Monday, June 20, 2016
Court Overturns Zero Tolerance Punishment Based on Stand Your Ground Law, But New Book Details Even Bigger Problems
In a battle of absurd public policies, a Georgia stand your ground law has trumped a school discipline policy of zero tolerance toward fighting. Last week, a Georgia court found that school administrators violated the state’s “stand your ground” self-defense law when they expelled a student for fighting. Matt Smith writes that
S.G. . . . threw the first punch in the January 2014 scuffle — but only after her antagonist had pursued her across the school’s parking lot and backed her up against a brick pillar, according to court records. Her lawyers argued that the resulting expulsion violated state law, which lets someone use force to respond to a threat without having to retreat first.
Georgia’s Court of Appeals has agreed, ruling that the student had the right to defend herself. State law “did not require S.G. to be hit first before defending herself; nor was S.G. required to have lost the fight in order to claim self-defense,” the judges concluded. And they found school officials in Henry County, in the Atlanta-area suburbs, have a policy of expelling students “regardless of whether the student was acting in self-defense.”
The irony here is that courts so often upheld suspensions and expulsions for equally, if not more, compelling circumstances. In other words, only a student availing him or herself of a stand your ground law has a reasonable chance of challenging zero tolerance and overly harsh discipline policies. A student who just accidentally does the wrong thing, misbehaves in the exact way we expect of young students, or even tries to do the "right" thing can be thrown out of school with no recourse. Take Benjamin Ratner, for instance. As I detail in my forthcoming book Ending Zero Tolerance,
in the outer suburbs of our nation’s capital, an average thirteen-year-old boy named Benjamin Ratner received a note from one of his friends. In the note, Benjamin’s friend told him that she had felt suicidal over the weekend and had contemplated slitting her wrists with a knife. Apparently, the feelings persisted. She told Benjamin she brought a knife to school that morning in her bookbinder.
Benjamin took the note seriously. He knew his friend had previously attempted suicide and had even been hospitalized to deal with ongoing issues. Benjamin was worried she would use the knife to hurt herself that morning. Benjamin was smart enough to know that a real solution for her long term well-being was beyond him. He planned to tell both her family and his own about the incident at the end of the school day and let them determine what to do in the coming days and hours. But in the short-term, he was not going to leave her safety—and in his mind possibly her life—to chance. So Benjamin asked his friend if he could take the bookbinder from her locker and put it in his own for safekeeping. She agreed.
Within a few hours, Roberta Griffith, the assistant principal, heard rumors that Benjamin’s friend “had brought a knife to school and . . . may have given it to [Benjamin].” Griffith alerted the dean of the school, Fanny Kellogg, who called Benjamin to the office to question him. Benjamin told her that he had the binder in his locker, although it is unclear that he had actually seen or touched the knife inside the binder. What was clear, however, was that Kellogg knew that Benjamin did not pose any real threat to himself or others. Kellogg sent Benjamin by himself to go get the binder and bring it back to the office. When Benjamin returned, Kellogg acknowledged that Benjamin “acted in what he saw as the girl’s best interest and that at no time did Ratner pose a threat to harm anyone with the knife.” But from then on, the school system’s thoughtfulness ended and its disciplinary process took over.
The school’s policy approach to weapons was zero tolerance. Regardless of the danger his friend faced, his desire to protect her, or any other circumstances, Benjamin’s possession of a knife was deemed a violation of school policy. The assistant principal responded to his admittedly good deed by suspending him for ten days. The principal of the school then escalated the situation and referred Benjamin to the superintendent for potential further punishment. Both the superintendent and two different school district hearing panels decided to increase his punishment. No one questioned Benjamin’s story, but they all insisted they must suspend him for the remainder of the semester—approximately three months. Benjamin would later ask the court system to reverse his punishment as irrational, but no court ever took his case seriously, claiming their hands were tied.
The U.S. Court of Appeals for the Fourth Circuit, however, saw nothing unreasonable about the Ratner's expulsion. It held it was well within the school's power and there was nothing it could do. The thrust of my forthcoming book is to unravel the irrationality of school policies like these and the courts' response to them.
Monday, June 13, 2016
Susan DeJarnatt, Kerrin C. Wolf, and Mary Kate Kalinich have posted their new paper, Charting School Discipline, on ssrn. It focuses on discipline in charter schools and their potentially distinct approaches. As recent civil rights complaints in New Orleans and due process litigation in California have shown, charter school discipline is of growing importance to the overall conversation regarding necessary reforms to school discipline. DeJarnatt and her colleagues offers this abstract:
Exclusionary school discipline can steer students away from educational opportunities and towards the juvenile and criminal justice systems. As many public school systems have turned to exclusionary school discipline practices over the past two decades, they have also increasingly adopted charter schools as alternatives to traditional public schools. This research is examines the student codes of conduct for the charter schools in the School District of Philadelphia to consider the role of their disciplinary practices and the potential effects on charter students.
