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Beyond zero tolerance policies 2014

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Beyond zero tolerance policies 2014

  1. 1. Beyond Zero Tolerance Policies Erin H. Walz Udall Shumway, PLC
  2. 2. What is Zero Tolerance? It started as: Consistently enforced suspension and expulsion policies in response to weapons, drugs and violent acts in the school setting. Now: A discipline policy that assigns explicit, predetermined punishments to specific violations of school rules, regardless of the situation or context of the behavior.
  3. 3. The Beginning of Zero Tolerance • Zero Tolerance policies began in 1994 when the federal government initiated the Gun-Free Schools Act. • This Act was created in reaction to the school shootings and rise in violent juvenile crime of the mid- 90s. • The Act required schools to expel students for one year if they brought fire arms and/or illegal drugs to school.
  4. 4. Adoption of Zero Tolerance • Congress required all schools to adopt the zero tolerance policy. • If a school refused to adopt zero tolerance, the school would no longer receive federal funding. • Now all 50 states have adopted zero tolerance policies, and they are standard operating procedure in the nation’s 109,000 public schools.
  5. 5. Arizona Law A.R.S. §15-841 G. A school district or charter school shall expel from school for a period of not less than one year a pupil who is determined to have brought a firearm to a school … except that the school district or charter school may modify this expulsion requirement for a pupil on a case by case basis. … H. A school district or charter school shall expel from school for at least one year a pupil who is determined to have threatened an educational institution … except that the school district or charter school may modify this expulsion requirement for a pupil on a case by case basis…
  6. 6. Expansion • Since its creation, state legislatures and local school boards have expanded the zero tolerance policy. • Zero tolerance policies in schools now frequently include alcohol, tobacco, drugs, fighting, sexual offenses and insubordination.
  7. 7. The Effects of Zero Tolerance • In recent years, only 5% of serious disciplinary actions (nationally) involved possession of a weapon. • 43% of expulsions and out-of-school suspensions lasting a week or longer were for insubordination.
  8. 8. The Effects of Zero Tolerance • Link between zero tolerance standard punishments of suspension and expulsion and negative outcomes – Increases likelihood of subsequent suspension or expulsion – Less likely to graduate on time and are at higher risk to drop out – Higher suspension rates found to be related to lower school-wide academic achievement
  9. 9. The Effects of Zero Tolerance • Inequitable in application – a student who is bullied and retaliates subject to the same punishment as the bully.
  10. 10. Legal Interpretation • Arizona school strip-searched 13 year old student under zero-tolerance policy for drugs, looking for ibuprofen. U.S. Supreme Court ruled search was a violation of student’s constitutional rights. • School district must provide significant reasons for denying alternative schooling or tutoring to students suspended for misbehavior, according to North Carolina Supreme Court.
  11. 11. Legal Interpretation • 6th Circuit Court of Appeals held that expelling a student for possession of a knife, which student did not know was in his car, was not rationally related to any legitimate state interest.
  12. 12. Legal Interpretation • A student confiscated a knife from another student who had threatened him with it. Before student could go to office and turn it in, assistant principal learned of it and obtained from student. Per school’s zero tolerance policy, student disciplined for “possessing” weapon. Suspended for one year.
  13. 13. Legal Interpretation • Massachusetts federal court ruled that punishment was “grossly disproportionate” to student’s conduct that it was not rationally related to any legitimate state purpose and thus violated constitutional guarantee of substantive due process.
  14. 14. Zero Tolerance = Zero Due Process? • 5th Amendment – student’s rights: – Notice: student informed of the specific information as to charges and the evidence supporting the charges, and – Opportunity to be heard: student given a chance to tell his or her side of the story.
  15. 15. Zero Tolerance = Zero Due Process? • Students facing long-term suspensions are entitled to a hearing. A hearing where the outcome is predetermined does not satisfy due process. – In Massachusetts case, student was reinstated and record expunged. School district agreed to change its policy and decide future cases on individual facts.
  16. 16. Zero Tolerance and Discrimination • Minorities are expelled and suspended more often, which shows a tendency toward discrimination. • Among middle school age students, black students are suspended almost 4x more often than white, and Latino students 2x more often.
  17. 17. Zero Tolerance and Discrimination • Frequent suspension of minorities contributes to the achievement gap and starts the chain of events that leads to kids dropping out. • High school students with disabilities are 3x more likely to receive an out-of-school suspension that non-disabled peers.
