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.
Tuesday, October 25, 2016
Blog editor Derek W. Black (South Carolina) discussed his book, Ending Zero Tolerance, last week on PBS's Tavis Smiley Show. In Ending Zero Tolerance, Professor Black argues for constitutional protections to check abuses in school discipline and proposes theories for courts to re-engage to enforce students’ rights and support broader reforms. In Ending Zero Tolerance, Professor Black uses stories about individual students, research, and case law to unearth the irrationality of some school systems' disciplinary policies -- and what courts can do to change that. Professor Black's video interview with Tavis Smiley is available here.
Thursday, October 20, 2016
The ACLU of California has released a new report titled The Right To Remain a Student: How California School Policies Fail to Protect and Serve. The report begins:
Over the past two decades, police officers in the United States have increasingly displaced school administrators as disciplinarians, responding to minor offenses and conduct violations that pose no direct threat to personal safety. This increase in student-police interactions has funneled thousands of students into the school-to-prison pipeline and created adverse legal consequences for school districts. The Right to Remain a Student: How California School Policies Fail to Protect and Serve details these consequences and describes the current state of school district policies in California that pertain to police on campus. Additionally, it shares model policies that both promote school safety and protect student rights. These model policies are designed to ensure that school staff will manage police encounters safely and equitably for all students—no matter their race, class, disability status, gender, or where they go to school.
- Many districts have conflicting, vague, or absent law enforcement policies that provide little to no meaningful guidance to school staff on when to call police to campus or how to interact with police.
- Most school districts give staff complete discretion to call police to address student misbehaviors that should be handled by school staff such as administrators or counselors, including: a. General school rule violations (62% of districts give staff discretion), b. Bullying and harassment (60.7% of districts give staff discretion), c. School disruption (57.4% of districts give staff discretion), and d. Vandalism (66.7% of districts give staff discretion or even require reporting to police).
- Very few schools (4% or less in each category) have policies limiting police contact for rule-breaking or minor offenses.
- California school districts provide inadequate guidance to school staff on what they should do when police officers question students on campus. a. Of school districts statewide, 70.9% allow police officers to interview students immediately upon demand, stating that staff “shall not hinder or delay” interrogations. b. Less than 1% provide that an adult (not a police officer) must be present to make sure the student’s civil rights are observed during police questioning. c. Only 1.3% of districts have a police ensuring that staff or police advise students of their constitutional right to remain silent.
- California school districts similarly do not protect students who are arrested or removed from campus by police. a. Of California school districts, 30% have no barriers to police removing a student from campus and 8% provide no guidance whatsoever about police officers removing students from campus. b. Only 18.3% of California school districts require a school administrator to ascertain the reason the officer must remove the student from school. c. Only 5.6% of school districts maintain any procedures governing the enforcement of arrest warrants on campus.
A key thesis of the report is the need to distinguish between every day misbehavior of students and other behavior that may actually justify police involvement. As I emphasize in the book Ending Zero Tolerance, many schools do not even distinguish between these types of behavior in their own suspension and expulsion policies, which has also caused a dramatic increase in school exclusion. In other words, it is hard to preach lessons to law enforcement when schools are not even following those lessons themselves.
Thursday, October 13, 2016
Study Finds That Harsh School Discipline Costs Nation $35 Billion, Showing Connection to Much Larger Education and Social Issues
Yesterday, the Civil Rights Project released a new report, The High Cost of Harsh Discipline and Its Disparate Impact. The study attempts to quantify the cost of harsh school discipline through the dropouts and social costs it produces. It looks closely at California and Florida to create a baseline of costs and then extrapolates them nationwide. The abstract explains:
School suspension rates have been rising since the early 1970s, especially for children of color. One body of research has demonstrated that suspension from school is harmful to students, as it increases the risk of retention and school dropout. Another has demonstrated that school dropouts impose huge social costs on their states and localities, due to lost wages and taxes, increased crime, higher welfare costs, and poorer health. Although it is estimated that reducing school suspension rates in Texas would save the state up to $1 billion in social costs, only one study to date has linked these two bodies of research. The current study addresses some of the limitations of that study by (1) estimating a stronger causal model of the effects suspension has on dropping out of school, (2) calculating a more comprehensive set of the social costs associated with dropping out, and (3) estimating the cost of school suspensions in Florida and California, and for the U.S. as a whole. The results show that suspensions in 10th grade alone produced more than 67,000 dropouts in the U.S. and generated social costs to the nation of more than $35 billion. These results are undoubtedly conservative, since the California and U.S. estimates were limited to 10th-grade students, while the Florida estimates were limited to 9th-grade students. Thus, they did not capture the effects of suspensions in earlier grades.
