Education Law Prof Blog

Ensuring Racial Equality – from Classrooms to Bathrooms – Depends on Federal Regulations Trump Wants to Roll Back

Preventing discrimination in the classroom. Shutterstock

Derek W. Black, University of South Carolina

The Trump administration is considering eliminating one of the federal government’s most basic tools for preventing racial discrimination.

When the government runs or funds programs, those programs are obligated to ensure that everyone gets equal access and treatment. This duty comes from something called “disparate impact regulations.” These regulations require the programs to pay careful attention to whether their policies cause racial disparities.

From my perspective as a scholar of discrimination law, abandoning these regulations would be a major departure from the federal government’s mission since the 1960s of ensuring racial equality.

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Realizing Restorative Justice in School Discipline Is Not As Easy As You Think

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.

School Discipline Reform Is About Far More Than Just Suspension Numbers

This spring, the debate over school discipline reform reignited.  Those who have long opposed the Department of Education and Department of Justice's policy guidance on racial disparities in suspensions in expulsions knew they had a friend in the Secretary's office.  The turned on they heat. They argued that schools couldn't suspend students anymore and student were growing unruly.  As a result, school discipline policy was hurting the good students.  In Reforming School Discipline, I warned that so long as we allow this to be the framing of the this, effective school policy would loose out.  No matter what the data shows, the good student-bad student narrative will always come out bad for the "bad" student.  The proper framing has to be about school quality, and school discipline and school quality are directly linked.  That also means that school discipline is about far more than just telling teachers that they can or cannot suspend students.

The so-called failure of the federal policy guidance is not that it prohibits suspensions--it doesn't.  The failure is by those districts that think that is what the policy does.  Those who understand it correctly are showing how we can improve school quality and discipline at the same time.  Here's a wonderful example.  The Texas Tribune reports:

Two years ago, Bammel Middle School students were often fighting each other in the hallways when the bell rang, and teachers who lost control of their classrooms were regularly handing out three-day suspensions.

These days, more students and teachers report being happy at the Spring ISD school north of Houston, and the number of three-day out-of-school suspensions dropped from 94 last school year to 47.

Principal La'Quesha Grigsby attributes the improvement to a simple schedule change at the beginning of this academic year: a carve-out of 35 minutes twice a week for teachers and students to circle up and talk about their feelings. Bammel Middle School is one of a growing number of Texas schools that have adopted "restorative justice," which encourages students and teachers to talk through their problems and build stronger relationships in order to prevent conflict and violence before it happens.

"Sometimes those behaviors we see as discipline problems really are because the student is struggling with their academics," Grigsby said. "We're in a situation where we have to do something drastic ... because what we've been doing is not working."

Hummm. . .  Sounds like the intuitive points and social science that I lay out in Ending Zero Tolerance.  Students misbehave for a variety of issues and it is rarely because they just have a penchant for disruption.  Misbehavior tends to stem from emotional challenges they face at home (poverty, homelessness, divorce, abuse), learning disabilities, or simply struggling academically.  Figuring out the problem requires that we spend time understanding students and giving them the room to communicate.  Only then can we come up with solutions that might actually improve their behavior.  Suspension almost never does that.  It ignores the problem and tends to make it worse because the student feels he or she has lost an ally at school.

Before DeVos makes any final decision on the policy guidance, she should kick the talking heads out of her office, hang up the phone on the rest, and get on a plane to a place like Bammel Middle School.  Then she too might listen to students and understand what discipline reform is all about.

Interestingly enough, no less than the President of the United States used to be humble and thoughtful enough to listen.  The picture above and his My Brother's Keeper Initiative are worth a thousand words, so I will stop at 615 of my own.

Controlled Experiments--The Highest Quality Studies Available--Show That Racial Bias Does Affect School Discipline

As the Department of Education continues to mull the fate of its guidance on school discipline, it is worth revisiting two of the most high quality studies available to us on the subject.  They offer incredibly powerful evidence that racial bias does, in fact, place a significant role in which students are punished and how harshly.

The vast majority of school discipline studies are observational.  They simply look at the data that schools collect and attempt to draw their best conclusion.  They are not controlled studies, meaning they cannot really know what would have happened under a different set of facts.  In other words, they cannot really know whether an African American student would have been discipline but for race.

Two recent studies resolve this problem.  The first is by Jason A. Okonofua and Jennifer L. Eberhardt of Stanford University.  In Two Strikes: Race and the Disciplining of Young Students, they sought to test “the hypothesis that [racial] disparities [in discipline] are, in part, driven by racial stereotypes that can lead teachers to escalate their negative responses to Black students over the course of multiple interpersonal (e.g., teacher-to-student) encounters.” Eberhardt explained: “The fact that black children are disproportionately disciplined in school is beyond dispute. What is less clear is why.”

To get at this question, they conducted experiments in which they presented current teachers with written accounts of student misbehavior. They did not explicitly indicate the students’ race in the files, but in some records suggested that the student was black or white through their name—for instance, DeShawn versus Greg. In the first round of the experiment, after reviewing the files, teachers were questioned about their perception of the misbehavior, how the student should be disciplined, and whether they thought the student was a troublemaker. In the second round of the experiment, teachers were given the files of students who had misbehaved a second time. This time, researchers asked teachers whether they thought the misbehavior was part of a pattern of misbehavior and might warrant suspension.

In the first round of the experiment, the researchers found some racial bias, but it was less than one might expect. In the second round, however, when the student had engaged in misbehavior twice, racial bias became pronounced. Teachers were far more troubled by the second misbehavior when the student had an identifiably black name. Teachers were more likely to stereotype black students as “troublemakers” and want to discipline them more harshly. They also more often inferred that the second misbehavior was part of a pattern that would likely lead to punishment again in the future. 

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Federal Guidance on School Discipline Shouldn't Be a Partisan Issue; It Should Be Common Sense

The joint policy guidance on racial disparities by the US Department Justice and US Department of Education has been under intense debate for the past few months.  The Parkland school shooting only fanned the flames, as those who believed the federal guidance is an overreach irresponsibly argued that laxity in school discipline may have been a cause of the shooting.  Then Secretary DeVos hosted listening sessions on the guidance.

Those who oppose the guidance would have us believe it is the cause of enormous evil, forcing teachers to leave disruptive students in the classroom and undermining the academic achievement of everyone else. That is a hard pill to swallow for two reasons. 

First, the guidance does not prevent schools from punishing anyone.  They are free to remove students from the classroom as often as necessary to protect the learning environment.  Nor are they prohibited from suspending students.  All the guidance does is trigger an inquiry when data shows that a school is suspending one racial group at a much higher rate than others. 

But the disparity alone does not demand a remedy.  If the school shows that there is a legitimate reason for the disparity and the suspensions are necessary, they don’t have to change their practices.  In other words, the school that treats students fairly in discipline need not worry.   And in these respects, the guidance did not do anything new.  It simply put districts on notice of what the administrative law has always been.

Second, even if the guidance did something new, it was well justified by what we know about school discipline.  More than a decade of social science demonstrates that harsh discipline policies don’t help anyone.  The harm to suspended and expelled students is pretty obvious.  But studies show that innocent bystanders are harmed as well.  Harsh and racially inequitable discipline practices erode relationships between students and teachers, creating an environment that undermines rather than reinforces learning.  In fact, when students perceive discipline as authoritarian, students begin to resent school leaders.  The schools with the highest student achievement are those that proactively address student misbehavior through means other than suspension and expulsion.  They try to minimize the incidents of serious misbehavior before they occur rather than addressing them reflexive after-the-fact through harsh punishment.

I don’t doubt that some schools have struggled to transition to discipline systems that are less reliant on suspension.  But the fact that they have struggled with the transition to new policies does not mean their old policies were better.  Yet, this is logic of those who want the federal guidance withdrawn.

But don’t take my word for it, there is a mountain of evidence to support my position.  And it comes out almost every day.

