Tuesday, April 15, 2014
Philadelphia has added itself to the short but growing list of major school districts that are trying to draw sharper lines between school officials and the police to reduce arrests in school. Last fall, I posted on a similar move in Broward County, Florida. According to a local Philadelphia paper:
Philadelphia School District has directed school police officers to stop responding to calls related to Level 1 student conduct offenses. The proscribed violations range from "failure to follow classroom rules" to "truancy" to "verbal altercations" to "inappropriate touching/public displays of affection."
"These infractions are not criminal offenses; they are classroom/student management issues," wrote District Chief Inspector Carl W. Holmes to school administrators and school police in a memo dated March 10.
The memo states that school police should "respond to all calls that are criminal in nature, or where persons involved are violent or threatening."
In the event that they are called to other incidents, officers should "request the presence of an administrator, counselor, or administrative designee," the memo explains.
Some teachers, including the Philadelphia Federation of Teachers, are not happy with the policy, indicating that there are not resources in the school to deal with discipline and it is not just a classroom management issue.
"It is easy...to say that someone else should deal with it. There is no 'someone else,'" said Amy Roat, . . . teacher at Feltonville School of Arts and Sciences.
"We don't have anyone in our building most of the time that is 'qualified' to deal with these issues," she said. "We all just have to jump in and deal with it."
While I sympathize with overworked teachers in overworked schools, school discipline is an educational issue, not a law enforcement issue. They may be correct that the schools currently are not fully equipped to deal with the problem, but that is due to the fact the state has been starving these schools of resources, not that the state has asked them to do the police force's job. See the full story here.
Tuesday, April 8, 2014
In A.V. ex rel. Valichka v. Pennsgorve/ Carneys Point Regional School Dist., 2014 WL 1272119 (D. N.J. 2014), a high school baseball student took an advil for back pain during practice. Another student then reported that A.V. was taking steroids to a school official. The official told A.V. he could not return to school until he took a drug test. A.V.'s parents then took him to his doctor, who screened him for drugs and determined he had not taken steroids. The school then permitted him to return, but suspended him for taking the advil.
A.V. sued the school for a violation of his Fourth Amendment rights. The school defended on the notion that it did not need reasonable suspicion to drug test A.V. given that Veronia v. Acton recognized schools' authority to randomly drug test all students. The district court rejected this argument, pointing out that the testing of A.V. was based on individualized suspicion and, thus, Veronia is inapposite. The court was nice in not pointing out that Veronia was explicit in distinguishing the individualized suspicion case from random drug testing. The Supreme Court in Veronia indicated that a school might very well prefer random testing because when it acts on individualized suspicion it runs more of a risk of subjecting itself to suit (and losing), as appears to be the case in A.V.
Although not raised by the complaint, this case could have also implicated my continuing concern about the limit of school authority to punish students. The advil that A.V. took was given to him by his father specifically for back pain at baseball practice. Of course, baseball practice is a school activity and presumably was on school grounds (or school liscenced grounds), which means the school does have general authority here. For that reason, I would not contest the schools authority to regulate this activity, but I do question whether, under these circumstances, it should be permitted to exclude a student from school.
Friday, April 4, 2014
On Tuesday, Derek posted about the recent 5th Circuit case Clayton ex rel. Hamilton v. Tate County School Dist., 2014 WL 1202515 (5th Cir. 2014), in which the Court found that a student subjected to corporal punishment did not have a substantive due process claim under the Constitution. Although in general the other Circuits that have heard students’ substantive due process claims have not distinguished between those claims that are based on corporal punishment and those that are not, the 5th Circuit is the outlier in this respect. To wit, in Jefferson v. Ysleta Indep. Sch. Dist., 817 F.2d 303 (5th Cir. 1987), the Court heard the claim of a second grade student who was tied to a chair for a day and a half at school for no apparent reason. The 5th Circuit found the claim could go forward because the alleged emotional and physical harm to the student was not the result of corporal punishment.
