Tuesday, July 10, 2018
Lydia Nussbaum has a new paper, Realizing Restorative Justice: Legal Rules and Standards for School Discipline Reform, in the Hastings Law Journal. Her abstract provides:
Zero-tolerance school disciplinary policies stunt the future of school children across the United States. These policies, enshrined in state law, prescribe automatic and mandatory suspension, expulsion, and arrest for infractions ranging from minor to serious. Researchers find that zero-tolerance policies disproportionately affect low-income, minority children and correlate with poor academic achievement, high drop-out rates, disaffection and alienation, and greater contact with the criminal justice system, a phenomenon christened the “School-to-Prison Pipeline.”
A promising replacement for this punitive disciplinary regime derives from restorative justice theory and, using a variety of different legal interventions, reform advocates and lawmakers have tried to institute restorative justice as a disciplinary alternative. But, as this Article argues, the resulting legal directives are flawed and, therefore, unlikely to roll back the damage caused by zero-tolerance disciplinary practices. They fail both to account for the ambiguity inherent to restorative justice and to provide clear instructions on how to “build” a restorative school. With the aim of advancing school discipline reform and ending the School-to-Prison Pipeline, this Article employs jurisprudential theory to propose a collection of legal rules and standards that formalize school-based restorative justice and translate it into actionable policy.
In her introduction, she uses the experience in Los Angeles Unified School District to explain the challenge. The shift from zero tolerance to restorative justice "did not go smoothly."
The problem, however, is that curbing zero-tolerance discipline with an abstract philosophy like restorative justice proves very difficult. Return, for example, to the story of the Los Angeles Unified School District and its struggle to concretize a restorative ethos across more than 900 campuses, in a school district containing more than 60,000 employees and 660,000 K-12 students. School administrators complained about the lack of resources and personnel to construct an alternative system for addressing student misconduct. Teachers felt as if they lacked adequate training in restorative justice principles, not to mention sufficient class time, to engage students in restorative dialogues. Some thought that troublemaking students were being allowed to stay in school to the detriment of other children’s learning. Similar complaints emerged in other school districts, like Chicago and New York City, also trying to implement restorative justice.
. . . [F]ormal law-based interventions are necessary for reforming school disciplinary practices but that, thus far, such attempts to do so by formalizing restorative justice have been wholly insufficient. To date, legislation, regulations, and court orders mandating schools to use “restorative justice” leave too much discretion to various public and private actors and fail to issue necessary guidance on a whole school approach to restorative discipline. Standing alone, the term “restorative justice” is not a legally realizable or enforceable directive but rather an inherently ambiguous idea, around which there is little consensus, that has spawned numerous, incompatible legal reforms. This confusion extends to the educational setting, where schools have difficulty implementing appropriate, high quality, and ethical restorative practices. Thus, to remove zero-tolerance discipline, which became entrenched policy through legislation and school board regulations, a new disciplinary policy based in restorative justice requires equally clear, executable legal mandates. These new legal directives will change the way school boards, administrators, and teachers make disciplinary decisions and allocate finite resources.
The solution, she reasons, is to adopt rules and standards to formalize the implementation of restorative justice. In particular, she argues for "whole school integration of restorative philosophy" and a requirement that schools adhere to "core principles and best practices."
I suggest there is one more step and it is implicit in Nussbaum's article: tying school discipline to school resources. As I argue in Ending Zero Tolerance and Reforming School Discipline, school discipline is, at its core, a question of school quality. Thus, quality and discipline cannot be separated into silos. And school quality is tied to school resources.
Too often, schools have attempted to end zero tolerance without the resources they need to implement a new system. In fact, the lowest quality and lowest resourced schools are the ones most often tasked with making this shift. The lack of resources in these schools falls on the backs of teachers who are asked to make lemonade out of lemons--but they don't have any sugar. No one recognizes that it is the state's job to provide the sugar--or resources--and it hasn't. Instead, we criticize schools for making lemonade that is too sour. Or we give in to pressures to let them revert to the old way of doing things.
The only escape from this cycle is to unwind it by acknowledging that, in so far as school quality and discipline are connected, states have a duty to provide schools with the resources they need to make the transition from zero tolerance schools to high quality schools.