We analyzed every disciplinary code provided to the Philadelphia School District by charter schools within Philadelphia during the 2014-2015 school year. Our goal was to examine the provisions relating to detention, suspension, and expulsion, along with other disciplinary responses, to determine what conduct can result in disciplinary consequences, what responses are available for various types of misbehavior, and whether the code language is clear or ambiguous or even accessible to students or potential students and their parents or caregivers. We conclude that too many of the codes are not well drafted, and too many follow models of punitive discipline that can be used to push out non-compliant or challenging students. Some codes grant almost complete discretion to school administrators to impose punitive discipline for any behavior the administrator deems problematic.
We hope that this work will spur future research on implementation of charter school discipline policies to illustrate how charter schools are using their codes. Further, we hope to see the charter sector develop model disciplinary codes that move away from a zero tolerance punitive model towards disciplinary systems based on restorative principles.
Thursday, May 26, 2016
According to the complaint in Morgan v. Lexington, R.M., a middle school student in Lexington, Massachusetts, was physically and mentally bullied at school. The first time he and his mother notified his principal, the principal said that R.M. had “delayed the investigation” and, as a result, would not be allowed to participate in an upcoming track meet. After that, the bullying and assaults continued. The bullying was apparently pretty serious and included being shoved into a locker, having his pants pulled down in front of other students, suffering punches in the head and stomach. When he notified the assistant principal, he was told to stay away from the harassing students. His mother then raised the issue, but before the school’s investigation ended, R.M. became too scared to return to school. After missing several days of school, the principal, per state law, asked the police to go to R.M.’s house on two separate occasions.
At the conclusion of the investigation, the assistant principal reported to R.M. and his mother that students had admitted to some of the harassment, but the principal purported indicated that none of the students involved would be disciplined. R.M. decided to enroll in a private school for the remainder of the school year. R.M., however, returned to the public school next year and the harassment continued. Due to the harassment and anxiety, R.M. missed 112 days of school.
The lawsuit against the district alleged that the defendants deprived R.M. of a “protected liberty interest in bodily integrity, specifically, the right to be free from the abuse and injuries” under the Fourteenth Amendment. The court rejected the claim, concluding that Morgan did not present enough facts to establish that the defendants’ actions and/or inaction caused R.M. to be bullied by the other students or increased the risk to him. Moreover, it added, the First Circuit has never accepted such theory in the context of bullying.
Likely recognizing this problem, plaintiff sought to amend the complaint to raise a Title IX claim, which, of course, does provide a cause of action sex and gender based harassment. The trial court, however, denied plaintiff’s motion to amend, reasoning that the complaint does not allege any sex- or gender-based animus by any of the students, and none can be inferred from the circumstances outlined in the complaint. Plaintiff argued that in some cases one could "use a substantial amount of arguably gender-neutral harassment to bolster a smaller amount of gender-based conduct," but the district court found that there was insufficient evidence to do so. Rather, the conduct at issue involved undifferentiated bullying. The Court of Appeals affirmed on all counts.
This case offers a sad reminder of the large gaps in the law regarding bullying. Gender, race, and disability based bullying are prohibited because they are deemed discrimination, but other bullying, even when serious, is outside the scope of civil rights protections because it does not involve discrimination.
Thursday, April 21, 2016
DOE Reaches Settlement With OK City Public Schools To Address Disproportionate Discipline of Black Students
From the Department of Education website:
The U.S. Department of Education announced a settlement agreement today with the Oklahoma City Public Schools to address disproportionate discipline of black students. An earlier investigation by the Office for Civil Rights found significant overrepresentation of black students, notably in the 2014-15 school year when black students accounted for 42 percent of in-school suspensions although they represent only 26 percent of the population. Previous years showed similar disparities. The agreement seeks to correct Oklahoma City's discipline practices to ensure that the district satisfies its civil rights obligations to its students going forward.
In response to an internal audit of its discipline policies, the district took corrective steps, including reviewing of its discipline code, policies, and practices. The district also created the Office of School Climate and Student Discipline and hired a director of school climate and student discipline and three student behavior specialists. The agreement, in part:
- Designates an employee to serve as the district's discipline supervisor.
