Friday, December 12, 2014

The Intersection of Race and Gender Bias in Discipline

For those who missed it, the New York Times ran a story Wednesday on discipline disparities for African American females, telling the experience of two young African American girls.  The first was described by teachers as very focused, but after she and a white friend scribbled some words on a bathroom stall, things fell apart.  Her part was to write the word  "hi."  The school's response was to suspend her, accuse her of vandalism and demand $100 in restitution.  When her family said it could not pay that amount, she received a visit from a police officer, who served her with papers accusing her of a trespassing misdemeanor and, potentially, a felony.  The final result was a summer on probation, a 7 p.m. curfew, 16 hours of community service, and a letter of apology.  Her friend was able to pay restitution and escaped juvenile justice consequences.  Most poignant, however, was the emotional harm and anxiety that she experienced (as well as the girl in the second story).  One girl's mother called it the equivalent of child abuse.

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December 12, 2014 in Discipline, Discrimination | Permalink | Comments (0)

Monday, December 8, 2014

ABA School to Prison Pipeline Town Hall Forum

The Criminal Justice Section, Council for Racial and Ethnic Diversity in the Education Pipeline, and the Hispanic National Bar Association are hosting a town hall forum, The School-to-Prison Pipeline: What Are the Problems? What Are the Solutions? on February 6, 2015 in Houston.

To register, click on link to obtain Town Hall registration form at www.ambar.org/corej. Register for 2015 ABA Houston Midyear at ambar.org. For more information about the School-to-Pipeline initiative, visit the above website or contact Rachel Patrick, Director, ABA Coalition on Racial & Ethnic Justice at Rachel.Patrick@americanbar.org or (312) 988-5408. 

December 8, 2014 in Conferences, Discipline | Permalink | Comments (0)

Friday, November 21, 2014

New Report Ranks Massachusetts Among the Worst for Racial Disparities in Discipline, and Its Charters Schools the Worst of the Worst

The Boston-based Lawyers' Committee for Civil Rights and Economic Justice has released a new report on school discipline in the state, Not Measuring Up: The State of School Discipline in Massachusetts.  The report makes four major findings:

1. Massachusetts' students missed a minimum of 208,605 days in the classroom due to disciplinary removal. During the 2012-13 school year, Massachusetts’ public school students were suspended (in-school and out-of-school), expelled, and removed to an alternative setting a combined 128,599 times. These punishments resulted in at least 208,605 days - the equivalent of 1,160 students missing the entire school year - during which students were removed from their regular classrooms.

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November 21, 2014 in Charters and Vouchers, Discipline | Permalink | Comments (1)

Thursday, November 20, 2014

One District's Rationale for Isolation

As a followup to yesterday's post on isolation practices, the explanation another district for its isolation rooms is worth noting.  The Center Consolidated School District, Colorado, has been using isolated study in 4 foot by 6 foot rooms as an alternative punishment to expulsion for ten years. The district reasons that isolation is preferable to classroom disruption or school exclusion.  The former harms other students.  The latter harms the disciplined student and the school, based on the likely effects on dropout rates. According to the superintendent, parents are given the choice between expulsion and isolation, in which students will be provided study materials. During the last 10 years, about 40 students have been placed in isolation and, over the last year alone, the dropout rate plummeted from 13% to less than 2%.

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November 20, 2014 in Discipline, Special Education | Permalink | Comments (0)

Wednesday, November 19, 2014

District Places 800 Elementary Students in Isolation Rooms in One Year: Theorizing Causes

According to a four month investigation by local news sources, Mansfield Independent School District in Texas put elementary school students in isolation rooms on 800 different occasions last year.  The district's documents refer to the rooms as “blue rooms,” “recovery rooms,” “calm rooms,” and “isolation centers.”  The districts intends to no longer use the latter term.  Records also indicate that some students are placed in the room "for the remainder of the day," which begs the question of how long students are kept in the rooms.  Equally disturbing, state law does not require that the schools notify parents of the isolation and, thus, this may breaking news to some.

