Tuesday, August 26, 2014
Nashville Schools Ordered to Cease Searches and Examinations by Nurses Until Proper Training and Policy in Place
A school nurse in the Davidson County public schools in Nashville, Tennessee, subjected a female student to a medically unjustified genital examination in the presence of a school official. The girl's parents challenged the examination as a violation of her rights under the Fourth and Fourteenth Amendments. The case went to trial and the jury found for the defendants. The parents moved for a new trial, which the court in Hearring v. Metro. Gov't of Nashville & Davidson Cnty., 2014 WL 3924520 (M.D. Tenn. Aug. 11, 2014), denied. The court, however, did grant the plaintiff an injunction as to future examinations by the district. The court found that the staff were insufficiently trained and the district had adopted insufficient standards to prevent unwarranted invasions of privacy.
Thursday, July 31, 2014
To read several of my recent posts, one might get the impression that overly harsh discipline is on the way out. While it is true the Departments of Justice and Education have made important statements and a substantial number of large districts are promising to reform their discipline policies, the prevailing reality is still one of extremely high rates of harsh discipline in most places. As demonstrative evidence, I offer the following from the Columbia Journalism School's investigative paper, New York World:
In more than 40 New York City public schools, long-term suspensions of students for disciplinary infractions are the norm, not the exception.
Last week, the Obama administration announced an expansion of the My Brother's Keeper Initiative, which is aimed at improving educational and life opportunities for African American and Latino boys. Sixty of the nation's largest school districts, which educate about 40 percent of the nation's low income African American and Latino boys, agreed to join the President's initiative. They are committing to expand preschool education, expand positive interventions, increase the number of minority boys in advanced courses, reduce their suspension rates, and increase graduation rates.
More on the story here.
Monday, July 28, 2014
The American Bar Association is hosting a School to Prison Pipeline Town Hall meeting in Boston on Friday August 8, 20014 at Hynes Convention Center, 900 Boylston Street from 9 am - 11 am. A great lineup is scheduled to speaking, including Professor Sarah E. Redfield;Bob Fleischner, Center for Public Representation; Damon Hewitt, Open Society Foundation; Dan Losen, Civil Rights Project UCLA; Mike Ortiz, attorney Lowell Public Schools; Marlies Spanjaard, Public Counsel; and Gloria Tan.
Their program description states:
The “School-to-Prison Pipeline” has been a crucial concern of parents, educators,
lawyers, judges, ministers, civil rights leaders, and youth advocates for a number of
years. Recently, it has become a major concern of the public across the country due in
large part to the spiraling statistics and the negative impact on children of color. Some
youth advocates have defined the problem as a systematic way of siphoning children
out of public schools and funneling them into the juvenile and criminal justice system.
A number of civil rights lawyers regard the journey from “school- to-prison pipeline,”
as the most critical civil rights issue facing our country today.
Friday, July 25, 2014
African Americans accounted for 70 percent of suspensions and 76 percent of expulsions in the Nashville public schools, while being less than half of the school population. That means that one out of every five African American students was suspended or expelled last year. The numbers for African American males, while not noted in recent releases, are surely higher and, thus, shocking.
To the district's credit, it has realized that enough is enough. It is partnering with a service center for at-risk youth to identify a new discipline, mental health and community outreach model. It is also joining Chicago, Los Angeles and New York in the Positive & Safe Schools Advancing Greater Equity initiatives, through which they will support one another in developing solutions.
I suspect that the Department of Justice and the Office for Civil Rights' joint guidance on discipline disparities also played an important role in their thinking.
More on the story here.
Wednesday, July 16, 2014
The Toledo Public School District has added itself to the ranks of large school districts revisiting their approach to student discipline. The district has implemented a preventive approach. Its plan was to to be more proactive than reactive and have an open dialogue with students about what they did wrong and how they can behave better in the future. If the numbers reflect reality, it appears to be working. Under the new system, the number of suspensions at one school dropped from 260 to 41, and no students have been expelled.
Limiting the amount of time students spend outside the classroom was one of the main goals of the program, but the district also removed its detention and the demerit system. Now, students are
Tuesday, July 15, 2014
Supreme Decision Probably Makes Student Cell Phone Searches Off Limits in the Average Student Discipline Case by Jason Nance
The United States Supreme Court recently issued a watershed decision that limited the reach of police officers to conduct searches under the Fourth Amendment. In Riley v. California, the Court unanimously held, overturning a prior California Supreme Court decision, that police officers generally must obtain a search warrant before searching through digital information that may be accessed on the cell phone of someone who has been arrested. In issuing this ruling, the Court declined to extend a warrantless search exception that allows police officers to search the area within arrestees’ immediate area of control to ensure the officers’ safety and prevent the loss of evidence. This decision has been hailed as a monumental victory by privacy rights activists who are concerned with the government’s growing ability and inclination to search digital information. Although its full ramifications are unclear, it undoubtedly will affect how searches of digital information are evaluated in other contexts, including how courts will evaluate searches by school officials of information stored on students’ smartphones.
