Friday, January 6, 2017
On Wednesday, January 11, 2017, the Lawyers’ Committee for Civil Rights Under Law’s Parental Readiness and Empowerment Program (PREP) in partnership with the Center for Safe Schools and the Center for Education Equity will host a free webinar for parents and advocates on school bullying in response to a surge of recent hate crimes and acts of discrimination in schools nationwide. During the webinar, participants will learn how to recognize and report school bullying as well as how to engage their community and what parents can do. The webinar will take place at 3 p.m. EST in English and at 6 p.m. EST in Spanish. Please RSVP here. For more details, please see the attached flyer below or visit the website at www.prepparents.org.
El miércoles, 11 de enero, El Programa de Preparación y Capacitación de Padres (PREP por sus siglas en inglés) de El Comité de Abogados Para Los Derechos Civiles Bajo la Ley en colaboración con el Centro para Escuelas Seguras y el Centro para Equidad Educativa ofrecerán un webinario gratuito para padres y defensores acerca del acoso escolar en respuesta a un aumento de recientes crimines de odio y actos de discriminación en las escuelas a nivel nacional. Durante el webinario, los participantes aprenderán cómo reconocer y reportar actos de acoso escolar y también cómo involucrar a su comunidad y lo que pueden hacer los padres. El webinario tendrá lugar a las 3 hora del este en inglés y a las 6 hora del este en español. Por favor inscríbanse aquí. Para más detalles, por favor vean el folleto adjunto o visiten nuestro sitio de web www.prepparents.org
Tuesday, December 6, 2016
Meditation Instead of Detention: Misbehavior As Learning Opportunity Rather Than a Punishment Trigger
Robert Coleman Elementary School's shift from detention to meditation has been creating a lot of buzz since the media covered the story early this fall. In late September, the school reported that it had yet to suspend a single student, attributing the fact to the increased mindfulness of students. James Gaines describes it this way:
Instead of punishing disruptive kids or sending them to the principal's office, the Baltimore school has something called the Mindful Moment Room instead. The room looks nothing like your standard windowless detention room. Instead, it's filled with lamps, decorations, and plush purple pillows. Misbehaving kids are encouraged to sit in the room and go through practices like breathing or meditation, helping them calm down and re-center. They are also asked to talk through what happened.
I have had a number of people approach me about the story with a glow in their eye and excitement in their voice. The results themselves are palpable, but I think the story also strikes a cord for different reasons: the approach is intuitive, humane, and strikes at the heart of the hopelessness that we so often feels in regard to the challenges our schools face. The notion that a low-cost and effective solution is at our fingertips is simply inspiring.
My interview with Patricia Raskin digs deeper into these issues, exploring why students misbehave, why programs like these work better than punishment, and proposes other policy approaches we should incorporate. At the heart of this conversation is the reality that students are still developing, still making honest mistakes as the navigate their changing environments, and still need the opportunity to learn from their mistakes. In short, discipline needs to be a learning opportunity first, not a basis for exclusion. Listen to the interview here. Also, read more about the meditation program here.
Monday, December 5, 2016
According to local reports and the parents, an eleven-year-old honor roll student in Pembroke Pines, Florida, was suspended for six days when she used a children's knife to cut a peach and share it with a classmates. According to the family, the knife was as dull as a butter knife and was part of a set that looked something like this:
The girl's mother said that the knife is safe even for babies: “This is a set of a spoon, fork, and knife [is] for toddlers— one-year-old[s]. It is made for children to learn how to eat properly. She's used it since she was baby.”
With the media attention and the parents pushing back, the school reduced the suspension to three days, but they maintain the initial suspension was valid and it will remain on her record.
Unfortunately, this story is like countless others I describe in Ending Zero Tolerance: The Crisis of Absolute School Discipline. It is yet another example of the intolerability of zero tolerance policies and school officials refusing to consider very basic facts. On their face, the facts reveal 1) no real weapon; 2) no intent to break a rule; 3) no threat or danger to anyone; and 4) everyday benign behavior by a preteen. Based on these facts, it is far from clear that there is any legitimate basis upon which to suspend the student. It would appear that the basis for suspension is nothing more than "those are the rules."
