Thursday, February 11, 2016

Report: Thousands of Wisconsin Students Continue to Be Placed In Seclusion Or Restraints Despite 2012 Ban on Such Practices

Screen Shot 2016-02-11 at 4.59.07 PMDisability Rights Wisconsin (DRW), along with two other community organizations, reports that seclusion and restraints continue to be used in Wisconsin’s public schools, despite the passage of a law in 2012 intended to reduce such measures. The report, called Seclusion & Restraint in Wisconsin Public School Districts 2013-2014: Miles to Go, "details how families continue to report instances in which children, even those as young as five, are being secluded and restrained repeatedly, sometimes daily," according to DRW. Eighty percent of the 3,585 Wisconsin students who were restrained or secluded  were students with disabilities. Overall, Wisconsin's school districts reported 20,131 incidents of seclusion and restraint in the 2013/14 school year.

February 11, 2016 in Discipline, Special Education, State law developments | Permalink | Comments (0)

Wednesday, February 10, 2016

The Punishment Gap: School Suspension and Racial Disparities in Achievement

 

While scholars have studied the racial “achievement gap” for several decades, the mechanisms that produce this gap remain unclear. In this article, we propose that school discipline is a crucial, but under-examined, factor in achievement differences by race. Using a large hierarchical and longitudinal data set comprised of student and school records, we examine the impact of student suspension rates on racial differences in reading and math achievement. This analysis—the first of its kind—reveals that school suspensions account for approximately one-fifth of black-white differences in school performance. The findings suggest that exclusionary school punishment hinders academic growth and contributes to racial disparities in achievement. We conclude by discussing the implications for racial inequality in education.

Continue reading

February 10, 2016 in Discipline | Permalink | Comments (0)

Friday, January 29, 2016

Ferguson Consent Decree to Better Train Police in Schools and Eliminate Their Role in Routine Discipline

Ferguson has agreed to consent decree with the Department of Justice.  The bulk of that decree addresses concerns outside of school, but also includes reforms in the school.  As some may recall, DOJ's investigation into the city police department revealed some troubling trends in the school as well.  The decree indicates that the Ferguson Police Department's "SRO [school resource officer] program will build positive relationships between officers and youth, avoid unnecessary negative police actions such as arrests, and develop alternatives that promote keeping students in school and out of the criminal justice system."  In particular, the city agreed to:

  • Revise the SRO program overall, including the training and qualifications for SROs. The point here is to be an emphasis on skills that relate to interpersonal relationships with youth and diversity.
  • Limit SRO involvement to situations in which their involvement is " is necessary to protect physical safety."  They are not to "participate in any situation that can safely and appropriately be handled by a school's internal disciplinary procedures."
  • Discourage arrests of students except in those instances necessary for safety.
  • Supervise SRO's in the schools.
  • Quantitatively and Qualitatively assess the SRO program.

Thanks to Josh Gupta-Kagan for the alerting me to the decree.

January 29, 2016 in Discipline | Permalink | Comments (0)

Tuesday, January 19, 2016

Allegations of Abuse of Students with Disabilities Not Enough to "Shock Conscience" of the Sixth Circuit, by Mark Weber

The Sixth Circuit recently decided Domingo v. Kowalski, No. 14–3957, 2016 WL 76213 (6th Cir. Jan. 7, 2016). The court affirmed a grant of summary judgment against parents of three special education students on their claims against a special education teacher, her employer, and several officials with supervisory responsibility over her. The parents of one child alleged that nearly every day the teacher removed the six-year-old’s pants, placed her on a training toilet and left her there for as long as a quarter of the school day. The toilet was separated from the classroom only by a partition that students could walk around to see the child on the toilet. The teacher was alleged to have bound one misbehaving nine-year-old student to a gurney in the hallway outside the classroom and gagged him with a bandana, and on several occasions to have restrained him in a chair. She was also alleged to have strapped an eleven-year-old girl to a toilet, alone in the bathroom, for 20 to 30 minutes at a time. The teacher was also said to have a practice of grabbing disruptive students by the face, squeezing their cheeks and turning their heads toward her, and to have a practice of making students who were inattentive fold their arms on their desks, at which point the teacher would force their heads onto their arms. The parents supported their allegations with the statements of a teacher’s aide, though the defendants contested the accuracy of the aide’s account at various points and noted that the aide did not report several of the events until she received a layoff notice near the end of the school year.

