Discriminatory discipline has been a hot topic this year in public schools, and the focus on this topic makes it one that school leaders should not ignore.
A Spotlight on Discriminatory Discipline
In January, a major study showed, among other findings, that black and Hispanic students are suspended at higher rates than their non-Hispanic white counterparts, and that the differences often are not attributable to different levels of misbehavior.
In late March, a Mississippi school district entered into a consent decree with the U.S. Department of Justice to address reported discriminatory use of “exclusionary discipline” such as suspension, expulsion and school-based arrest, often for minor infractions, among black students, and use of harsher discipline for black students, even when white peers of similar ages and with similar disciplinary histories committed comparable misbehavior at the same schools.
In April, the Legal Aid of North Carolina filed a complaint with the Department of Education’s Office for Civil Rights (OCR) alleging that a North Carolina district violated a civil rights law, Title VI of the Civil Rights Act of 1964, by suspending black students and students with disabilities at far higher rates than white students and students without disabilities.
Finally, this week parents and students reportedly filed a lawsuit against police officers and the school board in Compton, California, seeking $41.4 million in damages for disproportionate use of unlawful arrest, excessive force, racial profiling, and racial discrimination by police and police liaison officers in schools.
Tips and Tricks
Although the severe abuses alleged in these cases are extreme, and although disproportionate disciplinary numbers do not always establish discrimination, the spotlight on discriminatory discipline make clear that schools and school districts with disproportionate disciplinary records are at risk of legal challenges from all directions.
Here are a few tips and tricks for school leaders who wish to take a proactive approach to prevent students of one group from being disciplined more or more harshly than others and to mitigate the risk of lawsuits and complaints like those described above:
- Know Your Data. Discriminatory discipline is typically not the result of an overt conspiracy, but rather is often the unintended effect of small, often subconscious decisions by individuals throughout the system. So in order to determine if there is a problem, school officials must first collect and review data to determine if there is a disproportionate effect on one group of students. A red flag is where data shows that students of a particular group receive discipline or more harsh discipline more frequently than other groups for comparable misbehavior, especially where students of other groups are of similar ages, have similar disciplinary histories, and attend the same school.
- Treat Minor Infractions Differently. If your data review shows disproportionate impact on a particular group, consider how employees and officials address minor misbehavior. One school district in Buffalo, New York decided to stop suspending students for minor infractions at all after a student was shot and killed in a drive by shooting while serving an out-of-school suspension for roaming the halls at school. A less-extreme option is to train staff on a continuum of graduated and developmentally appropriate intervention strategies and consequences to be used before removing students from instruction for discipline. Such strategies are often known as Positive Behavioral Interventions and Supports (PBIS), and if they are applied across the board in a fair and consistent manner they can help prevent disproportionate discipline.
- Who You Gonna Call? Some schools that have disproportionate discipline for some groups may find that defining and even limiting when administrators and officials can call the police on student discipline matters may help balance the numbers for some groups. Police involvement can often escalate a relatively minor incident into something more major.
- Review and Assess Changes to Determine Success. In the Mississippi case, the district was required to appoint a “PBIS Director” to track and assist with implementation of the PBIS model. The Director analyzes classroom, grade, and school-level discipline data, develops corrective action plans, coordinates professional development on PBIS, and serves as a contact for parent and student complaints regarding discipline. Although most schools need not assign a full time employee to handle such tasks, the types of activities suggested are good ways to address the efficiency of changes implemented over time and provide communication to parents and the community to prevent misunderstandings.
- Training is Key. Training staff at all levels, from police liaison officers to teachers to administrators, is key to limiting disproportionate discipline. Employees should understand policies and procedures on how discipline is handled, the potential for bias with respect to student discipline and how to prevent it, and how and when to engage families and the community.
Although no steps can prevent a legal challenge, and even after such steps are taken disproportions in the numbers for a school or school district may remain, if school district shows that it has analyzed data and taken steps to address any inconsistencies, it will help if ever necessary to defend against allegations of discriminatory use of discipline. Conducting such an analysis also helps a school district show students, parents, and the community that it takes these concerns seriously and wants to prevent disproportionate discipline in its schools, regardless of the legal risks.
In a recent decision, the first federal appellate court to address the rights of school officials to search student cell phones held that a student’s violation of a school rule regarding technology did not justify a general search of the student’s cell phone by Kentucky school district employees. The case is an important reminder to school leaders that they can search student technology in certain circumstances, but they must respect the fine line between a justifiable search and a search that violates a student’s constitutional rights.