The Court decided the case on qualified immunity grounds. In doing so, it had to decide whether a state official has violated a clearly established right “known or knowable by a reasonable person.” Concluding the student’s substantive due process right was clearly established, the Court said “[w]e are persuaded that in January 1985, a competent teacher knew or should have known that to tie a second-grade student to a chair for an entire school day and for a substantial portion of a second day, as an educational exercise, with no suggested justification, such as punishment or discipline, was constitutionally impermissible. A young student who is not being properly punished or disciplined has a constitutional right not to be lashed to a chair through the school day and denied, among other things, the basic liberty of access to the bathroom when needed.” So, the 5th Circuit will recognize a student’s substantive due process claim based on abuse by school personnel, just like all the other Circuits to have taken up the issue. But unlike the rest, in the 5th Circuit the student’s harm can’t be the result of corporal punishment. For more on this and related issues see my forthcoming article Dark Sarcasm in the Classroom: The Failure of the Courts to Recognize Students’ Severe Emotional Harm as Unconstitutional, 62 Clev. St. L. Rev. – (2014).
Monday, March 31, 2014
This spring, a 9-year-old student shaved her hair in support of her best friend, who was undergoing chemotheraphy and had lost her hair. The student, Kamryn Renfro, was student at a public charter school in Grand Junction, Colorado. Kamryn's mother alerted the school in advance, but was told by the school that dress code prohibitted shaved heads and Kamryn could not return to school until her hair grew back. Under public outcry, the school buckled. Whether this case falls under a liberty deprivation or property is questionable, although I would tend to characterize it as both and as a constructive, if not actual, suspension. Regardless, it highlights the absurdity of school discipline and conduct rules, which schools insist they have a right to pass and enforce, and which courts hold that the constitution affords almost no recourse. Here's my paper on why actions of this sort are unconstitutional, even if not yet recognized as such.
Monday, March 24, 2014
For those who missed it Friday, the U.S. Department of Education's Office for Civil Rights released the results its civil rights data collection. OCR is calling it the most comprehensive look at civil rights in education in 15 years. "This data collection shines a clear, unbiased light on places that are delivering on the promise of an equal education for every child and places where the largest gaps remain. In all, it is clear that the United States has a great distance to go to meet our goal of providing opportunities for every student to succeed," U.S. Secretary of Education Arne Duncan said. "As the President's education budget reflects in every element—from preschool funds to Pell Grants to Title I to special education funds—this administration is committed to ensuring equity of opportunity for all."
"This critical report shows that racial disparities in school discipline policies are not only well-documented among older students, but actually begin during preschool," said Attorney General Eric Holder. "Every data point represents a life impacted and a future potentially diverted or derailed. This Administration is moving aggressively to disrupt the school-to-prison pipeline in order to ensure that all of our young people have equal educational opportunities."
The most troubling findings, according to OCR, were:
Access to preschool. About 40% of public school districts do not offer preschool, and where it is available, it is mostly part-day only. Of the school districts that operate public preschool programs, barely half are available to all students within the district.
Suspension of preschool children. Black students represent 18% of preschool enrollment but 42% of students suspended once, and 48% of the students suspended more than once.
Access to advanced courses. Eighty-one percent (81%) of Asian-American high school students and 71% of white high school students attend high schools where the full range of math and science courses are offered (Algebra I, geometry, Algebra II, calculus, biology, chemistry, physics). However, less than half of American Indian and Native-Alaskan high school students have access to the full range of math and science courses in their high school. Black students (57%), Latino students (67%), students with disabilities (63%), and English language learner students (65%) also have less access to the full range of courses.
Access to college counselors. Nationwide, one in five high schools lacks a school counselor; in Florida and Minnesota, more than two in five students lack access to a school counselor.
Retention of English learners in high school. English learners make up 5% of high school enrollment but 11% of high school students held back each year.