Friday, June 13, 2014
Putting Louisiana's Education Pieces Together?: Discipline, Vouchers, Data, and the State Dept. of Ed.
In the wake of the recent filing of civil rights complaints in regard to discipline in New Orleans charter schools, there is now a call for the state superintendent of education to resign. A local blogger, whose veracity I neither doubt nor affirm, suggests that are other problems of disfunctionality at the Department itself. His story alleges that there is a data crisis at the Department. In particular, he asserts the data is neither secure, nor accurate, and the Department, thus far, has been unable to clean it up. If true, his story adds important context to the school voucher fight between the Department (and Jindal) and the US DOJ's equal educational opportunity section. As readers may recall, that fight ultimately came down to access to basic information and data, with the state requesting extensions of time to turn over the data on more than one occassion.
Monday, May 5, 2014
Jason Nance's new article, School Surveillance and the Fourth Amendment, 2014 Wis. L. Rev. 79, is now available on westlaw. The abstract states:
In the aftermath of several highly publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their schools than other students, even after taking into account factors such as neighborhood crime, school crime, and school disorder. These empirical findings are problematic on two related fronts. First, research suggests that students subjected to these intense surveillance conditions are deprived of quality educational experiences that other students enjoy. Second, the use of these measures perpetuates social inequalities and exacerbates the school-to-prison pipeline.
Under the current legal doctrine, students have almost no legal recourse to address conditions creating prison-like environments in schools. This Article offers a reformulated legal framework under the Fourth Amendment that is rooted in the foundational Supreme Court cases evaluating students' rights under the First, Fourth, and Fourteenth Amendments. The historical justification courts invoke to abridge students' constitutional rights in schools, including their Fourth Amendment rights, is to promote the educational interests of the students. This justification no longer holds true when a school creates a prison-like environment that deteriorates the learning environment and harms students' educational interests. This Article maintains that in these circumstances, students' Fourth Amendment rights should not be abridged but strengthened.
Thursday, May 1, 2014
A new report, Kids Doing Time for What’s Not a Crime: The Over-Incarceration of Status Offenders, by the Texas Public Policy Foundation, a group focused on liberty, personal responsibility, and free enterprise, suggests that Texas may be slowly backing away from its punitive approach to juvenile behavior. The report focuses on the juvenile justice system and, thus, does not directly tell us of school discipline. But given that so many juvenile justice interactions have originated in the schools over the past decade, the data would suggest that either schools are referring students more infrequently or law enforcement is refusing to prosecute the
referrals. Either way, the data is good news for students. The layout of the graph is not entirely intituitive (or the title misleading), but the blue line represents the number of youth committed by offense in 2001. The red line shows the numbers for 2011. As you will notice, the rate of commitment in 2011 was nearly half of the rate from 2001. The chart after the jump shows a similar trend in regard to detentions.
Wednesday, April 30, 2014
According to a complaint filed by Anna Lellelid and Bill Quigley, Carver Collegiate charter school in New Orleans operates a demerit system, whereby students are cited for everything from not walking in a straight line to wearing too many bracelets and not smiling when shaking hands. Accumulating too many demerits leads to suspension. Under this system, the school suspends 68.85 percent of its students at least once a year.
Lellelid and Quigley allege the discipline system and environment is physically and emotionally abusive. “I’ve heard from students who say they feel so depressed to be treated this way, but they feel they can’t speak out because they will get in trouble,” said Anna Lellelid. The complaint also alleges that that the discipline system fails to follow the proper processes mandated by law, including the general notice and opportunity to respond process required by Goss v. Lopez and the more specific process required for students with disabilities under the IDEA. Two additional schools were named in the complaint.
This school seems to typify the type of irrational and unjustified discipline system that I argue violates substantive due process here. In short, I develop the argument that the constitutional precludes schools from excluding students for certain relatively innocuous or innocent behavior.
For the longer story on Carver Collegiate, see here.