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November 19, 2014 in Discipline, Special Education | Permalink | Comments (0)

Monday, November 17, 2014

Cell Phone Wars: Students v. Police

Earlier this month, a Greenacres, Florida, police officer allegedly broke a 14 year old female student's arm while trying to restrain her.   The arm break, of course, is grabbing the headlines, but interesting legal are implicated by the facts leading up to the physical contact.  According to local reports, the officer approached the student because he believed she was in possession of a video of a fight he was investigating.  He said she became uncooperative and tried to get past him to move away and pushed him back in the process. At that point, he grabbed her arm, she began to twist and turn, he began to move her arm behind her back, and it allegedly broke.  

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November 17, 2014 in Discipline | Permalink | Comments (0)

Wednesday, November 5, 2014

Increasing Restrictions on Social Media While Reducing Restrictions on Guns

Two new articles of note are available on westlaw now.  They are about two entirely different trends, but suggest a huge irony when read together.

Janet R. Decker, Facebook Phobia! The Misguided Proliferation of Restrictive Social Networking Policies For School Employees, 9 NW J. L. & Soc. Pol'y 163 (2014).  The abstract states:

Employers have dismissed and disciplined teachers and other school employees for posting controversial material and engaging in inappropriate employee-student relationships over social networking. In response, schools have enacted policies that greatly restrict educators' social networking. This Article examines whether restrictive social networking policies are necessary. After analyzing the relevant state legislation, statewide guidance, district policies, and case law, this article argues that restrictive policies are unwarranted and misguided. School districts have prevailed in the vast majority of the cases because they already have the legal authority to discipline employees under existing law. This Article also recommends how policymakers and school leaders could respond to school employees' social networking more effectively.

Brandi LaBanc, Kerry Melear, and Brian Hemphill's new article, The Debate over Campus-Based Gun Control Legislation, 40 J.C. & U.L. 397 (2014), begins with an overview of mass and public shootings that have led to the increase in gun control legislation.  Because the Second Amendment is often implicated by these debates, the authors provide an outline of the amendment and related Supreme Court decisions. The authors then focus on "state firearm laws that resonate within higher education, including state laws permitting concealed weapons on campus and other gun-related legislation." Specifically, in 2013 four states passed gun control laws affecting higher institutions (Alaska, Arkansas, Texas, and New York), and all four laws are briefly discussed. The evaluates the arguments for both allowing and prohibiting firearms on college campuses. Finally, the authors conclude with a best practices discussion. 

November 5, 2014 in Discipline, First Amendment | Permalink | Comments (0)

Monday, November 3, 2014

The Human Side of School Discipline

This blog and national media are repleat with reports and data on school discipline.  Ira Glass took a different turn two weeks ago on This American Life.  He dug into the human story and experiences behind the numbers.  He describes the show as being about "schools struggling with what to do with misbehaving kids. There's no general agreement about what teachers should do to discipline kids. And there's evidence that some of the most popular punishments actually may harm kids." 

The full audio and transcript are available here.  Thanks to Josh Gupta-Kagan for sharing it.

November 3, 2014 in Discipline | Permalink | Comments (0)

Thursday, October 30, 2014

No More Routine Handcuffing in School?

Early this month, I posted the story of a five year old special needs student in a New York City public school that was restrained with his hands behind his back in velcro handcuffs for fifteen or more minutes because of his outburst in gym class.  Although the 9th Circuit's opinions are obviously have no binding effect on New York City, the 9th Circuit's recent opinion in C.B. v. City of Sonora, 2014 WL 5151632 (Oct. 15, 2014), portends bad new for the New York City schools and others that make it a practice of handcuffing students.  The Court in Sonora pointed out that two other circuits had applied T.L.O. v. New Jersey's, 469 U.S. 325 (1985), "reasonableness standard to evaluate whether a school official was entitled to qualified immunity from an excessive force claim" in cases of this sort.  But whether applying T.L.O. or Graham v. Connor, 490 U.S. 386 (1989), the Ninth Circuit made it relatively clear that the routine handcuffing of students would be hard to justify.  The court reasoned:

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October 30, 2014 in Discipline | Permalink | Comments (0)