Tuesday, March 4, 2014
In the Spring of 2011, Capital High School in Santa Fe, New Mexico, subjected students entering the high school prom to random, suspicionless pat-downs. The goal of the searches were to prevent students from bringing drugs, alcohol, or other contraband to the prom. One of the students testified that:
[The ASI New Mexico security guard] had me spread my arms and legs out, and she patted along my arms, touched along the waist. And then she grabbed the outer part of my bra and moved it here. And then she grabbed the inner part of my bra and moved it here. And then she cupped my breasts and shook them.... [T]hen afterwards she moved down to my waist and then she went all the way down my leg. And then she felt over my dress and then she pulled the dress up to about mid-thigh and she felt up the bare leg, as well.
Other students testified similarly. Four students brought suit against the school district and the principal. In its latest opinion, the district court in Herrera v. Santa Fe Public Schools, 956 F.Supp.2d 1191 (D. New Mexico 2013), held that search violated students' rights, but the principal was entitled to qualified immunity.
The school had attempted to extend the rationale of Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), and Board of Education of Independent School District No. 92 v. Earls, 536 U.S. 822 (2002)-which upheld suspicionless drug testing of students participating in sports and extracurriculars--to these pat-down searches. The district court reasoned that those cases were inapposite because they involved a special needs exception to the general reasonable suspicion requirement in schools. Moreover, the searches in those cases applied to a subsection of the student body, whereas the prom search potentially applied to any student in the school. Applying the reasonable suspicion test from New Jersey v. TLO, the court easily found it lacking and the searches unconstitutional. In an earlier opinion, the court had also catalogued other lower courts applying similar rationales to suspicionless searches. See Herrera v. Santa Fe Public Schools, 792 F.Supp.2d 1174 (D.N.M. 2011). This earlier opinion was particularly revealing in showing that several recent courts have pushed back against random student searches.
The school district had also argued that the students consented to the searches, but the court applied the unconstitutional conditions doctrine to find that consent was invalid.
Monday, March 3, 2014
Office for Civil Rights Reaches Voluntary Resolution of Kentucky School District’s Discipline Disparities
The Office for Civil Rights, Department of Education, had been investigating Christian County Public Schools' discipline system. It found basic due process flaws on the front end and significant racial disparities on the back end. "[B]lack students were consistently more likely than white students to be assigned in-school suspension and out-of-school suspension when their first disciplinary referral was for violations that were subjective in nature, such as Deliberate Classroom Disruption, Disorderly Conduct, Failure to Follow Directives, and Profanity/Vulgarity. For example, in school year 2010-2011, black students were nearly 3.5 times more likely than white students to receive out-of-school suspension for Profanity/Vulgarity."
Under the final resolution agreement reached last week, the District agreed to:
- Ensure to the maximum extent possible that misbehavior is addressed in a manner that does not require removal from school;
- Collaborate with experts on research-based strategies designed to prevent discrimination in the implementation of school discipline;
- Provide students who engage in disruptive behaviors with support services designed to decrease behavioral difficulties;
- Review and revise the disciplinary policies, and implement disciplinary practices that will effectively promote the fair and equitable administration of discipline;
- Provide training for staff and administrators on the disciplinary policies, and implement programs for students and parents and guardians that will explain the district’s disciplinary policies and behavioral expectations;
- Effectively address school climate issues;
- Improve the disciplinary data collection system in order to evaluate discipline policies and practices.
The full press release and resolution agreement is here. I believe this is the first discipline resolution reached since the Department's new discipline guidelines. Those guidelines seem to be reflected in this resolution, particularly the agreement to use less harsh and discriminatory alternatives to the current discipline policy.
Thursday, January 30, 2014
Robert Marucci, an 18-year-old high school student, in Florida was allegedly suspended for his participation in gay pornography. Marruci states that he started working in the industry to help his mother pay the bills. Apparently, the family has fallen on hard times and his work does not violate any law. Regardless, when other students at his school learned of his work, he indicates he was bullied and threatened. If the school knew of and did not respond to this bullying, it violated Title IX's prohibitions on sexual harassment. See Davis v. Monroe County, 526 U.S. 629 (1999). Marucci's mother says that this is exactly what the school did. Strike one against the school.