  18. 18. Zero Tolerance and Discrimination • Department of Education’s Office of Civil Rights (OCR) received 693 complaints alleging discrimination in school discipline from 2013 to 4/16/14. • OCR is presently investigating 131 of those discipline complaints
  19. 19. OCR Investigations • Intentional discrimination: Discipline policy is neutral on its face, but school applies it in a discriminatory manner or school permits ad hoc discipline of students in areas not fully addressed by policy. – Students of different race are disciplined differently for the same offense with comparable circumstances. – Neutral policy is selectively enforced against students of certain races.
  20. 20. OCR Investigations • Disparate Impact: Neutral discipline policy has an unjustified effect of discriminating against students on the basis of race. – Has discipline policy resulted in adverse impact on students of a particular race? – Is the discipline policy necessary to meet an important educational goal? – Are there comparably effective alternative policies or practices that would meet the school’s educational goal with less adverse impact?
  21. 21. But Do They Work? • No evidence that zero tolerance policies reduce school violence. • Research shows that rates of suspension and expulsion appear unrelated to overall school success for schools with similar characteristics, levels of funding and student populations. • Often the students are repeat offenders, suggesting that the at-risk students are not getting the message of deterrence. • The long term result of zero tolerance and frequent suspension is students dropping out of school.
  22. 22. Real Life Situations • A 10 year old girl was suspended for sexual harassment when she repeatedly asked a little boy in her class if he liked her. • Student was expelled for pointing a piece of breaded chicken at a teacher during lunch and pretending it was a gun. • Teenager shooting peas with a straw in cafeteria expelled for weapons violation.
  23. 23. Real Life Situations • Arizona kindergartner given sexual conduct referral for pulling his pants down on the playground. • A hunting knife in a sports bag in a student’s car resulted in expulsion for weapons violation. • 12 year old arrested for doodling on her desk in erasable marker.
  24. 24. Real Life Situations • A 10 year old girl received a week detention for eating a Jolly Rancher candy in the cafeteria. • 6 year old given detention for having a Lego gun on the school bus, and also wrote a letter of apology. • 7 year old chewed Pop Tart into shape of gun and said “bang bang” received 2 day suspension. • 5 year old accused of making terroristic threats for talking to fellow kindergarteners about shooting her Hello Kitty bubble gun.
  25. 25. Times they are a changing… • Public opinion on has changed dramatically. – TIME, 5/22/12: Do ‘Zero Tolerance’ School Discipline Policies Go Too Far? – December 2012: Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights held an informational hearing on “Ending the School to Prison Pipeline” – New York Times, 12/2/13: Seeing the Toll, Schools Revise Zero Tolerance – New York Times, 1/5/14: Zero Tolerance, Reconsidered (Editorial)
  26. 26. Times they are a changing… – Arizona Republic, March 2014: article on 10 year old boy in Ohio suspended for 3 days for making a gun with his hand and “pointing” it at another student – Arizona Republic, August 2014: two Letters to the Editor and one article on sexual misconduct referral for kindergartner
  27. 27. OCR Weighs In U.S. Dept. of Justice and U.S Dept. of Education January 2014 Guidance Package on School Climate and Discipline – Focuses on racial and ethnic disparity in school discipline. – School to Prison Pipeline. – HOT BUTTON ISSUE FOR OCR INVESTIGATIONS! – Alternatives to exclusionary discipline while encouraging new emphasis on reducing disproportionality for students of color and students with disabilities.
  28. 28. OCR’s Guiding Principles Guiding Principle 1: Climate and Prevention 6 Action Steps aimed at creative, positive school climates Guiding Principle 2: Clear, Appropriate and Consistent Expectations and Consequences 5 Action Steps aimed at expectations and consequences, including “Remove students from the classroom only as a last resort” Guiding Principle 3: Equity and Continuous Improvement 2 Action Steps aimed at training, data and involvement of entire community
  29. 29. OCR’s Guiding Principle 2: Clear, Appropriate and Consistent Expectations and Consequences ACTION STEPS: (1)Set high expectations for behavior and adopt an instructional approach to school discipline – Expectations are communicated to students and families regularly. – Interventions and/or consequences to re-teach expectations. – Help students develop new behavior and positive strategies to avoid conflicts.
  30. 30. OCR’s Guiding Principle 2: Clear, Appropriate and Consistent Expectations and Consequences (2)Involve families, students, and school personnel in the development and implementation of discipline policies or codes of conduct, and communicate those policies regularly and clearly.