- Prohibits exclusionary discipline to the maximum extent possible.
- Requires the district to retain experts to advise the district on research-based strategies to prevent discrimination.
- Implements revised policies and practices.
- Requires training for staff and administrators and programs for students and parents to explain the policies and behavioral expectations.
- Requires the district to provide teachers and administrators with the tools and training to support positive student behavior to prevent and address misconduct.
- Requires school staff to employ a range of corrective measures before referring a student to disciplinary authorities.
- Ensures a system of supports at each school to assess students who display behavior problems.
- Addresses school climate issues.
- Implements measures to engage students, staff and parents in the implementation of the revised policies, practices and procedures.
- Requires a comprehensive review of the School Resource Officer program to assess the program's effectiveness and alignment with ensuring misbehavior is addressed in a manner that minimizes exclusionary discipline to the maximum extent possible.
- Facilitates communication with the parent complainant should she choose to reenroll her children.
The settlement agreement is here.
Tuesday, April 12, 2016
When districts attempt to reduce suspensions and expulsions, the message many teachers hear is "no more suspensions." Whether that it is the unstated and implied policy in some districts is unclear. I heard from a reliable source that this was the unwritten but stated policy a few years ago in a major district that had come under investigation by the Office for Civil Rights (given my inability to confirm this, I will keep the district's name to myself). The more likely and prevalent explanation, however, is that school leaders and teachers are missing the all-important aspect of implementing new discipline policies. No doubt, severely reducing suspensions and expulsions is the goal of discipline reform, but that goal cannot be appropriately and responsibly achieved without changing teachers' and principals' orientation toward discipline. This, of course, does not happen overnight and does not happen simply by stating a new goal. It requires resources, training, practice, and a cultural shift. In the absence of those changes, teachers think they are simply being told to tolerate egregious behavior. And maybe they are. Take this story in the NY Post this week:
Under pressure from Obama educrats, public school districts are no longer suspending even violent students; but now, under pressure from Black Lives Matter, they are suspending teachers who complain about not suspending bad kids.
In St. Paul, Minn., a high school teacher was put on administrative leave last month after Black Lives Matter threatened to shut down the school because the teacher complained about lenient discipline policies that have led to a string of assaults on fellow teachers.
Last month, two students at Como Park Senior High School punched and body slammed a business teacher unconscious, opening a head wound that required staples. And earlier in the year, another student choked a science teacher into a partial coma that left him hospitalized for several days.
In both cases, the teachers were white and the students black.
Theo Olson, a teacher at the school complained on Facebook about new district policies that fail to punish kids for fighting and drug-dealing. Like dozens of cities across the country — including New York — St. Paul adopted the policies in compliance with new discipline guidelines issued by the Obama administration. The Education Department has threatened school districts with lawsuits and funding cuts wherever if finds racial “disparities” in suspensions and expulsions, arguing such disparities have created a “school-to-prison pipeline” for African-Americans children. The agency claims such disparities are the product of racism in schools.
The danger in these conversations is pitting students and teachers against one another. If it is the case that schools are not supporting and training teachers in the transition to new discipline systems, then teachers become victims, of a sort, as well. I have little doubt that under-supported discipline systems are the norm in many places where the education system is abysmal as a general matter. Take Philadelphia, for instance. The school district has been woefully underfunded by the state for years, is bleeding students to charter schools, suffers from a problematic reimbursement system by which it must send large amounts of money to charters, and was on the brink of collapse during the recession when the most basic of staff and resources were eliminated. More recently, the entire state's education system faced shut downs because the state could not/would not pass a budget. Under these circumstances, one wonders how much serious attention and how many resources are devoted to training school staff on discipline and providing positive behavioral supports for students and teachers. In the absence of these resources, it is no surprise that Philadelphia Teachers' Union was livid about the district's insistence that suspension and expulsion rates drop precipitously.
As the foregoing suggests, the missing link in districts' strategies and teachers' perception is school quality itself. Social science increasingly demonstrates that discipline rates are a function of school quality and vice versa. In other words, low quality educational opportunities lead to discipline problems, and discipline problems lead to low quality education. Thus, one cannot be fixed without the other. Equally important, discipline systems matter for more than just the "misbehaving student." They matter for "innocent bystanders." When schools fail to invest in pedagogically sound discipline practices, they harm all students, not just the so-called bad apples. And by harm, I mean reduced educational outcomes and achievement. In this respect, the solution to our discipline problems is the solution to our education quality challenges. I flesh out a full explanation of this social science and argument here.