What the school did do was suspend Marucci for ten days. His mother says he was "expelled due to his explicit lifestyle career.” The school indicates that it suspended him for "possible threats" he had made. The devil is in the detail, but "possible threats" sounds vague. If it is only "possible" that he has made threats to other students, the school lacks a basis to suspend him. At best, if the threats were extremely serious, the school could have removed him temporarily to investigate (per a narrow exception in Goss v. Lopez). This does not appear to be the school's claim. Sounds like strike two against the school.
If the school, in fact, removed him for his off-campus lifestyle choice, it may have engaged in another Title IX violation, as well as Free Speech. Strike three (and four, I suppose).
Complaint Challenges Policing Practices in Wake County, NC Schools Against African-American and Special Needs Students
We have seen reassessments of zero-tolerance policies at the DOJ, as Derek reported recently here, with the State of Maryland as a standout for creating more sensible protocols to deal with non-violent student misconduct. The fallout from zero tolerance continues, however, as a complaint filed with the DOJ this week against Wake County schools and several North Carolina law enforcement agencies shows. The complaint alleges that the Wake County school system and school resource officers (SROs) violated students' rights under Titles IV and VI of the Civil Rights Act of 1964, under Section 504, and under the Americans with Disabilities Act. The complaint, filed by the Legal Aid Society on behalf of eight black schoolchildren who were receiving special needs services, alleges that "[t]he Wake County Public School System's over-reliance on unregulated school policing practices, often in response to minor infractions of school rules, results in the routine violation of students’ educational and constitutional rights," particularly "those of students with disabilities and African-American students." The harmful impact of treating minor school infractions as crimes, the Legal Aid points out, is exacerbated in North Carolina because it is "the only state that treats all 16- and 17-year-olds, in every circumstance, as adults when charged with criminal offenses, and then denies them the possibility of returning to the juvenile system regardless of the nature of the offense."
One plaintiff's experience with SROs reads like a criminal procedure law exam issue spotter: T.W., while standing in line for his schedule on the first day of 11th grade, was questioned by an officer about whether T.W. attended the high school. The officer then asked T.W. his name and apparently did not like the way that the student said it. T.W. was immediately placed in handcuffs by two officers. The complaint then describes what followed:
T.W. was then taken to the principal’s office where the SRO searched T.W. and said something to the effect of, “I love to find drugs.” Other than that flippant comment, the SRO offered no information regarding how he had reasonable suspicion to suspect T.W. had drugs in his possession. Nonetheless, the SRO continued the search, making T.W. take off his shoes and hand over his wallet, and then patted him down. The SRO then interrogated T.W. At no point was T.W. read his Miranda rights. Instead, the SRO continuously made statements to T.W., such as: “If you help me, I can help you;” “If you give a tip that leads to arrest, you can get paid;” “When you come to school your rights are forfeited.” During the course of the illegal search, the SRO found a lighter in T.W.’s pocket. The principal suspended T.W. out-of-school for two school days and the SRO finished his attack against T.W. with a citation to adult criminal court for interfering with a police investigation.
T.W.’s mother filed a grievance with the school regarding the SRO’s mistreatment of her son. However, she realized that her efforts to convince the principal to remedy the situation were futile as he asserted that he had no control over SROs. So, that afternoon she went to the Raleigh Police Department and filed an Internal Affairs complaint against the SRO. Months later she received a form letter with no individualized findings, stating only that the department viewed the SROs actions to be “proper conduct” consistent with Department policies and training.
After the grievances were filed, the SRO continued to harass T.W. A few weeks after the incident, T.W. missed the school bus. While T.W. was walking to school the SRO pulled up beside him in his patrol car. He pointed a video camera at T.W. and asked T.W. why he was late for school. T.W. explained that he had missed the bus. The SRO said something to the effect of, “You better not have cigarettes or you’ll get in trouble, and you get rid of that lighter.”
Ultimately, T.W. and his mother had to appear in court at least four times as a result of the initial incident at school. ... At one of the court appearances, the SRO testified that the reason he approached T.W. while he was in line to get his schedule was because he looked older than the other kids. The judge responded, “That’s just like walking on the sidewalk while being black.” All charges were subsequently dropped, and the case was dismissed. However, unfortunately, T.W. never finished high school, in part due to the trauma caused by school policing policies and practices in Wake County.