  31. 31. OCR’s Guiding Principle 2: Clear, Appropriate and Consistent Expectations and Consequences – Provide policies and code of conduct in format that is easy to understand and TRANSLATED as necessary. – Put protocols in place for when parents are notified. – Clearly designate who has authority to identify discipline violations and assign penalties. – Ensure written discipline policy distinguishes between students who violate discipline policy for first time and students who do so repeatedly.
  32. 32. OCR’s Guiding Principle 2: Clear, Appropriate and Consistent Expectations and Consequences (3)Ensure that clear, developmentally appropriate, and proportional consequences apply for misbehavior.
  33. 33. OCR’s Guiding Principle 2: Clear, Appropriate and Consistent Expectations and Consequences – Written policies should define offense categories and base discipline on specific and objective criteria. – Create a continuum of developmentally appropriate consequences for escalating student behavior. – Allows administrators/teachers to choose appropriate consequence based on individual and facts. – Consequences should be in proportion to the misbehavior and the student.
  34. 34. OCR’s Guiding Principle 2: Clear, Appropriate and Consistent Expectations and Consequences (4) Create policies that include appropriate procedures for students with disabilities and due process for all students IDEA Remember: – OCR will investigate if discipline policies disproportionately impact special needs students – Parents may bring due process claim for violation of IDEA
  35. 35. OCR’s Guiding Principle 2: Clear, Appropriate and Consistent Expectations and (5) Remove students from the classroom only as a last resort, ensure that any alternative settings provides students with academic instruction, and return students to their regular class as soon as possible.
  36. 36. OCR’s Guiding Principle 2: Clear, Appropriate and Consistent Expectations and – Need to remove students diminishes as school climate improves. – Emphasis on behavioral interventions and tiered supports. – Reserve for serious infractions spelled out in discipline policies and student code of conduct. – Gun Free Schools Act only mandates expulsion for firearms at school, and even then allows for modification on case-by-case basis. – Provide instruction if student must be removed and put in alternative setting.
  37. 37. Alternatives to Zero Tolerance Positive Behavior Interventions and Supports (PBIS) •Expectations – clearly and positively designed •Training and teaching of behavioral expectations taught for all students and staff •Systems for acknowledging appropriate behaviors
  38. 38. Alternatives to Zero Tolerance • Systems for proactively correcting behavioral errors • Systems for collecting and using data to make decisions regarding school‐wide behavior • Monitoring and timely adaptations to the program if warranted
  39. 39. Alternatives to Zero Tolerance Safe and Supportive Schools (S3) Approach • Effective Thinking – using data and research to lead to solutions. Taking a positive not a deficit approach. • Effective Action – implementing evidence‐based or research‐based programs or processes to solve the problems or issues identified by Effective Thinking.
  40. 40. Alternatives to Zero Tolerance • Effective Relationships – supporting the relationships that will enhance the climate and be the “glue” that keeps the Actions moving forward. • Effective Accomplishment – evaluating success in multiple ways and at many times in the process and feeding this data into the Effective Thinking process
  41. 41. Schools Making Changes Los Angeles Unified School District •Second largest school district in U.S. •In 2012, LA Unified stopped issuing citations for truancy, instead referring students to youth centers for counseling and support. •In 2013, it barred suspensions for “willful defiance.” •August 2014, students involved in non‐serious altercations or accused of petty thefts, minor vandalism and similar infractions will be referred to counseling and administrative discipline rather than being sent to juvenile court. – District has added 5 restorative justice advisers and 25 restorative justice teacher advisers.
  42. 42. Schools Making Changes Phoenix Union High School District •16 high schools and 27,000 students •80% of students/families living at poverty level •As of December 2013, District spent 10% of its budget toward providing students with counseling and other support programs and interventions. •Has never endorsed a zero tolerance policy •No expulsions in preceding 2 years.
  43. 43. Into the Future… • “Zero Tolerance” must be removed from school personnel vocabulary and from school policies. – It has become a fall back position for all sorts of misconduct. – Limit in school district policies to what is mandated by law – weapons violations. – Replace with judgment and discretion. – Replace with PBIS or comparable program to change school climate.
  44. 44. Disclaimer This presentation and related handout is for informational purposes only and should not be used in place of legal advice.
  45. 45. Erin H. Walz UDALL SHUMWAY PLC 1138 North Alma School Road, Suite 101 Mesa, Arizona 85201 | 480-461-5379