Tuesday, October 28, 2014

More Than Just a Pipeline?: Students, Disabilities, and Incarceration

A new Hechinger Report article offers a compelling narrative and social science review of the connection between emotional-behavioral disabilities and prison.  We typically call this the pipeline, which is catchy, but often strikes me as vague or a rough characterization of a conglomeration of statistics (albeit an effective one).   Jackie Mader and Sarah Butrymowicz's article, like others, discusses how children with special education needs are disproportionately involved in the juvenile justice system. Of the thousands of children caught up in the system every year, "[a]t least one in three of those arrested has a disability, ranging from emotional disability like bipolar disorder to learning disabilities like dyslexia, and some researchers estimate the figure may be as high as 70 percent." Moreover, students with emotional disabilities are three times as likely to be arrested before leaving high school than their peers.  Beyond those numbers, however, this article struck me as doing something different--revealing more than just a pipeline from point A to B to C.  Rather, it suggests a systematic approach to special needs and discipline that is ill-equipped to do anything other than drive a substantial portion of special needs students to incarceration.

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October 28, 2014 in Discipline, Special Education | Permalink | Comments (0)

Constitutional Implications of Punishing Cyber Bullying

Raul R. Calvoz, Bradley W. Davis, and Mark A. Gooden's new article, Constitutional Implications of School Punishment for Cyber Bullying, 2014 Cardozo L. Rev. de novo 104, is available.  It addresses the constitutional and legal challenges that may stand in the way of administrators and legislators' attempts to combat cyber bullying. First, since the acts most frequently associated with cyber bullying involve written words, a student's First Amendment right to free speech is implicated. Second, due to the mobile nature of technology, a student's actions outside of school grounds, even if they have an incidental impact on school grounds, raise the question of whether schools have jurisdiction to discipline the students.

The authors frame their analysis within the context of the substantial disruption test from Tinker v. Des Moines.  In Tinker, the Supreme Court held that school administrators may regulate student speech if the regulation aims at preventing a foreseeable: (1) material or substantial disruption in the school environment; or (2) invasion of the rights of others. The authors reason that school administrators may, without violating students' constitutional rights, regulate and prohibit any bullying (including cyber bulling) which falls into either of those two categories. However, the jurisdictional question complicates matters.

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October 28, 2014 in Discipline, First Amendment | Permalink | Comments (0)

Wednesday, October 22, 2014

Mark Weber on OCR's New Disability Bullying and Harassment Policy

The guidance letter on bullying and harassment of students with disabilities that was issued this week by the Office for Civil Rights of the U.S. Department of Education is noteworthy for a number of reasons. First, it reinforces the point made in other Department of Education communications that bullying of these students, if not adequately addressed by school districts, amounts to a violation of the law even if the conduct is not directly tied to the students’ disabilities. Although unaddressed bullying that is related to the disability is a clear violation of the protection against hostile environments established by the law, there is a separate violation when bullying, of any kind or for any reason, interferes with a disabled child’s receipt of an appropriate education. Second, with regard to hostile environment violations, the letter stresses that even if the conduct of the school officials does not rise to the level of deliberate indifference to known deprivation of rights, a violation of the disability discrimination laws still occurs when, as OCR puts it: “(1) a student is bullied based on a disability; (2) the bullying is sufficiently serious to create a hostile environment; (3) school officials know or should know about the bullying; and (4) the school does not respond appropriately.” There are reasons to be skeptical of the use of a deliberate-indifference standard copied without any modification from Title VI and Title IX in Section 504 and ADA damages cases. As Derek Black pointed out in his illuminating article at 15 Wm. & Mary Bill of Rts. J. 533 (2006), even in equal protection cases courts should apply a standard that is lower than the Title VI-Title IX deliberate-indifference standard. But in any case a deliberate-indifference standard does not limit when OCR should act to stop and prevent violations of the law. Third, OCR provides a helpful set of examples of hostile-environment violations, non-disability-based bullying that nevertheless leads to violation of the discrimination laws, and an appropriate response to bullying that avoids violating the law. The letter should make a strong contribution to remedying disability discrimination.

October 22, 2014 in Discipline, Special Education | Permalink | Comments (0)

Monday, October 20, 2014

New Report on Complying with Anti-bullying Legislation

The DC Office of Human Rights' (OHR) report on bullying in DC schools is now available.  Its particular focus is an assessment of schools' compliance with the District's 2012 anti-bullying law, which required that schools adopt specific policies.