Read the complaint here.
Tuesday, January 21, 2014
The Gainesville, Georgia School District has approved a measure that would allow their school resource officers to carry rifles. The deal came as part of an agreement with the local police department, which will share half of the cost of the safes in which the rifles are to be kept at school. The discussions began shortly after the Newton shootings, when the police department approached the district about safety measures. At risk of stating the obvious, it is problematic when police departments help set school policy, even when that policy pertains to safety. Police expertise is certainly important on such matters, but should not "steer the bus." This sounds like a militarization of an environment that is supposed to be education. Second, it has never been my understanding that any of these mass school shootings are a result of insufficient firepower at school. Rather the problem is that weapons entered the school in the first instance. I know Jason Nance has written a lot around these issues right in recent months. See here for his most recent article.
Tuesday, January 14, 2014
An Oklahoma legislator is making news with his introduction of a bill that would prohibit schools from suspended or taking other negative action against students for
I am definitely sympathetic to limiting the senseless suspension and expulsion of students who pose no real threat to school, but this bill may go too far. As I argue in my forthcoming paper "To End Zero Tolerance," constitutional principles should limit the expulsion of the student with, for instance, a pastry gun, but that is not to say the school is prohibited from taking any action against the student. This bill seems to suggest schools cannot do the latter either. Regardless, the immediate reaction of Oklahoma Education Association baffles me, as it seems to object to any limits on their authority to suspend and expel. Its president asserts that educators should be left to make these determinations on a case by case basis. If, in fact, zero tolerance was leading to case-by-case judgments, I might tend to agree, but zero tolerance has more often lead to a refusal by schools to consider circumstances. The rationale of suspending students with pastry guns has been that they violated the weapons policy and, thus, must be expelled. I hope to share my paper and the details of why this is constitutionally irrational within the next week or so.
Wednesday, January 8, 2014
Federal Guidance on Racial Disparities in Discipline Released, Calls for Vigilance in Enforcing Disparate Impact and Limiting Zero Tolerance
The new discipline guidance from the Departments of Justice and Education is now available here. The guidance breaks its analysis into disparate treatment (treating minority students and whites differently in terms of discipline) and disparate impact (a facially neutral policy that results in racially disparate outcomes). The first amounts to identifying and stopping intentionally discriminatory discipline. There is not much new here, but the point appears to be to encourage district to recognize that they may be treating similarly situated students differently without realizing it.
The disparate impact analysis is where the controversy abounds. It is directed at bringing down racial disparities in discipline even if there is no clear evidence of disparate treatment. I would posit there there is not any new substance in the guidance here either, but there is transparency and a clear signal that the Departments are serious about enforcing the substance. The guidance spells out very clearly how they will address racial disparities:
In determining whether a facially neutral policy has an unlawful disparate impact on the basis of race, the Departments will engage in the following three-part inquiry
(1) Has the discipline policy resulted in an adverse impact on students of a particular race as compared with students of other races? For example, depending on the facts of a particular case, an adverse impact may include, but is not limited to, instances where students of a particular race, as compared to students of other races, are disproportionately: sanctioned at higher rates; disciplined for specific offenses; subjected to longer sanctions or more severe penalties; removed from the regular school setting to an alternative school setting; or excluded from one or more educational programs or activities. If there were no adverse impact, then, under this inquiry, the Departments would not find sufficient evidence to determine that the school had engaged in discrimination. If there were an adverse impact, then:
(2) Is the discipline policy necessary to meet an important educational goal? In conducting the second step of this inquiry, the Departments will consider both the importance of the goal that the school articulates and the tightness of the fit between the stated goal and the means employed to achieve it. If the policy is not necessary to meet an important educational goal, then the departments would find that the school had engaged in discrimination. If the policy is necessary to meet an important educational goal, then the Departments would ask:
(3) Are there comparably effective alternative policies or practices that would meet the school’s stated educational goal with less of a burden or adverse impact on the disproportionately affected racial group, or is the school's justification pretext for discrimination? If the answer is yes to either question, then the Departments would find that the school had engaged in discrimination. If no, then the Departments would likely not find sufficient evidence to determine that the school had engaged in discrimination.