The Decision
The case, G.C. v. Owensboro Public Schools, dealt with a student, G.C., who was involved in a string of disciplinary incidents and had communicated to school officials that he was suicidal. During his freshman year, school officials searched G.C.’s phone after an incident where he walked out of a meeting with a prevention coordinator, left the school building without permission, made a phone call to his father in the parking lot and was found in the parking lot with tobacco products in plain view. The school official who searched the phone cited concerns that the student was going to harm himself as a basis for conducting the search.
That fall, at the beginning of his sophomore year, G.C. violated the school cell phone policy by using his phone to send text messages during class. His teacher confiscated the phone and delivered it to another administrator. The administrator read four text messages on the phone in an effort to see if there was evidence that he was going to harm himself. Although no evidence of misconduct was found on the phone, G.C., who was attending the school as an out-of-district student, was told that he had lost his privileges to attend Owensboro High School because of his behavior.
The Sixth Circuit Court of Appeals, addressed a number of issues in its decision, including whether the school district was required to provide G.C. a hearing before telling him he could not attend the high school (it was) and whether the school discriminated against him based on Section 504 of the Rehabilitation Act (it did not). But the most interesting element of the decision dealt with whether the school officials were justified in searching the student’s cell phone.
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As The New York Times recently reported, a Colorado school district is facing a civil rights complaint after refusing to allow a six-year-old transgender student to use the girls’ bathroom in a local elementary school. The case highlights the challenges that school administrators face when addressing requests by transgender students to use single-sex facilities in school.
On the one hand, families of transgender students, such as the Colorado student, argue that requiring a student to use a gender-neutral, separate facilities creates a stigma. If the facilities are difficult or time-consuming to access, families may see the request as unduly burdensome on the student. On the other hand, schools may have to balance the rights of the transgender students with other factors, such as the rights of other students and the need to maintain discipline.
The Colorado case provides an example of a situation in which the school believed the balance tipped against allowing the transgender student to use the girls’ restroom. The school allowed the student to wear female clothing to school and to be referred to as a female. The school also allowed the student to use a “gender neutral” bathroom in the school health room. In denying the student access to the girls’ bathroom, the school cited concerns about what would occur as the student, who was born a male, grew older and developed male physical characteristics. The school indicated that parents of students who were born female might have legitimate concerns with the transgender student using the same single-sex facilities as their daughters even if the student identifies and presents as female.
Such a decision is not without precedent. In Doe v. Clenchy, a court in Maine held that a school district could deny a transgender student’s request to use the female restrooms at school. The school allowed the student to use the restroom through the fifth grade, but that year a male student walked into the girls’ restroom while the transgender student and some of her friends were washing their hands. When confronted by administration the student said that his grandfather and guardian said if the transgender student could use the girls’ restroom, so could he. The court recognized that the school was placed in a difficult situation because of the desire of a student’s grandfather and guardian “to make a social statement.” The court also noted that it appeared inevitable that a controversy might arise since the parents of the transgender student had agreed to reevaluate the request if the parents of female students complained. The court found that the transgender student’s rights were not violated by the decision to require her to use a gender-neutral restroom in light of the facts of the case.
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A portrait of Jesus Christ that has been hanging in an Ohio public middle school since the 1940s is once again garnering national headlines. The school district reportedly moved the portrait earlier this week from the middle school to a local high school.
A lawsuit filed early this year against the school district by three anonymous students alleges that the portrait of Jesus was a gift to the school by a Christian student club and is therefore the school’s speech. Because it is religious in nature and there is no secular purpose for hanging the picture, the lawsuit argues that hanging it in the school violates the First Amendment’s prohibition against establishment of religion. In February, the school board voted to allow the picture to remain despite the lawsuit, saying that the portrait is not owned by the school but rather belongs to a Christian student club. The recent move of the portrait to a new school purportedly was a decision of the student club, not the school. The school suggested that removing the portrait would violate the First Amendment rights of the students in the Christian club. Which side is right?