The parents said the conduct of the teacher and the failure of the other defendants to act violated the students’ substantive due process rights, and they relied on the cause of action under 42 U.S.C. § 1983. In affirming summary judgment against the parents, the court applied the “shocks the conscience” standard. The court adapted a framework from Gottlieb v. Laurel Highlands School District, 272 F.3d 168 (3d Cir. 2001), and asked whether there was a pedagogical justification for the teacher’s conduct, whether the force was excessive to meet a legitimate objective, whether the conduct was done maliciously for the purpose of causing harm, and whether there was serious injury. It made analogies to various cases on each of the factors and ruled that the factors weighed in the teacher’s favor. The court said that its rejection of the due process claim against the teacher eliminated any basis for holding the supervisors or the school district liable.

The case is one of a large number determining that no reasonable jury could find that school personnel conduct shocks the conscience so as to violate due process. There are, however, cases that come to the opposite result with regard to conduct that looks similar or even less outrageous, for example, Alexander v. Lawrence County Board of Developmental Disabilities, 2012 WL 831769 (E.D. Tex. 2011) (placing student in basket holds and prone restraints), and Covey v. Lexington Public Schools, 2010 WL 5092781 (W.D. Okla. 2010) (demeaning students with disabilities in front of others and making them run laps and do calisthenics). Moreover, some recent physical and psychological abuse cases brought under a Fourth Amendment theory have been successful on summary judgment or dismissal motions, including Preschooler II v. Clark County School Board of Trustees, 479 F.3d 1175 (9th Cir. 2007) (grabbing and slapping of student and forcing him into a chair), and Doe v. Hawaii Department of Education, 334 F.3d 906 (9th Cir. 2003) (taping of second-grader’s head to a tree). It remains to be seen just what conduct the panel of the Sixth Circuit thinks could shock a jury’s conscience. Notably, one panel member, Judge Boggs, argued in a partial dissent that the claim over the binding and gagging of the nine-year-old ought to have gone to the jury.

January 19, 2016 in Discipline, Special Education | Permalink | Comments (0)

Thursday, January 14, 2016

The Every Student Succeeds Act's Random Additions: Charter Schools, Data Collection, Testing Limits, and Discipline

My prior post detailed the Act’s new approaches toward academic standards and accountability, teachers, funding, and the federal role in education.  The Act also included some other important changes and additions that do not fit into those categories.  These changes are one-offs that look like bones thrown to various different and competing constituencies (which is probably true of a few of the progressive changes I noted last time).  In other words, they are pet projects that helped the bill get passed.  These changes include for charter schools, data, test validity, test opt outs, and school discipline

Charter Schools

The act includes new competitive priorities for charter school grants.  For those unfamiliar with the term competitive priority, it means that states or districts that include certain policies in their competitive charter school grant application will receive extra points in the assessment of their plan.  As a practical matter, it makes it far more likely that they will receive a grant.  It also makes it highly unlikely that states and districts that do not include those policies will receive a grant.  In short, they are implicit mandates for those who want money.

So what are these special charter school policies?  They are exactly what charter advocates have been lobbying states to do, often with little success.  The priorities are for states that increase the number of entities in the state that can authorize new charters, states that give charters per pupil funding equivalent to that in traditional public schools, and states that give more robust support for charters in need of facilities.

Magnet Schools

Nothing really changed for magnet schools, and that is the point.  Magnet school financial support and policy has been stuck in neutral for nearly two decades.  By comparison, this means magnet schools are moving backward while charters rush forward.  There is, however, one potentially explicit retrogressive addition for magnets.  The Act seemingly requires or strongly prefers socio-economic integration over any other form of integration.  Socio-economic integration is, of course, immensely important.  The point here is the attempt to take race off the board—a position that the Bush Administration took, that the Obama Administration eventually retracted, and that has now resurfaced.