Tuesday, April 29, 2014
When the Santa Ana Unified School District's Board met last week, it faced a hostile crowd. Families and students were reacting to recent events in which a police officer had placed a 14 year old boy in a headlock at school. The boy had just defaced school property and the officer was arresting him. The arrest was caught on tape and horrified many residents and students.
This aggressive show of force provided the platform for the community to raise concerns about the punitive nature of discipline in the district and the routine involvement of police in school discipline matters. Those present at the board meeting called for strict limits on the punishment imposed for "willful defiance," as well the circumstances in which police would become involved in addressing student misbehavior. The rationales offered by students themselves were impressive and read as though they come straight out of the social science literature:
- the school's discipline fosters "'huge amount of distrust' between youth and authorities"
- "students are “'losing their right to education'"
- “They undermine student achievement and graduate rates”
It is unfortunate that extreme events must occur before these concerns can take center stage, but it is encouraging, nonetheless, that they are taking center stage. Ironically enough, the district's "misbehavior" has given these students the opportunity to eptimoze democracy in action and the virtues of student free speech (for those who would doubt the virtue of student speech in school).
More on the story here.
Tuesday, April 15, 2014
Philadelphia has added itself to the short but growing list of major school districts that are trying to draw sharper lines between school officials and the police to reduce arrests in school. Last fall, I posted on a similar move in Broward County, Florida. According to a local Philadelphia paper:
Philadelphia School District has directed school police officers to stop responding to calls related to Level 1 student conduct offenses. The proscribed violations range from "failure to follow classroom rules" to "truancy" to "verbal altercations" to "inappropriate touching/public displays of affection."
"These infractions are not criminal offenses; they are classroom/student management issues," wrote District Chief Inspector Carl W. Holmes to school administrators and school police in a memo dated March 10.
The memo states that school police should "respond to all calls that are criminal in nature, or where persons involved are violent or threatening."
In the event that they are called to other incidents, officers should "request the presence of an administrator, counselor, or administrative designee," the memo explains.
Some teachers, including the Philadelphia Federation of Teachers, are not happy with the policy, indicating that there are not resources in the school to deal with discipline and it is not just a classroom management issue.
"It is easy...to say that someone else should deal with it. There is no 'someone else,'" said Amy Roat, . . . teacher at Feltonville School of Arts and Sciences.
"We don't have anyone in our building most of the time that is 'qualified' to deal with these issues," she said. "We all just have to jump in and deal with it."
While I sympathize with overworked teachers in overworked schools, school discipline is an educational issue, not a law enforcement issue. They may be correct that the schools currently are not fully equipped to deal with the problem, but that is due to the fact the state has been starving these schools of resources, not that the state has asked them to do the police force's job. See the full story here.
Tuesday, April 8, 2014
In A.V. ex rel. Valichka v. Pennsgorve/ Carneys Point Regional School Dist., 2014 WL 1272119 (D. N.J. 2014), a high school baseball student took an advil for back pain during practice. Another student then reported that A.V. was taking steroids to a school official. The official told A.V. he could not return to school until he took a drug test. A.V.'s parents then took him to his doctor, who screened him for drugs and determined he had not taken steroids. The school then permitted him to return, but suspended him for taking the advil.
A.V. sued the school for a violation of his Fourth Amendment rights. The school defended on the notion that it did not need reasonable suspicion to drug test A.V. given that Veronia v. Acton recognized schools' authority to randomly drug test all students. The district court rejected this argument, pointing out that the testing of A.V. was based on individualized suspicion and, thus, Veronia is inapposite. The court was nice in not pointing out that Veronia was explicit in distinguishing the individualized suspicion case from random drug testing. The Supreme Court in Veronia indicated that a school might very well prefer random testing because when it acts on individualized suspicion it runs more of a risk of subjecting itself to suit (and losing), as appears to be the case in A.V.
Although not raised by the complaint, this case could have also implicated my continuing concern about the limit of school authority to punish students. The advil that A.V. took was given to him by his father specifically for back pain at baseball practice. Of course, baseball practice is a school activity and presumably was on school grounds (or school liscenced grounds), which means the school does have general authority here. For that reason, I would not contest the schools authority to regulate this activity, but I do question whether, under these circumstances, it should be permitted to exclude a student from school.
Friday, April 4, 2014
On Tuesday, Derek posted about the recent 5th Circuit case Clayton ex rel. Hamilton v. Tate County School Dist., 2014 WL 1202515 (5th Cir. 2014), in which the Court found that a student subjected to corporal punishment did not have a substantive due process claim under the Constitution. Although in general the other Circuits that have heard students’ substantive due process claims have not distinguished between those claims that are based on corporal punishment and those that are not, the 5th Circuit is the outlier in this respect. To wit, in Jefferson v. Ysleta Indep. Sch. Dist., 817 F.2d 303 (5th Cir. 1987), the Court heard the claim of a second grade student who was tied to a chair for a day and a half at school for no apparent reason. The 5th Circuit found the claim could go forward because the alleged emotional and physical harm to the student was not the result of corporal punishment.