The study is reminiscent of (albeit distinct from) a 2013 report by law enforcement officials titled I'm the Guy You Pay Later. That report emphasized that a
10-year investment in preschool will produce over 2 million additional high school graduates. And if we can reduce the number of young people who commit felonies and the number who are incarcerated by 10 percent each – roughly half the reduction achieved by the Chicago Child-Parent Center program – we can reduce the number of individuals who are locked up by 200,000 each year. The resulting savings – $75 billion over the 10-year investment – could pay the federal costs of the preschool program.
Together, these two studies further the core thesis of my book, Ending Zero Tolerance, which is that school quality and discipline are inextricably intertwined. A primary solution to school quality failures is improving the school discipline system (which means taking approaches that are the opposite of zero tolerance) and a primary solution to school discipline is improving school quality and services. The back-end payoffs are enormous. Unfortunately, the dominant narratives treat these issues as separate and distinct.
Wednesday, October 12, 2016
Last year, advocates filed a lawsuit in Massachusetts that attempted to use the state education clause and school finance precedent to declare a cap on charter schools unconstitutional. The theory was that many current schools were so bad that they deprived students of a quality education. Since quality charter schools were down the road and could be expanded, the remedy was to grant students the access to more charter schools, which would require lifting the statutory cap on them. The theory, in many respects, resembled the strategy of the constitutional challenge to teacher tenure in California.
Last week, the trial court in Massachusetts dismissed the charter case. The court reasoned that the education clause does not create an individual right to education and, thus, does not create an individual right to demand access to other school opportunities and facilities. Rather, the education clause creates a duty on the part of the state to create a constitutionally adequate education system. Exactly how it does that is a matter of legislative policy and discretion, to which courts should defer. Plaintiffs' attempt to have the court insert their legislative preferences for those of the state is misguided.
I would generally agree with this basic rationale and certainly agree that plaintiffs' claims were a misguided use of the education clause. Their claim was really policy advocacy masquerading and constitutional analysis. With that said, I would caution the need for a little more nuance in dismissing such cases.
First, as I outline here, the notion of an education duty with no corresponding education right is highly problematic. If the state has a duty, it should be to someone or some group. While the Massachusetts trial court is correct that this does not mean that each individual student can demand individualized education, the constitution should require that the state create policies that ensure that the educational needs of individual students and students as a whole are met. If a policy is consistently denying students education, they should be able to challenge it and receive some sort of remedy. The duty-right distinction in other cases has been used as subterfuge to release the state from doing anything. Since there is no right, court can reason there is no basis for compelling the state to undertake its duty. The idea that this court might be adding support for that argument is worrying.
Second, the problem is particularly acute in school discipline and school finance cases. In discipline cases, some courts have used the duty-right distinction to flatly reject plaintiffs attempts to rely on their state's education clause to challenge suspension and expulsion. As a result, states can operate discipline systems that I argue here and here are entirely inconsistent with their duty to deliver equal and adequate education opportunities. In addition, in the traditional school finance case, there are numerous examples of states simply refusing to implement the remedies that courts have ordered. South Carolina, Kansas, and Washington immediately come to mind as examples in the past year. James Ryan and I have separately argued that when the state refuses to carry out its duty to implement a remedy to constitutional violations, it is within courts' power and responsibility to grant students immediate relief. This might be in the form of the right to exit their current public school and enroll in another public school. In other words, it should be beyond the state's discretion to force a student to remain in a school that the state refuses to bring up to constitutional standards. To be clear, however, this is not to say that caps on charters or student assignment statutes are unconstitutional or that students or their attorneys have the right to dictate where they should go to school. The point is simply that if the conditions in a particular school are unconstitutional, the state owes the students a remedy. If states, after the opportunity to do so, refuse to implement a remedy, courts can and should exercise injunctive relief on behalf of students.