Important Data

The Act requires states to collect and submit far more detailed data, and the new data it seeks is important: funding and teachers.  This will be a boon to researchers attempting to drill deeper into problems of resource inequity.

Valid Tests (Potential Bombshell)

A provision of Title I indicates that states can only use the mandated tests for purposes for which they are valid.  To most, this may read as no more than technical jargon, but it is potentially the single most powerful provision in the bill for those who would seek to block the misuse of tests.  As I detail here, the tests on which states rely to run their teacher evaluation systems (value added models and student growth percentiles) are not valid for those purposes.  Others have also long raised validity problems with certain states use of high stakes tests for student graduation and promotion as well.  Who knows whether this was Congress’s intent, but the Act certainly would appear to have the effect of preventing states from using standardized tests for illegitimate purposes.  The question that remains is whether individual teachers or students could rely on this provision in litigation or whether it is up to the Secretary to enforce this provision through the administrative process.

Test Opt-Outs

The Act gives parents the right to opt their children out of standardized tests.  Opt-outs were big news last year, as large percentages of students refused to take tests in New York and New Jersey and the states scrambled not knowing whether the Department would hold this against the states.  The Act now specifically indicates that these opt-outs will not count against the state in determining the percentage of students who took the tests.

Discipline: Bullying and Suspensions

Finally, the Act gives a big boost to progressive discipline policy.  Previously, there was no such thing as general federal authority in regard to discipline.  The only foothold had been in regard to racial disparities in discipline (pursuant to Title VI).  The Act now specifies that states’ plans should include policies to reduce bullying, suspensions, and averse responses to student misbehavior.  The bullying provision is, likewise, significant because it is not limited gender or race based bullying--a big stumbling blocking in past enforcement efforts.  To be clear, however, this discipline provision operates within the larger structure that offers states’ enormous autonomy in their plans and severely limits the Secretary’s ability to reject a state plan.

January 14, 2016 in Bullying and Harassment, Charters and Vouchers, Discipline, ESEA/NCLB, Federal policy, Racial Integration and Diversity | Permalink | Comments (0)

Monday, November 23, 2015

Should New York City Remove Metal Detectors from Its Schools?

The title of this post poses what might sound like an odd question, but a debate over whether to remove  metal detectors from New York City's schools is gaining in prominence for two reasons.  First, the last shooting in a New York City school was in 1992.  Second, metal detectors are not uniform practice in the district.  Rather, they tend to only be used in predominantly minority schools.  The LA Times reports that "almost half of black students are scanned daily, while only 14% of white students are."  From a legal perspective, this disparity on its own does not trigger scrutiny under Title VI regulations (prohibiting disparate impact).  Advocates would also need to demonstrate a harm or denial of benefit.  Many would argue that being asked/forced to walk through a metal detector is is not an invasion of privacy.  It is definitely not an individualized search that would required reasonable suspicion under the Fourth Amendment.  On other hand, the New York City Civil Liberties Union says that "[m]aking students have to go through metal detectors to go to school sends a terrible message to students about where they are headed and how they are viewed."  This sounds like a stigmatic or psychological injury.  This type of injury has, of course, be used in racial discrimination cases since Brown v. Board.  For understandable reasons, however, the current debate is proceeding as a policy debate rather than a legal one.  See here.  That debate is devolving into one of safety versus racial fairness.  That one may be even harder to resolve.

November 23, 2015 in Discipline, Discrimination | Permalink | Comments (0)

Tuesday, November 17, 2015

Segregation Drives Discipline Disparities in Chicago Schools

The University of Chicago Consortium on Chicago School Research released a study last month disaggregating discipline results based on school composition.  It found that while “[s]tudents with the most vulnerable backgrounds are much more likely to be suspended than students without those risk factors[,] . . . differences in the suspension rates for students with different risk factors, such as poverty and low achievement, do not explain most of the large racial and gender disparities in suspension rates. . . .  The biggest driver of racial disparities in suspension rates comes from differences in which schools students of different races/ethnicities attend."  More specifically, it found that segregation in Chicago played a significant role in disparate discipline outcomes.  Highlights from the study include:

Continue reading

November 17, 2015 in Discipline | Permalink | Comments (2)

Friday, November 13, 2015

Black Minds Matter

The Education Trust's new report, Black Minds Matter, argues that "though it is abundantly clear that Black children can achieve at the highest levels, most of the data paint a dire portrait of an education system — preschool through college — that systematically squanders Black talent."  It frames that argument around basic data points.  Just to list a few:

  • African American children are "less like to have access to high quality preschool and early learning opportunities. The result? Achievement gaps begin early, even before children reach school age."
  • "[I]nstead of organizing our K-12 school systems to ameliorate [the fact that African American children often start kindergarten behind], these children get less in school too."  They attend the most challenging educational environments.  
  • African Americans attend schools that are predominantly poor and predominantly minority.  
  • African Americans are twice as likely to feel unsafe at school and three times as likely to be suspended.
  • African Americans are far less likely to be enrolled in rigorous courses.

The report then offers a series of recommendations.

  • Offering and ensuring academic relevance, rigor, and supports
  • Ensuring equitable access to effective educators
  • Extending learning time
  • Improving school climate and fixing school discipline
  • Providing a broad range of health, wellness, and socio-emotional supports.

November 13, 2015 in Discipline, Equity in education, Pre-K Education, Racial Integration and Diversity | Permalink | Comments (0)

Thursday, November 12, 2015

Plyer v. Doe's Impact on the Constitutionality of Long-Term Suspensions and Expulsions

Robyn Bitner's student note, Exiled from Education: Plyler v. Doe's Impact on the Constitutionality of Long-Term Suspensions and Expulsions, 101 Va. L. Rev. 763 (2015), offers a new theory for limiting some suspensions and expulsions.  Her introduction includes this summary:

This Note will argue that, following Plyler, public school students have a plausible right of equal access to education under the United States Constitution. In addition to this right, students also benefit from a fundamental right to education in sixteen states. This framework hasthus far provided students with some respite from states' attempts to limit Plyler. However, in states where the right to education is not fundamental, or the status of education has not yet been determined by state supreme courts, school districts regularly violate students' plausible right of equal access to education in two ways. First, school districts offer no alternative education programs (“AEPs”) during periods of long-term suspension or expulsion. Second, when school districts do offer AEPs, they routinely fail to provide even basic education, which places students at risk of academic failure. Ultimately, long-term suspensions and expulsions mean that many of our nation's most vulnerable students are not receiving an education. However, as this Note will argue, our federal and state constitutions suggest that they are entitled to one. In the legal field, little has been written about the implications of Plyler outside the context of undocumented students. The analyses that do exist focus on state and local attempts to limit the rights of undocumented students to attend primary and secondary school. Other studies analyze the limits to higher education that undocumented students face in terms of college admissions and in-state tuition rates. This Note differentiates itself from what the legal field already knows by focusing instead on the interplay between federal and state law to determine how students' plausible right of equal access to education has been limited in other contexts, specifically school discipline. Such knowledge is worthwhile because it may permit a better understanding of exactly how child advocates can protect their most vulnerable clients from being shut out of the education system altogether. Equipped with this knowledge,school districts can be held accountable for educating all students, even the most behaviorally challenged ones.

November 12, 2015 in Discipline | Permalink | Comments (0)

Monday, November 9, 2015

Troubling Trends in Religious and Ethnic Based Bullying

A new report by the Council on American-Islamic Relations (CAIR) finds that Muslim students experience high rates of bullying and discrimination in California's public schools.  Among other things, the report calls on Congress to amend Title VI to include a prohibition on religious discrimination. While the CAIR is correct that Title VI does not prohibit religious discrimination, it is not always clear whether the discrimination against Muslim students is ethnic or religious discrimination.  The Office for Civil Rights has tended to treat it as ethnic discrimination, which Title VI would prohibit.   Regardless, the report's empirical findings are troubling:

Ultimately 55% of the American Muslim students surveyed reported being subjected to some form of bullying based on their religious identity. This is twice as high as the national statistic of students reporting being bullied at school. Many students experienced multiple types of bullying; however, the most common type of bullying American Muslim students faced was verbal at 52%.

