Thursday, November 12, 2015
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.
Monday, November 9, 2015
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.
Monday, November 2, 2015
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.
Tuesday, October 27, 2015
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.
Thursday, October 22, 2015
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.
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 firstname.lastname@example.org by November 16, 2015.
Monday, October 19, 2015
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:
Thursday, October 15, 2015
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.
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
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.
Thursday, October 1, 2015
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.
Friday, September 18, 2015
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.
Wednesday, August 26, 2015
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.
Thursday, August 20, 2015
Monday, August 17, 2015
Wednesday, August 5, 2015
The handcuffing and isolated restraint of a third grade special needs students in Covington, Kentucky, was caught on video. The video is particularly disturbing, as the child cries and pleads. I did not watch the whole thing myself. The ACLU filed a federal lawsuit on that and another student's behalf on Monday, alleging the handcuffing was an unreasonable seizure and included excessive force. The complaint also alleges that the arrest amounted to discrimination and a failure to accommodate under the American's with Disabilities Act.
More on the story here.
Monday, July 13, 2015
Two years ago, Anna Aizer and Joseph J. Doyle published a study finding that juvenile incarceration does not have the deterrent effect that the system supposedly intendeds. The abstract explains:
Over 130,000 juveniles are detained in the US each year with 70,000 in detention on any given day, yet little is known whether such a penalty deters future crime or interrupts social and human capital formation in a way that increases the likelihood of later criminal behavior. This paper uses the incarceration tendency of randomly-assigned judges as an instrumental variable to estimate causal effects of juvenile incarceration on high school completion and adult recidivism. Estimates based on over 35,000 juvenile offenders over a ten-year period from a large urban county in the US suggest that juvenile incarceration results in large decreases in the likelihood of high school completion and large increases in the likelihood of adult incarceration. These results are in stark contrast to the small effects typically found for adult incarceration, but consistent with larger impacts of policies aimed at adolescents.
They have now published a second even more nuanced study.
Thursday, June 18, 2015
The Southern Poverty Law Center and Flagler County Schools in Florida a reached a settlement to resolve a claim of discriminatory discipline. The original complaint had alleged that "African-American students accounting for 31 percent of all out-of-school suspensions during the 2010-11 school year even though they were only 16 percent of the student population." Under the agreement, the School Board adopted a wide-ranging plan to eliminate racial disparities in school discipline . Rather than permitting unilateral school level decision, the school district itself will have to approve suspensions of five or more days this upcoming school year, and suspensions for three or more days in the next school year. In addition, staff will receive cultural competency and implicit bias training. A committee will monitor discipline data on a regular basis to monitor progress. The district will consider abolishing suspensions altogether once it develops an alternative school program, peer mediation, and restorative justice practices. The district also committed to work with law enforcement to reduce in-school arrests.
SPLC is still pursuing federal civil rights complaints in Escambia, Bay, Okaloosa and Suwannee county school districts.
Friday, June 5, 2015
Flagler County Schools (FL) agreed to change its disciplinary practices after being sued for racial discrimination against African-American students, reports the Daytona Beach News-Journal. The Southern Poverty Law Center filed a complaint against Flagler Co. Schools in 2012 for removing and arresting black students more harshly than white students. The complaint alleged in the 2010-11 school year, black students made up 16% of the Flagler Co.'s school population, but were 31% of the in-school and out-of-school suspensions and 69% of expelled students. The complaint also alleged that black students were retained at a disproportionate rate of 22%. Flagler Co. school officials told the media that it will, subject to the school board's approval, reduce out-of-school suspensions and form a citizens’ committee to monitor discipline practices. The district also reportedly agreed to reserve out-of-school suspensions for situations when there’s a safety concern, and require district approval for suspensions lasting five days or more. Starting in August 2016, the district will require approval for any suspension of three days or more and consider eliminating out-of-school suspensions altogether.
Thursday, May 14, 2015
The Harrisburg Patriot-News reports that a racial bias suit against a Pennsylvania school district was settled this week. In 2014, the Webbs, a student and his mother, sued the Susquehanna Township School District after it expelled the student from high school for wearing a multifunction tool that had a knife on it. The student's mother sued when they learned that three white male students were treated differently than the student, who is black. In the other three instances, a white male student brought two airsoft pistols onto school and aimed at other students as they left the building; in the second, a white male student brought marijuana into a classroom; and in the third, a white male student brought a BB gun onto school grounds. On each of those occasions, the school superintendent did not recommend to expel the students. The Webbs sued in federal court claiming disparate treatment and violations of the 14th Amendment, Title VI of the Civil Rights Act, and the Pennsylvania Human Relations Act (PHRA). The Middle District of Pennsylvania dismissed their claims for lack of standing and because the statute of limitations had expired on some of the claims. However, the federal court gave the Webbs leave to amend their claims under the Pennsylvania Human Relations Act (PHRA). Despite the dismissal, the school district reportedly settled the case for an undisclosed amount. The federal case was Webb v. Susquehanna Twp. Sch. Dist., No. 1:14-CV-1123, 2015 WL 871731 (M.D. Pa. Feb. 27, 2015).
Wednesday, May 13, 2015
A New Jersey mother, Karen McMillan, alleges that her son passed out after being choked by a school security guard who was attempting to restrain the 7-year-old. After being held back from recess, the boy became disruptive. According to school officials, he was kicking chairs and rolling on the floor. The security guard was called to help restrain the child, and allegedly was trying to help the boy when he started to hyperventilate. The boy told his mother only that the guard held him very tightly and he felt like he might be sick, leading McMillan to believe that guard's force to be excessive. The boy was not injured, though McMillan stated that he is afraid to return to school and she intends to remove him from the school district. The guard was put on paid leave while the school investigates the incident.
Even if true, rogue acts of individual employees may be no more than that. On the other hand, this past year has brought various other stories like this one in other school districts. See, e.g., here, here, here, and here. This raises the question of whether the harsh policing tactics that are currently embroiling a national debate are also a part of every day life for many public schools students. Past reports by the Advancement Project would suggest the answer is yes, as would the Department of Justice's report on Ferguson, Missouri.
More on the New Jersey story here.
Thursday, May 7, 2015
A new study out of England finds that children who are bullied by their peers experience more long term negative mental problems than those who experience physical, mental, or sexual abuse. The authors of the study are, of course, not suggesting that the effects of abuse are minimal but that the effects of bullying are comparatively higher. This point is particularly important, they say, because “[g]overnmental efforts have focused almost exclusively on public policy to address family maltreatment; much less attention and resources [have] been paid to bullying. … This imbalance requires attention.”