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.
Thursday, January 19, 2017
Betsy DeVos May Be in the Top One Percent in One Category, But She Is in the Bottom Half in Another and That Makes Her a Hard Sell
When I first read the exchange between Betsy Devos and two senators on the Individuals with Disabilities in Education Act (IDEA), I was speechless. As a professor, this is a relatively rare occurrence. Once I came to my senses, a few potentially poignant ideas came to me, but before I share them, I will give you an opportunity at speechlessness. Here is the exchange:
Sen. Tim Kaine (D-Va.) asked DeVos if all schools that receive federal funding should meet the requirements of IDEA.
DeVos: “I think they already are.”
Kaine: “But I’m asking you a should question. Whether they are or not, we’ll get into that later.” He then repeated his question.
DeVos said: “I think that is a matter that is best left to the states.”
Kaine responded: “So some states might be good to kids with disabilities and other states might not be so good and, what then, people can just move around the country if they don’t like how kids are being treated?”
Devos repeated: “I think that’s an issue that’s best left to the states.”
Kaine said: “What about the federal requirement? It’s a federal law, the Individuals With Disabilities Education Act.” He repeated his initial question again.
DeVos then offered an anecdote about a Florida voucher program for students with disabilities.
Kaine interrupted her: “Just yes or no. I think all schools that receive federal funding — public, public charter, private — should be required to meet the conditions” of IDEA. He asked if she agreed.
DeVos: “I think that is certainly worth discussion.”
Kaine: “So you cannot yet agree with me.”
Sen. Maggie Hassan (D-N.H.) explained that the IDEA is a federal civil rights law that must be followed. She asked DeVos if she stood by her statement that it was up to the states to follow it.
DeVos: “Federal law must be followed where federal dollars are in play.”
Hassan: “So were you unaware when I just asked you bout the IDEA that it was a federal law?”
Devos: “I may have confused it.”
My guess is that if you are reading this post, you already knew what the IDEA is and, if so, that makes you more qualified to serve as Secretary of Education than Betsy DeVos. You may also know the following, but I offer it for the good of the order. Students with disabilities typically make up roughly 10 or 11 percent of the public school population. In some schools, it dips to around 8 percent. In others, it is around 14 percent. It is the second largest chunk of funding that the federal government spends on public education. Title I funds, directed at low-income students, are the biggest chunk at around $14 billion. IDEA funds are a close second at $12.5 billion. Nothing else comes close.
The Office for Civil Right at the Department of Education is charged with investigating discrimination complaints in education. It protects against race, gender, disability, language status, and age. Of all the complaints it receives, 39% are in regard to disability.
How any Senator could deem a person qualified who is not sure of, misunderstands, or thinks that the most (or second most) important law she will be charged with enforcing is voluntary is . . . . Well, I just cannot find the word to finish that sentence. Is it shocking, astonishing, unbelievable, or maybe just the new world order where basic knowledge and facts do not matter.
Then a snarky light went off. Betsy DeVos may be part of the top one percent in terms of wealth and that may qualify her to do a lot of things. It may have offered her a lot of skills. But on education, she may very well be in the bottom half in terms of knowledge. Owning charter schools is a lot different than knowing something about education. I own several stocks and I know very little about any of them. I own a couple of cars--one for a decade and I still cannot manage to get the driver's seat to return to its original position as I am told it is supposed to when I get in. Nor can I sync my garage door opener to my car. And I have read the owner's manual on these topics a couple of times. And I am generally a pretty hand person.
But, of course, no one is nominating you to be Secretary of Education and no one is asking me to fix their car or offer stock advice, so those are not really accurate points of comparison. If we compared DeVos to those who actually follow public education, either closely or casually, I would venture to say she is, at best, in the bottom 25% in terms of knowledge. Now, let's get serious. Is this someone any Senator should confirm as the Secretary of Education?
Friday, January 6, 2017
On Wednesday, January 11, 2017, the Lawyers’ Committee for Civil Rights Under Law’s Parental Readiness and Empowerment Program (PREP) in partnership with the Center for Safe Schools and the Center for Education Equity will host a free webinar for parents and advocates on school bullying in response to a surge of recent hate crimes and acts of discrimination in schools nationwide. During the webinar, participants will learn how to recognize and report school bullying as well as how to engage their community and what parents can do. The webinar will take place at 3 p.m. EST in English and at 6 p.m. EST in Spanish. Please RSVP here. For more details, please see the attached flyer below or visit the website at www.prepparents.org.
