Thursday, August 18, 2016
Birmingham's Continued Defense for Pepper Spraying Students Shows Why Courts Are the Last Vestige of Hope for So Many Students
Last year, in a challenge to the use of pepper spray on students, the federal district court in J.W. v. Birmingham Bd. of Educ., 143 F. Supp. 3d 1118 (N.D. Ala. 2015), wrote:
The court was profoundly disturbed by some of the testimony it heard at trial. The defendant S.R.O.s uniformly displayed a cavalier attitude toward the use of Freeze +P—in a display of both poor taste and judgment, one defendant joked that Freeze +P is a potent nasal decongestant for individuals with sinus problems. Equally disturbing, the trial revealed that the defendant S.R.O.s believe that deploying Freeze +P is the standard response even for the non-threatening infraction that is universal to all teenagers—i.e. backtalking and challenging authority. Frankly, the defendant S.R.O.s' own testimony left the court with the impression that they simply do not believe spraying a student with Freeze +P is a big deal, in spite of their own expert's testimony that Freeze +P inflicts “severe pain.” The court also heard testimony that indicated several of the officers spraystudents with Freeze +P because it is easier than more hands-on approaches, even though those approaches cause students less pain than Freeze +P. Ultimately, the court believes that it was unnecessary for the defendant S.R.O.s to spray most if not all of the plaintiffs. Unfortunately for some of the plaintiffs, behavior that is unnecessary and disturbing is not automatically unconstitutional.
The court ruled in favor of the students and issued an injunction to prevent future abuses. Quite honestly, I thought the case was over at that point. The story, however, is back in the news. The defendants appealed the case to the 11th Circuit Court of Appeals and yesterday defended their position in oral argument. I have yet to get the transcripts of oral argument, but the brief argued that the district court seeks to control “(1) [school resource officer] duties; (2) SROs’ use of Spray; (3) SRO training; (4) and SROs’ decontamination of students that have been sprayed,” even though it is “the power of the City of Birmingham’s elected government to control the BPD” through the police chief."
In my new book Ending Zero Tolerance, I spend the first half of the book laying bare the irrationality and ineffectiveness of harsh discipline and policing in schools. I acknowledge the importance of new state and federal policies designed to limit certain egregious problems, but critique many of them as too slow coming and too narrow in scope to fix an endemic problem. In the end, I emphasize that constitution stands as the only constant final red line against abuses and irrationality in school discipline, particularly for the most marginalized students. While advocates must continue to press for policy reform, courts must play an important role as well. If there were any doubt in courts' role, it ought be vanquished by the fact that Birmingham for years had been spraying its students with pepper spray for minor misbehavior in the first instance and, second, that Birmingham is audacious enough to demand discretion to carry out similar actions in the future.
This story also confirms another major premise of the book: no matter how much progress we may make in certain cities and states, there will always be a number of hold-outs. In these hold-outs locations, students cannot turn to the political process. They can only hope that the institution designed to protect against the tyranny of the majority--courts--will step forward.
Thursday, August 11, 2016
Lawsuit Challenges South Carolina's Disturbing Schools Act, Can It Also Challenge How We Think About Schools Discipline?
Last year, the video footage of a high school female being jerked and flipped out of her desk, thrown to floor, drug across it, and then handcuffed captivated the nation. Its shock value carried it for nearly a week and was also enough to prompt some legislative hearings on the state's Disturbing Schools Act, which was the authority under which the officer purported to act. But alas, nothing came of it. The law remains in place. As is so often the case, these incidents are perceived as aberrational rather than a fundamental aspect of the discipline systems in our schools. Once the story passes, so does the impetus for change.
Yesterday, the ACLU revived the issue and the prospects of change, at least, on the issue of the Disturbing Schools Act. It filed a case in federal district court arguing that the criminal statute authorizing the arrest and punishment of individuals who disturb school violates due process. The Act is so broad that it, in effect, permits law enforcement to arrest students at their discretion for almost anything. With such broad power, students and teachers have no way of know exactly what does or does not violate the law. This, the ACLU argues, violates basic due process and liberty principles.
The story of one of the plaintiffs in the case, Niya Kenny, makes this point clearly. Niya was in the classroom last year when the officer drug the other student to the ground. Niya, understandably shocked by the incident, did what almost every other person under the age of thirty or so does in America when they see something like this: she pulled out her phone and videotaped it. For this, she too was arrested and charged under the Disturbing Schools Act. Regardless of whether school rules prohibit the possession of cellphones, their use during class time, or anything else, the idea that this type of activity could be construed as a crime is surely something I, a law professor, never would have considered. I could only imagine what Niya must have thought when the cuffs went on.