That justification should be absurd enough on its face, but let me make it a bit clearer. Suppose that a school adopted the following rule: "students are prohibited from bringing black ink pens to school." There might be a good reason for the rule, such as the machine that the school uses to grade exams cannot distinguish students' black ink from that of the printed language on handouts. When students use black ink, it throws the whole grading system off. Thus, I would allow that schools could even take away those black ink pens for the day or, to encourage students to remember to not bring them, impose some small penalty like writing "I will not bring black pens to school" a couple hundred times.
Suspension, however, is a far cry worse. It would be hard to justify, under any concept of due process, the suspension of a student from bringing a black ink pen to school. Yet, this equivalent to the position this Florida school is adopting in suspending the girl for her children's butter knife. For that matter, under this current school's rationale, it could expel the student for the children's knife. Its rationale would likewise support expulsion for the black ink pen. Of course, the school would disavow this logical conclusion, but it is, in fact, the logic conclusion.
In Ending Zero Tolerance, I demonstrate why the constitution cannot permit this type of punishment and, instead, demands a more nuanced consideration of student misbehavior when school exclusion is at stake.
This story also offers another nuance to school discipline that I emphasize in the book: the physic harm that this type of irrational discipline imposes on the student. The girl's mother indicates that that her daughter is struggling to make sense of this experience and is afraid of making another mistake in school. Studies show that placing students in situations of fear and anxiety is not the way to make them behavior better. In fact, irrational discipline will make some rebel and misbehave more. Equally important, other studies show that fear and anxiety tends to spread to the "innocent bystanders" who have done nothing wrong and, when it does, it depresses their academic achievement--the exact opposite of what a school should want to do.
Friday, December 2, 2016
School Suspends a Student Who Was the Victim of Violence, Highlighting the Fundamental Flaws in Today's School Discipline
Just before Thanksgiving, a student in Mobile, Alabama, was violently attacked and harassed at school. He was corned and pummeled by a group of students. The school immediately suspended him for being in a fight. After he was suspended, a video of the incident surfaced on social media, showing he was actually just a victim and appeared to be doing nothing other than trying to get away. The video went viral, garnering millions of downloads and even a responsive video of support for the boy from Roy Jones, Jr.
Once the facts of the incident came to light and the media storm took hold, the district reversed course. The superintendent placed the principal who suspended the student on leave and is investigating the incident. The superintendent and others also came out on the day the boy returned to school to welcome him back, show him support, and assure him and others that bullying in the school was going to be addressed.
Kudos to the district for not digging its feet in the sand and showing signs of change, although I am not sure how it could have done otherwise. Regardless, like countless other stories, this one confirms the troubling lessons I offer in Ending Zero Tolerance: The Crisis of Absolute School Discipline. First, facts matter and zero tolerance is irrational. Blanket rules that mandate or authorize suspension for any student involved in a fight are indefensible. The same is true of various drug, weapon, disrespect and disruption rules. Courts should say so and begin forcing schools to use judgment and look at circumstances. Schools' refrain that they must "draw lines in the sand" just won't cut it.
Second, as it currently stands, due process protections in school discipline are not protections at all. For privacy reasons, we will probably never know exactly what steps the principal took prior to suspending this victim of violence in Mobile, but I find it hard to imagine that the principal asked many questions or paid much attention to the victim's story. In other words, the constitutional right to due process prior to suspension and expulsion is not worth much in our nation's schools any more. It has become a sham that allow schools to do whatever they want behind the window-dressing. I detail the data and events in my book that make this point clear.
Third, it was not the constitution that saved this boy, but a happenstance set of facts. So we should not delude ourselves into thinking the system worked here. I detail another story in the book, which is far more troubling from a procedural point. It involved a principal and the rest of the school administration effectively colluding against a young boy and it was only the happenstance revelation of that collusion that reversed the suspension, not any reliable constitutional protection that others who follow might rely on. In other words, as currently applied, our constitution hangs students out to dry.
Ending Zero Tolerance proposes a more nuanced approach to school discipline that accounts for individual circumstances, the natural development of children, and the quality of the educational environment itself. In short, it proposes that school discipline begin to make sense.