CAIR-CA also considered gender-based differences in survey responses. Remarkably, more male students reported experiencing bullying. However, the percentage of females who reported experiencing discrimination by a teacher or administrator was slightly higher. Of the female respondents who wear a hijab, the Islamic headscarf, 29% reported being offensively touched by another student, and 27% reported being discriminated by their teacher.

There were also two key findings in the students’ responses to questions about their feelings regarding their school environment. The percentage of students who reported feeling that they were comfortable participating in class discussions about Islam or countries where Muslims live decreased 4 by 4 percentage points, from 80% in 2012 to 76% in 2014. Moreover, only 67% of students felt teachers and administrators were responsive to their religious accommodation requests. American Muslim youth continue to identify student-teacher relations as needing improvement. Many students’ comments referenced increased problems in the classroom during discussions about 9/11, mainly due to teachers either failing to address harassment by other students against Muslim students or discriminating against Muslim students themselves.

November 9, 2015 in Discipline, Discrimination, First Amendment | Permalink | Comments (0)

Monday, November 2, 2015

Charter Schools With Lists of Students Who "Got to Go"

Civil rights activists and scholars have long speculated that some charter schools manufacture the student populations they would like to teach so as to produce better results.  On the front end, they could achieve this by bending the rules and discouraging special education and English Language Learner students from applying.  On the back end, they would weed out undesirables that made it in through the lottery system.  Some data has confirmed the front end problem, but the later has been little more than speculation.  Until last week.

[D]ocuments obtained by The New York Times and interviews with 10 current and former Success employees at five schools suggest that some administrators in the network have singled out children they would like to see leave.

The heading on the list was “Got to Go.”

Nine of the students on the list later withdrew from the school. Some of their parents said in interviews that while their children attended Success, their lives were upended by repeated suspensions and frequent demands that they pick up their children early or meet with school or network staff members. Four of the parents said that school or network employees told them explicitly that the school, whose oldest students are now in the third grade, was not right for their children and that they should go elsewhere.

The current and former employees said they had observed similar practices at other Success schools. According to those employees, who spoke on the condition of anonymity to protect their jobs or their relationships with people still at the network, school leaders and network staff members explicitly talked about suspending students or calling parents into frequent meetings as ways to force parents to fall in line or prompt them to withdraw their children.

Last year, for instance, the principal of Success Academy Harlem 2 Upper, Lavinia Mackall, told teachers not to automatically send annual re-enrollment forms home to certain students, because the school did not want those students to come back, two former members of the school’s staff said. Ms. Mackall said that her comments had been misinterpreted and that she was trying to encourage parents to take the school’s requirements seriously, but that she also did not believe the school was right for all students.

In another example, a current employee said, a network lawyer in a conversation with colleagues described a particularly unruly student’s withdrawal as “a big win” for the school.

Read the full story here.

November 2, 2015 in Charters and Vouchers, Discipline | Permalink | Comments (0)

Tuesday, October 27, 2015

Resource Officer's Violence Toward Student Raises Fundamental Question That Most Miss

A resource officer at Spring Valley High School in Columbia, South Carolina, pulled a female student from her desk by her neck, threw her to the floor, and then dragged her across the floor to another part of the room.  The incident was caught on video and has gone viral.  Apparently, the student had been disruptive and, at the moment of the incident, was refusing to follow instructions. The incident almost exactly mirrors one described in the U.S. Department of Justice's report on police involvement in Ferguson, Missouri's schools.  At pages 37 and 38, DOJ cited that incident as part of a problematic trend of unreasonable enforcement action and added that it

demonstrates a lack of understanding of the negative consequences associated with such arrests. In fact, SROs told us that they viewed increased arrests in the schools as a positive result of their work. This perspective suggests a failure of training (including training in mental health, counseling, and the development of the teenage brain); a lack of priority given to de-escalation and conflict resolution; and insufficient appreciation for the negative educational and long-term outcomes that can result from treating disciplinary concerns as crimes and using force on students. See Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline, U.S. Dep’t of Justice & U.S. Dep’t of Education.