Maybe the most shocking aspect of this story, however, has been those who have defended the expansion of law enforcement inside schools and their use of violence on students over the past year. The response I have gotten is that I do not know how dangerous schools really are and, even if they are not, we should err on the side of caution. It is, after all, our children we are talking about. My position would purportedly leave our children defenseless against marauders and gun-carrying high schoolers.
Wednesday, August 10, 2016
On May 19, 2011, F.M., a thirteen-year-old seventh grade student at Cleveland Middle School of Albuquerque Public Schools, generated several fake burps during class, causing several students to laugh. The teacher ordered F.M. to stop, but F.M. ignored her. The teacher then asked F.M. to leave the classroom and sit in the hallway. F.M. complied, but once in the hallway, he continued to disturb the classroom by leaning into the entranceway of the classroom to burp and laugh. At that point, the teacher requested assistance with the student on a school-issued radio. A school resource officer (SRO) appeared in response to her request. Based on what the SRO observed and heard from the teacher, the SRO decided to arrest F.M. for violating N.M. Stat. Ann. § 30-20-13(D), which says that “[n]o person shall willfully interfere with the educational process of any public or private school by committing . . . any act which would disrupt, impair, interfere with or obstruct the lawful mission, processes, procedures or functions of a public or private school.” The SRO conducted a pat-down search on F.M. and found nothing, handcuffed him, put him in a patrol car, drove him to a juvenile detention center, and booked him. The SRO later admitted that F.M. did not pose a flight risk and was not combative, but was cooperative. After the juvenile detention center completed its risk assessment of F.M., it released him to the custody of his mother with no further actions. The school, however, imposed a one-day suspension. F.M. served his suspension and did not return for the remainder of the school year.
F.M.’s mother filed a suit against the SRO on behalf of her son claiming that his Fourth Amendment rights were violated when her son was arrested and handcuffed. She claimed that any reasonable officer should have known that burping was not a criminal offense and that the force used to facilitate the arrest was unnecessary. The United States Court of Appeals for the Tenth Circuit, however, upheld the lower court’s dismissal of the case, awarding the SRO qualified immunity. According to the court, the plaintiff had failed to establish that the SRO violated a constitutional right of F.M.’s that was clearly established at the time of the alleged unlawful activity. The Tenth Circuit based its ruling primarily on its determination that the SRO’s understanding that he had probable cause to arrest F.M. under section 30-20-13(D) was “objectively reasonable—even if mistaken.”
While one could disagree with the majority over whether the SRO violated F.M.’s “clearly established” constitutional right (as one circuit judge on the panel did), to me a larger question remains that the court could not address: why do allow law enforcement officers to become involved in student behavioral matters that do not endanger other members of the school community? This is not to say that we shouldn’t hold students accountable for misbehaving in the classroom. We should. But as I explain here, the consequences of involving a youth in the justice system are severe for both the youth involved and for our nation as a whole. In fact, even an arrest that does not ultimately result in an incarceration can have detrimental, life-altering effects on students. Several empirical studies confirm that just an arrest often leads to lower academic achievement, dropping out of school, and future involvement in the justice system. Furthermore, overly-punitive school environments generally do not lead to positive outcomes, even for those students at the school who do not misbehave. Empirical studies suggest that an overly-punitive school environment can alienate students, destabilize the learning climate, foster more disorder in the long run, and impede academic achievement for all students at the school.
As I explain elsewhere, schools do not have to (and should not) over-rely on SROs, harsh surveillance measures, and exclusionary tactics to maintain safe and orderly learning climates. Rather, there are other evidence-based measures that schools can implement to promote student discipline and safety without putting more students on a pathway from school to prison. But if schools do choose to rely on SROs, it is essential that they enter into memorandums of understandings (MOUs) to ensure that SROs do not involve themselves in routine discipline matters with students, like burping in a classroom.
Friday, July 8, 2016
The growing common refrain, urged on by no less than candidates for the presidency, has been to contrast our nation's investments in education versus incarceration. Civil rights advocates have, likewise, lamented the school-to-prison pipeline that is, no doubt, affected by these investments. Yesterday, the U.S. Department of Education released some cold hard facts substantiating these notions. Quite frankly, the numbers were shocking even to me.
Among the highlights were the following:
- From 1979–80 to 2012–13, public PK–12 expenditures increased by 107 percent (from $258 to $534 billion),4 while total state and local corrections expenditures increased by 324 percent (from $17 to $71 billion) ― triple the rate of increase in education spending.
- Over the same 33-year period, the percentage increase in state and local corrections expenditures varied considerably across the states, ranging from 149 percent in Massachusetts to 850 percent in Texas. PK–12 expenditure growth rates were considerably lower, but still varied widely across states, ranging from 18 percent in Michigan to 326 percent in Nevada.