Wednesday, March 30, 2016
Education Law Prof Blog co-editor Derek Black (South Carolina) has posted Reforming School Discipline (Northwestern University Law Review, forthcoming) on ssrn this week. (March 30, 2016). In his article, Professor Black proposes a novel legal framework to connect school discipline reform efforts to the affirmative education rights and duties found in state constitutions. Below is the abstract:
Public schools suspend millions of students each year, but only five percent of suspensions are for serious misbehavior. School leaders argue that these suspensions ensure an orderly educational environment for those students who remain. Social science demonstrates the opposite. The practice of regularly suspending students negatively affects misbehaving students as well as innocent bystanders. All things being equal, schools that manage student behavior through means other than suspension produce the highest achieving students. In this respect, the quality of education a school provides is closely connected to its discipline policies.
Drawing on the connection between discipline and educational quality, this article pits harsh discipline as the enemy of good schools and debunks the narrative of bad students as the enemy of good ones. It also argues that this evidence, combined with the affirmative education rights and duties found in state constitutions, can be used to demand that states substantively reform discipline.
First, because students have a constitutionally protected individual right to education, suspensions and expulsions should trigger heightened scrutiny. Heightened scrutiny would not bar suspensions, but it would force states to justify the efficacy of suspension. The practical result would be to prompt states to adopt pedagogical sound approaches to student misbehavior. Second, discipline practices that undermine educational quality violate states’ constitutional obligation to provide equal and adequate educational opportunities to all students. In these instances, state constitutions should obligate states to intervene with reform.
A link to the full article can be found here.
The extremely high rates of school discipline and referrals to the juvenile justice system by school officials, along with racial disparities in both, are well documented. The social science consensus is that harsh discipline and a heavy police presence in school are counterproductive. Schools would be far better served to adopt positive behavioral supports and restorative justice models, both of which would include more dispute resolution and counseling. That is what makes new data gathered by The74 so disturbing.
The news outlet gathered data on the nations largest school districts and found that four out of ten were had more security staff than counselors. In fact, New York City and Chicago had about twice as much security staff as counselors. Miami Dade had nearly three times as much security staff. Get the full story and data here.
Thursday, March 17, 2016
UCLA Civil Rights Project: Charter Schools, Civil Rights and School Discipline: A Comprehensive Review
Amid suspicions that some charter schools' policies serve to cull students for minor discipline problems comes a report this week that charter schools still are suspending black students at significantly higher rates than white students and suspending students with disabilities at two to three times the rate of nondisabled students. The study, Charter Schools, Civil Rights and School Discipline: A Comprehensive Review, was released by UCLA's Civil Rights Project and interprets federal data from 5,250 charter schools on out-of-school suspension rates. Among the findings:
- In the 2011-12 school year, 374 charter schools suspended 25% of their enrolled student body at least once.
- Nearly half of all Black secondary charter school students attended one of the 270 charter schools that was hyper-segregated (80% Black) and where the aggregate Black suspension rate was 25%.
- More than 500 charter schools suspended Black charter students at a rate that was at least 10 percentage points higher than the rate for White charter students.
- 1,093 charter schools suspended students with disabilities at a rate that was 10 or more percentage points higher than for students without disabilities.
- 235 charter schools suspended more than 50% of their enrolled students with disabilities.
The report also notes that "lower-suspending charter schools are more numerous than high-suspending charters," suggesting that those school may be using "effective non-punitive approaches to school discipline [that] could help close the pipeline." Daniel J. Losen, the director of the Center for Civil Rights Remedies, told the New York Times that "the report should not be used to generalize about all charter school discipline, because there were also schools that did not suspend students at high rates." The full report, written by Daniel J. Losen, Michael A. Keith II, Cheri L. Hodson, and Tia E. Martinez, is accessible here.
Tuesday, March 15, 2016
Former Principal Calls on Educators to Acknowledge the Role That Their Mindset Plays in Feeding the School-to-Prison-Pipeline
Last month, in a speech at Teach for America's 25th Anniversary event, Nancy Hanks gave a heartfelt speech goes to a central problems with school discipline policy and discretion. Hanks, now a top administrator, in the Madison, Wisconsin, schools recalled her experience as a principal in Chicago schools. She tells the story of recently bumping into a young man on an elevator whom she had expelled a few years earlier and the awakening to the possibility that she had ruined his life:
I remembered the incident quite clearly: He brought a BB gun — a very realistic-looking BB gun — to school and I was livid at the time. I wasn’t angry at him because I thought he wanted to hurt anyone, because I didn’t truly believe that he did.