El miércoles, 11 de enero, El Programa de Preparación y Capacitación de Padres (PREP por sus siglas en inglés) de El Comité de Abogados Para Los Derechos Civiles Bajo la Ley en colaboración con el Centro para Escuelas Seguras y el Centro para Equidad Educativa ofrecerán un webinario gratuito para padres y defensores acerca del acoso escolar en respuesta a un aumento de recientes crimines de odio y actos de discriminación en las escuelas a nivel nacional. Durante el webinario, los participantes aprenderán cómo reconocer y reportar actos de acoso escolar y también cómo involucrar a su comunidad y lo que pueden hacer los padres. El webinario tendrá lugar a las 3 hora del este en inglés y a las 6 hora del este en español. Por favor inscríbanse aquí. Para más detalles, por favor vean el folleto adjunto o visiten nuestro sitio de web www.prepparents.org
Tuesday, December 6, 2016
Meditation Instead of Detention: Misbehavior As Learning Opportunity Rather Than a Punishment Trigger
Robert Coleman Elementary School's shift from detention to meditation has been creating a lot of buzz since the media covered the story early this fall. In late September, the school reported that it had yet to suspend a single student, attributing the fact to the increased mindfulness of students. James Gaines describes it this way:
Instead of punishing disruptive kids or sending them to the principal's office, the Baltimore school has something called the Mindful Moment Room instead. The room looks nothing like your standard windowless detention room. Instead, it's filled with lamps, decorations, and plush purple pillows. Misbehaving kids are encouraged to sit in the room and go through practices like breathing or meditation, helping them calm down and re-center. They are also asked to talk through what happened.
I have had a number of people approach me about the story with a glow in their eye and excitement in their voice. The results themselves are palpable, but I think the story also strikes a cord for different reasons: the approach is intuitive, humane, and strikes at the heart of the hopelessness that we so often feels in regard to the challenges our schools face. The notion that a low-cost and effective solution is at our fingertips is simply inspiring.
My interview with Patricia Raskin digs deeper into these issues, exploring why students misbehave, why programs like these work better than punishment, and proposes other policy approaches we should incorporate. At the heart of this conversation is the reality that students are still developing, still making honest mistakes as the navigate their changing environments, and still need the opportunity to learn from their mistakes. In short, discipline needs to be a learning opportunity first, not a basis for exclusion. Listen to the interview here. Also, read more about the meditation program here.
Monday, December 5, 2016
According to local reports and the parents, an eleven-year-old honor roll student in Pembroke Pines, Florida, was suspended for six days when she used a children's knife to cut a peach and share it with a classmates. According to the family, the knife was as dull as a butter knife and was part of a set that looked something like this:
The girl's mother said that the knife is safe even for babies: “This is a set of a spoon, fork, and knife [is] for toddlers— one-year-old[s]. It is made for children to learn how to eat properly. She's used it since she was baby.”
With the media attention and the parents pushing back, the school reduced the suspension to three days, but they maintain the initial suspension was valid and it will remain on her record.
Unfortunately, this story is like countless others I describe in Ending Zero Tolerance: The Crisis of Absolute School Discipline. It is yet another example of the intolerability of zero tolerance policies and school officials refusing to consider very basic facts. On their face, the facts reveal 1) no real weapon; 2) no intent to break a rule; 3) no threat or danger to anyone; and 4) everyday benign behavior by a preteen. Based on these facts, it is far from clear that there is any legitimate basis upon which to suspend the student. It would appear that the basis for suspension is nothing more than "those are the rules."
That justification should be absurd enough on its face, but let me make it a bit clearer. Suppose that a school adopted the following rule: "students are prohibited from bringing black ink pens to school." There might be a good reason for the rule, such as the machine that the school uses to grade exams cannot distinguish students' black ink from that of the printed language on handouts. When students use black ink, it throws the whole grading system off. Thus, I would allow that schools could even take away those black ink pens for the day or, to encourage students to remember to not bring them, impose some small penalty like writing "I will not bring black pens to school" a couple hundred times.