There is not an easy answer, as is often the case with religious school speech questions. A first important consideration will be the context in which the portrait is hung. As the ACLU’s initial letter to the Ohio school district explained, courts are generally skeptical of religious displays, including religious works of art, that appear to be government sponsored unless there is a clear secular purpose behind the display. Examples of secular displays might include a display that includes art work from a number of different religions in an effort to teach students about the impact of religion on art or a display in which students are allowed to hang photographs of their choice and a student submits a religious photograph for the display. In contrast, courts have held particular works of art to violate the Establishment Clause where they are relatively isolated from other government-sponsored displays. The ACLU’s letter alleged that the Jesus portrait at issue here was not in a larger display of “world-renowned historical or religious figures,” and rather was hung in the middle school near portraits of alumni of the school. If those facts are true, and if the move to the high school did not remedy the problem, a court would be much more likely to find the portrait to be unconstitutional.
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In a Dear Colleague letter issued last week to chief state school officers, the U.S. Department of Education called for immediate action to reduce gender-based violence in schools. The letter is short and sets forth only a few general suggestions for steps that schools can take to respond to gender-based violence. But the letter must be read against the backdrop of two previous Dear Colleague letters issued by the Department on bullying, harassment and sexual violence. Against the backdrop of those letters, the most recent Dear Colleague Letter is yet another reminder of the high standards to which the Department and its Office for Civil Rights (OCR) holds schools with respect to sexual harassment and violence.
Background
By way of background, the letter reportedly was released during a White House event on teen dating violence prevention, which was part of National Teen Dating Violence Awareness and Prevention Month and the Obama Administration’s efforts to raise awareness of gender-based violence. A press release issued by the Department suggests that the purpose of the letter was to make clear that although strategies to improve school climate and reduce bullying are critical, they may not be adequate to address the harms of gender-based violence.
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As schools increase the use of technology to communicate with and about students, questions arise about the intersection between the data created and student records laws, such as the Federal Educational Rights and Privacy Act (FERPA). States also have similar laws that may provide greater protections than their federal counterpart. Are emails, texts, Tweets, and other digital communications between teachers, administrators, parents, and students “educational records” under FERPA and related state laws?
Let’s address the following questions: (1) Why does it matter? (2) Are digital communications student records? and (3) How do I respond to a broad student records request for digital communications? (more…)
Each Tuesday the #Edchat hashtag brings together educators from across the globe to discuss education-related topics on Twitter. (For those wondering “What is #Edchat,” one of the founders describes the movement here.) Last week one of the questions on #Edchat was “How do we train educators to teach in programs like BYOD and 1:1?” The chat was timely because the Internet is abuzz with questions about whether BYOD programs and 1:1 programs have a place in the classroom. BYOD programs are programs through which schools tell students “bring your own devices” to the classroom for pedagogical use, and 1:1 programs are programs through which schools equip each student with a school-owned electronic device for school-related use.
As the transcript shows, there was a lively conversation with hundreds of Tweets discussing the benefits of BYOD and 1:1 programs. For instance, participants pointed out that BYOD and 1:1 programs allow technology to be more seamlessly integrated into the classroom in ways the traditional computer lab never allows. Participants also noted that use of technology in the classroom can help turn students from “tech comfy” to “tech savvy.” (The idea is described more here.)
The participants also pointed out some of the risks of BYOD and 1:1 programs. As one participant put it, “Moving forward with 1:1 without preparing teachers properly creates school culture and pedagogical problems.” But there are also important legal risks, and school districts should not move forward with BYOD or 1:1 programs without preparing educators to understand those risks, as well. I pointed this out in a few Tweets, and was asked by some participants to provide some resources about those legal risks.
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The U.S. Department of Education has launched a Spanish-language website providing resources to teachers, parents, and community leaders to prevent bullying. The website is http://espanol.stopbullying.gov and is similar in content to its English-language counterpart, www.stopbullying.gov. This website is an important reminder of the intersection between challenges school districts face in addressing bullying and challenges they face in communicating effectively with Limited English Proficient (LEP) students and parents about important issues. Schools with large populations of parents and students with LEP should take steps to address bullying and provide bullying prevention education resources in relevant languages as well as in English.
The Illinois State Board of Education reported in its recent Superintendent’s Message that the Spanish-language “stopbullying” website includes the following resources:
- Training Module with Speaker Notes – a presentation with suggested talking points, including the latest research to help participants create an action plan for a community event.
- Training Module PowerPoint – a slide-by-slide presentation for use at a community event, workshop, or town hall meeting.
- Community Action Toolkit – a supplemental guide, including tip sheets, a template event agenda, action planning matrix, and feedback forms.