In April 2018, the US GAO—the non-partisan fact based federal agency that provides information to Congress—released a report on discipline.  The basic data is pretty shocking:

Black students, boys, and students with disabilities were disproportionately disciplined (e.g., suspensions and expulsions) in K-12 public schools, according to GAO's analysis of Department of Education (Education) national civil rights data for school year 2013-14, the most recent available. These disparities were widespread and persisted regardless of the type of disciplinary action, level of school poverty, or type of public school attended. For example, Black students accounted for 15.5 percent of all public school students, but represented about 39 percent of students suspended from school—an overrepresentation of about 23 percentage points.

This led critics to jump up and down, shouting that disparities don’t prove anything.  That may be true, but again, the federal guidance doesn’t demand a policy change based on numbers alone.  It asks that we look behind the numbers.  And numbers of this magnitude do give us an extremely compelling reason to “look under the hood” of the district’s data. 

Again, let's just look at what we have seen in the last month.  Christie Norris and Erwin Chemerinsky's new amicus brief explains,

Race and other related variables are consistent predictors of how discretionary decisions are made with regard to school discipline. But how does such discretion result in outcomes that are racially biased? Heilman and Haynes note,

The answer lies in the links between stereotypes, the expectations they engender, and the subsequent impact of those expectations on cognitive processing and evaluative judgements. It is in the last linkthat the role of subjectivity is critical; the greater the subjectivity, the more opportunity for stereotype-based expectations to influence evaluative judgements.

(Heilman & Haynes, Subjectivity in the Appraisal Process: A Facilitator of Gender Bias in Work Settings in Beyond Common Sense: Psychological Science in the Courtroom (Borgida & Fiske edits., 2008) p. 127.) For example, Skiba et al. claim that the racial disparities in school discipline may be at least partially explained by teachers’ misperceptions in that “[t]eachers who are prone to accepting stereotypes of adolescent African-American males as threatening or dangerous may overreact to relatively minor threats to authority, especially if their anxiety is paired with a misunderstanding of cultural norms of social interaction.” (Skiba et al., The Color of Discipline: Sources of Racial and Gender Disproportionality in School Punishment (2002) 34 The Urb. Rev. 317, 336.6)

Stereotypes reflect a “mental association about a person’s attitudes or actions based on the person’s membership in a group.” This can be an important psychological tool for our minds, as it keeps people from having to encounter each new situation without the benefit of prior knowledge or experience. This not only prevents psychological exhaustion by conserving cognitive exertions, but the ability to make quick and non-conscious associations can help protect people from dangerous situations. For example, the association most people make between a glowing red stove top and being burned helps them automatically and unconsciously avoid harm without having to re-process these variables every time they enter a different kitchen.  

However, in a society where the prominence of race and racism in everyday life makes derogatory associations with racial minorities seem like common sense, the proverbial glowing stove top that elicits an automatic association with danger can easily be a child of color in a classroom. This automatic, unconscious association of a group of people with a stereotyped behavior is known as implicit bias – a contrast to explicit bias where people knowingly and consciously choose to discriminate against people because of an association made with their group. Since “human mental machinery can be skewed by lurking stereotypes, often bending to accommodate hidden biases reinforced by years of social learning,” implicit bias has been shown to have an impact in virtually every social situation. (Levinson, Racial Disparities, Social Science, and the Legal System in Implicit Racial Bias Across the Law (Levinson & Smith edits., 2012).) This includes criminal justice and sentencing, employment, and health care. (See generally Bennett, The Implicit Racial Bias in Sentencing: The Next Frontier (Jan. 31, 2017) 126 Yale L.J. Forum8; Krieger & Fiske, Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment (July 2006) 94 Cal. L.Rev. 9979; Chapman et al., Physicians and Implicit Bias: How Doctors May Unwittingly Perpetuate Health Care Disparities (Nov. 2013) 28 J. Gen. Internal Med. 1504.10)

Each of these examples involves institutions where administrators – judges, managers, physicians – interface with the public and exercise considerable discretion in performing their duties. While the principles that they apply – sentencing guidelines, hiring heuristics, clinical protocols – are often facially race neutral, the exercise of professional discretion coupled with pre-existing stereotypes interact to produce differential outcomes for people of color that lead to documented disparities in sentencing, employment, and clinical care. As discussed in in Part I(A), this same pattern exists in school discipline. Extensive research links this racial discipline gap to the toxic combination of discretion and implicit bias. (See Staats, Implicit Racial Bias and School Discipline Disparities: Exploring the Connection (May 2014) Kirwan Institute Special Report.11) When organizations give administrators wide discretion, the socially produced implicit associations that they harbor at an individual level (for example, the belief that Black people are more violent than members of other racial and ethnic groups) can influence decision making in a way that is disproportionately unfavorable to those who they subconsciously dislike and/or fear, i.e. children of color.

With data and science like this, school discipline policy should not be a partisan issue.  Well, again, Minnesota just recently showed us that it is not. A new Minnesota Department of Human Rights study showed that

students of color received 66 percent of all suspensions and expulsions despite making up 31 percent of the state’s public school enrollment. Only 14 percent of Minnesota students have a disability, but they accounted for 41 percent of those types of discipline incidents.

The disparity falls the hardest on black and Native American students. Native students are 10 times as likely to be suspended or expelled as whites, and black students are eight times as likely.

When the results came out, the state did not fight about it.  The state senate scheduled a hearing and, according to local reporting,there is bipartisan support for  "more resources for mental health and counseling, improved training for educators and less punitive consequences for students who act out."

 --on Twitter @DerekWBlack  

Are Alternative Schools Their Own Form of Separate and Unequal Schooling? Barbara Fedders Says Yes

Barbara Fedders' new article, Schooling at Risk, 103 Iowa L. Rev. 871 (2018), draws interesting parallels between school segregation and the way alternative schools operate. She writes:

School districts typically have broad discretion in deciding whether a student is sufficiently “at risk” to require assignment to an AEP [Alternative Education Placement]. In addition, while districts may have policies governing placement decisions, most do not afford students due process protections before making the assignment. The largely unbounded discretion school districts enjoy in making AEP assignments makes room for biased decision-making. The students who attend AEPs are overwhelmingly students of color (African American in particular), from low-income families, and with disabilities. North Carolina data are illustrative. In 2013–2014, for example, Black students received 46% of all AEP placements, even though they made up only were 26% of the total student population.” In addition, students with disabilities are disproportionately likely to be assigned to AEPs, and to stay in the programs for longer durations than their nondisabled counterparts. AEPs are also disproportionately comprised of economically disadvantaged students.

She also takes on the qualitatively inferior education opportunities these schools provide,

Most AEPs do not look like typical schools. Only 37% of AEPs are housed within regular schools or are separate schools; the rest are housed within other facilities. 17% of the non-school-based group utilize online instruction as the sole means of education—regardless of students’ ability or need. For students in school-based AEPs, books may be unavailable, and extracurricular opportunities are typically nonexistent.198 In Georgia, the state houses AEP programs in poor-quality buildings that formerly served as schools for Black students during the time of de jure segregation.

The major contribution of Fedders' work is to help us see what lies in plain sight and reframing.  No one seriously argues that alternative schools provide anything resembling the quality of education that exists in regular public schools.  Yet, we accept it because these schools are, after all, for the "bad" kids. As she writes, "The perception that AEP students are less deserving is further reflected in the statutes and regulations that govern them."  And everyone with eyes also knows that, in most places, these schools are primarily for African American students.  Fedders puts these together in a way that we have long ignored.

Fedders' also reveals that this is not a small problem.  To the contrary, we are talking about half a million students a year.  But even were it a smaller number, the fact that we run a separate and unequal education system tells us something potentially far more troubling.  Fyodor Dostoyevsky wrote that you can judge "[t]he degree of civilization in a society . . . by entering its prisons."  Fedders helps us see that we can judge the degree of equal opportunity in education by entering alternative schools--something we should have asked years ago.

 --on Twitter @DerekWBlack  

Remember the School Resource Officer Who Drug a Girl Across the Floor by Her Neck--South Carolina Is on the Verge of Change the Law That Gave Him Authority

It has been a long road getting here and the state is still not to the finish line yet, but South Carolina appears primed to narrow the circumstances under which school resource officers can act with force against public school students.

