Criminalizing Schoolkids (ep. 11)

August 30, 2018
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Many of the children who are presently gearing up for a new school year are also preparing to face police on a daily basis. The numbers of cops in schools is growing, which often means that instead of a detention or a timeout, routine misbehavior can result in arrest and criminal charges — with children of color disproportionately impacted. The U.S. Department of Education recently released data collected from America’s 96,000 public schools. That data shows that students of color make up the majority of public school students for the first time. It also details police presence in schools, the lack of social services in many schools, and the growing racial disparities in public school systems serving 50 million students.

The ACLU is partnering with the UCLA Civil Rights Project on a series of reports and data tools to enhance the public’s understanding of the Civil Rights Data Collection (CRDC). Amir Whitaker, an attorney at the ACLU of Southern California and co-author of those reports, joins At Liberty to discuss the school-to-prison pipeline, how the Trump administration might address it, and what it all means for our children.

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LEE ROWLAND
[00:00:05] I'm Lee Rowland. Welcome to At Liberty, the podcast from the ACLU where we tackle today's most pressing civil rights and civil liberties issues. Today's episode: criminalizing school discipline.

It's almost fall, which means that students are headed back to school. For many public school students, it also means preparing to face the cops on a daily basis. Growing numbers of police in schools mean that instead of detention or a time out, routine misbehavior like throwing paper airplanes or wearing saggy pants has resulted in arrests.

In 2015, a 14-year-old girl was charged with assault with a weapon for tossing a baby carrot. Black students are more than twice as likely to face discipline than their white peers. Latino and disabled students are also disproportionately likely to face criminal penalties. The Obama administration recognized the problem, and in 2014 issued guidance encouraging schools to handle discipline internally rather than funnelling kids into the criminal justice system. But current Secretary of Education Betsy DeVos is considering ending that guidance.

Joining us today to talk about the school to prison pipeline is Amir Whitaker. Amir is a teacher a community advocate and a civil rights researcher. He's racked up enough degrees to earn the nickname “Doctor Knucklehead.” He's also a staff attorney at the ACLU of Southern California. He recently got his hands on some data on school discipline and he's discovered some harsh realities in that data. For example, the fact that one point 7.3 million American students attend a public school with a staff police officer but not a single guidance counselor. Wow. Amir, welcome and thanks for joining us today.

AMIR WHITAKER
Thanks for having me, Lee.

LEE
[00:02:05] So you've been looking at a lot of data lately about school discipline. Tell us what you're finding in that data.

AMIR
Sure. So we're looking at the Civil Rights Data Collection, which actually began in the 1960s when the federal government acknowledged, you know, through civil rights legislation and different things, that there was still progress to be made. And now, as a result, every public school has to report an array of data.

So, for the 2015-16 school year, all 96,000 American public schools reported this data. And actually, it's the first time in history where we see American schools are now majority minority, meaning students of color are 51 percent of American schoolchildren. But we also still see very troubling disparities across suspension, arrests, expulsion, access to counselors, and access to services that would actually decrease students’ encounter with the criminal justice system or school-to-prison pipeline.

LEE
And when advocates use that phrase, the school-to-prison pipeline, what does that mean in practical terms for a student who might get caught up in it?

AMIR
So the school-to-prison pipeline is a phenomenon where students, by virtue of the schools they attend, have an increased likelihood of ending up in the criminal justice system. And it's really the feeder system to, you know, America's addiction with mass incarceration and criminalization. For instance, here in Los Angeles, advocates have convinced the school district to no longer suspend students for what they called “disruption defiance.” You know, wearing a hoodie, not wearing your belt to school or something simple like that. But in a district next door, where students don't have that protection, they could be removed from school. And we now know the research shows removing a student from school increases their likelihood of dropping out of school, ending up in the criminal justice system. And schools are supposed to be a safe haven for students, so we have to keep our children in schools and not push them out frequently for minor reasons.

LEE
[00:04:09] What does that interaction with the police look like in schools? Are normal cops coming onto campus when they're called by school administrators, or are there actually police that are embedded on staff in many schools?