The report also focuses in on zero tolerance as one of the problematic sources of disparate impact and questions whether such policies for minor misbehavior are necessary to achieve educational goals. The report also goes into depth in explaining what the remedies it might require for call for violations.
This morning in Baltimore, the Department of Justice and Department of Education will issue new guidance on school discipline. My expectation is that it is going to be important, if now other reasons than it is already generating a lot of buzz. Education Next is already panning it before it is released because it will bring "the tortured logic of disparate impact to school discipline." Others complain it will hold schools accountable for all discipline that occurs under their roofs, including that of police officers. For those most concerned about racial disparities and overly harsh discipline, this added accountability is good news. Reducing racial disparities is not, as Josh Dunn at Education Next, asserts a disregard for student misbehavior, but rather a recognition that what amounts to misbehavior often has a racial lens to it.
Today's release also follows a new report by the Vera Institute for Justice that concludes based on generation of research on zero tolerance:
Certain facts are clear: zero tolerance does not make schools more orderly or safe--in fact the opposite may be true. And policies that push students out of school can have life-long negative effects.
I will follow up with DOJ's report and more commentary on it once it is released.
Tuesday, December 31, 2013
A new report out on discipline in Virginia's school details racial disparities consistent with those found in the various other state reports that I have posted on in recent months. As in other states, African American and white students experience discipline at far different rates. Statewide, African Americans are twice as likely to be suspended, even when controlling for independent factors. Yet, this is not the "two different" worlds the title of this post references. Rather, the study distinguishes between schools that have implemented Virginia's Student Threat Assessment Guidelines versus those who have not. The guidelines are intended to prompt schools to not react with zero tolerance or knee jerk reactions to student misbehavior, but to assess whether a student is actually a threat. The report found that schools that implemented the guidelines imposed 15% fewer short-term suspensions and 25% fewer long term suspensions. Schools implementing the guidelines still had racial disparities in discipline, but they were smaller than other schools in the state. In fact, the students who saw the largest reduction in suspensions pursuant to the guidelines were African American males, whose long-term suspension rate fell from 11.2 percent to 7.6.
The rates are still incredibly high for all students and indicate that, with or without guidelines, schools are willing to exclude students from school under questionable circumstances, but those using the guidelines may be on the path to creating a different disciplinary world for some.
Thursday, December 26, 2013
A new report by the University of Virginia’s Curry School of Education and the Legal Aid Justice Center show racial disparities in school suspension in Virginia and that reformed threat assessment standards used in 35 schools reduced that racial discipline gap. Zero-tolerance school discipline policies have come under scrutiny for many reasons, prominently because across the board, black students get suspended at up to twice the rates of white students and because suspensions consistently correlate with “disengagement, truancy, poor academic performance, and ultimately, dropping out of school.” (Curry & Lovegrove, 2012). Zero tolerance policies eliminate judgment calls, but also allow little room for common sense appraisals of misbehavior, so students have been suspended for yelling, “firing” a gun with their fingers, and bringing plastic knives to school.
To reduce the negative educational outcomes of school suspensions, UVA’s Curry School of Education created the Virginia Student Threat Assessment Guidelines. The Guidelines were modeled on the Secret Service’s methods to assess when a person actually poses a threat (as opposed to having made one). With the caveat that the school’s faculty also authored the standards, the study finds that schools using the Virginia Guidelines have lower rates of school suspensions, including a smaller racial discipline gap among black males. The study notes:
Schools implementing threat assessment had smaller racial disparities in their long-term suspension rates; and
Threat assessment was associated with lower rates out-of-school suspension overall: 15%fewer students receiving short-term suspensions & 25%fewer students receiving long-term suspensions for schools using threat assessment.
For more, click the image or read the study here.