In October 2015, a video of law enforcement officer  pulling a student out of her chair by the neck and dragging her across the floor when viral.  It has generated a nearly three-year-long conversation about the efficacy of school resource officers in public schools and the authority they should or should not have.  South Carolina's Disturbing Schools Law current provides that:

It shall be unlawful: (1) for any person willfully or unnecessarily (a) to interfere with or to disturb in any way or in any place the students or teachers of any school or college in this State, (b) to loiter about such school or college premises or (c) to act in an obnoxious manner thereon; or (2) for any person to (a) enter upon any such school or college premises or (b) loiter around the premises, except on business, without the permission of the principal or president in charge.

Officers can also use the state's disorderly conduct law.  The ACLU challenged both statutes as unconstitutional, putting additional pressure on the state to improve its laws.  Since then, the state has been batting around several alternatives, but has yet to pass anything.  The ACLU's recent victory in the Fourth Circuit Court of Appeals just put even more pressure on the state to act. (Read the full opinion here: Download 2018-03-15 Written order 4th Circuit).

On April 5, the state senate voted 33-8 to approve these changes to the Disturbing Schools Act:

"Section 16-17-420.    (A)    It shall be is unlawful:

(1)    for any person wilfully or unnecessarily (a) to interfere with or to disturb in any way or in any place the students or teachers of any school or college in this State, (b) to loiter about such school or college premises or (c) to act in an obnoxious manner thereon; or

(2)    for any person to (a) enter upon any such school or college premises or (b) loiter around the premises, except on business, without the permission of the principal or president in charge. for a person who is not a student to wilfully interfere with, disrupt, or disturb the normal operations of a school or college in this State by:

(1)    entering upon school or college grounds or property without the permission of the principal or president in charge;

(2)    loitering upon or about school or college grounds or property, after notice is given to vacate the grounds or property and after having reasonable opportunity to vacate;

(3)    initiating a physical assault on, or fighting with, another person on school or college grounds or property;

(4)    being loud or boisterous on school or college grounds or property after instruction by school or college personnel to refrain from the conduct;

(5)    threatening physical harm to a student or a school or college employee while on school or college grounds or property; or

(6)    threatening the use of deadly force on school or college property or involving school or college grounds or property when the person has the present ability, or is reasonably believed to have the present ability, to carry out the threat.

(B)    For the purpose of this subsection, 'person who is not a student' means a person who is not enrolled in, or who is suspended or expelled from, the school or college that the person interferes with, disrupts, or disturbs at the time the interference, disruption, or disturbance occurs.

(B)(C)    Any person violating any of the provisions who violates a provision of this section shall be section is guilty of a misdemeanor and, on upon conviction thereof, shall pay a fine of, must be fined not more than one two thousand dollars or be imprisoned in the county jail for not more than ninety days one year, or both.

(C)    The summary courts are vested with jurisdiction to hear and dispose of cases involving a violation of this section. If the person is a child as defined by Section 63-19-20, jurisdiction must remain vested in the Family Court."

The bill was referred to the state house and now is before its judiciary committee.  The amendment also got a big boost last week from law enforcement.  The Post and Courier reports: 

the director of the state Commission on Prosecution Coordination told legislators that all law enforcement groups support the bill. "This gets us where we need to be. There are outrageous examples of how this law has been abused in the past," said Director David Ross, who represents solicitors statewide. "I wonder how we even let it go for this long." 

The law is far from what I would I would call a complete fix, but it would replace the most vague aspects of the law that prohibit undefined things such as interference, disturbance and obnoxious behavior with more precise prohibitions.

 --on Twitter @DerekWBlack

 

UK and US Moving Along Parallel Tracks--and Failures--in the School to Prison Pipeline

How school expulsions could be fuelling the rise in youth violence

Brian Moss, Coventry University

Violent behaviour in schools happens everyday and figures suggest bullying is on the increase, too. In a report last year, UNESCO (the United Nations office for educational, scientific and cultural affairs) revealed that school violence affects 246m pupils worldwide, every year.

Such violence is experienced through physical and emotional forms of harassment. And it can negatively impact pupils’ educational success and later employment and health prospects. Significantly, a link between school violence and later criminal justice involvement was noted in the report. Not addressed, however, was the earliest trigger for a child using violence.

Existing research points to different catalysts – such as parental violence, substance use and neglect – in the first 24 months of children’s lives as contributing to their own later violent conduct. The research shows that the peak age for violent behaviour is age six – which has implications for violence prevention and intervention policies.

These findings were recognised by the Stockholm Prize in Criminology for 2017, for their significance in terms of early child development and the possibilities for crime and violence reduction.

The UK picture

Education statistics show a general upward trend in violence in UK classrooms. Physical violence against pupils and staff, and verbal abuse of staff commonly feature.

Schools deal with such violence by excluding a pupil from school – for a fixed period or permanently. And the latest figures show 380,000 children were excluded from schools across the UK in 2016.

NSPCC figures suggest nearly half of children and young people have been bullied at school at some point in their lives. Shutterstock

In England, the Department for Education (DfE) has started a review into exclusions of pupils from schools. This is because recent statistics reveal certain children are being excluded from schools more so than others. This includes children from ethnic backgrounds, those with special needs and those from poorer schools that offer free meals.

Immediate concerns

The review will examine patterns in rates, race, and geographic areas. And it will report before the end of 2018. But while it’s good that exclusion rates are being investigated further, there’s no suggestion a connection will be made in the review, between early years development, school engagement or exclusion, and later life chances. This reflects a fragmented approach to school violence in England.

Bullying is commonplace, and in some schools teachers are harassed and abused on a daily basis. Shutterstock

It was in 2011 that the education standards agency Ofsted last conducted a survey of “nurturing projects”. These were introduced to support school retention among difficult pupils and showed some successful outcomes at that time.

A December 2016 report on youth justice in England and Wales also pointed to children being “unnecessarily dragged” into the legal system. Though a Home Office action plan on alternative solutions to crime didn’t include schools in the report.

Then there is the issue that youth offending data only covers children age ten to 17. This is despite young children already being involved in criminal activities or behaviour. Children under ten, for instance, can be subject to a safety order – a court imposed penalty aimed at stopping children becoming involved in antisocial behaviour.

Another concern is that school exclusion orders can be imposed on children under five – almost 3,100 children under the age of five were excluded in England between 2015 and 2016. By leaving out these statistics, it creates a skewed picture of youth offending in England.

Crime or care in the classroom?

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Before the Trump Administration Starts Undermining School Discipline Reform, It Might Just Read the Law

Last night, I was reading the actual text of the Every Student Succeeds Act to prepare for today's class.  While I was not immediately excited about the prospect, my mind began to light up as I remembered a few remarkable lines about school discipline that I had since paid relatively little attention.  When the law was written, the Administration was already making progress on school discipline and the lines could have been read as nothing more than a nod toward what had already been done.  Two and a half years later and in a different administration, the lines are powerful.

I won't try to summarize the entire 443 page bill here, but a little context is helpful for the non-policy wonks.  The most important and lengthy part of the bill is its requirement that states submit a plan for how they will achieve certain goals.  Once a state sets its goals and implementation strategy and the Secretary approves it, the state is locked into that program.  This is the basic standards, testing, and accountability framework of the law. While the Act is very deferential to states, it does require that states take certain steps and speak to particular issues like testing, English language proficiency and graduation rates. 

For what I believe was the first time in history, the federal government also took a global stance on school discipline.  Nestled into the final subsections of the details on state plans was the requirement that states explain how they "will support local educational agencies receiving assistance under this part to improve school conditions for student learning, including through reducing—(i) incidences of bullying and harassment; (ii) the overuse of discipline practices that remove students from the classroom; and (iii) the use of aversive behavioral interventions that compromise student health and safety."

And there it is ladies and gentleman, a federal law passed by both houses of Congress and signed by the President that says states should undertake the exact type of reforms that the Obama Administration had urged a few years earlier through policy guidance.  This section of the statute, however, is even stronger than the prior policy guidance.  The prior policy guidance only applied when districts' suspension and expulsion practices resulted in racial disparities.  The Every Student Succeeds Act takes the position that "aversive behavioral interventions"--otherwise know as punitive suspensions and expulsions--"compromise student health and safety" and requires that all states do something about it for all students. 