AMIR
So here in Los Angeles they actually have one of the largest school police forces in the country. Over $67 million a year spent on the internal school police force in Los Angeles Unified schools. Many large school districts have their own internal school police force. Some districts could have local city police in their schools through different contracts or memorandums of understanding. And what this looks like for students could be demonstrated in the video that just went viral in Arizona. You see a student on campus with a bandana and he's in violation of the dress code.

AUDIO FROM ARIZONA VIDEO
They’re trying to get him to remove his bandana.

AMIR
The staff are asking him to remove the bandana and eventually the police come and are responding the way they're trained to respond.

AUDIO FROM ARIZONA VIDEO
Don’t wear a bandana, that’s it.
You said I broke the law?
You get it?

AMIR
You hear the student asking you know what law am I breaking? Right. Because a dress code violation is not a criminal law violation.

LEE
Man, I sure hope not, or we’re all in a lot of trouble.

AMIR
Right. Our schools are becoming hyper-criminalized environments where you know that student with the bandana, just moments before he walked through the schoolhouse doors was completely fine — he can go to a mall, he can go to a library, he can go to many other settings with the bandana. In school environments, you know, sometimes there's just this tendency to want to control students, and a student handbook or a student code of conduct in itself could be discriminatory. We've seen some dress codes that say you can't wear certain hairstyles, Mohawks, or have certain designs in your hair which target certain students.

LEE
So Amir, some of the things you just mentioned — certain hairstyles, these sound like very racialized systems of discipline. What are the origins of the kind of racial rules in school discipline?

AMIR
[00:06:17] Looking at the data, you see an increase in suspension rates, expulsion rates mirror the increase in incarceration. So we know just since the 80s, the incarceration rate has quadrupled here. Suspension rates didn't increase at quite the same pace but they more than doubled in that same period. And this is the time of, the war on drugs ramping up. We still see policies leftover policies of that here in L.A. where, for instance they have a random metal detector search policy that requires every high school and middle school in the district, and there are almost 200, to pause learning every day to quote-unquote randomly select students and search them for, you know, weapons. But we're seeing them search for contraband and drugs, doing searches on days like 4/20 or April 20th, where students are believed to bring marijuana to school. And we're seeing prison shakedowns, where 200 students, 100 students are being searched on campus.

LEE
Good lord.

AMIR
So, these are leftover policies from the war on drugs that mirror that, you know, super predator narrative that came about in the 90s, where we started becoming afraid of our children. For instance, I’m talking to administrators that say, you know, any student that gets into a fight at this school will be arrested. You know, adolescents have disagreements. Right. It's not that we're dealing with a new child — because you can look at pop culture, you can look at Dennis the Menace, Bart Simpson, Pippi Longstocking. You see all these knuckleheads throughout history, right? So it's not that adolescent behavior has really changed that much, but it's our response to it and the need to feed that mass incarceration system that is also a part of this system of racial control.

LEE
[00:08:05] You're describing a system where students lose fundamental liberties when they walk through the schoolhouse gates, where there are random searches, where something that could never be criminal when walking down the street — like wearing a bandana — somehow becomes the source of a criminal referral or an arrest. What do you think that does, psychologically, to young people who are learning how their government treats them?

AMIR
I can speak for this myself because for years I had thought that I actually dropped out of school in the 11th grade. I eventually decided I no longer wanted to come to school because I was placed in this alternative program, where we had old books and it was hyper-criminalized. But actually, after studying educational psychology, we realized the school actually pushed me out. It wasn't that I made the conscious decision, alright, I no longer want to come, but the school created an environment that I no longer wanted to return to. So we now know over a million students a year quote-unquote drop out of school. But some of this is a result of these policies creating climates that students no longer want to return to.

And, if education is supposed to prepare our citizens, the future generation that's going to take over leadership, then we really have to do a better job, because another thing from the data, the new civil rights data collection that will come out in our report: Students lost over 11 million days of instruction in the 2015-16 school year, because of out-of-school suspensions. You know, and this translates to over 60,000 school years of learning that students could have been prepared with.

