, misbehavior is often a sign of unmet needs – not a character flaw.
The school environment adds another complicating layer. Educators make choices about how they discipline students, which can influence classroom culture, student behavior and academic achievement. Research has shown that punitive approaches create environments that actually make misbehavior more likely. As one group of scholars concluded:
“[Students] interested in reducing their chances of being suspended… [would] be better off by transferring to a school with a lower suspension rate rather than by improving their attitudes or reducing their misbehavior.”
“Moonlight” brings all these interconnected factors together to help the audience understand student behavior. Chiron breached an obvious boundary that cannot be condoned. Yet, his punishment seems unjust because the audience sympathizes with his struggle: His mother is a drug addict. He suffers harassment for his sexual identity. His first lover turned against him.
But rather than protect him, the school leaves Chiron to deal with these challenges alone. None of this excuses Chiron’s act, but it likely deflates the audience’s urge to label Chiron as a violent student who deserves expulsion or jail.
Current discipline trends
Public schools suspend or expel three million students a year – often with no attention to context. (Thirty-four to 42 percent of those students are African-American.) The vast majority of suspensions and expulsions are for behavior less serious than Chiron’s. In Connecticut, for instance, only about 10 percent of suspensions and expulsions are for weapons, violence or drug-related behavior. Most are for everyday misbehavior.
Like Chiron, the data also show that a single suspension increases the chances of a cascade effect: subsequent suspension and expulsion, academic failure, dropping out and incarceration. With so much at stake, I believe schools owe students a far more thoughtful discipline system.
When school discipline responds to students’ needs, it produces better behavior and academic achievement for all students – not just struggling students. Schools with the highest achievement are those that deal with misbehavior through means other than just suspension, expulsion and law enforcement.
These successful schools offer counseling, academic services and other programs to help students work through their problems and to reinforce good behavior. When misbehavior inevitably occurs, it becomes a learning opportunity for students and teachers.
This kind of approach, like “Moonlight,” humanizes student behavior.
Wednesday, May 10, 2017
A school district in Alabama recently expelled "Laney" Nichols for an entire year. Her crime—having a water gun on campus. One of her male friends brought the water gun to school, but handed it off to Nichols at some point. Nichols carried it in her backpack before eventually leaving it in the backseat of her car. Apparently, another student saw the water gun and thought it was real. When the student alerted school officials, things got serious.
The school initially suspended her for 10 days—arguably an overreaction itself. But the school later decided that was not enough because Nichols brought a “firearm” to school. That, the school reasoned, justified expelling her for a year.
Nichols’ mother is threatening to sue. She understands the school has to take all guns seriously because you never know what might happen. But as soon as school officials touched the water gun, she says they would have known there was absolutely no threat to anyone—save a little water in the eye.
Interestingly, Nichol’s first claim is gender decimation. The boy who brought the gun and another who played with it only received in-school suspension. If accurate, these allegations would raise federal anti-discrimination concerns and could be a winning argument. The school, however, will likely respond that Nichols’ behavior was more serious in some way or that their evidence regarding the boys was weaker. While those distinctions may seem minimal in the real word, they are often enough to uphold a school discipline decision.
To the average observer, Nichol’s second claim— that the water gun is not a firearm under school board policy—may sound like a no-brainer. The facts seem pretty clear on this score. The question is whether it matters. The Supreme Court in Wood v. Strickland rejected two high school students’ attempt to attack their expulsion on technical grounds. The students had spiked the punch at an after-school event, but argued that the alcohol content was so dilute in the punch that it did not qualify as an alcoholic beverage under state law. They were probably right. None of the parents even noticed the alcohol.
The Court, however, was quick to dismiss the case, reasoning that schools have wide discretion in interpreting and applying their own rules. Schools, unlike law enforcement, do not have to spell out every little detail in their rules or follow them precisely. For that matter, they may not even need rules. Schools have discretion to discipline students based on their judgment. Some state law could prove more helpful to Nichols, but all of these arguments miss the fundamental problem of school discipline in the age of zero tolerance.