I was angry because I had busted my behind for almost two years at that point to turn that school around, and establish community, and to repair the climate and to make kids feel safe. His bringing that BB gun wasn’t just a threat to safety but a threat to me and the reputation I was building for myself and for the school. And nobody was going to compromise that.
At the time I couldn’t separate the child from the act. I couldn’t find that powerful and potent “just mercy” that Bryan Stevenson so passionately and poignantly describes in his book. So I went to my code of conduct, which at the time treated toy guns, BB guns and real firearms the same — and I referred him for expulsion.
She used that story to say that the blame for the school-to-prison-pipeline lies with educators as individuals who, innocently or not, contribute to it through a problematic mentality toward school discipline. The fault cannot simply be externalized.
If you’re a dean, principal or assistant principal, it’s in the powerful decision points that you hold as to whether or not you are going to suspend or expel students, sometimes as young as 4 or 5 years, because they’ve somehow “disrupted the learning environment” or “defied school authority” or violated one of many often subjective infractions in our codes of conduct. It’s also in the incidents when you deliberately misuse school resource officers — inappropriately involving them in incidents that don’t need officer involvement and that often escalate in a matter of seconds, blurring the line of what is criminal behavior and simply a matter of school discipline. That’s your contribution.
Her speech also feeds very well into the arguments I make here that many discipline policies cannot withstand the basic test of rationality.
Wednesday, February 24, 2016
New Study Finds That When Parents Are Incarcerated, Their Children's Risk of School Exclusion Increases
As part of the Fragile Families project at Princeton and Columbia, Wade Jacobsen has released a new paper, Punished for their Fathers? School Discipline Among the Children of the Prison Boom. He writes:“Prior research finds school discipline associated with later incarceration and other criminal justice involvement but conceptualizes the relationship as a one-way 'school-to-prison pipeline.' This paper suggests that among families, the reverse relationship also occurs—incarceration has a causal effect on school discipline.”
His three main findings include:
- First, results provide strong evidence that children with a recently incarcerated father are at greater risk of being removed from school.
- Second, only 21% of the increase in school exclusions is explained by “variation in student behavior problems,” and that reduced parent involvement is not a cause at all.
- Third, there does not seem to be a racial gap in the effects of paternal incarceration. Of course, the race gaps in incarceration will create a pretty big disparity on their own.
Get the full paper here. Thanks to Josh Gupta-Kagan for the tip on this new study and highlighting its importance.
Wednesday, February 17, 2016
The ABA formed a School-to-Prison Pipeline Task Force two years ago and has hosted a series of town hall meetings across the country over the past year. Now the Task Force has released a report, co-authored by Sarah Redfield and Jason Nance. The report is copious in its description of the problem and its causes, as well as recommendations for reform. The Executive Summary offer this description of its findings:
The school-to-prison pipeline—the metaphor encompassing the various issues in our education system that result in students leaving school and becoming involved in the criminal justice system—is one of our nation’s most formidable challenges. It arises from low expectations and engagement, poor or lacking school relationships, low academic achievement, incorrect referral or categorization in special education, and overly harsh discipline including suspension, expulsion, referral to law enforcement, arrest, and treatment in the juvenile justice system. . . . While many have known about the problems associated with the school-to-prison pipeline for years, recent data from the U.S. Department of Education’s Civil Rights Data Collection now elucidate their magnitude and that magnitude is unacceptably large and out of proportion to the population of our young people. This disproportionality manifests itself all along the educational pipeline from preschool to juvenile justice and even to adult prison for students of color, for students with disabilities, for LGBTQ students, and for other groups in particular settings. These students are poorly served at every juncture. Students of color are disproportionately
- lower achievers and unable to read at basic or above
- damaged by lower expectations and lack of engagement
- retained in grade or excluded because of high stakes testing
- subject to more frequent and harsher punishment
- placed in alternative disciplinary schools or settings
- referred to law enforcement or subject to school-related arrest
- pushed or dropping out of school
- failing to graduate from high school
- feel threatened at school and suffer consequences as victims 11 For students with disabilities, disproportionality manifests itself in similar ways, and race and ethnicity, gender, and disability compound.
Thursday, February 11, 2016
Report: Thousands of Wisconsin Students Continue to Be Placed In Seclusion Or Restraints Despite 2012 Ban on Such Practices
Disability 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.
Wednesday, February 10, 2016
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.
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.
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.
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
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.
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.
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.
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.
Monday, November 23, 2015
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.
Tuesday, November 17, 2015
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:
Friday, November 13, 2015
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.
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.