Based on school responses to OHR's survery, the report found:

  • 57 of 61 (93.4 percent) of DC Public Charter LEAs as well as DC Public Schools submitted a bullying prevention policy to the DC Office of Human Rights by September 30, 2014.
  • 42 of 61 DC Public Charter LEAs (70.5 percent) and DC Public Schools had policies compliant with the Youth Bullying Prevention Act of 2012 by September 30, 2014.
  • 17 charter school policies were deemed compliant upon submission, all of which adopted the mayor’s Bullying Prevention Task Force’s model policy (“model policy”). The remaining 25 compliant policies were revised and resubmitted.
  • On initial submission, LEAs were most often non‐compliant on:
    • Coverage of electronic bullying off‐campus that interferes with students’ participation in or benefit from schools’ services,
    • Having the verbatim definition of bullying as defined in the YBPA,
    • Stating that consequences are to be applied in a flexible manner based on students’ developmental age, the nature of the incident, and disciplinary history, and
    • Providing a consistent appeals process as defined in the YBPA.

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October 20, 2014 in Discipline | Permalink | Comments (0)

Thursday, October 16, 2014

Office for Civil Rights Remains Committed to New Discipline Policy, Has Chance to Go Even Further

Earlier this year, I applauded the Departments of Justice and Education for their stated policies in their new discipline guidance.  The question there (and with the recent resource equity guidance) was whether they would enforce the policies.  Since then, the Office for Civil Rights at the Department of Education appears to have stayed the course.  As just one more example, OCR recently reached a settlement agreement with Tupelo, Mississippi.  The press release follows my comments below.  

Pay particular attention to the steps the district is required to take.  The steps are explicitly aimed at reducing harsh discipline overall, which presumably will bring down the disparities, and improve the educational climate.  Now that several of these settlements are in place and OCR is monitoring the data in these districts, OCR should be in a position within the next year to emphasize the efficacy of their efforts.  A report comparing pre-settlement and post-settlement outcomes not just in discipline, but in overall educational outcomes, could be a powerful tool in convincing more districts to act.  

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October 16, 2014 in Discipline | Permalink | Comments (0)

Wednesday, October 15, 2014

Process versus Substance in Affording Students with Behavioral Disabilities a Free Appropriate Public Education

Susan C. Bon and Allan G. Osborne's new article, Does the Failure to Conduct an FBA or Develop a BIP Result in a Denial of a FAPE Under the IDEA?, 307 Ed. Law Rep. 581 (October 5, 2014), is now available on westlaw.  ​The article analyzes a number of recent cases "decided in the federal trial courts in New York over the question of whether school boards' failure to conduct [functional behavioral assessments (FBAs)] or implement [behavioral intervention plans (BIPs)] denied children the free appropriate public educations (FAPEs) guaranteed by the IDEA." Currently, the IDEA requires that school administrators ensure that FIPs are completed and that BIPs are implemented whenever students with disabilities are removed from their programs for more than 10 days due to disciplinary measures. A number of states, however, including New York, have expanded on these federal requirements and "[e]ven though these cases were primarily concerned with state requirements, which are more comprehensive and specific than the IDEA, there are important implications that can be garnered from this litigation."

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October 15, 2014 in Discipline, Special Education | Permalink | Comments (0)

Wednesday, October 1, 2014

California Limits School Suspensions: Did it Do Enough?

California has passed a new discipline statute eliminating suspensions of kindergartners through third graders for disruption and defiance.  I applaud them for taking a step in the right direction, but cannot help but point out how small of a step it is.  The statute will still authorize any number of other unnecessary school exclusions.  The full statute is after the jump.  More on the story here.