For nearly three decades, schools, lawyers, and communities have gotten caught up in questions of what the rules say and whether a student broke them. Anyone who has kids or works in school can tell you that rule-breaking is part of everyday life. Students are in the process of maturing, which includes testing boundaries, forgetting boundaries, getting caught up in the moment, or just not thinking at all. If we tossed kids out every time them broke a rule, we would not have any kids left to teach.
So forget the facts and rules for a moment. The question is not whether Nichols brought a water gun to school or some other students played with it. Those sets of facts will repeat themselves over and over again, so long as kids are kids. The important question is how adults respond. Zero tolerance and other harsh discipline polices absolve adults from seriously thinking about how they should respond. As a result, those policies get that question of how to discipline a student wrong more often than they get it right.
As I examine in Ending Zero Tolerance: The Crisis of Absolute School Discipline, determining the appropriate punishment requires adults to think about more than whether the student broke a rule. It requires them to think about the student’s age, motivation, personal circumstances, just how serious the behavior actually was, and the range of options that they have for dealing with the behavior.
Coming down hard on students like Nichols is about little more than sending a message to students. The trouble is that the message does not deal with Nichols, or any other students, in a way that actually improves behavior or safety. When zero tolerance policies were first taking hold, a Tennessee school district expelled a student for having a knife in his car. The knife was not his and he did not know it was there. When sued, the school conceded both facts, but said it had to “draw a line in the sand” when it came to weapons. The court responded that it was irrational to punish students for accidentally violating school rules because it did not make anyone safer.
Removing suspension and expulsion from the range of options for students like Nichols does not mean schools cannot punish misbehavior. It does not mean that the school is condoning weapons or encouraging more. And suspending and expelling students like Nichols will not stop others from engaging in the adolescent behavior that is part and parcel of growing up. All it will do is punish students for the sake of punishment.
When schools lose sight of these distinctions, they fall into reactionary traps. They stop thinking about how to actually improve student behavior. When they do that, they undermine everyone’s education and safety, not just the suspended and expelled students.
Monday, April 10, 2017
Amanda McGinn makes a case for courts to establish a clear constitutional standard for excessive-force claims against school resource officers in her recent article, School Discipline Practices That Will Shock You, Literally: A Reevaluation of the Legal Standard for Excessive Force Against Students, 54 Am. Crim. L. Rev. 627, 629 (2017). In her note, McGinn writes that courts should apply the Fourth Amendment's objective-reasonableness test to school discipline and take into account a school's interest in developing citizens, not just in maintaining control and safety. Not only does the use of force and restraint result in physical and psychological harm, but research shows that physical punishment makes it more, not less, likely that children will be defiant and aggressive in the future. Ultimately, McGinn calls for most forms of restraint, such as stun guns, pepper spray, and handcuffs, would be found to be objectively unreasonable.
Friday, March 24, 2017
While school suspension rates have fallen sharply in recent years in California, the racially disproportionate impact of this form of punishment has persisted. That is the headline conclusion of the latest report on education in the United States from the Brookings Institution’s Brown Center on Education Policy. The important and difficult questions are why and what can be done.
The study, one chapter in the final volume of a multiyear series, examined possible relationships between rates of suspension and (1) size of the school, (2) poverty at the school, and (3) share of the student body that is African American, among other variables. Overall, the rate of suspensions of black students is higher at larger schools than at smaller schools; higher at schools attended by more students receiving free and reduced price meals, and higher the larger the share of the student body that is black.
California presents a useful case study because state lawmakers have acted to reduce use of suspension, defined for purposes of the study as suspension off-campus. In 2014 the legislature passed Assembly Bill No. 420 (“AB 420”) which prohibited schools from expelling students because they engaged in acts of “willful defiance.” That catchall term was the most common offense leading to suspension, especially for minority students.
Rates of suspension were already declining when AB 420 was enacted and such decreases have continued. Between 2013 and 2015, suspension rates fell by nearly one-third for all students and for each major racial/ethnic group (the categories are white, black, Hispanic and Asian).
But the rate for black students remains more than triple that of Hispanic students, who constitute the group suspended at the next-highest rate. In 2015, for every 1,000 black students in California schools, black students received 178 out-of-school suspensions, while the comparable number for Hispanic students was 52; for white students, 44; and for Asian students, 12.