The Court decided the case on qualified immunity grounds. In doing so, it had to decide whether a state official has violated a clearly established right “known or knowable by a reasonable person.” Concluding the student’s substantive due process right was clearly established, the Court said “[w]e are persuaded that in January 1985, a competent teacher knew or should have known that to tie a second-grade student to a chair for an entire school day and for a substantial portion of a second day, as an educational exercise, with no suggested justification, such as punishment or discipline, was constitutionally impermissible. A young student who is not being properly punished or disciplined has a constitutional right not to be lashed to a chair through the school day and denied, among other things, the basic liberty of access to the bathroom when needed.” So, the 5th Circuit will recognize a student’s substantive due process claim based on abuse by school personnel, just like all the other Circuits to have taken up the issue. But unlike the rest, in the 5th Circuit the student’s harm can’t be the result of corporal punishment. For more on this and related issues see my forthcoming article Dark Sarcasm in the Classroom: The Failure of the Courts to Recognize Students’ Severe Emotional Harm as Unconstitutional, 62 Clev. St. L. Rev. – (2014).
Monday, March 31, 2014
This spring, a 9-year-old student shaved her hair in support of her best friend, who was undergoing chemotheraphy and had lost her hair. The student, Kamryn Renfro, was student at a public charter school in Grand Junction, Colorado. Kamryn's mother alerted the school in advance, but was told by the school that dress code prohibitted shaved heads and Kamryn could not return to school until her hair grew back. Under public outcry, the school buckled. Whether this case falls under a liberty deprivation or property is questionable, although I would tend to characterize it as both and as a constructive, if not actual, suspension. Regardless, it highlights the absurdity of school discipline and conduct rules, which schools insist they have a right to pass and enforce, and which courts hold that the constitution affords almost no recourse. Here's my paper on why actions of this sort are unconstitutional, even if not yet recognized as such.
Monday, March 24, 2014
For those who missed it Friday, the U.S. Department of Education's Office for Civil Rights released the results its civil rights data collection. OCR is calling it the most comprehensive look at civil rights in education in 15 years. "This data collection shines a clear, unbiased light on places that are delivering on the promise of an equal education for every child and places where the largest gaps remain. In all, it is clear that the United States has a great distance to go to meet our goal of providing opportunities for every student to succeed," U.S. Secretary of Education Arne Duncan said. "As the President's education budget reflects in every element—from preschool funds to Pell Grants to Title I to special education funds—this administration is committed to ensuring equity of opportunity for all."
"This critical report shows that racial disparities in school discipline policies are not only well-documented among older students, but actually begin during preschool," said Attorney General Eric Holder. "Every data point represents a life impacted and a future potentially diverted or derailed. This Administration is moving aggressively to disrupt the school-to-prison pipeline in order to ensure that all of our young people have equal educational opportunities."
The most troubling findings, according to OCR, were:
Access to preschool. About 40% of public school districts do not offer preschool, and where it is available, it is mostly part-day only. Of the school districts that operate public preschool programs, barely half are available to all students within the district.
Suspension of preschool children. Black students represent 18% of preschool enrollment but 42% of students suspended once, and 48% of the students suspended more than once.
Access to advanced courses. Eighty-one percent (81%) of Asian-American high school students and 71% of white high school students attend high schools where the full range of math and science courses are offered (Algebra I, geometry, Algebra II, calculus, biology, chemistry, physics). However, less than half of American Indian and Native-Alaskan high school students have access to the full range of math and science courses in their high school. Black students (57%), Latino students (67%), students with disabilities (63%), and English language learner students (65%) also have less access to the full range of courses.
Access to college counselors. Nationwide, one in five high schools lacks a school counselor; in Florida and Minnesota, more than two in five students lack access to a school counselor.
Retention of English learners in high school. English learners make up 5% of high school enrollment but 11% of high school students held back each year.