For those less interested in doctrinal nuances, the trial court holding got it right: the cap on charter schools does not present a constitutional problem. Nonetheless, the initial lawsuit was enough to help get the issue of eliminating the cap on the ballot this November. So voters will get the final say. Recent polls indicate voters are against lifting the cap.
Friday, September 23, 2016
The issue of discipline reform is beginning to gain traction in Connecticut and WNPR in Connecticut put together a nice hour-long show on school discipline. My opinion is slightly biased since I was able to participate, but I was joined by a lot of great people who add real depth to the issues. The guests include:
- Derek W. Black - Professor of Law at the University of South Carolina School of Law and author of Ending Zero Tolerance: The Crisis of Absolute School Discipline.
- Mickey Kramer - Associate Child Advocate for the State of Connecticut
- George Sugai - Professor of Special Education at the University of Connecticut Neag School of Education, Director of the Center for Behavioral Education & Research, Co- Director of the Center of Positive Behavioral Interventions & Supports
- Catherine Foley Geib - Assistant Director of Juvenile and Family Services at the Connecticut Judicial Branch
Download or listen to the show here.
Tuesday, September 13, 2016
ACLU Files Suit against School That Handcuffed a Seven-Year-Old, Hearing Impaired Boy Who Cried Instead of Responding
The Missouri Branch of the American Civil Liberties Union has filed a lawsuit against Kansas City Public Schools in regard to the arrest of a Kalyb Primm Wiley. At the time, Kalyb was 7 years old, about 50 pounds and 4 feet tall. According to the complaint,
He had committed no crime, had threatened no one, and posed no imminent danger to anyone that necessitated Defendant Craddock to restrain plaintiff in handcuffs.
. . . .
Blog editor Derek W. Black's new book, Ending Zero Tolerance, The Crisis of Absolute School Discipline, is now available on Amazon and New York University Press. In the new book, Black challenges the judiciary to check schools' overreliance on severe disciplinary measures. From the book's summary:
In the era of zero tolerance, we are flooded with stories about schools issuing draconian punishments for relatively innocent behavior. One student was suspended for chewing a Pop-Tart into the shape of a gun. Another was expelled for cursing on social media from home. Suspension and expulsion rates have doubled over the past three decades as zero tolerance policies have become the normal response to a host of minor infractions that extend well beyond just drugs and weapons. Students from all demographic groups have suffered, but minority and special needs students have suffered the most. On average, middle and high schools suspend one out of four African American students at least once a year.
The effects of these policies are devastating. Just one suspension in the ninth grade doubles the likelihood that a student will drop out. Fifty percent of students who drop out are subsequently unemployed. Eighty percent of prisoners are high school drop outs. The risks associated with suspension and expulsion are so high that, as a practical matter, they amount to educational death penalties, not behavioral correction tools. Most important, punitive discipline policies undermine the quality of education that innocent bystanders receive as well—the exact opposite of what schools intend.
Ending Zero Tolerance answers the calls of grassroots communities pressing for integration and increased education funding with a complete rethinking of school discipline. Derek Black, a former attorney with the Lawyers’ Committee for Civil Rights Under Law, weaves stories about individual students, lessons from social science, and the outcomes of courts cases to unearth a shockingly irrational system of punishment. While schools and legislatures have proven unable and unwilling to amend their failing policies, Ending Zero Tolerance argues for constitutional protections to check abuses in school discipline and lays out theories by which courts should re-engage to enforce students’ rights and support broader reforms.
Friday, September 9, 2016
In keeping with Derek's post yesterday on the ED's guidance to reduce violent interactions between students and school resource officers, the New York Times' annual education issue has an article by Susan Dominus, An Effective but Exhausting Alternative to High-School Suspensions, focusing on a school that is trying to implement a restorative-practices model of school discipline. The article describes the efforts in Leadership and Public Service High School in Manhattan’s Financial District to reduce its student suspensions (230 in 2013 and in 140 in 2014). Leadership's principal and dean recruited staff who were trained in restorative justice practices and coached teachers on how to use non-punitive language with students, among other efforts. The article is online here.