The report breaks schools into two groups, those with high rates of suspension of African American students, and those with low rates of suspension of African American students, and then examines characteristics of the schools to identify correlates of suspension rates. In 2015, there were 1,930 schools with high suspension rates, defined as a rate of 5 percent or more, and there were 3,546 schools with low suspension rates, defined as a rate below 5 percent.
Although there were fewer schools with high rates, those schools imposed 35,424 suspensions, compared to 139 at the low rate schools. (I am leaving out, although the report discusses them, the schools that did not report precise numbers.)
Then the water gets murky because it is difficult to determine the dynamics at work. Although larger schools tended to have higher suspension rates, larger schools also tended to be middle and high school, and institutions serving adolescents are “prone to more suspensions” relative to schools serving younger children.
Although higher poverty schools tend to have higher rates of suspension, that only holds until 89 percent or more of students qualify for free and reduced priced meals. The report concludes that poverty is a weaker correlate than school size.
Finally, suspension rates are higher at schools where black students form a greater share of the student body – which, in precise terms, means schools where black students are more than 16 percent of the total student population. This suggests that racial isolation itself is not driving the rate of suspension, because 16 percent does not seem like such a high share of the student population.
Drawing firm conclusions about causation is not easy and the report is cautious. But it does appear that smaller schools and schools serving younger students manage discipline differently from larger schools serving older students, that poverty plays a role in the frequency of suspension, and not surprisingly, that race continues to be powerfully salient.
Monday, February 27, 2017
Meredith Simons' student note in the Duke Law Journal makes an excellent point that, on its face, should have been obvious to scholars and courts for some time: if due process applies when a school suspends or expels a student, it should also apply when a school asks an officer to arrest a student or give a student a citation. So much past scholarship has focused on whether the officer is subject to reasonable suspicion or probable cause standard that it has missed what was in front of our eyes the whole time: Goss v. Lopez's due process analysis. That Simons' went back to the basics and rethought the legal structure of student arrests and citations is a testament to fresh eyes and doing first things first.
Her abstract offers this summary:
There are two primary ways that schools can funnel children into the “school-to-prison pipeline.” The first is by simply removing children from school via expulsions and suspensions, which increase students’ chances of dropping out and getting in trouble with the law. The Supreme Court, recognizing the serious consequences of being forced out of school, has held that expulsions and long-term suspensions constitute deprivations of students’ property interest in their educations and liberty interest in their reputations. Thus, schools seeking to expel or suspend students must provide them with basic due process protections. But schools can also refer students directly to the justice system by having police officers arrest students or issue citations at school. Under current law, these students are not entitled to any due process protections at the point of arrest or referral.
This Note argues that the absence of due process protections for students who are arrested or referred to the justice system at school is incompatible with the Supreme Court’s procedural due process jurisprudence in general and its decision in Goss v. Lopez in particular. The same property and liberty interests that the Court identified as worthy of protection in Goss are implicated by in-school arrests and referrals. Therefore, school administrators who intend to have a child arrested or referred to the justice system should be required to provide students with oral notice of the accusation against them and an opportunity to respond. After an arrest or referral, the school should provide students and their parents with written notice of the arrest or referral and the rationale for the action. These measures will not unduly burden administrators or schools, but they will provide meaningful protections for students.
Get the full article here.
Thursday, February 23, 2017
Civil Rights Rollbacks, the Federal Role in Education, and the Need for Judicial Intervention: An Interview with Jennifer Berkshire
Jennifer Berkshire was nice enough to talk with me the the future of civil rights enforcement under this new administration, as well as several of the ideas I raise in Ending Zero Tolerance. Her questions consistently go to the heart of the matter. I am sure many of you follow her work more than mine, but I highly recommend it. Her pieces go deeper than mine--more in the vein of investigative journalism at times. She also has a great podcast series.
Her interview with opens:
Jennifer Berkshire: The Trump Administration has just rescinded guidelines to schools banning discrimination against transgender students. There’s a lot of speculation about just how the joint letter from Secretary of Education Betsy DeVos and Attorney General Jeff Sessions actually was. But you seem unconvinced by the portrayals of DeVos as a fierce protector of civil rights.