Wednesday, November 2, 2016
The Maryland court case of an elementary school student who was suspended for chewing a Pop-Tart into a gun shape was reportedly settled last week. See this blog's stories here and here. The school's assistant principal suspended the student, then seven years old, for shaping the Pop-Tart into what a teacher interpreted as a gun. He was suspended for two days. According to the Annapolis Patch last week, Anne Arundel County Public Schools have reportedly settled with the student's parents to remove the suspension from their son's record, even though a judge ruled this year that school officials were within their rights to suspend him. The story is here.
Tuesday, October 25, 2016
Blog editor Derek W. Black (South Carolina) discussed his book, Ending Zero Tolerance, last week on PBS's Tavis Smiley Show. In Ending Zero Tolerance, Professor Black argues for constitutional protections to check abuses in school discipline and proposes theories for courts to re-engage to enforce students’ rights and support broader reforms. In Ending Zero Tolerance, Professor Black uses stories about individual students, research, and case law to unearth the irrationality of some school systems' disciplinary policies -- and what courts can do to change that. Professor Black's video interview with Tavis Smiley is available here.
Thursday, October 20, 2016
The ACLU of California has released a new report titled The Right To Remain a Student: How California School Policies Fail to Protect and Serve. The report begins:
Over the past two decades, police officers in the United States have increasingly displaced school administrators as disciplinarians, responding to minor offenses and conduct violations that pose no direct threat to personal safety. This increase in student-police interactions has funneled thousands of students into the school-to-prison pipeline and created adverse legal consequences for school districts. The Right to Remain a Student: How California School Policies Fail to Protect and Serve details these consequences and describes the current state of school district policies in California that pertain to police on campus. Additionally, it shares model policies that both promote school safety and protect student rights. These model policies are designed to ensure that school staff will manage police encounters safely and equitably for all students—no matter their race, class, disability status, gender, or where they go to school.
- Many districts have conflicting, vague, or absent law enforcement policies that provide little to no meaningful guidance to school staff on when to call police to campus or how to interact with police.
- Most school districts give staff complete discretion to call police to address student misbehaviors that should be handled by school staff such as administrators or counselors, including: a. General school rule violations (62% of districts give staff discretion), b. Bullying and harassment (60.7% of districts give staff discretion), c. School disruption (57.4% of districts give staff discretion), and d. Vandalism (66.7% of districts give staff discretion or even require reporting to police).
- Very few schools (4% or less in each category) have policies limiting police contact for rule-breaking or minor offenses.
- California school districts provide inadequate guidance to school staff on what they should do when police officers question students on campus. a. Of school districts statewide, 70.9% allow police officers to interview students immediately upon demand, stating that staff “shall not hinder or delay” interrogations. b. Less than 1% provide that an adult (not a police officer) must be present to make sure the student’s civil rights are observed during police questioning. c. Only 1.3% of districts have a police ensuring that staff or police advise students of their constitutional right to remain silent.
- California school districts similarly do not protect students who are arrested or removed from campus by police. a. Of California school districts, 30% have no barriers to police removing a student from campus and 8% provide no guidance whatsoever about police officers removing students from campus. b. Only 18.3% of California school districts require a school administrator to ascertain the reason the officer must remove the student from school. c. Only 5.6% of school districts maintain any procedures governing the enforcement of arrest warrants on campus.
A key thesis of the report is the need to distinguish between every day misbehavior of students and other behavior that may actually justify police involvement. As I emphasize in the book Ending Zero Tolerance, many schools do not even distinguish between these types of behavior in their own suspension and expulsion policies, which has also caused a dramatic increase in school exclusion. In other words, it is hard to preach lessons to law enforcement when schools are not even following those lessons themselves.
