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. 

https://lawprofessors.typepad.com/education_law/2016/08/birminghams-continued-defense-for-pepper-spraying-students-shows-why-courts-are-the-last-vestige-of-.html

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