Derek Black: The stream of bad news over the past few months has been steady. The Trump transition team said the administration would scale back the civil rights work in education. At her confirmation hearing, Betsy DeVos was reluctant to take an affirmative stance on enforcing students’ disability rights. Since taking the post, she has remarked that she could not *think of any* current pressing civil rights issues where the federal government has a role to play; things like racial segregation and exclusion of females were things of the past in her opinion.
Now reports are coming out that Gail Heriot is likely to be the next head of the Department’s Office for Civil Rights. Heroit has been critical of the Office’s aggressive civil rights stance in recent years. With these individuals in place, it is hard to imagine much good happening at the federal level. Even if they do not rescind other Department positions on integration, school discipline, English Language Learners, and school resources, they are very unlikely to enforce existing regulations and policy guidance. Disparate impact enforcement, for instance, will be non-existent. Rather than take on traditional civil rights concerns, I would expect they will identify fringe issues to pursue.
Berkshire: OK—forget about *much good happening at the federal level.* Is there anything we can feel hopeful about? That was only the first question of our interview and I’m not sure how much more of this I can take…
Black: We have been here before. Disparate impact was not enforced during the Bush era either. And it focused on more marginal issues like Boy Scouts of America Equal Access Act. I think we are actually in a better place to weather the storm today than we were last time. The school-to-prison pipeline is a household word now. More districts are voluntarily pursuing integration. California is bringing back bilingual education. And parents are fed up with standardized testing. On a host of issues, there are local advocates and local politicians that are going to do the right thing regardless of what the Department of Education does. No doubt about it, there is a storm coming, but there are a lot of hardworking and committed people on the ground.
Berkshire: You’re the author of a book called Ending Zero Tolerance: The Crisis of Absolute School Discipline that is turning out to be alarmingly prescient.
Black: One of the central premises of the book is that when nobody else will stand up for kids, it has to be the courts. There are numerous systemic instances over the past few decades where schools and states have gone too far. And when they do it is only the courts that are the saving grace, because we have good political times and bad political times, as we are seeing.
Get the full interview here.
Wednesday, February 22, 2017
A new study by David Yeager et al. demonstrates the close interaction between the level of trust students place in school leaders and how those students actually behave and perform in school. In the discussion of their findings, they explain:
Once students’ sense of trust or distrust was formed, it seemed to feed off its consequences, producing perceptions of procedural injustice that caused trust to decline further. Moreover, that decline in trust seemed to increase the likelihood of discipline infractions, creating the very social reality that precipitated it. These feedback loops proceed often hidden from the view of teachers and administrators because they unfold slowly and are partly psychological in nature. But their cumulative effect is a large trust gap by seventh grade that disfavored racial and ethnic minority students. Years later, the drop in trust in the transition to seventh grade and then eighth grade seemed to have lingering consequences, in the form of lower 4-year college enrollment for African Americans.
Trust, it seems, sat “in the middle” between social reality and later behavioral outcomes such as disciplinary infractions and college enrollment. We know this from an intervention in Study 1 that experimentally bolstered African Americans’ sense of trust in the face of sharp criticism of their work in the seventh grade. Because the link between trust and later outcomes depends on a continual feedback loop, an early experience that refuted the plausibility of procedural injustice had long-term effects, presumably through a kind of developmental cascade from trust to engagement and into educational pathways.
African American seventh graders who received wise feedback on an essay—conveying that the teacher believed in their potential to reach a higher standard, thus reassuring students that they would be seen based on their merits rather than through the lens of a negative stereotype about the intellectual ability of their racial group—benefited. . . . Although the objective experience of receiving “wise feedback” was short, the psychological and developmental consequences seemed long-lasting. Adolescents receiving the note were assigned fewer disciplinary infractions later according to official records and, nearly 6 years later, were more likely to attend a 4-year college according to the NSC.