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October 1, 2014 in Discipline | Permalink | Comments (0)

Tuesday, September 30, 2014

California's New Sex Assault Bill: "Yes" Requires a "Yes"

California is now the first state to adopt an affirmative consent standard in regard to sexual assault claims. This change comes "as states and universities across the U.S. are under pressure to change how they handle rape allegations." The bill was originally introduced by Senator Kevin de Leon, who hopes this new law will begin a paradigm shift across the country as to how colleges and universities prevent and respond to sexual assault reports. Now, "[r]ather than using the refrain 'no means no,' the definition of consent under the bill requires 'an affirmative, conscious and voluntary agreement to engage in sexual activity.'" Thus, according to the legislature, under the new law "silence or lack of resistance does not constitute consent. Under the bill, someone who is drunk, drugged, unconscious or asleep cannot grant consent." The bill also requires counseling and health services for victims, as well as training for the faculty and staff who handle these reports, so that they do not inadvertently overreach when interviewing victims. Moreover, support for this bill came from both sides of the aisle, with no opposition in the Senate. In the general assembly, some Republicans questioned whether statewide legislation is really the best way to address the issue. Nevertheless, the bill passed and was signed into law by the governor on Sunday.

September 30, 2014 in Discipline, Gender | Permalink | Comments (0)

Wednesday, September 17, 2014

The Inconsistency of Federal Discipline and Safety Policies

I have applauded the Departments of Justice and Education on their steps to reduce overly punitive discipline and racial disparities.  Their joint guidance in January was a major step forward. On the other hand, the Department of Justice's 1033 program, which funnels military gear and weapons from the Department of Defense to localities, including school districts, is a step in the wrong direction.  The Washington Post reports:

Law enforcement agencies affiliated with at least 120 schools, colleges and universities have received gear through the program, according to a Washington Post review of data from 33 states. The items received include at least five grenade launchers, hundreds of rifles and eight mine-resistant, ambush-protected vehicles, the hulking machines designed to withstand the kind of roadside attacks seen in Iraq and Afghanistan.

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September 17, 2014 in Discipline | Permalink | Comments (0)

Tuesday, September 16, 2014

Search of Student's Cell Phone Unreasonable

In July, Jason Nance concluded, based on the Court's decision in  Riley v. California holding officers generally need a warrant to search an individual's cell phone, that most school searches of students' cell phones would be off limits as well.  The lower reasonable suspicion standard applied to school searches would not save administrators on this point.  Last month, a district court judge agreed with Nance in Gallimore v. Henrico Cnty. Sch. Bd., 2014 WL 3867557 (E.D. Va. Aug. 5, 2014).

School administrators, Turpin and Saunders, had "received reports from two parents that a longhaired student had smoked marijuana on a Hermitage High School bus that morning. That afternoon, Turpin brought W.S.G. to Saunders' office. W.S.G. did not know why Turpin summoned him to the office. W.S.G. emptied his pockets, and, before offering an explanation, Turpin initiated a search. Turpin patted down W.S.G.'s person and searched W.S.G.'s backpack, shoes, and pockets. Saunders searched W.S.G.'s Vaseline jar, a sandwich wrapper, and cell phone. Saunders broke the lid of the Vaseline jar while searching it, but did no other damage. Saunders and Turpin found no marijuana on W.S.G., and they sent him back to class."

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September 16, 2014 in Discipline | Permalink | Comments (0)

Friday, September 12, 2014

Get a Gun Day One, Shoot Yourself in the Foot Day Two: The New Life of Public School Teachers

Well, it is not so simple as the title suggests, but yesterday I posted on a new Missouri law permitting teachers to carry concealed weapons at school.  In total, ten states have enacted legislation to permit teachers to carry guns at school.  A few hours after my post came news that a teacher carrying a concealed weapon at Westbrook Elementary in Utah had accidentally shot herself in the leg (not the foot).  Gun advocates estimate that about one percent of teachers in Utah, which amounts to 240 teachers, have gun licenses and are eligible to carry a gun to school.

While this incident is a tragedy for the teacher, I quip about it because it is the exact sort of thing that any policymaker in his or her right mind should expect, but seems to have ignored.  Bringing more guns into school is necessarily going to increase the chances of an accident and having non-professionals bring guns makes that risk exponential.  And a lot worse than just an accidental shot in the leg is possible.  Even if the increased presence of armed personnel in schools decreases the risk of a Sandy Hook situation--and I am far from convince that it does, or does significantly--does that decrease outweigh the risk of new accidents?  I am pretty confident that the answer is no.

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September 12, 2014 in Discipline | Permalink | Comments (0)