LEE
You used the figure 11 million lost school days. So I assume that represents the number of days times the number of students who have been disciplined and lost a day at school. That's right?

AMIR
[00:10:00] Yeah, so in the 2015-16 school year was the first time in history that every school, all 96,000, had to report not just suspensions but how many days students lost. And this is where we see actually wider disparities than suspension disparities, because sometimes black students are suspended for longer, not just more frequently. So in the data we saw, black students are about 15 percent of all American schoolchildren, but they're 45 percent of the days lost to suspension. And that's a huge gap. That means they’re almost half of the education educational deprivation happening and we know there is an achievement gap, between students of color or low-income students and white students or high-income students, where you know you see lower test scores with struggling students, inner-city students. But what this data reveals is that actually there's a gap in learning opportunity — not just outcomes, but the inputs. So black students have less access to school because of this suspension in the school-to-prison pipeline. It's really the perpetuation of our dual education system. And it's not just for students of color. It's also for students with disabilities.

LEE
In addition to the suspensions and the losses of the days of school, are you also seeing disproportionate likelihood of those students, whether they be Black or Latino or disabled, also being disproportionately arrested, and even charged? Are these students going to jail?

AMIR
A lot of the students are ending up in juvenile detention centers, jails if they're over 18. And we know in the 2015-16 school year, the data shows there are almost 300,000 arrest and referrals reported across the country and that's a lot.

[00:11:50] And you see some of the racial disparities are actually increasing with Black students. For instance, they were 16 percent of all students in the you know ‘13-’14 school year and about 27 percent of arrests and referrals. Now with the latest data, they’re over 31 percent of arrests and referrals. And we know that there are more law enforcement officers in school because even under the Obama administration, you know, the Department of Justice gave grants with millions of dollars to support law enforcement in school more. We wish that would have happened for counselors more, because another part of our report will reveal that as you mentioned, right, there almost two million students in schools with police and no counselors. And there are many millions of students in schools with police and no social workers or psychologists or nurses. And you know, that epitomizes what we mean by the school-to-prison pipeline, because if a student has a temper tantrum or bad day, and the school has a police officer instead of a counselor, then, you know, it's like having a hammer instead of a screwdriver to respond to a screw. So the police officer is going to respond the way they are known to respond. And, you know, I've represented students that have had bad days or temper tantrums where they've maybe thrown a stapler and have been charged with assault and battery.

LEE
What are some of the other charges that you commonly see students getting as a result of disciplinary interactions?

AMIR
The most common charge I've seen is disorderly conduct. I’ve represented students charged with disorderly conduct after food fights or students who are kicking the trash can. You can see the documentary it's called America Divided, where I'm featured with Jesse Williams — it's produced by Norman Lear and Shonda Rhimes — where they follow this case of ours where 6-year-olds are being placed in handcuffs, and both arms are being placed in single handcuffs because they're too small.

LEE
Oh, man that's that's a sad fact, Amir. I don’t think you get disagreement from most people that kicking a trash can or having a small disciplinary outburst is something that shouldn’t feed into the criminal system. But I've also heard from civil rights advocates that students of color can be harassed and bullied more at school and have difficulty completing their education. How do you grapple with the fact that there are presumably some disciplinary offenses that do need to be addressed to ensure equality of opportunity in education without increasing this pipeline?

AMIR
[00:14:24] Well, you know anyone who's been an adolescent, who's raised children, knows that is not an easy developmental phase. You know they're discovering themselves and will inevitably see how much they can get away with. But we have a duty to all students with all needs to educate them, regardless of what's going on at home that might contribute to their behavior. And oftentimes a student's behavior is really a manifestation of trauma or another issue. You know, it's our response to that behavior that's going to either change or exacerbate that behavior, you know. And part of the reason why you see so many suspensions and even arrests: schools don't have enough resources, and sometimes the resources they do have, they're not necessarily invested in the best way.