Monday, December 16, 2013
The New York Daily News reports that KIPP Star Washington Elementary Charter School has repeatedly used a padded cell to hold a kindergarten and a first grade boy in time out for 15 to 20 minute stretches. The boys' parents say their children have subsequently experienced anxiety attacks. One boy's anxiety reaction to being in the cell was reportedly so severe that that he was removed from the room and taken to the hospital.
Although the notion of putting children in a padded cell--particularly ones so young--is shocking to most, the question of whether it is legal is not as clear cut. Some states, like Washington, for instance, specifically include isolation rooms in the list of the state's permissible disciplinary measures. See, e.g., Wash. Admin. Code § 180–40–235. In the context of special education, several parents have brought suit against school districts for their use of isolation cells. The results have been mixed. Most courts appear willing to sanction the use of isolation in theory, as a means of allowing kids to cool off and not hurt themselves or others. See, e.g., Melissa S. v. School Dist. of Pittsburgh, 183 Fed.Appx. 184 (3rd Cir. 2006); Payne v. Peninsula School Dist., 653 F.3d 863 (9th Cir. 2011). But when the isolation rooms have been used purely as punishment devices, some courts have been willing to intercede. See, e.g., CJN v. Minneapolis Public Schools, 323 F.3d 630, (8th Cir. 2003). In short, the limited use of isolation to allow a student to cool off is probably legal, even if it is in a closed room, but the use of isolation as a means of punishment may cross the line. We will have to wait for more facts to determine which way KIPP uses its rooms.
Monday, December 2, 2013
Just before Thanksgiving, a fight broke out between two students at Millennium High School in Goodyear, Arizona, over one student displaying a confederate flag on his car. The school's response: suspend both students for five weeks and ban the student from displaying the confederate flag. The student who displayed the flag still objects, arguing that the flag does not represent racism, but freedom. He offered the standard high school distinction: “The flag means basically more independence, less government. It didn’t mean racism, it didn’t mean slavery, it didn’t mean any of that. It basically meant what they were fighting for was their right to be independent and not have the government control them.”
The school district, of course, responded by pointing out that the confederate flag "has been proven to be patently offensive to certain groups and the courts recognize that.” Moreover, “[o]bviously there was some event that took place it was related to reaction to the flag and it did create an environment where it was disruptive.”
The school is right on courts' interpretation of the flag. Just last year, for instance, the Fourth Circuit in Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426 (4th Cir. 2013), ruled in favor of a school district that had stopped a student from wearing shirts displaying the Confederate flag because the shirts were likely to cause a substantial disruption to the school environment.
While the current student's position on the flag ignores a lot of history and, even as a high school student, I found such arguments to be silly, I often got the sense that many such students were sincere in their ignorance, which potentially makes these cases more complicated. If a student's argument is pretext, a school can easily intervene. But if the student is expressing a genuine, albiet ignorant, belief about independence, a student's argument gets a little better.
Schools have the authority to limit speech that poses a substantial disruption, but Tinker v. DeMoines, 393 U.S. 503 (1969), indicates that they must distinguish between disruptions that are a result of the person expressing himself and those that are a result of inaappropriate reactions by the listener or viewer. After all, there were some disruptions in Tinker when other students responded to Tinker's Viet Nam protest armband. If the response is, for instance, the result of the listener's immaturity, it is wrong to punish the speaker. This line, however, is far easier to draw in theory than reality, particularly when student speakers and listeners border on per se immature and ignorant in various respects.
In the context of the flag, even if the student's position is sincere, the student has to know that others do not see the flag the same as he does, which raises the question of whether such a student is just being coy in the slavery versus independence distinction. Even if the student does not support racism, the student is probably trying to incite a reaction. If the student were not hoping to incite some reaction, might not the student express his position a little differently? Then again, these are students and wisdom is not to be expected.
Rather than engage in pyscho-babble courts take the understandbly easy route out of these cases and just label the flag disruptive. As a practical matter, I suppose that is correct, but skipping analytical steps is dangerous. Consider the fact that in Hinduism a swatiska is a geometric represenation of the god Ganesha. As a general principle, a school might be inclined to perceive swatiskas as inherently disruptive, just like the confederate flag, but that rationale would quickly fall apart if the school sought to prohibit a Hindu student from displaying it.
