Friday, June 2, 2017
South Carolina is making progress in limiting its school-to-prison pipeline, thanks to new state Department of Education regulations growing out of a school incident which went viral nearly two years ago.
The background: in October 2015, a teenager at a Columbia, SC high school refused repeated demands to put away her cell phone. Both the cell phone and the teen were quiet, and not interfering with any other student. When she refused, her teacher involved her assistant principal. When she refused his demands to put away the phone, he involved the school resource officer (SRO). And when she refused his demands, he arrested her for the crime of “disturbing schools” and was caught on video pulling the child out of her chair and, as the local sheriff later put it, “throwing  the student across the floor,” making this another in a now-long list of questionable cases of SRO actions in school. To top it off, he arrested and charged a second student with disturbing schools for encouraging her classmates to record the incident (that is, the recordings which brought this incident to the public’s eye) and objecting to the officer’s treatment of the teenager with the cell phone.Beyond the excessive force, advocates focused on two legal elements of this incident – the broad law which rendered petty non-violent teenage misbehavior criminal, and the SRO’s involvement in what ought to have been a purely school disciplinary, not law enforcement, matter. Progress on the first point is stalled at least until 2018 – a bill to dramatically narrow South Carolina’s disturbing schools statute passed the South Carolina Senate, but not the House, before the General Assembly recessed for the year.
But there is progress on the second point – the South Carolina Department of Education just finalized regulations which impose some real limits on when schools can involve SROs in school discipline matters. (The regulations are available in the S.C. Register, published here. Open the link for the May 26, 2017 edition, and see pages 57-65. The regulations will be codified at S.C. Regs 43-279 and 43-210.) Here are the main provisions:
- First, the regulations exempt relatively low-level crimes – disturbing schools, breach of peace, disorderly conduct, affray (the common law offense of mutual combat), and simple assault and battery that does not pose “a serious threat of injury or result in physical harm” – from the list of offenses for which SRO involvement in mandatory.
- Second, the regulation imposes limits on when school officials can call SROs for those more minor offenses – schools may “only” do so “when the conduct rises to a level of criminality, and the conduct presents an immediate safety risk to one or more people or it is the third or subsequent act which rises to a level of criminality in that school year.”
- Third, school districts and law enforcement agencies must enter memoranda of agreement (MOAs) before placing SROs in schools, and those MOAs must include the regulation’s provisions “which distinguish school discipline from law enforcement and prohibit the involvement of school resource officers in school discipline.”
These provisions seek to limit law enforcement referrals – and for good reason. Law enforcement referrals lead to more arrests and more charges. And arrests and charges lead to bad outcomes for youth; one of the most frequent research finding is that such arrests and charges dramatically increase the likelihood that a student will drop out of high school. Indeed, the second person arrested and charged in the October 2015 incident dropped out of high school and enrolled in a GED program.
The provision about MOAs is also worth noting. The 2015 incident shows how simply having a MOA is not enough. The local school district and sheriff’s department had a MOA in place – and it required the school district to report any incident which violates the criminal law to SROs. Given the breadth of criminal law, such provisions create far too much overlap between discipline and law enforcement. And following these regulations, school districts whose MOAs require schools to inform SROs whenever misbehavior rises to a crime will need to renegotiate those contracts so they include the limitations required by the regulations.
The next step resides with local school districts. These regulations leave plenty of discretion for school districts left here – they’ll decide in practice which simple assaults pose “a serious threat of injury” or what kind of conduct “presents an immediate safety risk.” Moreover, school districts which want to reduce their reliance on SROs will be well-advised to develop other disciplinary tactics – restorative justice programs for students who commit minor offenses, and other steps to improve school culture and discipline which others are better suited to describe than I am.