I moved back to California from Alabama, where they still paddled students. So if a student cursed, they felt they didn't have the time or resources to really redirect the behavior. So the quick thing to do was to paddle the student. And in some schools the quick thing to do is throw them in in-school suspension or toss them home. You know, I'm a suspension abolitionist because we had a former student at one of our schools. He was suspended for 10 days and his mother couldn't provide supervision for 10 days — 10 days of school is 2 weeks of life — so she sent him to Central Florida to be with his father for two weeks. And unfortunately he was murdered up there. Schools are supposed to be places of hope where you know you can go and liberate yourself and your family from poverty, or connect with people for the rest of your life. But for millions of students, their school day begins with marching through a metal detector. And I talk to students all the time that are more likely to see police than counselors. You know one student says he wished their school had mood detectors instead of metal detectors. You know imagine if they, instead of randomly snatching students out of class and searching them for weapons, they checked in socially and emotionally. We'd see different results.

LEE
[00:16:29] So you've been looking at a ton of this data. There is so much media attention to the most sensational acts of violence particularly those that happen in schools. You've mentioned metal detectors. I think guns are at the heart of a lot of this paranoia. You've looked at the school discipline data. Do schools strike you as truly violent places, the kind of places that, that merit a serious police presence?

AMIR
So in their reporting of the data, the Trump administration focused on this new “serious offense” category where they reported over a million quote-unquote serious offenses happen at school. But when you look at the data, you see: one, over 96 percent of these quote-unquote serious offenses actually did not involve weapons; and although the Trump administration reported almost 240 shootings happening, we've been cleaning the data and we realized that, so far actually only 11 schools have confirmed the school shooting data. So there's an error there. And depending on how the numbers are interpreted you can say that if you look at children shot in malls, at children shot at home or in different places, you'll see similar things. It's not that schools by themselves are just these violent places for children.

LEE
You mentioned that the Trump administration has presented these data in a way that perhaps emphasizes or maybe even inflates the risk of serious violence. Why on earth would they have an interest in upselling the amount of violence in our schools?

AMIR
[00:18:06] You know, just in this past past June, Attorney General Jeff Sessions gave the address to the National Association of School Resource Officers, playing off this and encouraging more millions of dollars for resources for additional law enforcement in school. Um so, this overreporting of the school shooting data has very dangerous implications, because right now as we speak there is a federal commission on school safety meeting, and they're tasked with delivering a set of recommendations to inform schools as to how to proceed with school safety.

LEE
Amir, pardon the naked cynicism, but I could imagine that if the Trump administration reads this data first and foremost as presenting a hyper-violent vision of today's public schools, that their policy recommendations might center on security and an increased police presence. Are you seeing that? And is that something you're concerned about?

AMIR
That's something we're concerned about and fully anticipating. And that's why our report, hopefully one of the primary takeaways is the fact that schools are already not equipped to meet the social-emotional needs of students, and adding a badge, gun, handcuffs, and pepper spray won’t further that mission. So, we anticipate the Trump and Devos administration calling for more resources, and we know Attorney General Sessions in his speech to the National Association of School Resource Officers has already indicated at this.

But we want to have a fully informed conversation, because we know two things about police in schools. First, there is no evidence or research demonstrating that it actually increases school safety. And then second, it does not reduce the likelihood of a school shooting happening. So actually some of these tragedies that happened, the school shootings, there were SROs present and it did nothing to deter these ambush-style school shootings.

LEE
And Amir, sorry, when you say SRO, that's an acronym for school resource officer, is that right?

AMIR
Yeah, a SRO’s a sworn law enforcement officer, that has everything that a regular officer on the street has.

LEE
Are there any demonstrated benefits to having SROs in school?

AMIR
[00:20:23] I'm sure some studies have found some. But we are finally acknowledging you know, some people have trauma from police. I know myself personally, my personal experience, I saw police put hands on both my mother and father in separate instances. The first gun that was ever pointed at my head when I was 12 years old came from a police officer. And you know I had areas in my neighborhood where I would take the long way home to avoid being searched, because police officers were like an occupying army in our neighborhood sometimes. Right? So the presence of police doesn't make everyone feel comfortable. We understand that some students and some parents, even, might call for it. But we want to educate everyone about what the impact of police on schools actually has.