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Zero Tolerance Discipline Policies Won't Fix School Shootings

The Trump administration aims to revisit school discipline policies. Roman Bodnarchuk/Shutterstock

Derek W. Black, University of South Carolina

As outrage over the Parkland school shooting persists, lawmakers are looking for actual policy solutions. Unfortunately, they sometimes misunderstand or misuse the facts that should drive policy.

The Trump administration and its supporters are latching onto school discipline reform as the solution. But by reform, they do not mean improving school climate, ensuring fairness or getting students the mental and social services they need. They mean doing away with the school discipline reform the Obama administration helped spur. They mean doubling down on zero tolerance. Last week, Florida’s Republican Sen. Marco Rubio went so far as to write that “federal guidance may have contributed to systemic failures to report Nikolas Cruz’s dangerous behaviors to local law enforcement.” Cruz is accused of carrying out the Feb. 14 school shooting in Parkland, Florida.

Rubio is referencing a 2014 memo by the Department of Education and Department of Justice under President Barack Obama. The memo placed some limits on zero tolerance and encouraged school districts to adopt proactive research-based approaches to student misbehavior. It took over a decade, but social scientists and educators began convincing policymakers that the country had made a mistake with its zero tolerance discipline policies.

Trump officials and supporters think — or would have people believe — that the new push to improve school discipline had something to do with the Parkland shooting. It didn’t. And getting rid of research-based approaches to discipline is, in my opinion as a professor of law and education policy, an even worse idea than arming school teachers.

What really works and doesn’t

But powerful stories drive perception and policy. The stories that get told and retold eventually come to matter just as much as research. So here’s a story that runs counter to the Trump adminstration’s current narrative that stronger discipline is the answer. On Sept. 28, 2016, a 14-year-old boy in Ashland City, Tennessee, entered his school with a gun. His plan was to kill teachers and a police officer. But he stopped by his guidance counselor’s office first. After 45 minutes, the guidance counselor, Molly Hudgens, talked him into giving her the gun. She said her training in de-escalation allowed her to persuade him. The local sheriff said: “She did something even the most experienced law enforcement officer might not do. Had she not been there, it could have been very different.”

The aftermath of Columbine also offers its own lessons. In the panic that followed, the nation ratcheted up its school punishments. Not only would students be expelled for bringing guns and drugs to school, they would be expelled for things like “habitual disruption” and disrespect. Some schools went so far as to suspend students for chewing Pop-Tarts into the shape of guns and for playing games like cops and robbers when they include imaginary guns.

As I detail in my book, “Ending Zero Tolerance,” the results of harsh discipline policies have been disappointing to say the least. If zero tolerance was an effective deterrent, it would have eventually caused suspensions to decline, while safety and achievement increased. But suspension rates steadily increased across time. By 2011, schools were suspending and expelling 3.5 million students a year. For African-American students, the rate of suspension increased by 60 percent. Most of these suspensions and expulsions were for relatively minor misbehavior. For instance, fewer than 10 percent of those suspensions and expulsions involved guns or drugs. And the incidental effects were equally disturbing.

How suspensions impact schools

Research has shown that high suspension rates are related to lower academic achievement, including for the well-behaved students that suspensions purportedly protect. One of the reasons is that when schools regularly suspend students for minor misbehavior, they alter the overall student body’s perception of school. Students no longer see school officials making the learning environment safe or orderly. They see school officials acting punitively toward their friends, family and peers.

And when students see a school’s discipline approach as overly strict or harsh, they see school authority as arbitrary and unfair. When student bystanders see schools suspend friends who are struggling due to factors beyond their control – such as homelessness, poverty, abuse or a disability — students come to see suspension and expulsion as downright perverse. These perceptions produce more chaos, not less.

Parkland, to its credit, had been providing students with services and support, rather than jumping straight to suspensions and expulsions. It had recognized the shooter’s struggles well before the tragedy and attempted to connect him with social supports, before finally expelling him last year. Regardless, students from Parkland aren’t claiming that the school’s discipline philosophy was related to this tragedy. It is politicians, who do not know what they are talking about, who make this claim. These voices would have us repeat the zero tolerance craze that followed Columbine.

Progressive versus punitive

As I warned in my book, “No matter how much progress is made at the federal, state, and local levels in the coming years, harsh discipline and zero tolerance will almost certainly persist.” So discipline reformers should not assume they had secured victory simply because the Obama administration had adopted a progressive school discipline memo. Now the fight for sane discipline has returned to their doorsteps.

Training and supportive approaches to discipline cannot guarantee school shootings won’t happen, but research says the best chance of reducing violence, and also improving the overall academic achievement and environment of schools, rests in rejecting punitive school discipline and replacing it with supportive systems. If we abandon the progressive steps that schools are taking, we will consign students to a darker world, not a safer one.

Derek W. Black, Professor of Law, University of South Carolina

This article was originally published on The Conversation. Read the original article.

Court Finds That Case Challenging South Carolina's Disturbing Schools Law Should Move Forward

A video of law enforcement officer  pulling a student out of her chair by the neck and dragging her across the floor when viral in October 2015.  It led to a lot of serious questions about the authority under which an officer could take such aggressive action against a student, particularly one just sitting in her seat.  The answer in South Carolina, where the incident took place, is the state's Disturbing Schools Law.  The law states that:

It shall be unlawful: (1) for any person willfully or unnecessarily (a) to interfere with or to disturb in any way or in any place the students or teachers of any school or college in this State, (b) to loiter about such school or college premises or (c) to act in an obnoxious manner thereon; or (2) for any person to (a) enter upon any such school or college premises or (b) loiter around the premises, except on business, without the permission of the principal or president in charge.

The state also tacks a disorderly conduct law on top of this one.  In fact, Niya Kenny, who was present during the incident above, was arrested and taken to a detention center.  By her account, she simply spoke up against the officer’s actions.  “I was in disbelief and I started praying out loud. I said, ‘Isn’t anyone going to help her?’” 

The ACLU sued the state on behalf of Kenny and several others, asking that the state be barred from enforcing the law in the future.  The district court dismissed the case, reasoning that "fear of future arrest and prosecution under the two statutes does not rise above speculation and thus does not constitute an injury in fact."

In a major victory, the Fourth Circuit Court of Appeals just reversed the district court, saying the case can move forward.  The state was already considering changing the statute, but this new ruling will only add pressure for the state to act.

Read the full opinion here: Download 2018-03-15 Written order 4th Circuit

The Backlash to School Discipline Reform Is Ignoring Two Major Points

Yesterday, Bloomberg published an editorial that summed up the views of those who want the U.S. Department of Education to rescind its guidance on racial disparities in school discipline.  The editorial argued:

When students misbehave in the classroom -- and, so long as the prefrontal cortex continues to be the last part of the human brain to develop, they will -- they should have to answer to their teachers. The federal government need not get involved.

Yet federal policies currently discourage schools from suspending chronically disruptive kids, harming the vast majority of students who actually want to learn. In 2014, the federal government warned school districts that they could be investigated for civil rights violations if their disciplinary policies were found to have a disparate impact on students based on race.

The most remarkable lines of the editorial admit that "black students are suspended at nearly four times the rate as white students, and that African-American students are more likely to receive heavier punishments for the same offenses."  I cannot fathom how this is not the business of the federal government. 

Title VI of the Civil Rights Act of 1964 prohibits racial discrimination in all programs receiving federal funds.  Department of Education regulations further prohibit policies whose effect is to discriminate based on racial.  As a practical matter, these regulations are say that if a school's policies produce large racial disparities, the school should have a good explanation for those disparities.  If it does, fine.  If not, the district should change.

When districts suspend African Americans at four times the rate of whites, they should have to explain the disparity.  If the answer is that African Americans are misbehaving more and the districts need to suspend them, fine, they can continue as is.  But if African Americans are receiving heavier punishments for the same offenses--which the editorial admits--the district must change because the district is discriminating.

I cannot imagine a theory under which the federal government would say, "that's okay.  You guys figure out a solution that suits you."  We certainly would not say that the very people who are engaging in discrimination--whether it is conscious or subconscious bias--are the ones best suited to devise a solution.  Yet, that is exactly what the Bloomberg editorial says: "Student discipline should be handled at the local level -- and as much as possible, left to the discretion of individual principals and teachers."