During the media rounds last night, the video prompted predictable debates over whether the use of force was reasonable.  Those debates included mind numbing defenses and recriminations that, in effect, repeated the conversations we have heard for the past year in regard to the deaths of several African Americans at the hands of police.  While that conversation is obviously a very important one that should continue, it is the wrong one here.

The question here should not be whether the resource officer used reasonable force.  The question should be why he was in the school to begin with and why, at this very moment, he was the one directed to resolve the situation. This is a question I have raised and implied on this blog several times.  In the last two years, I have noted numerous stories of school resource officers choking, handcuffing, restraining, and locking up in isolation rooms elementary and middle school students, including students with special needs.  One Georgia school even saw fit to begin housing rifles on campus.    

The answer is simple.  Save exceptional circumstances, law enforcement does not belong in school. School resource officers are not educators. They are not sufficiently trained to deal with students. They are not dispute resolution specialists. No doubt, incidents arise when school officials believe that the brute force of law enforcement is beneficial.  Even were that the case, the rare benefit that they provide far outweighs the regular burden they bring.  They change the culture for students and teachers in ways that are not productive.  They bring official confrontation to school.  They bring violence into school.  They bring real weapons into school.    And even if a school were to unwisely accept all of these things as necessary evils, the school should minimize the circumstances when law enforcement is brought to bear on a student.  Schools must always be the front line of school discipline and almost always the end line as well.  They should only absolve themselves from that role when absolutely necessary.  It seems relatively clear that this was not the case in Spring Valley High School.

October 27, 2015 in Discipline | Permalink | Comments (0)

Thursday, October 22, 2015

Current Trends with OCR Complaint Process on School Disparities

The Children's Rights Litigation Committee of the ABA Section of Litigation is sponsoring a program on Current Trends with OCR Complaint Process on School Disparities and calling for speakers.  The program is Monday, December 7, 2015 at 1:00 pm - 2:30 pm Eastern.  You can register here.

This roundtable will discuss current trends and outcomes in the civil rights complaint process with the Office for Civil Rights of the Department of Education.  The Roundtable will focus on Title VI complaints relating to the school-to-prison pipeline and disparities in school discipline.   The program will gather attorneys, advocates, and representatives of complainants to share their experiences and outcomes in filing complaints.  Speakers will also discuss a recently released memo which outlines the legal standards for disparate impact claims.  This Roundtable is part of an ongoing effort by the Accountability Project, a subcommittee of the Children’s Rights Litigation Committee, to provide tools to civil rights, legal aid and pro bono attorneys in the OCR Complaint process. 

Speakers:
Rosa K. Hirji, RKH Law Office, Los Angeles, CA
Rachel Flynn, Nelson Mullins, Columbia, SC. 

Call for Speakers: We are looking for speakers who are willing to share their experiences in filing complaints. We would like to circulate your complaint, resolution agreement/letters of finding, and ask you briefly present to the group. If you are interested, please send me an email to rosa@rkhlawoffice.com by November 16, 2015. 

October 22, 2015 in Discipline | Permalink | Comments (0)

Monday, October 19, 2015

Teacher-Student Relationships and the Achievement Gap

A fascinating new study by Hunter Gehlbach, et al, Creating Birds of Similar Feathers: Leveraging Similarity to Improve Teacher-Student Relationships and Academic Achievement, finds that a significant portion of the achievement gap between disadvantaged students and others relates to how closely students and teachers relate to one another.  The study also finds that administering surveys to teachers and students and using the results to help them focus on their common responses and interests significantly reduced the achievement gap--by as much as 60%.  Although the researchers did not study it, I would speculate that relationship gaps also correlate with negative school discipline responses, which, of course, drive down achievement.  If so, this survey intervention might also have a positive impact on reducing harsh discipline responses.   The abstract offers this summary:

Continue reading

October 19, 2015 in Discipline, Equity in education | Permalink | Comments (0)