- All states had lower expenditure growth rates for PK–12 education than for corrections, and in the majority of the states, the rate of increase for corrections was more than 100 percentage points higher than the rate for education.
- From 1989–90 to 2012–13, 46 states reduced higher education appropriations per full-time equivalent (FTE) student. On average, state and local higher education funding per FTE student fell by 28 percent, while per capita spending on corrections increased by 44 percent.
The study also drew on social science literature to suggest the effects of these funding trends:
Researchers have found connections between poor educational outcomes and incarceration. Among state prison inmates, available data suggests that two-thirds have not completed high school (BJS 2009). . . . Researchers have estimated that a 10 percent increase in high school graduation rates may result in 9 percent decline in criminal arrest rates (Lochner and Moretti 2004). A variety of studies have suggested that investing more in education, particularly targeted toward at-risk communities, could achieve crime reduction without the heavy social costs that high incarceration rates impose on individuals, families, and communities (Belfield et al. 2006; Reynolds et al. 2001; Heckman et al. 2010).
Investments in education can reduce criminal activity by altering student behavior and improving labor market outcomes (CEA 2016). Investments in early childhood education can lead to reduced incarceration later in life, in part through improving educational attainment (Currie 2001). . . .Evidence also shows that education provides a pathway to help justice-involved people restore full participation in their communities. For example, one study found that incarcerated individuals who participated in high-quality correctional education — including post-secondary correctional education — were 43 percent less likely to return to prison within three years than those who did not participate in correctional education programs (Davis et al. 2013). Furthermore, researchers estimate that for every dollar invested in correctional education programs, four to five dollars are saved on three-year recidivism costs (Davis et al. 2013).
This study also dovetails perfectly with yesterday's post about the NEA's policy position on school discipline. At its core, that policy statement makes two points: current discipline policy is devastating educational outcomes for millions of students each year, and reversing that course requires specific investments in education, most notably teacher training and development. If you buy that proposal, it is no surprise what the Department of Education's study suggested the money spent on incarceration ought to be put to:
Though many factors contribute to student success, research indicates that teacher effectiveness is perhaps the most important in-school factor related to students’ success in school (Rivkin et al. 2005). Further, research suggests that investing more in teacher salaries could result in an overall improvement in the quality of the teaching workforce and that higher salaries are associated with higher teacher retention (Dee and Wyckoff 2015; Kelly 2004; Guarino et al. 2006).
In other words, not only are we driving money toward incarceration, the money we drive is likely a key factor in why we have unresolved discipline challenges in schools. Those unresolved education issues fuel the school-to-prison pipeline, creating a vicious circle that we cannot seem to escape. This vicious circle lies at the core of the final chapters of my book, Ending Zero Tolerance, and my forthcoming article, Reforming School Discipline. In them, I argue that school quality conversations and school funding litigation must incorporate school discipline concerns. We cannot continue to discuss them as separate issues. Social science firmly demonstrates how closely connected discipline and school quality are. One cannot be improved without the other. Unfortunately, this new federal study suggests our funding patterns are making both worse. It is time to finally start connecting the dots.
Thursday, July 7, 2016
Nation's Largest Teacher Union Adopts Policy Statement on School Discipline and the School-to-Prison Pipeline, Rebalancing the Politics of Reform
Yesterday, the Nation's largest professional employee organization and largest teacher union, the National Education Association (NEA), adopted an official policy position on school discipline and the school-to-prison pipeline. The prefatory language of the policy appropriately recognizes the major issues:
The school-to-prison pipeline disproportionately places students of color, including those who identify as LGBTQ, have disabilities, and/or are English Language Learners, into the criminal justice system for minor school infractions and disciplinary matters, subjecting them to harsher punishments than their white peers for the same behaviors. The school-to-prison pipeline diminishes their educational opportunities and life trajectories. All educators—which includes every school employee—are key to ending the school-to-prison pipeline.
NEA’s Resolutions state NEA’s firm belief that schools must be safe and welcoming for all students, discriminatory toward none, and focused on educational practices that reach the whole child and disciplinary policies that emphasize prevention and rehabilitation over punishment (see, e.g., Resolutions B-6, B-14 (f – h, k) B-71, C-7, C-28, C-39). NEA’s Resolutions also reflect NEA’s belief “that all education employees must be provided professional development in behavior management, discipline, [and] conflict resolution,” (D-18) and that both education employees and parents need training “to help students deal with stress and anger.” (C-7). NEA also believes that equally important is deepening educator awareness about their actions and the impact on students. The purpose of this Policy Statement is not to modify existing NEA Resolutions, but to explain how NEA will act on its already stated beliefs to end the school-to-prison pipeline.