Thursday, October 13, 2016
Study Finds That Harsh School Discipline Costs Nation $35 Billion, Showing Connection to Much Larger Education and Social Issues
Yesterday, the Civil Rights Project released a new report, The High Cost of Harsh Discipline and Its Disparate Impact. The study attempts to quantify the cost of harsh school discipline through the dropouts and social costs it produces. It looks closely at California and Florida to create a baseline of costs and then extrapolates them nationwide. The abstract explains:
School suspension rates have been rising since the early 1970s, especially for children of color. One body of research has demonstrated that suspension from school is harmful to students, as it increases the risk of retention and school dropout. Another has demonstrated that school dropouts impose huge social costs on their states and localities, due to lost wages and taxes, increased crime, higher welfare costs, and poorer health. Although it is estimated that reducing school suspension rates in Texas would save the state up to $1 billion in social costs, only one study to date has linked these two bodies of research. The current study addresses some of the limitations of that study by (1) estimating a stronger causal model of the effects suspension has on dropping out of school, (2) calculating a more comprehensive set of the social costs associated with dropping out, and (3) estimating the cost of school suspensions in Florida and California, and for the U.S. as a whole. The results show that suspensions in 10th grade alone produced more than 67,000 dropouts in the U.S. and generated social costs to the nation of more than $35 billion. These results are undoubtedly conservative, since the California and U.S. estimates were limited to 10th-grade students, while the Florida estimates were limited to 9th-grade students. Thus, they did not capture the effects of suspensions in earlier grades.
The study is reminiscent of (albeit distinct from) a 2013 report by law enforcement officials titled I'm the Guy You Pay Later. That report emphasized that a
10-year investment in preschool will produce over 2 million additional high school graduates. And if we can reduce the number of young people who commit felonies and the number who are incarcerated by 10 percent each – roughly half the reduction achieved by the Chicago Child-Parent Center program – we can reduce the number of individuals who are locked up by 200,000 each year. The resulting savings – $75 billion over the 10-year investment – could pay the federal costs of the preschool program.
Together, these two studies further the core thesis of my book, Ending Zero Tolerance, which is that school quality and discipline are inextricably intertwined. A primary solution to school quality failures is improving the school discipline system (which means taking approaches that are the opposite of zero tolerance) and a primary solution to school discipline is improving school quality and services. The back-end payoffs are enormous. Unfortunately, the dominant narratives treat these issues as separate and distinct.
Wednesday, October 12, 2016
Last year, advocates filed a lawsuit in Massachusetts that attempted to use the state education clause and school finance precedent to declare a cap on charter schools unconstitutional. The theory was that many current schools were so bad that they deprived students of a quality education. Since quality charter schools were down the road and could be expanded, the remedy was to grant students the access to more charter schools, which would require lifting the statutory cap on them. The theory, in many respects, resembled the strategy of the constitutional challenge to teacher tenure in California.
Last week, the trial court in Massachusetts dismissed the charter case. The court reasoned that the education clause does not create an individual right to education and, thus, does not create an individual right to demand access to other school opportunities and facilities. Rather, the education clause creates a duty on the part of the state to create a constitutionally adequate education system. Exactly how it does that is a matter of legislative policy and discretion, to which courts should defer. Plaintiffs' attempt to have the court insert their legislative preferences for those of the state is misguided.
I would generally agree with this basic rationale and certainly agree that plaintiffs' claims were a misguided use of the education clause. Their claim was really policy advocacy masquerading and constitutional analysis. With that said, I would caution the need for a little more nuance in dismissing such cases.
First, as I outline here, the notion of an education duty with no corresponding education right is highly problematic. If the state has a duty, it should be to someone or some group. While the Massachusetts trial court is correct that this does not mean that each individual student can demand individualized education, the constitution should require that the state create policies that ensure that the educational needs of individual students and students as a whole are met. If a policy is consistently denying students education, they should be able to challenge it and receive some sort of remedy. The duty-right distinction in other cases has been used as subterfuge to release the state from doing anything. Since there is no right, court can reason there is no basis for compelling the state to undertake its duty. The idea that this court might be adding support for that argument is worrying.
Second, the problem is particularly acute in school discipline and school finance cases. In discipline cases, some courts have used the duty-right distinction to flatly reject plaintiffs attempts to rely on their state's education clause to challenge suspension and expulsion. As a result, states can operate discipline systems that I argue here and here are entirely inconsistent with their duty to deliver equal and adequate education opportunities. In addition, in the traditional school finance case, there are numerous examples of states simply refusing to implement the remedies that courts have ordered. South Carolina, Kansas, and Washington immediately come to mind as examples in the past year. James Ryan and I have separately argued that when the state refuses to carry out its duty to implement a remedy to constitutional violations, it is within courts' power and responsibility to grant students immediate relief. This might be in the form of the right to exit their current public school and enroll in another public school. In other words, it should be beyond the state's discretion to force a student to remain in a school that the state refuses to bring up to constitutional standards. To be clear, however, this is not to say that caps on charters or student assignment statutes are unconstitutional or that students or their attorneys have the right to dictate where they should go to school. The point is simply that if the conditions in a particular school are unconstitutional, the state owes the students a remedy. If states, after the opportunity to do so, refuse to implement a remedy, courts can and should exercise injunctive relief on behalf of students.