Continue reading

New Report on Racial Bias in School Discipline Offers Great Prelude for Confirmation Hearing for the Head of the Office for Civil Rights

The NAACP Legal Defense and Educational Fund, Inc. (LDF) released a new report last week on implicit bias in school discipline.  It is a particularly efficient and straightforward report that should be easily accessible to the educators and the general public.  They, more than attorneys and policy wonks, seem to be the intended audience.  It also includes some clear "how to" steps, aimed at minimizing the effects of bias.  LDF offered this in their press release:

The report not only explains the ways in which implicit bias – subtle, subconscious beliefs on race – held by teachers, administrators, and school resource officers (SROs) leads to the over-disciplining of students of color, but offers a range of recently developed interventions that have been effective in limiting the harmful effects of implicit bias.

“Addressing implicit bias in schools is essential to dismantling the school-to-prison pipeline, which wreaks havoc on students of color,” said Ajmel Quereshi, Senior Counsel at LDF and co-author of the report. “Instead of readily excluding students from the learning process, educators should heed our recommendations to create an environment that promotes social belonging for all students regardless of race.”

Civil rights advocates, as well as the general public, have long been aware of racial disparities in school discipline.  As early as 1974, civil rights advocates highlighted that Black students were two to three times more likely to be suspended than white students.  Sadly, little progress has been made in reducing these disparities.  In 2012, for example, Black students made up only 17 percent of students in the United States but accounted for 40 percent of out-of-school suspensions and were three times more likely than white students to be suspended or expelled from school. While six percent of all K-12 students received one or more out-of-school suspensions during the 2013-14 school year, the percentage was 18 percent for black boys; 10 percent for black girls; five percent for white boys; and two percent for white girls. This wide racial disparity persists despite gender and age differences.

The disparate punishment for Black students in our nation’s schools can have dire consequences beyond their K-12 school experiences. Once a Black student is suspended, the chances that he or she will drop out of school, become unemployed, and enter the criminal justice system rises dramatically.

New interventions that put more attention on student-teacher relationships and the social and psychological factors contributing to these relationships have begun to lessen the extreme levels of discipline administered to Black children. The report discusses a number of these strategies, including the “wise feedback” intervention, which focuses on providing clear feedback in a manner that prevents students from believing that the teacher may harbor a negative bias against them. Another technique detailed in the report is the “empathic discipline” intervention, which exposes teachers to their kids’ personal stories so that they can gain insight into the experience of racially stigmatized students in school. This exposure encourages teachers to use discipline as a chance to build a relationship with the student and cultivate a learning opportunity.

“The over-disciplining of students of color presents a crisis for our young people, our schools, and our criminal justice system,” said Jason Okonofua, Assistant Professor of Psychology at the University of California, Berkeley and co-author of the report. “The interventions and recommendations offered in our report could significantly improve the fairness of school discipline, helping to ensure that every student has a meaningful opportunity to succeed.”

Beyond these interventions, the report also offers specific recommendations for school districts on how to better address implicit bias, and how to mitigate the harm caused by discretionary offenses and school resource officers. These recommendations have already shown promise in ameliorating the over-disciplining of students of color, and in creating a safer learning environment where all students feel inspired to succeed.

The report was published with the guidance of the Legal Strategies Collaborative, a group of 15 organizations that focus on limiting the school-to-prison pipeline, and was made possible by a grant from the Open Society Foundations.

Read the full report here.

The report could not be more timely given that Kenneth Marcus, the nominee for Assistant Secretary in the Office for Civil Rights at the U.S. Department of Education, had his confirmation hearing yesterday. Edweek reports that he was thoroughly grilled on school discipline issues.  The Office issued guidance a few years ago that spelled out a clear framework for evaluating racial disparities in school discipline.  Pursuant to that guidance, the Office forced corrective change in a number of school districts.  The question now is whether Marcus would continue that policy.  Here are a few exchanges from the hearing.

 

"If there is a disparity in how African-American children are being disciplined in a particular school or school district as compared to how white children are being disciplined, would that be legitimate grounds for an OCR complaint or an OCR investigation?" asked Connecticut Sen. Chris Murphy, a Democrat who was referring to the office of civil rights in the education department, which Marcus would oversee. Murphy has supported efforts to rethink school discipline and minimize the use of suspensions.

"In general, the answer is yes," Marcus said.

Murphy said he "would argue that we have a school discipline crisis in this country." He cited federal data that show significantly higher rates of suspensions and expulsions for black students compared to white students and for students with disabilities compared to their peers without disabilities. "If there was a school district that was suspending or expelling five times as many black students for the same set of behaviors compared to white students, can you perceive any legitimate reason for that disparity?" he asked.

"Let me say that if even one child is punished because of their race or punished worse because of their race, I believe that to be a significant concern," Marcus responded. "Now, if the numbers are as significant as you just described, I would consider that to be grounds for asking some very tough questions."

 "I will just share my view with you," Murphy responded. "I don't believe there's any legitimate explanation. I believe that that kind of disparity in the treatment of African-American children would be on its face a violation of federal law and I think, even if you didn't find a smoking gun in which an administrator admitted that they had an intentional policy of targeting black children, on its face that kind of disparity would be a violation of the federal law. Do you agree with that statement?"

Marcus said his "experience says that one needs to approach each complaint or compliance review with an open mind and a sense of fairness to find out what the answers are." He said he has seen disparate discipline numbers in some schools that ended up being the result of paperwork errors.

"I think one needs to find out what is happening and, if there is discriminatory conduct, there needs to be consequences," said Marcus, the founder and president of the Louis D. Brandeis Center for Human Rights Under Law. He was previously delegated the authority of the assistant secretary for civil rights at the Education Department under President George W. Bush.

His answers were relatively moderate all things considered. He was not hostile to the guidance at all, which sets him apart from many others on the right.  And the fact that DeVos did not rescind the guidance during her recent hatchet job on education regulations is somewhat comforting. 

With that said, Marcus is extremely sophisticated and previously served in the Office during the Bush administration.  I would not expect him to make a fool of himself during a hearing or even invite confrontations that he could avoid.  Unlike so many other nominees, he actually understands government and what this Office is supposed to do. Marcus clearly understands the law and it is not his mission to undermine it or the Office.

He and I have debated before and we, of course, disagree on the substance of any number of important issues. Once we get past basic threshold questions or the application of the law, we begin to diverge.  And the way he dealt with anti-Israel protests on college campuses a decade ago raises major red flags and has drawn a lot of letters in opposition to him, including from professors.  To be fair, however, the  legal rationale that he relied on with the anti-Israel protests was the same rationale that he and the Office used to protect Sikh and other religious minorities from harassment in school following the 9/11 attacks, although the harassment of Sikh's was far more direct and clear.  This leads many to believe that while Marcus won't undermine the Office, he will, from time to time, use it for his own ends. 

Am I happy that he will lead the Office?  Absolutely not.  Do his pet projects bother me? Absolutely yes.  Is he competent, generally reasonable, and better than a host of other people I might have expected Trump to nominate?  Absolutely yes.  In short, he is a mixed bag.

Can Schools Use Seclusion Rooms to Punish Kids?

Under state law, the answer is apparently yes in some places.  A Time.com story reports that "Iowa is one of only five states that allow seclusion or restraints when there’s no physical threat, according to the ACLU. Twenty-nine states have banned the use of seclusion or restraints to discipline or punish a child."  Apparently, Iowa City Schools had made more than an infrequent practice of it.  It had sent "students to seclusion rooms for having a bad attitude, using foul language or being out of instructional control, among other reasons. The [state education] department reviewed more than 450 incidents involving more than 60 students were sent to these rooms over a one-year period starting in December 2015."  The district now says it will discontinue the practice.  

A handful of seclusion room stories have broken in other schools over the past year or two and districts have similarly been quick to change their practices once the stories came to light.  Part of the pressure comes from the fact that many of the students subjected to this treatment have or many have disabilities, which brings federal law and limits into play.