- Misdirections Packet – a Tip Sheet and a Spanish transcript of the Misdirections video featuring Dr. Catherine Bradshaw, a national expert in bullying prevention who discusses approaches to avoid in bullying prevention and response.
The Spanish-language resource is a reflection of the challenges school districts face in juggling bullying concerns and concerns relating to communicating with English Language Learners and students and parents with LEP. When LEP students, parents, staff and community members are at issue, it can be even more difficult for school districts to comply with recent Department of Education Office for Civil Rights (OCR) requirements to prevent and address certain types of bullying, such as bullying based on ethnic background or race. For students and parents with linguistic challenges, this may include education on and responses to bullying in a language other than English.
Moreover, recent lawsuits make clear that educating staff and community members about bullying in schools and how to report it is important. Responding to such reports in a meaningful way is also important. One recent lawsuit reportedly filed by a former school district employee inArizona, for instance, alleges that the school district did not respond to her reports that an ELL student was being bullied for his strong accent, among other things.
A recent Chicago Tribune editorial, “The burden of transparency” asks a provocative question: does the unduly burdensome exemption in the Illinois Freedom of Information Act (FOIA) allow an unfair loophole for public bodies to avoid producing public records? The Tribune editorial calls upon lawmakers to remove the unduly burdensome provision from the Illinois law. The federal Freedom of Information Act and public access laws in many other states include similar provisions and so the questions raised in the editorial could be applicable across the country. But courts and lawmakers considering such challenges should keep in mind the serious countervailing interests of public bodies – and the public taxpayers who fund them – before taking drastic measures like removing unduly burdensome exemptions from public access laws.
The editorial was written against the backdrop of a recent Illinois lawsuit, For the Good of Illinois v. State of Illinois, Office of Comptroller, 13CH00257, which was filed in the Circuit Court of Cook County in early January. As explained in the complaint, For the Good of Illinois (FGI) operates a website, www.openthebooks.com, which is a searchable website that contains financial records from public bodies. According to the FGI website, the website includes “7 million lines of public employment data covering over 95% of Illinois public employment and $236 billion of public employment pay, pension and worker compensation claims.” The complaint indicates that that FGI obtained such information from, among other public bodies, 944 local school districts and 36 colleges and universities. (more…)
Earlier this month, a New Jersey appellate court affirmed the dismissal of a tenured teacher for comments she made about her students on Facebook. Good summaries of the case, In re O’Brien, can be found through the National School Boards Association and Education Week (subscriber access only). But the case warrants a closer look for school leaders and employees who wish to better understand First Amendment protections of school-employee speech on the internet. Although the school district was allowed to dismiss the teacher in this situation, where she criticized her young students in an inflammatory way, there is a blurry line between protected and unprotected employee online speech that administrators must be careful to understand. Below are a summary of the facts in the case, the relevant legal standard and its application to O’Brien’s situation, and some lessons that school administrators and employees can learn from the ruling.
The Facts
In 2010-2011, Jennifer O’Brien was a veteran teacher with over a decade of experience in the Paterson, New Jersey public schools. At the start of the 2010-2011 school year, Paterson unexpectedly was assigned to teach first grade at a new school that was predominately comprised of minority students, including African-Americans and Latinos. All of the students in her class, in fact, were either Latino or African-American.
O’Brien began to believe that six or seven of the students in her class had behavioral problems, which were having an adverse impact on her classroom environment. One student struck her, another stole money from her and other students, and some students hit each other.
O’Brien responded to these issues by sending disciplinary referrals to the school administrators on several occasions, but she thought the referrals had not been addressed adequately. O’Brien then posted two posts on her Facebook page relating to the issues:
“I’m not a teacher—I’m a warden for future criminals!”
“They had a scared straight program in school—why couldn’t [I] bring [first] graders?”
O’Brien said she posted the statement that her students were “future criminals” because of the behavior of some – but not all – of the students, not because of their race or ethnicity. News of her posts spread quickly throughout the school district, however. Two angry parents went to her principal’s office to express their outrage, and one parent threatened to remove her child from school. The school also received at least a dozen irate phone calls. Twenty to 25 people gathered outside the school to protest because of the statements, and news reporters and camera crews from major news organizations descended upon the school. At the next Home-School Council meeting, the majority of the meeting was devoted to O’Brien’s posts and parents expressed their outrage over the posts. When O’Brien was made aware of the outrage against her posts, she was surprised that her posts had led to such a reaction. (more…)