Tuesday, March 4, 2014
In the Spring of 2011, Capital High School in Santa Fe, New Mexico, subjected students entering the high school prom to random, suspicionless pat-downs. The goal of the searches were to prevent students from bringing drugs, alcohol, or other contraband to the prom. One of the students testified that:
[The ASI New Mexico security guard] had me spread my arms and legs out, and she patted along my arms, touched along the waist. And then she grabbed the outer part of my bra and moved it here. And then she grabbed the inner part of my bra and moved it here. And then she cupped my breasts and shook them.... [T]hen afterwards she moved down to my waist and then she went all the way down my leg. And then she felt over my dress and then she pulled the dress up to about mid-thigh and she felt up the bare leg, as well.
Other students testified similarly. Four students brought suit against the school district and the principal. In its latest opinion, the district court in Herrera v. Santa Fe Public Schools, 956 F.Supp.2d 1191 (D. New Mexico 2013), held that search violated students' rights, but the principal was entitled to qualified immunity.
The school had attempted to extend the rationale of Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), and Board of Education of Independent School District No. 92 v. Earls, 536 U.S. 822 (2002)-which upheld suspicionless drug testing of students participating in sports and extracurriculars--to these pat-down searches. The district court reasoned that those cases were inapposite because they involved a special needs exception to the general reasonable suspicion requirement in schools. Moreover, the searches in those cases applied to a subsection of the student body, whereas the prom search potentially applied to any student in the school. Applying the reasonable suspicion test from New Jersey v. TLO, the court easily found it lacking and the searches unconstitutional. In an earlier opinion, the court had also catalogued other lower courts applying similar rationales to suspicionless searches. See Herrera v. Santa Fe Public Schools, 792 F.Supp.2d 1174 (D.N.M. 2011). This earlier opinion was particularly revealing in showing that several recent courts have pushed back against random student searches.
The school district had also argued that the students consented to the searches, but the court applied the unconstitutional conditions doctrine to find that consent was invalid.
Monday, March 3, 2014
Office for Civil Rights Reaches Voluntary Resolution of Kentucky School District’s Discipline Disparities
The Office for Civil Rights, Department of Education, had been investigating Christian County Public Schools' discipline system. It found basic due process flaws on the front end and significant racial disparities on the back end. "[B]lack students were consistently more likely than white students to be assigned in-school suspension and out-of-school suspension when their first disciplinary referral was for violations that were subjective in nature, such as Deliberate Classroom Disruption, Disorderly Conduct, Failure to Follow Directives, and Profanity/Vulgarity. For example, in school year 2010-2011, black students were nearly 3.5 times more likely than white students to receive out-of-school suspension for Profanity/Vulgarity."
Under the final resolution agreement reached last week, the District agreed to:
- Ensure to the maximum extent possible that misbehavior is addressed in a manner that does not require removal from school;
- Collaborate with experts on research-based strategies designed to prevent discrimination in the implementation of school discipline;
- Provide students who engage in disruptive behaviors with support services designed to decrease behavioral difficulties;
- Review and revise the disciplinary policies, and implement disciplinary practices that will effectively promote the fair and equitable administration of discipline;
- Provide training for staff and administrators on the disciplinary policies, and implement programs for students and parents and guardians that will explain the district’s disciplinary policies and behavioral expectations;
- Effectively address school climate issues;
- Improve the disciplinary data collection system in order to evaluate discipline policies and practices.
The full press release and resolution agreement is here. I believe this is the first discipline resolution reached since the Department's new discipline guidelines. Those guidelines seem to be reflected in this resolution, particularly the agreement to use less harsh and discriminatory alternatives to the current discipline policy.
Thursday, January 30, 2014
Robert Marucci, an 18-year-old high school student, in Florida was allegedly suspended for his participation in gay pornography. Marruci states that he started working in the industry to help his mother pay the bills. Apparently, the family has fallen on hard times and his work does not violate any law. Regardless, when other students at his school learned of his work, he indicates he was bullied and threatened. If the school knew of and did not respond to this bullying, it violated Title IX's prohibitions on sexual harassment. See Davis v. Monroe County, 526 U.S. 629 (1999). Marucci's mother says that this is exactly what the school did. Strike one against the school.
What the school did do was suspend Marucci for ten days. His mother says he was "expelled due to his explicit lifestyle career.” The school indicates that it suspended him for "possible threats" he had made. The devil is in the detail, but "possible threats" sounds vague. If it is only "possible" that he has made threats to other students, the school lacks a basis to suspend him. At best, if the threats were extremely serious, the school could have removed him temporarily to investigate (per a narrow exception in Goss v. Lopez). This does not appear to be the school's claim. Sounds like strike two against the school.
If the school, in fact, removed him for his off-campus lifestyle choice, it may have engaged in another Title IX violation, as well as Free Speech. Strike three (and four, I suppose).