Unfortunately, a corrective response is rarely quick or forthcoming at all for regular education students subjected to harsh school discipline.  Writing of school exclusion (rather than seclusion) in Ending Zero Tolerance, I wrote:

Over the past two decades, school discipline has grown increasingly harsh and impersonal. Many schools and states are willing to exclude—temporarily and permanently—students for almost any type of behavior. Even when students’ behavior poses no real danger to school and involves the type of immature mischief parents expect of normally developing kids, schools dig in their heels and insist that they must banish students. Local communities and policy advocates have pushed back and managed some important successes in recent years, but the seriousness and scope of the problem demands a systematic long-term check.

I argue that courts are the check of last resort.  "[C]ourts must reengage on issues of discipline and enforce students’ rights. Courts cannot simply abandon students to school boards and the political process. Too often, both schools and politicians have shown themselves to be irrational and willing to sacrifice students in the expedient pursuit of other goals." 

But even when courts engage, some schools cannot imagine another way of handling kids.  Zero tolerance, seclusion rooms, corporal punishment and the like are examples of schools, at best, throwing their hands up in despair or, at worst, believing courts are the niavely meddling.

The Iowa City School plans moving forward do not inspire confidence. "It’s unclear what method or practice will be used in place of the rooms. [Superintendent] Murley said in his email that 'the district recognizes the role of restraint and seclusion in providing a free and appropriate public education for all students in a least restrictive environment within our schools and is seeking ways to improve our practices.'"

Part of the answer lies in understanding that student misbehavior is not just misbehavior.  It is often a warning cry for help in some other area of the child's life or education.  As I write here:

 Normal human development can explain a lot of misbehavior. Younger children, for instance, lack the capacity to always behave; no matter the rules, elementary school students occasionally talk out of turn, push each other and disrupt class. Older students sometimes push boundaries in other, more serious, ways. Making and learning from these mistakes is simply part of growing up.

Disabilities, academic struggles, poverty, homelessness and family crises can also affect behavior. For students in these situations, misbehavior is often a sign of unmet needs – not a character flaw.

Until school officials begin to understand misbehavior for what it is, our discipline problems will continue to plague us and stories of this sort shock us.

 

In Case You Doubt That the School-to-Prison Pipeline Still Operates at Full Steam . . .

The Washington Post recently reported on a mass campus lock down at Worth County High School in Georgia.  Over the course of four hours,

40 uniformed officers — the entire staff of the Worth County Sheriff’s Office — fanned through the school in Sylvester, ordering students against the walls of classrooms and hallways, demanding the students hand over their cellphones. 

All 900 students were searched, part of a drug sweep ordered by Sheriff Jeff Hobby, according to court documents.

He did not have a warrant. He had a “target list” of 12 suspected drug users. Only three of the names were in school that day, April 14.

When all was said and done, no drugs were found.  And when controversy later arose, the attorney for the Sheriff's Department argued that the searches were legal because they were carried out while school administrators were present.  "In a statement released on April 18, Hobby elaborated that in 'the weeks leading up to April 14, the Sheriff’s Office received information and complaints from the citizens of Worth County regarding illegal drugs at the high school. The Sheriff contacted the Superintendent of the Worth County School District and the Principal of the high school to inform them of the situation and the Principal and the Sheriff agreed on the day of the pat down.'”

As crazy as that sounds, it was not a bad lob, as courts have vacillated on whether searches require reasonable suspicion or probably cause, depending on schools' involvement with these searches. Regardless, school officials have since pushed back on the idea that they were participants in the searches.  And now a grand jury has indicted the sheriff and two deputies for their role in the searches.

Courts have recently begun recognizing limits on police and school practices in cases such as these, but such outcomes are never a given.  Victims lose these cases more often than the win them.  Yet, this mass search offers another confirmation in a long line of examples of my basic thesis in Ending Zero Tolerance: Courts must reengage on issues of school discipline and the school-to-prison pipeline.  Courts have stood on the sideline for the past four decades.  In their absence, students have been deprived of their last line of defense--the one that is supposed to stand strong and politics waiver--their constitutional rights.

 

 

 

New Federal Court Decision Should Be a Warning to Schools and Police Departments That Arrest Students

Last week, in S.R., v. Kenton County Sheriff's Office, 2017 WL 4545231 (E.D. Ky. Oct. 11, 2017), a U.S. District Court in Kentucky issued a decision that should drastically change schools' and resource officers' thinking in regard to handcuffing students.  Students often lose these types of cases and when they win, the facts are so unique or egregious that other schools and officers might distinguish them or write them off.  This is not to suggest that the harms the students suffered in Kenton County were minimal.  They were handcuffed in painful ways.  The kids also represent sympathetic plaintiffs because they were particularly small. 

But in other respects, the cases were more run of the mill and suggest a court drawing a line in favor of many students.  These were not entirely "innocent" students.  The students had engaged in protracted violent behavior--albeit not all that dangerous.  And the school officials did not jump straight to handcuffing the kids.  They, as well as the officers, had  attempted several deescalation techniques and even let some behavior go, so to speak.  And the cases did not involve pepper spray, head locks, brute force, or other forms of generally outrageous conduct by officers.  In short, they involved handcuffing students whom the school and officers had not found any clear way of calming. 

The fact that the court was willing to intervene here, thus, suggests the general problem with handcuffing kids, particularly small ones.  The court emphasized that officers simply are not trained to engage in this type of behavior with young children and no one recommends it.  Kentucky itself recognizes as much.

Kentucky Board of Education regulations provide that "school personnel may not use physical restraints as 'punishment or discipline,' to 'force compliance or to retaliate,' as 'a routine school safety measure,' or as 'convenience for staff.'” 704 KAR 7:160 § 3(1).  The regulation also prohibits school personnel from using "'mechanical restraints' on students at any time."  The preamble to the regulation, however, states that the regulation "does not prohibit the lawful exercise of law enforcement duties by sworn law enforcement officers.” 

Yet, the details in these sorts of cases will always matter.

The case involves a few different incidents.  The first involved an eight-year old boy who was approximately 4 feet tall and weighed 54 pounds.  He "had been diagnosed with attention deficit hyperactivity disorder (ADHD) and post-traumatic stress disorder (PTSD)," but he "attended regular classes and, at the time of the incidents in question, had not been identified to school administrators as having any disability."  He had engaged in some hitting and kicking incidents toward his teachers.  The school's deescalation efforts included holding him in a cradle restraint and locking him in an office.  When that did not work, they called the Sheriff's office.  By the time Officer Sumner arrived, the student was on the phone talking to his mother.  When the officer engaged him, however, things escalated and the student took an elbow swing at the officer.

Sumner said “you're not allowed to swing at me like that.” Sumner handcuffed S.R. behind his back, placing the cuffs on S.R.'s biceps above the elbows. The video shows that S.R.'s arms are pulled tightly behind his back with what appears to be only approximately three or four inches between his elbows. Sumner testified that he checked the handcuffs for tightness and that, since the chain connecting the handcuffs was nearly as long as the width of S.R.'s body, he had no reason to believe it would cause him pain. The video clearly demonstrates, however, that the chain is not nearly as wide as S.R.'s body, and that his arms are extremely taut.

Sumner can be heard stating, “You can do what we've asked you to or you can suffer the consequences.” (Doc. 156 - video). S.R. can be heard saying, “Oh, God. Ow, that hurts.” (Meyer Depo. 136-37). Sumner tells S.R. that: if he wants the handcuffs off, he has to behave and “ask nicely”; “if you want them off, all you have to do is stop kicking”; and “it's up to you if you want them off or not.”

S.R. remained handcuffed for approximately fifteen minutes, crying and squirming, after which Sumner removed the cuffs. 

The second student, L.G, was a nine-year old girl who weighed about 56 pounds. "L.G. had been diagnosed with ADHD and she had a 504 plan, but she attended regular classes. The plan did not address any behavioral issues or problems."  She also engaging in some hitting and kicking toward adults, as well as blowing snot and attempting to bit.  The school attempted deescalation techniques with her as well, including placing her in a calm room.  On one occasion when Officer Sumner arrived, he

decided to place her in handcuffs. Despite the handcuffs, L.G. did not calm down and Sumner called for an ambulance because he was concerned for her medical condition. 