For those less interested in doctrinal nuances, the trial court holding got it right: the cap on charter schools does not present a constitutional problem. Nonetheless, the initial lawsuit was enough to help get the issue of eliminating the cap on the ballot this November. So voters will get the final say. Recent polls indicate voters are against lifting the cap.
Friday, September 23, 2016
The issue of discipline reform is beginning to gain traction in Connecticut and WNPR in Connecticut put together a nice hour-long show on school discipline. My opinion is slightly biased since I was able to participate, but I was joined by a lot of great people who add real depth to the issues. The guests include:
- Derek W. Black - Professor of Law at the University of South Carolina School of Law and author of Ending Zero Tolerance: The Crisis of Absolute School Discipline.
- Mickey Kramer - Associate Child Advocate for the State of Connecticut
- George Sugai - Professor of Special Education at the University of Connecticut Neag School of Education, Director of the Center for Behavioral Education & Research, Co- Director of the Center of Positive Behavioral Interventions & Supports
- Catherine Foley Geib - Assistant Director of Juvenile and Family Services at the Connecticut Judicial Branch
Download or listen to the show here.
Tuesday, September 13, 2016
ACLU Files Suit against School That Handcuffed a Seven-Year-Old, Hearing Impaired Boy Who Cried Instead of Responding
The Missouri Branch of the American Civil Liberties Union has filed a lawsuit against Kansas City Public Schools in regard to the arrest of a Kalyb Primm Wiley. At the time, Kalyb was 7 years old, about 50 pounds and 4 feet tall. According to the complaint,
He had committed no crime, had threatened no one, and posed no imminent danger to anyone that necessitated Defendant Craddock to restrain plaintiff in handcuffs.
. . . .
Blog editor Derek W. Black's new book, Ending Zero Tolerance, The Crisis of Absolute School Discipline, is now available on Amazon and New York University Press. In the new book, Black challenges the judiciary to check schools' overreliance on severe disciplinary measures. From the book's summary:
In the era of zero tolerance, we are flooded with stories about schools issuing draconian punishments for relatively innocent behavior. One student was suspended for chewing a Pop-Tart into the shape of a gun. Another was expelled for cursing on social media from home. Suspension and expulsion rates have doubled over the past three decades as zero tolerance policies have become the normal response to a host of minor infractions that extend well beyond just drugs and weapons. Students from all demographic groups have suffered, but minority and special needs students have suffered the most. On average, middle and high schools suspend one out of four African American students at least once a year.
The effects of these policies are devastating. Just one suspension in the ninth grade doubles the likelihood that a student will drop out. Fifty percent of students who drop out are subsequently unemployed. Eighty percent of prisoners are high school drop outs. The risks associated with suspension and expulsion are so high that, as a practical matter, they amount to educational death penalties, not behavioral correction tools. Most important, punitive discipline policies undermine the quality of education that innocent bystanders receive as well—the exact opposite of what schools intend.
Ending Zero Tolerance answers the calls of grassroots communities pressing for integration and increased education funding with a complete rethinking of school discipline. Derek Black, a former attorney with the Lawyers’ Committee for Civil Rights Under Law, weaves stories about individual students, lessons from social science, and the outcomes of courts cases to unearth a shockingly irrational system of punishment. While schools and legislatures have proven unable and unwilling to amend their failing policies, Ending Zero Tolerance argues for constitutional protections to check abuses in school discipline and lays out theories by which courts should re-engage to enforce students’ rights and support broader reforms.