Thursday, October 15, 2015

Dismantling the School-to-Prison Pipeline: Tools for Change

Jason Nance's forthcoming article in Arizona State Law Journal, Dismantling the School-to-Prison Pipeline: Tools for Change, is now available on ssrn.  On the most basic level, it is a treasure trove of social science sources on school discipline and juvenile justice.  It collects several sources I had overlooked in the past.  But it also does an excellent job of synthesizing the studies in a way that makes the sum greater than the individual parts.  His abstract offers this summary:

The school-to-prison pipeline is one of our nation’s most formidable challenges. It refers to the trend of directly referring students to law enforcement for committing certain offenses at school or creating conditions under which students are more likely to become involved in the criminal justice system such as excluding them from school. This article analyzes the school-to-prison pipeline’s devastating consequences on students, its causes, and its disproportionate impact on students of color. But most importantly, this article comprehensively identifies and describes specific, evidence-based tools to dismantle the school-to-prison pipeline that lawmakers, school administrators, and teachers in all areas can immediately support and implement. Further, it suggests initial strategies aimed at addressing racial implicit bias, which is a primary cause of the racial disparities relating to the school-to-prison pipeline. The implementation of these tools will create more equitable and safe learning environments that will help more students become productive citizens and avoid becoming involved in the justice system.

October 15, 2015 in Discipline | Permalink | Comments (1)

Friday, October 2, 2015

Alabama Court Finds Police Officers' Failure to Adequately Decontaminate Students from Pepper Spray Effects and Use of Spray on Nonviolent Students Unconstitutional

Screen Shot 2015-10-02 at 3.34.07 PM
The Northern District of Alabama ruled yesterday that Birmingham police officers (acting as school resource officers) used excessive force when they pepper-sprayed students who were not posing a danger and when officers failed to adequately decontaminate students from effects as recommended by the spray's manufacturer when there were available facilities to do so. discussed the suit earlier this year, The plaintiffs, students from eight of the city's nine high schools,  alleged that local police used excessive force by spraying students with a substance called Freeze +P, a spray made up of Orthochlorobenzalmalonitrile (CS) and Oleoresin Capsicum (OC), that causes “strong respiratory effects" and "severe pain." The spray was used to break up fights, disburse bystanders, and discipline students who were verbally disrespectful but not physically violent.  The officers were following Birmingham Police Department procedures in using the spray, as summarized by the court in Fig. 1. The district court found that the sprayings were unconstitutional seizures under the Fourth Amendment, and that officers' failure to arrange for sprayed students to be decontaminated was part of those ongoing seizures. Thus, the court concluded, the plaintiffs' claims were best evaluated under the Fourth Amendment's unconstitutional seizure doctrine, rather than the Fourteenth Amendment's "shock the conscience" standard. Turning to remedies, the district court found that six of the eight student-plaintiffs were entitled to damages. The court declined the plaintiffs' request to ban the use of Freeze+P in Birmingham schools, given the "scenarios when it is appropriate for S.R.O.s to use Freeze +P in the school setting." The court instead ordered the parties to meet and develop a training and procedures plan for S.R.O.s’ use of Freeze+P, including protecting uninvolved persons from overspray. The court also suggested that the Birmingham police chief remind his officers that "enforcement of school discipline is not part of their job description and that Freeze+P is not suited for general crowd control." Given the chief's comments earlier this year that the school system was too dependant on the police department to resolve low-level misbehavior, he may agree with the court's sentiment. The plaintiffs were represented by the Southern Poverty Law Center.  The opinion in J.W. v. Birmingham Board of Education is here.

October 2, 2015 in Cases, Discipline | Permalink | Comments (0)

Thursday, October 1, 2015

Seattle Imposes Moratorium on Elementary School Suspensions for Minor Misbehavior

Last week, the Seattle School Board unanimously voted to place a one-year halt on elementary schools suspension for disruptive conduct, rule breaking and disobedience.  Last year, seventy five percent of the district's elementary school suspensions were for these minor misbehaviors.  Under the new policy, elementary schools will remain free to suspend student who endanger themselves or others.  