This study, in a very concrete way, substantiates a central thesis of my work in Ending Zero Tolerance and Reforming School Discipline: educational quality and discipline policy are inherently linked. Zero tolerance and punitive discipline policies break the social bonds between students and their teachers and principals--and not just for the students who are subject to punishment. As a result, harsh discipline policies actually drive down student achievement. Macro-level assessments of student achievement across states indicate this; school level regression analysis of student discipline indicates this; student surveys indicate this; and now this new and far-more complex case study indicates this.
Wednesday, February 8, 2017
New Report Focuses on Connection Between Criminal Justice and Education Policies, But the Real Problem is Education Quality
The Economic Policy Institute recently released a new report arguing that criminal justice policy is education policy. The main thrust of the report is to point out the poor educational outcomes for students who have an incarcerated parent. Its main findings include:
- An African American child is six times as likely as a white child to have or have had an incarcerated parent. A growing share of African Americans have been arrested for drug crimes, yet African Americans are no more likely than whites to sell or use drugs.
- Independent of other social and economic characteristics, children of incarcerated parents are more likely to:
- drop out of school
- develop learning disabilities, including attention deficit hyperactivity disorder (ADHD)
- misbehave in school
- suffer from migraines, asthma, high cholesterol, depression, anxiety, post-traumatic stress disorder, and homelessness
Those points are almost too obvious. Of course, students with parents in jail will tend to perform worse than others, just as a students with millionaire parents will tend to graduate high school at much higher rates and go to more expensive colleges. The report acknowledges that the school-to-prison pipeline is a problem, but emphasizes that adult incarceration is making matters worse. That is surely true, but if legislatures are not willing to fix the direct causes of poor educational outcomes, why would they address these ancillary causes? And will addressing these ancillary causes substantially alter educational opportunity?
None of this is to disagree with or critique the suggestions in this new report. They are on target. But they jump a key point: states need to address problems in schools first. Those are ultimately the ones that lead to adult incarceration and create a negative feedback loop, not the other way around.
The source of the education problem is twofold: punitive approaches to school discipline and inadequate educational opportunities in low-income communities. In fact, these two problems are intertwined. As I argue here and here, school quality is, in large part, a function of discipline policy. Until we recognize this connection, school quality will continue to lag and the school-to-prison-pipeline will proceed at full steam. Everything else obscures the problem and prompts polemic, knee-jerk reactions.
Friday, January 27, 2017
A “Meaningful” Opportunity to Alleviate the School-to-Prison Pipeline for Students with Disabilities
Jason Langberg and Sarah Morris have published a new article, Endrew F. v. Douglas County School District: A “Meaningful” Opportunity to Alleviate the School-to-Prison Pipeline for Students with Disabilities, in the Denver Law Review. They offer this introduction:
Brandon and Tyler are both sixth grade students with individualized education programs (IEPs) for their serious emotional disabilities. Pursuant to his IEP, Brandon is in a behavioral support class that focuses on social and emotional learning for 60 minutes every day. He also receives psychological services twice a week and his parents receive counseling, twice a month, on how to work with Brandon. A behavioral intervention plan (BIP) that focuses on teaching replacement behaviors and reinforcing positive behaviors is part of Brandon's IEP. Finally, his IEP includes specific, measurable, and attainable behavioral goals. Tyler's IEP, on the other hand, mirrors the boilerplate IEP given to most middle school students with emotional disabilities in the district. It provides for 30 minutes of generic special education twice a month and no related services. Tyler has a BIP, but it focuses on punitive consequences.
Brandon graduated from high school and earned a scholarship to college. Tyler spent the next few years frequently suspended, referred to law enforcement, and failing classes. He eventually dropped out of school and became ensnared in the prison industrial complex.
The primary cause of the disparate outcomes for Brandon and Tyler was where they went to school. Under the current state of special education law, as eligible students with disabilities (SWD), both were entitled to a free appropriate public education (FAPE). However, Brandon was entitled to "meaningful" services in his state, whereas Tyler was entitled to services that were only "just above trivial" in his state.
The U.S. Supreme Court takes up this incongruity in its upcoming term, with implications well beyond the mere formulation of a consistent legal standard. Its decision in Endrew F. v. Douglas County School District will ultimately either worsen or alleviate the "school-to-prison pipeline" for SWD.
Get the full article here.