LEE
Are there any schools that are currently good models for handling discipline well?

AMIR
There are schools, you know, that are trying innovative things. You see it happening with single charter schools or smaller districts. You know here in California, we have a bill, SB 607, that hopes to remove the defiance suspensions for all students up to eighth grade. If we believe in our children there's really no other way, Lee. We can't just push them out, we can't just incarcerate them and handcuffed them because that causes trauma and creates more problems.

LEE
You mentioned defiance suspensions and the idea of a defiance suspension, reminds me very much of people who are arrested by the police for resisting arrest — even though there is no probable cause for the underlying arrest. And I just find that somewhat striking. So what does the concept of defiance suspension mean? Does it does it actually mean that we have floating cops in schools whose entire job is just to literally criminalize the disciplinary rules of school?

AMIR
[00:22:20] That's a great question, I've been asking myself too — what does defiance suspension mean? What behavior is defiance? For instance, here in California, there are over 20 reasons stated in California statute why students can be suspended: from drugs to violence, to like specific reasons, objective reasons where you can say, “Ah yeah well this kid was smoking dope, you know.” And then there is defiance. It's basically a catch-all category you know, you could be chewing gum, you could be talking back, you could literally be not doing your work. And that's what it's categorized as. And there is actually a diagnosis, called oppositional defiance disorder. So for some students, it's a manifestation of their disability. So defiance is a very subjective term that literally depends on who you ask, because, you know, one can say my tone right now as I raise my voice and talk faster is becoming defiant.

LEE
Can defiance suspensions ever result in arrest or criminal prosecution?

AMIR
Yes. Disorderly conduct is the juvenile code twin brother of defiance. So defiance is what would happen after suspension with the school administrator, but disorderly conduct is what would happen if the police officer responds.

LEE
That's really helpful. I suspect most of us who work for the ACLU have been defiant in one sense or another throughout our lives. But it seems to me that the real toxic combination here is for that sort of routine discipline to be enforced by a free-floating police state within our schools.

AMIR
Right. When you put an army in a place, you're going to get a war. If an officer was trained to be on the streets and respond to criminal activity and you put them in a school, that's what they're going to find and respond to. So we want to encourage as much as possible that the resources that are put in the school actually support and prepare students for their future as opposed to control and criminalize them, because that's what the data shows is the result from placing additional police on campuses, even placing metal detectors on campus.

[00:24:28] I remember days, when I was a high school student when they would randomly activate the metal detector, and you know, we’d spend an hour in line, just over 1600 students, going through metal detectors slowly. And it didn't make us feel safer or anything. If anything it deprived us of over an hour of class time. Putting a metal detector in front of a school might be the easy thing to do because visually it would make us look safer. But it doesn't do anything to protect students.

LEE
You work full time for the ACLU. Why is school discipline a civil rights issue?

AMIR
Well school discipline and the control of students’ access to education is a civil rights issue because it determines the amount of education a student can receive. You know, I represented one student in Florida who literally missed one-third of the school year. He missed, like, over 60-70 days because of suspension. A young black male. And most of the reasons were for disagreements with the teacher, who couldn't control him. And as a result, what do you think his test scores look like, or his grades look like, after missing a third of the school year? And that student is going to have to compete with all other students going to college or entering the workforce.

So we do have separate education systems because your behavior in one school environment, or your resources in one school environment can look different depending on what your zip code is. If we’re for freedom of speech and we’re for informed citizens, then we have to ensure that they have access to quality education, because otherwise we will see the result. And as long as you know the school-to-prison pipeline is the reason why students of color, students with disabilities have a separate educational system, then it is a primary issue for us.

LEE
[00:26:21] Amir, thank you so much for crunching these numbers and for being with us today to talk about them.

AMIR
Thanks for having me, Lee

LEE
Thanks for listening to At Liberty. To learn more about the school-to-prison pipeline and Amir’s research, visit aclu.org/schooldiscipline.

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