Paramedic Jerry Mills arrived at the school and went to the calm room. Mills began talking to L.G., and he told Sumner to remove the handcuffs. Mills put his arm around L.G.'s shoulders to comfort her while Sumner removed the handcuffs. Mills hugged L.G. and she hugged him back. Mills sat and talked with L.G. in the ambulance on the way to Children's Hospital. Collins and Sumner followed the ambulance since no parent was available, and Collins waited for about an hour until L.G.'s mother arrived. L.G. was discharged later that morning without any physical injury.

On another occasion, L.G. would not go to her assigned location in the school and ran away from a school employee.

Sumner saw L.G. coming towards him as he stood with his back to the stairway leading to the second floor, and Collins and Craig were telling L.G. to go to the cafeteria. 

When L.G. reached Sumner, he told her to go to the cafeteria where she was supposed to be. L.G. tried to push past him, and she dropped to her hands and knees and tried to crawl through his knees.  She then pulled up his pants leg and tried to scratch him. L.G began screaming, and Craig was able to move her into the “cub store,” a room where school supplies are sold. 

Once inside the cub store, L.G. became physically aggressive, hitting, kicking, and scratching Craig. Sumner pulled L.G. off of Craig and tried to hold her physically for a few minutes, but she continued the same behavior. Sumner told L.G. that if she did not stop, he would handcuff her. L.G. continued to kick and hit, and Sumner placed her in handcuffs, above her elbows behind her back. 

Assistant Superintendent Wilkerson contacted L.G.'s mother, who came to school to get her. Her mother testified that when she arrived, L.G. was on her knees and Sumner was holding her arms up behind her above her head. Sumner then removed the handcuffs.

Plaintiffs later filed suit against the Sheriff and Officer Sumner, alleging "(1) Unreasonable Seizure and Excessive Force in violation of the Fourth and Fourteenth Amendments (against all defendants), pursuant to 42 U.S.C. § 1983; (2) Disability Discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132 (against Kenton County Sheriff's Office only); and (3) Failure to Accommodate under the ADA (against Kenton County Sheriff's Office only)."

The district court focused on the excessive force and found:

the severity of the “crime” committed by S.R. and L.G. – assault – weighs in their favor. While S.R. kicked a teacher and L.G. tried to and/or did hit a teacher, these are very young children, and their conduct does not call to mind the type of “assault” which would warrant criminal prosecution. Indeed, Sumner testified that “none of what they did was worthy of trying to file a criminal charge.”

The second factor, whether the children posed an immediate threat to themselves or others, weighs in S.R.'s favor. At the time he was handcuffed, S.R. had largely calmed down, Sumner had escorted him to the restroom without incident, and they had returned to the office. While Sumner testified that S.R. swung his elbow towards Sumner, such can hardly be considered a serious physical threat from an unarmed, 54-pound eight-year-old child.

This factor weighs less in favor of L.G., who was engaging in more physical abuse towards her teachers and Sumner.

Nonetheless, the age and stature of these children is highly relevant to this analysis. 

Finally, the method of handcuffing that Sumner employed leads this Court to conclude that his actions were unreasonable and constituted excessive force as a matter of law. The video of S.R. shows that his arms were pulled tightly behind him, with only inches between his elbows. While Sumner testified that the chain between the cuffs was as wide as S.R.'s torso, the video belies that assertion. Where a witness's version of the facts “cannot be countenanced based upon what the video shows,” the Court must adopt the video as fact. 

Upon being cuffed in this manner, S.R. cried out, “Ow, that hurts.” It was thus immediately apparent that this method – which, it is undisputed, was the same method by which L.G. was cuffed – was causing pain. S.R. was left in this position to cry and squirm for fifteen minutes.

Plaintiff's handcuffing expert, Robert Rail, testified that he does not know of any police instructor in the United States who would allow the elbow cuffing of children such as was used on S.R. and L.G., nor does he know of any program that teaches that method. 

Even defendants' handcuffing expert, William A. Payne – who has been conducting handcuffing training for law enforcement for over 20 years –testified that he has never trained law enforcement to use handcuffs above the elbow. He further testified that he was not aware of any law enforcement agency that trains their officers to use such a technique. 

. . .

Therefore, under the totality of the circumstances, the Court concludes as a matter of law that Sumner's manner of handcuffing S.R. and L.G. was an unconstitutional seizure and excessive force.

On the question of qualified immunity, however, the court was far more forgiving: "plaintiffs have not shown that it was “clearly established” in 2014 that Sumner's handcuffing of S.R. and L.G. was unconstitutional, and Sumner is thus entitled to qualified immunity."  The court also granted the defendants' motion for summary judgment on the ADA claims.  

Plaintiffs most significant victory was against the county.  The court found that Sheriff "Korzenborn has not implemented any changes in the training of his SROs since these incidents. Given this undisputed testimony, Kenton County is liable as a matter of law for Sumner's unlawful handcuffing of S.R. and L.J."

 

Missouri Schools Suspend Black Students More Than Four Times As Often As Whites, While Disparities Curiously Drop with Other Forms of Punishment

The ACLU of Missouri has released a new report on school discipline and the school to prison pipeline there.  The report finds:

The racial discrepancy in school discipline isn’t limited to teens. Our youngest and most vulnerable students in preschool and elementary grades are subject to excessive and harsh punishment. Nationwide, Black preschoolers are 3.6 times more likely to be suspended one or more times than White preschool students. Missouri has the eighth highest expulsion rate for preschoolers. From the very start of their education, the youngest students of color already face an uphill battle to stay in school.

The reality that specific students are punished more frequently and with greater severity is deeply troubling. A recent report from the U.S. Department of Education’s Office for Civil Rights found during the 2013-2014 school year, Black students across the nation are nearly four times as likely to be suspended than White students. During the same school year in Missouri, Black students were 4.5 times more likely to be suspended than White students. In Missouri, students with documented learning or behavioral disabilities under the federal Individuals with Disabilities Education Act (IDEA) were given out-of-school suspensions more than three times as often as non-IDEA students.

Despite making up only 14 percent of the student population in Missouri, Black, non-IDEA students represented about 17 percent of all referrals to law enforcement and 18 percent of all school-related arrests in the 2013-2014 school year.

In-school referrals to law enforcement are not trivial. A 2015 report from the Missouri Juvenile and Family Division found referrals from schools represent 21 percent of all law
referrals in Missouri for youth. Black children account for 26 percent of all referral types in the state. We also found an alarming increase of students in Missouri expelled from school. Between 2011 and 2014, the expulsion rate in Missouri doubled. This resulted in a greater number of expulsions for Black students, who faced expulsion at a higher rate than White students.

Another great concern is Missouri’s continued use of corporal punishment in school. Across the nation, few states continue to use corporal punishment, yet, in Missouri, Black students are almost twice as likely to be hit in school as their White peers.

This disparity between enrollment rates and discipline rates is not reflected among White students, a population in which discipline rates are consistently below enrollment rates.

Disproportionate discipline has both physical and mental consequences for young people. Beyond missed classroom time, when students, particularly younger students, are singled out for discipline, they are taught that they are “bad.” Their peers and educators internalize the same message. Studies show that by the time students move from pre-K to kindergarten, children can identify which of their peers exhibit “problem behaviors.” This perception is consistently shared between peers and teachers, creating a label for specific students that follows them throughout their academic careers.

What I found most interesting, however, may have been the report's data on in-school suspensions.  This has traditionally been the most unreliably and difficult data to get.  The report found that the in-school suspension rate for African American students received special education services was 26%.  For other African Americans it was nearly 19%.  Interestingly, however, the racial disparity between African Americans and whites was smaller in regard to in-school suspension and expulsions than it was in regard to suspensions.  This raises a few interesting possibilities: 1) that schools are more likely to skip past in-school suspension for African Americans and just suspended them and 2) so as to avoid high expulsion rates, schools may be just handing out more suspensions.  Both possibilities could be wrong, but something appears to be occurring with suspensions that is not occurring with other forms of discipline.

The disparity in regard to corporal punishment is also very low, but it is used so infrequently that conclusions may be less reliable there.