Friday, September 9, 2016
In keeping with Derek's post yesterday on the ED's guidance to reduce violent interactions between students and school resource officers, the New York Times' annual education issue has an article by Susan Dominus, An Effective but Exhausting Alternative to High-School Suspensions, focusing on a school that is trying to implement a restorative-practices model of school discipline. The article describes the efforts in Leadership and Public Service High School in Manhattan’s Financial District to reduce its student suspensions (230 in 2013 and in 140 in 2014). Leadership's principal and dean recruited staff who were trained in restorative justice practices and coached teachers on how to use non-punitive language with students, among other efforts. The article is online here.
Thursday, September 8, 2016
U.S. Department of Education Takes Step to Limit Violent Interactions between Resource Officers and Students
As discussed here and here, this past year has brought too many stores of school resource officers (SRO) acting with excessive levels of force against students. This morning, the U.S. Department of Education has taken an official step in the attempt to quell these incidents. The Department released set of guidelines for how schools should hire and use school resource officers. The Department is calling it a rubic that
includes five common-sense action steps that can help ensure that SROs are incorporated responsibly into school learning environments. These action steps are:
1. Create sustainable partnerships and formalize [Memoranda of Understandings (MOUs)] among school districts, local law enforcement agencies, juvenile justice entities, and civil rights and community stakeholders.
2. Ensure that MOUs meet constitutional and statutory civil rights requirements.
3. Recruit and hire effective SROs and school personnel.
4. Keep your SROs and school personnel well trained.
5. Continually evaluate SROs and school personnel, and recognize good performance.
Get the full guidance document and its detailed explanations here.
Friday, September 2, 2016
School Resource Officers Who Were Fired for Using Excessive Force on Student Are Now Suing District in Response, Claiming Discrimination
A lawsuit between school resource officers and the Shelby County School District in Memphis is going to trial. The resource officers had a physical altercation with and arrest of an African American student, after which they were terminated. The officers, who are white, allege that the firing was race-based. The district claims the officers used excessive force. The officers claim that the student initially acted "in a belligerent manner using vile language" and they then restrained her. The school then suspended her, after which the officers allege she became "became violent."
A school video, however, would seem to suggest nothing of the sort. It appears the student was standing in place, eating something, or, at least, keeping her body to herself in a calm manner. An officer then reaches out toward her hand and face to take her hand or the food. She then moves her body and hand away from him and everything goes downhill. The officer appears to strike her in the face and another eventually takes her to the ground. The full video can be found here. The officers claim that the principal saw this altercation and immediately responded that he would have them fired because he was tired of "white officers beating up on my black babies."
Further complicating the case is the additional layer of school consolidation that had recently occurred in the district. Memphis City Schools had merged with Shelby County, two demographic different school districts. As Daniel Kiel has explained (here and here), the racial politics of the merger ran deep. The extent to which this colors the issues in the case is unclear, but it will certainly draw attention to the case.
On the other hand, school merger politics and the race of the officers have little to do with the question of whether the officers acted reasonably or should have had action taken against them. This case reminds me a lot of the one that occurred in South Carolina last fall and captivated the nation. A resource officer at Spring Valley High School in Columbia, South Carolina, pulled a female student from her desk by her neck, threw her to the floor, and then dragged her across the floor to another part of the room. The incident was caught on video and went viral. Both the Columbia and Memphis case reveal two disturbing things: 1) officers being called on to deal with basic discipline in the school and 2) officers using significant levels of force on students whom themselves appear to pose absolutely no danger.
In my forthcoming book Ending Zero Tolerance, I explain how incidents like these harm not only the punished or arrested students, but all of those around them. The upside of having officers in place to undertake these actions is simply to small to outweigh the burden.