(image with permission from Jean nguyen)
Wednesday, November 27, 2013
The ACLU of Pennsylvania released its new report on school discipline in the state, Beyond Zero Tolerance. It found that about 10 out of school suspensions “were issued for every 100 students in the 2011–2012 school year. During 2009–2010, 1 out of every 15 students was suspended from school at least once.” Black students were “almost five times more likely to be suspended than White students,” and Latinos three times more likely than whites. African Americans with disabilities were at the highest risk, with 22 out of 100 receiving a suspension. The report's website page also includes helpful information for local communities, posting the discipline and law enforcement data for each district.
The report’s recommendations for reform were:
1. Conduct school-level and district-level reviews of out-of-school suspension as well as law enforcement referral practices. Such reviews should identify which students are most likely to be impacted as well as specific schools where the differences in suspension rates for different types of students (the “suspension gap”) is greatest. Pay special attention to disciplinary actions for broad and vague behavioral categories such as disruption, disorderly conduct, and defiant behavior. Investigate disparities, and adopt corrective measures.
2. Remove students from school only when there is a real and immediate safety threat to the school community. School removal should not be permitted for minor misbehavior (such as dress-code violations).
3. Revise district codes and school-level rules to minimize the disruption in students’ continued access to education. When students must be removed from a classroom or school, establish a learning plan for them.
Wednesday, November 6, 2013
Broward County, Florida, School District has taken a punitive approach to discipline in the past and the results have been racially disparate. African American students, for instance, were suspended at twice the rate of whites and at high levels of frequency. To make matters worse, the district frequently referred students to the criminal justice system, or sought its involvement. Yesterday, the school district entered in to a memorandum of understanding with various other state agencies and actors, including the police department, to reach different results. The goal is to do away with “zero tolerance,” involve the police only as a last resort, and rely on less punitive forms of discipline. The district and police have reduced their decision making process into a flow chart. As you will notice, the flowchart tries to route discipline into the no-arrest category, even in regard to student conduct violations that require consultation with the police. To avoid arrests, it asks whether, for instance, the matter could be resolved by talking with the parents or referring the students to problem solving team or a community based program. Of course, the success of this shift will not be borne out by simply producing a flow chart, but by the individuals administering it and their willingness to take these alternatives seriously. This agreement, however, is the first major step in that direction.
Monday, October 28, 2013
News broke last week of a 6th grade teacher at Ocean Springs Upper Elementary in Mississippi duct-taping a male student's mouth shut for talking too much. According to the student, he was taped and forced to sit in a corner for 10 minutes. Aside from the horrific nature of the act itself, the troubling question is whether it violates the constitution. In Ingraham v. Wright, 430 U.S. 651 (1977), the Supreme Court held that neither the Fourteenth nor the Eighth amendment prohibited corporal punishment of public school students. The Fifth Circuit, in which Mississippi rests, has taken Ingraham's holding and ran with it, sanctioning egregious instances of corporal punishment. See generally Deana Pollard Sacks, State Actors Beating Children: A Call for Judicial Relief, 42 U.C. Davis L. Rev. 1165, 1194-1209, 1222-23 (2009).
Of course, corporal punishment is not duct-taping, but both are subject to the same "shocks the conscience" standard (although I and others would argue that this this standard should not be extended from police cases to school cases). This standard, as current applied, places relatively few limits on outlandish school disciplinary actions. Some courts have been willing to reject student claims arising out of cases such as a teacher slapping a student or locking a student in a closet. Smith ex rel. Smith v. Half Hollow Hills Cent. Sch. Dist., 298 F.3d 168, 173 (2d Cir.2002); Bisignano v. Harrison Cent. Sch. Dist., 113 F.Supp.2d 591, 599–600 (S.D.N.Y.2000). Courts have certainly gone the other way under similar facts, JG & PG ex rel. JGIII v. Card, 2009 WL 2986640 (S.D.N.Y.,2009), but a "win" for the student is never a foregone conclusion.