Georgia Supreme Court Places Limit on Zero Tolerance Discipline

Last week, in Henry v. S.G., the Supreme Court of Georgia placed a significant dent in the logic of zero tolerance discipline.  The case involved a fight between two high school students.  In typical fashion, Locust Grove High School automatically suspended both students.  After all, there was a video of the fight and both students were involved.  "The [school] hearing officer found S.G. guilty of violating the rules with which she was charged 'for being involved in a fight on the school grounds.'” 

The problem is that the video strongly indicates that one of the students was the victim.  S.G. was chased down by another student and then tried to avoid the fight, going so far as to hold her hands up and walk away. But after she walked away, the other student lunged at her and the fight ensued.

The Georgia Supreme Court found that being a participant to a fight is not enough alone to justify an expulsion.  The Court hung its analysis on the fact that a Georgia statute grants individuals the right to use self-defense and that the state board of education has also previously recognized self-defense as an affirmative defense in discipline proceedings.  Readers might recall a similar case in Florida involving a student who "stood her ground" after exiting the school bus.

The troubling part of these cases is how heavily they rest on these statutory rights of self defense.  In the absence of these statutes, a school might theoretically determine that self-defense is not tolerated.  Significant precedent regarding school's discretion would support the schools.

As I argue in Ending Zero Tolerance, some zero tolerance policies are constitutionally irrational and should be struck down on that basis.  Of course, when a statutory rationale exists, avoiding constitutional questions is appropriate.  One might, however, read these statutory cases as implicitly bolstering the irrationality of zero tolerance.  These state legislatures have recognized the impropriety of punishing those who may very well be victims.  It is not that the state wants people to fight back, but that punishing them under these circumstances defies logic.  The aggressor and the defender are simply not comparable in terms of culpability (assuming the defender does not use the occasion to overreact).

The Minnesota Supreme Court took a step toward this approach last year when it held that a student's intent in a weapons case matters.  The student had accidentally left a knife in his backpack that he used for cutting twine on the farm over the weekend.  The Court held that this accidental possession of a weapon did not amount to a "willful violation" of school rules.

Together, these cases confirm two points emphasized in my book.  First, students seeking to challenge expulsions and suspension generally stand a better chance in state courts than federal courts.  Unlike federal courts, these state cases involve courts taking the issues very seriously and trying to reach a decision that respects student rights.  Second, courts can and must play a role in student discipline cases.  They are the last line of defense for students.  Many schools are still willing to hand out what the most extreme forms of punishment that, without courts, will go unchecked.

 

Deliberate Indifference to a Hostile Environment: A Call for Attorneys to Protect Vulnerable Students By Nancy Willard

Public school districts violate federal civil rights laws when discriminatory harassment of students based on race, color, national origin, sex, or disability is sufficiently serious to create a hostile environment that is interfering with the students’ rights to receive an education, and school staff encourage, tolerate, do not adequately address, or ignore such harassment.

An unacceptably high number of students in public schools in the U.S. are suffering from daily bullying and harassment by their peers--and sometimes school staff. This emotional, and sometimes physical, abuse is known to have a life long harmful impact and to significantly interfere with the targeted students’ ability to receive an education.

While bullying and harassment of students has received a higher degree of focus in recent years, there is no evidence of any significant decrease in the number of students reporting being bullied and harassed. In fact, in some states, it appears that the approach promoted by the state’s anti-bullying statute is having an opposite effect.

For example, in the state of New York, the much-touted Dignity Act for All Students (DASA) was enacted in 2010. On the Youth Risk Behavior Survey in 2011, 18% of New York students reported being bullied. By 2015, this rate had increased to 21%. Under DASA, schools are required to make annual public reports of the number of bullying incidents--a black-mark on the school. In the 2015-16 school year, 71% of New York City schools reported zero bullying incidents.

The approach incorporated into state statutes has created the misperception that all educators must do is have rules in place against bullying, tell students to report, and have the principal investigate, respond with discipline if appropriate, and keep records. This approach has been set into place at the same time that schools are under strong pressure to reduce disciplinary consequences. Thus, there is strong pressure on principals and staff to avoid ever considering hurtful acts of students to constitute “bullying.”

Students and their parents do not know how to retain data and report these incidents in accord with the tight definition in the statutes. Students who are being treated badly, sometimes on a daily basis, are too often told they are overreacting and there is nothing the school can or will do. It is no wonder that the majority of students who are harassed have often gotten to the point where they will not report these incidents. They know from experience that there is nothing the school will do--or reporting could make things far worse.

Under federal civil rights regulations, if a hostile environment is known to exist, schools are required to both investigate and intervene in the specific instances of which they have knowledge and to take necessary steps to correct the hostile environment that underlies the hurtful behavior.

An excellent publication is by the U.S. Department of Education’s Office for Civil Rights (OCR), entitled Protecting Students from Harassment and Hate Crime: A Guide for Schools (now out of date due to changes in the approach to gender role stereotyping). OCR did an excellent job in explaining the importance of a focus on school climate and outlining recommended steps a school should take.

The National School Board Association (NSBA), in an endorsement statement, was in full agreement:

Research indicates that creating a supportive school climate is the most important step in preventing harassment. A school can have policies and procedures, but these alone will not prevent harassment. This is the kind of good preventive work the field needs to help ensure that schools provide a safe and welcome environment for all students.

The leading Supreme Court case addressing student-on-student harassment is Davis v. Monroe County Board of Education, 526 U.S. 629, 119 S. Ct. 1661 (1999). In this case, SCOTUS stated:

Schools can be held financially liable if they are deliberately indifferent to known acts of student-on-student harassment and the harasser is under the school’s authority so long as the harassment is so severe, pervasive, and objectionably offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.

In an early case, Vance v. Spencer Cnty. Pub. Sch. Dist. 231 F.3d 253, 261 (6th Cir. 2000), the Sixth Circuit enunciated helpful guidelines:

Although no particular response is required, and although the school district is not required to eradicate all sexual harassment, the school district must respond and must do so reasonably in light of the known circumstances. Thus, where a school district has knowledge that its remedial action is inadequate and ineffective, it is required to take reasonable action in light of those circumstances to eliminate the behavior. Where a school district has actual knowledge that its efforts to remediate are ineffective, and it continues to use those same methods to no avail, such district has failed to act reasonably in light of the known circumstances.

Unfortunately, a recent trend in the case law has been to dismiss cases upon a showing that every time the student reported, the principal investigated and applied discipline, if deemed appropriate. Stiles v. Grainger County, Tenn. MiLW, No. 01-91360 (6th Circuit, March 25, 2016) and S.B. v. Harford County, No. 15-1474 (4th Circuit, April 8, 2016).

In these two cases, despite evidence of ongoing, extensive harassment, which the students occasionally reported, all the principals did was respond to the specific reported instances. The interventions by the principals were clearly ineffective in stopping the ongoing harassment and no comprehensive steps were taken to correct the hostile environment that clearly existed.

At this time, the NSBA has switched from its prior clear statement of the ineffectiveness of sole reliance on policies and procedures and now argues that if the principal responds in any way to the incidents the harassed student has bravely reported, the school should not be considered deliberately indifferent or be held liable.

In ongoing harassment situations, this level of response by the school principal will generally be ineffective in correcting the specific hurtful situations and does nothing to correct the hostile environment that is fueling the ongoing harassment. In these kinds of cases, greater attention must be paid to the failure of the principals to follow up to ensure effectiveness of their interventions, as well as their failure to engage the school community in comprehensive efforts to correct the evident hostile environment.

The regulations and evidence that raises the importance for a more comprehensive approach, that incorporates ongoing assessment of effectiveness, is readily available in the civil rights regulations and OCR guidance, as well as current academic research and guidance for schools--along with the above NSBA quote.

Unfortunately, at this point in time, there appears to be no other mechanism to exert influence on schools to take the concerns of discriminatory harassment more seriously than increased successful litigation against school districts.

Nancy Willard, M.S., J.D., has advanced degrees in special education and law. For over the last decade, she has focused her professional attention on concerns of digital safety and bullying. She has prepared a 90-minute video training for attorneys, which may, depending on the state, qualify for CLE credit. More information is available here. 

South Carolina Regulations Limit School Resource Officers’ Role By Josh Gupta-Kagan

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.

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