Monday, August 29, 2016
Jason Nance's forthcoming article, Student Surveillance, Racial Inequalities, and Implicit Racial Bias, Emory Law Journal, is available here on ssrn. His abstract offers this summary:
In the wake of high-profile incidents of school violence, school officials have increased their reliance on a host of surveillance measures to maintain order and control in their schools. Paradoxically, such practices can foster hostile environments that may lead to even more disorder and dysfunction. These practices may also contribute to the so-called “school-to-prison pipeline” by pushing more students out of school and into the juvenile justice system. However, not all students experience the same level of surveillance. This Article presents data on school surveillance practices, including an original empirical analysis of restricted data recently released by the U.S. Department of Education after the shootings at Sandy Hook Elementary School. Paralleling other disturbing trends of inequality in our public school system, these results and other empirical analyses reveal that schools serving primarily students of color are more likely to rely on more intense surveillance measures than other schools. Further, the empirical evidence suggests that these racial disparities may not be justified by legitimate safety concerns. This Article then turns to a discussion of the role that implicit racial bias may have in school officials’ decisions to rely on intense surveillance methods. Finally, it proposes legislation and strategies that federal lawmakers, state lawmakers, and school officials should adopt to counteract the effect of implicit racial bias on school officials’ decisions to implement strict security measures (and other decisions school officials make). Implementing these recommendations will help create better learning environments that benefit students of all races.
Wednesday, August 24, 2016
New Corporal Punishment Data Should Remind Us That Zero Tolerance Suspensions and Expulsions Will Not Simply Fade Away
Yesterday, Ed Week reported that 109,000 students were paddled in school in the most recent year's data. These instances of corporal punishment occurred in 21 states and 4,000 schools. "Texas, Alabama, Mississippi, Arkansas, Georgia, Tennessee, and Oklahoma physically disciplined the most students." Poor students, moreover, appeared to be those most at risk. African-Americans were also at heightened risk. While only African Americans were only "22% of overall enrollment in schools using corporal punishment," 38% of students paddled were African American.
In my forthcoming book Ending Zero Tolerance, I make the argument that historical trends in corporal punishment offer an overall warning sign for our most vulnerable student populations: zero tolerance and excessive suspensions and expulsions will not go away simply because the general public turns against them. There will always be holdouts, and those hold outs occur in the very places where help has always been needed the most. And right now, suspension and expulsion has a lot further to go. Our public schools continue to suspend and expell more than three million students a year.
In the book, I explain that in 1997 in Ingraham v. Wright the Supreme Court
held that schools were free to corporally punish students and that schools need not even afford students with any due process prior to paddling them. The Court reached this conclusion notwithstanding the unsettling facts of the case. Speaking of the lead plaintiff, the Court wrote: “Because he was slow to respond to his teacher’s instructions, Ingraham was subjected to more than 20 licks with a paddle while being held over a table in the principal’s office. The paddling was so severe that he suffered a hematoma requiring medical attention and keeping him out of school for several days.” Ingraham’s classmate was regularly paddled for “minor infractions. On two occasions he was struck on his arms, once depriving him of the full use of his arm for a week.”
The Court offered up the possibility that students could sue the teacher or school under state tort law as the reason why it need not intervene. A close examination of the case, however, reveals that the Court simply thought it unwise for courts to become further involved with discipline. Better to let schools and society work it out. In one respect, the Court’s faith in schools and society was not misplaced. In the ensuing years, much of society and the education system came to see corporal punishment as barbaric, rephrasing it as “beating” rather than paddling. With this changed perspective, the number of districts and states that authorized corporal punishment sharply declined. By 2014, over half the states prohibited corporal punishment in schools. In those states that still permit corporal punishment, many school districts or schools prohibit the practice of their own accord. But in another respect, the Court’s faith in society and schools was sadly misplaced.
The reality for actual students in many communities remains relatively unchanged since 1977. Twenty-one states still permit corporal punishment, notwithstanding the social science and national consensus against it. The practice holds on the strongest in those places where it has always been the most troubling. Today, every state in the southeast permits corporal punishment and many schools there frequently impose it. Alabama, Mississippi, and Texas all paddled more than 30,000 students in the 2006–2007 schoolyear. In Mississippi, 7.5 percent of the student population was paddled each year.
The lesson for school suspensions is simple. Even if a national consensus turns against zero tolerance and harsh discipline, the shift will have little effect on the lives of students in many communities. Only judicially enforced rights can bring justice and fairness to these communities. Even if policy could eventually resolve the problem, courts should not ask students to wait on states and schools to respect their rights. Constitutional rights exist to protect citizens against the whims of local, state, and federal majorities. Each unjustifiably imposed suspension or expulsion is a deprivation of a right that demands a response. Each suspension or expulsion represents a potential educational death sentence and second-class citizenship.
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.