Suspension, however, is a far cry worse. It would be hard to justify, under any concept of due process, the suspension of a student from bringing a black ink pen to school. Yet, this equivalent to the position this Florida school is adopting in suspending the girl for her children's butter knife. For that matter, under this current school's rationale, it could expel the student for the children's knife. Its rationale would likewise support expulsion for the black ink pen. Of course, the school would disavow this logical conclusion, but it is, in fact, the logic conclusion.
In Ending Zero Tolerance, I demonstrate why the constitution cannot permit this type of punishment and, instead, demands a more nuanced consideration of student misbehavior when school exclusion is at stake.
This story also offers another nuance to school discipline that I emphasize in the book: the physic harm that this type of irrational discipline imposes on the student. The girl's mother indicates that that her daughter is struggling to make sense of this experience and is afraid of making another mistake in school. Studies show that placing students in situations of fear and anxiety is not the way to make them behavior better. In fact, irrational discipline will make some rebel and misbehave more. Equally important, other studies show that fear and anxiety tends to spread to the "innocent bystanders" who have done nothing wrong and, when it does, it depresses their academic achievement--the exact opposite of what a school should want to do.
Friday, December 2, 2016
School Suspends a Student Who Was the Victim of Violence, Highlighting the Fundamental Flaws in Today's School Discipline
Just before Thanksgiving, a student in Mobile, Alabama, was violently attacked and harassed at school. He was corned and pummeled by a group of students. The school immediately suspended him for being in a fight. After he was suspended, a video of the incident surfaced on social media, showing he was actually just a victim and appeared to be doing nothing other than trying to get away. The video went viral, garnering millions of downloads and even a responsive video of support for the boy from Roy Jones, Jr.
Once the facts of the incident came to light and the media storm took hold, the district reversed course. The superintendent placed the principal who suspended the student on leave and is investigating the incident. The superintendent and others also came out on the day the boy returned to school to welcome him back, show him support, and assure him and others that bullying in the school was going to be addressed.
Kudos to the district for not digging its feet in the sand and showing signs of change, although I am not sure how it could have done otherwise. Regardless, like countless other stories, this one confirms the troubling lessons I offer in Ending Zero Tolerance: The Crisis of Absolute School Discipline. First, facts matter and zero tolerance is irrational. Blanket rules that mandate or authorize suspension for any student involved in a fight are indefensible. The same is true of various drug, weapon, disrespect and disruption rules. Courts should say so and begin forcing schools to use judgment and look at circumstances. Schools' refrain that they must "draw lines in the sand" just won't cut it.
Second, as it currently stands, due process protections in school discipline are not protections at all. For privacy reasons, we will probably never know exactly what steps the principal took prior to suspending this victim of violence in Mobile, but I find it hard to imagine that the principal asked many questions or paid much attention to the victim's story. In other words, the constitutional right to due process prior to suspension and expulsion is not worth much in our nation's schools any more. It has become a sham that allow schools to do whatever they want behind the window-dressing. I detail the data and events in my book that make this point clear.
Third, it was not the constitution that saved this boy, but a happenstance set of facts. So we should not delude ourselves into thinking the system worked here. I detail another story in the book, which is far more troubling from a procedural point. It involved a principal and the rest of the school administration effectively colluding against a young boy and it was only the happenstance revelation of that collusion that reversed the suspension, not any reliable constitutional protection that others who follow might rely on. In other words, as currently applied, our constitution hangs students out to dry.
Ending Zero Tolerance proposes a more nuanced approach to school discipline that accounts for individual circumstances, the natural development of children, and the quality of the educational environment itself. In short, it proposes that school discipline begin to make sense.
Wednesday, November 2, 2016
The Maryland court case of an elementary school student who was suspended for chewing a Pop-Tart into a gun shape was reportedly settled last week. See this blog's stories here and here. The school's assistant principal suspended the student, then seven years old, for shaping the Pop-Tart into what a teacher interpreted as a gun. He was suspended for two days. According to the Annapolis Patch last week, Anne Arundel County Public Schools have reportedly settled with the student's parents to remove the suspension from their son's record, even though a judge ruled this year that school officials were within their rights to suspend him. The story is here.