It then goes on to indicate that the "NEA and its members are committed to changing the policies and practices of the schools in which we work to end the school-to-prison pipeline." It says that work will focus on five major points: "Eliminating Disparities in Discipline Practices; Creating a Supportive and Nurturing School Climate; Professional Training and Development; Partnerships and Community Engagement; and Student and Family Engagement."
The NEA's official adoption of this policy is key for several reasons. First, teachers are regularly caught between the demands of ending harsh discipline and doing their job well. As I emphasize in Ending Zero Tolerance, it is not enough for districts to just adopt policies that limit harsh discipline. They must also support teachers with the training and alternative processes that make this possible at the classroom level. If schools simply prohibit harsh discipline and do nothing else, they may very well make matters worse, as untrained teachers may feel that their only option is to overlook misbehavior. The NEA policy statement acknowledges this and asks school districts to take the steps necessary to allow teachers to manage discipline appropriately.
Second, teachers who do not feel supported on these issues have pushed back against changes in central administration's changes to discipline policy. The most notable examples of this have been in Los Angeles, Minneapolis, and Philadelphia. In the Philadelphia, the local union formally came out against the district's new discipline policy. In Minneapolis, a teacher's story of the horrors he was forced to watch in the classroom went viral. The NEA's new policy now provides a huge counterweight to teachers' skepticism. It articulates a way forward that serves both the interests of teachers and students.
Third, this statement now aligns the federal government, grassroots communities, and the nation's largest teacher union against harsh discipline. This could leave those who would oppose reform as the so-called "odd-men-out." But as the NEA makes clear, ending harsh discipline in a way that improves education for all students and teachers will not happen by simply writing new rules or issuing statements. It requires states and districts to invest in better discipline systems and supports. In this respect, it places the ball in the court of legislative bodies, implicitly asking whether they will commit resources to reform.
Wednesday, June 22, 2016
Maryland Judge Ensures Poptart Bandits Suffer the Consequences, But Undermines Education in the Process
Three years ago, Maryland schools suffered a debilitating rash of pop-tart bandits. From elementary school through middle and possibly high school, public school students were chewing their pop-tarts into guns, talking about guns, and doing darn near anything they could to think about and fantasize about guns. Maryland schools thought they would set the bandits straight. They began suspending them. In the process, they also made national news. One of those elementary school boys eventually sued and last week the Maryland trial judge in the case also set the boy straight. According to the Washington Post,
Anne Arundel County Circuit Court Judge Ronald A. Silkworth ruled that the school system could reasonably consider that the boy’s actions in March 2013 were disruptive and that “a suspension was appropriately used as a corrective tool to address this disruption, based on the student’s past history of escalating behavioral issues,” according to his 11-page ruling. He upheld an earlier ruling that supported the two-day suspension from the Maryland State Board of Education.
Wait a minute. Pop-tart bandits. Elementary school students. The straw that broke the camel's back. Suspension. Expulsion. In my forthcoming book Ending Zero Tolerance, I use the story of suspending this student and others for pop-tarts as a prime example of how irrational discipline policy has gotten in so many jurisdictions. First, while this young boy may have been disruptive in the past, it is far from clear that gnawing a pop-tart into a gun amounts to disruptive behavior or, even if it does, that it warrants suspension.
Second, even if the behavior was disruptive, suspending the boy is not likely to improve his behavior. To the contrary, suspending this young boy, or any other for minor misbehavior, just makes it more likely that he will be suspended again. He suffers a psychic break with school that undermines his incentive for good behavior. And once the school labels him through suspension, it will have no hesitation to suspend him again. Forty percent of suspension each year are actually second, third, and fourth suspensions.
Third, getting rid of one pop-tart bandits does not scare others straight. Instead, it makes other pop-tart bandits more likely and degrades the overall learning environment for everyone, even the innocent bystanders. Studies show that when discipline is overly harsh or punitive, student respond negatively. They, in fact, become more likely to rebel. The pop-tart bandit saga proves this point well. It is no stretch to infer that Maryland schools suffered a rash of bandits because students learned of the first punishment, thought it crazy, and decided to push the boundaries themselves.
Finally, schools with overly harsh discipline undermine student learning rather than improving it. Studies show that well behaved students in these schools achieve at lower levels as a result. In other words, rather than protecting the students that schools say they want to help, they hurt them.
The solution is not for schools to do more of the same or courts to turn a blind eye. The solution is for schools to alter their approach to discipline and, when they will not, for courts to engage. More here.
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.