Seattle follows the lead of some other school districts in the area that are seeking to eliminate most suspensions all together.  Readers might also require that California passed legislation last year to eliminate suspensions for students in kindergarten through third grade.  To Seattle's credit, even before the policy change, its suspension rate was below average.  Given its progressive stance on discipline, it would not be surprising to see this policy migrate to middle schools in another year or two.  It will be interesting to see how the district performs if it moves toward a system in which there are very little if any suspensions other than those for very serious misbehavior.

More here.

October 1, 2015 in Discipline | Permalink | Comments (0)

Friday, September 18, 2015

The High Stakes of Telling the Truth and the Difficult Questions Raised for School Discipline

In October of 2013, I published a series of posts on a high school student, Erin Cox, at North Andover High School in Massachusetts.  The story told by her, her family, and primarily her attorney, Wendy Parker, was that the school had punished her under its zero tolerance policy on alcohol for being at a party where alcohol was served.  The media story that unfolded over a couple of days was that she had not actually consumed any alcohol, that she had not actually been present at the party, that she had only come to the party to give a drunk friend a ride home, and that the police were already there when she arrived, but released her because it was clear she was not involved.  Her attorney claimed she had a police report that even verified these last facts.  The narrative was that the school was punishing for doing the right thing.  She then brought suit in state court seeking to enjoin her punishment and her attorney said that the school's attorney lied about the undisputed facts at the initial hearing before the court.

Continue reading

September 18, 2015 in Discipline | Permalink | Comments (0)

Wednesday, August 26, 2015

Half of All African American Suspensions and Expulsions Were in Thirteen Southern States

Edward Smith and Shaun Harper have released a new study focusing on suspensions and expulsions in the South.  Most of it is sadly par for the course, but the enormous portion of the nation's suspensions and expulsions that come from the South was shocking.  "Nationally, 1.2 million Black students were suspended from K-12 public schools in a single academic year – 55% of those suspensions occurred in 13 Southern states. Districts in the South also were responsible for 50% of Black student expulsions from public schools in the United States."  The racial disparities also seemed to track consistently higher than than other regions.  "In 132 Southern school districts, Blacks were disproportionately suspended at rates five times or higher than their representation in the student population."  Expulsion disparities were high as well, although slightly lower the suspension disparities.   "In 77 Southern school districts, Blacks were disproportionately expelled at rates five times or higher than their representation in the student population."

The study also includes a nice set of tables with the data for individual school districts, so one can easily see what is occurring in their own community, region, and state.

Get the full report here.

August 26, 2015 in Discipline, Discrimination | Permalink | Comments (0)

Thursday, August 20, 2015

Can Schools Drug Test Students Just Because They Park on Campus?

Crivitz High School in Wisconsin is implementing a new drug testing policy this year.  It will randomly test students.  Apparently, the policy is limited to those who participate in athletics and extracurricular activities and those who park on campus.  The school did not release any official numbers, but my guess is that this would encompass about half of the student body, give or take ten percent.  Testing athletes and those in extracurricular activities, assuming the correct procedures are followed is constitutional, but testing those who park may raise certain flags. 
 
In Vernonia School District v. Acton, 515 U.S. 646 (1995), the Supreme Court upheld a public school's program of randomly drug testing its student athletes.  The Court balanced the state's interests against those of the students, reasoning that the drug epidemic that existed in the school and the special risks associated with playing sports outweighed the minimal invasion of student athletes' privacy. The Court emphasized the students were already subject to communal undress, showers and the like.  A few years later, the Court extended this rationale to students participating in extracurricular activities in Board of Education v. Earls, 536 U.S. 822 (2002), although the analogies between the two case were otherwise weak.
 
Both of these cases are premised on two key facts that are arguably missing with student drivers. First, student drivers are not exposed to communal undress or overnight trips off-campus during which they are subject to intense monitoring.  In Veronia, the Court, almost derisively, remarked that sports are not for the bashful.  Regardless, all of this was to say that the additional drug testing was not a significant intrusion into privacy beyond what students were already experiencing. Student drivers surely range from the bashful to the brash and, for many, drug testing would be an enormous intrusion into privacy.
 

Continue reading

August 20, 2015 in Discipline | Permalink | Comments (0)