Poverty, Race, and Discipline in Schools: Go Directly to Jail
Jayden (last name omitted at her request), an African American junior in high school in Antioch, California, had been bullied since the fifth grade. She says she is “very short” in stature and “not the fighting type.” The schools had never done anything to help and the bullying had gotten worse in high school. One day Jayden arrived early to school and was jumped by two girls she knew. A teacher saw the fracas and tried to break it up. He then alleged that Jayden elbowed him in the chest during the melee.
What happened next happens routinely in schools with disproportionately poor and minority student bodies, especially to African American and Latino children and children with disabilities: Jayden was sent to court for fighting on the school campus and assaulting the teacher, as well as suspended pending total expulsion. Antioch itself is not a high-poverty city, but like many urban schools, its schools have a disproportionate number of poor children: 55 percent of Deer Valley High School’s student body is socioeconomically disadvantaged as measured by the California State Local Control Funding Formula.
Jayden’s mother was fortunate to find a public-interest lawyer, because she could not have afforded one on her own, and Annie Lee, then a lawyer at the National Center for Youth Law, made all the difference. The Antioch police officer conceded that the school video did not show Jayden elbowing the teacher, and that the only evidence was the teacher’s belief that Jayden had elbowed him. Even so, the police and diversion staff were uninterested in the truth and recommended a multi-week diversion program with mandatory anger management and life skills courses (for which Jayden’s mother would have to pay). Jayden declined the diversion on principle—she was innocent and had no anger problem—so her case moved from the Antioch Police Department to the Contra Costa County Probation Department, which is the last review before the DA’s office.
Like the police, the Probation Department threatened to recommend prosecution unless Jayden completed a diversion program. Jayden’s mother, Ms. Williams (she prefers that her first name be omitted), was frightened because the local DA was known for charging students with alleged crimes that occur in school. The program run by the Probation Department was less rigid than the one the police had mandated, and Jayden took it; with Annie Lee’s help, the Probation Department did not send the case to the DA. After working toward expungement of the police citation and report for two years, Lee told me in 2017 that they had succeeded in getting her record sealed. This was extremely important since even the police citation could have triggered collateral consequences later on, such as difficulty getting into college, finding jobs, obtaining housing, and obtaining credit.1
Jayden had lived in Oakland as a child, but her family had moved to find safer neighborhoods and better schools. Antioch was safer, but Deer Valley High School was not what they hoped for. Jayden said to me, “It’s hard to be a black girl in this town.” She nonetheless graduated in 2016 and moved on to Diablo Valley College in Concord, California, where she is pursuing performing arts, especially dancing, and her dream is to open an arts school.
Ji Seon Song, a public defender in Contra Costa County, recounts a second case from Deer Valley that underscores what Jayden experienced. According to Song, the school was rife with minor incidents resulting in harsh punishments, including court referrals and probation—a paring knife one student had brought to school to slice an apple, a pocketknife, little fights, and so on. If a child is put on probation, the parents are charged for the supervision, which can mount into thousands of dollars, and collateral consequences are likely to ensue.
Ji Seon Song’s client was an African American seventeen-year-old boy with a debilitating and pronounced speech impediment and a mother who is cognitively challenged. The boy was bullied at school and had issues at home. His mother had a drug-addicted, abusive live-in boyfriend who stole the boy’s Supplemental Security Income (SSI) money to buy drugs. The boy stayed with his mother to help protect her from the boyfriend as much as he could. The family lived in poverty.
One day the boy exercised exceedingly bad adolescent judgment and did a bad thing: he phoned in two fake bomb threats to school. There were no bombs. But of course he frightened and inconvenienced the entire school. He spent forty-eight days in juvenile hall, and the judge ordered him to make $150,000 in restitution. Why that number? The judge added up the salaries of all of the school’s employees and pro-rated them to the time the school was out while searches for the bombs were under way.
A protracted process ensued, and Ji Seon Song argued the restitution down to $23,000; pressure from the school board and the judge’s own views kept the amount from going lower. The judge said the boy needed a lesson. The family could not afford to pay the restitution, so the judge put the boy on probation and converted the restitution, which was criminal in nature and could result in incarceration, into a civil debt. He was on probation until 2016.
While he was on probation, the boy transferred to high school in Oakland, where his father lives, and graduated with honors. Ji Seon Song arranged for the boy to plead his restitution case to the Antioch school board. Along with his impressive record, he explained his previous trauma and reported his rapprochement with his disabled veteran father. The school board reduced the restitution debt to $500 and finally forgave it altogether. The boy then graduated from Merritt College in Oakland. This boy had the good fortune to get good free legal representation that the family could otherwise never have afforded.
Many poor children are not so fortunate and end up with criminal records and diminished life prospects as a result of punitive policies related to in-school behavior. Even worse than “zero tolerance” policies that lead to suspension and expulsion for trivial matters, “school resource officers,” who are disproportionately posted at high-poverty schools, are empowered to have students arrested and sent to juvenile court for minor misbehaviors that traditionally were handled in the school. At far higher rates than their well-off peers, low-income young people are also routinely sent to juvenile court for truancy, and parents are often arrested or socked with fees for their children’s malfeasance or both. Finally and most seriously, a few places—notably Texas—send young people, typically from schools serving mainly low-income children, to adult court for both misbehavior in school and truancy.
Using federal data, the Center for Public Integrity compiled a fifty-state (and District of Columbia) ranking of how many students are sent to court.2 Virginia had the worst record—15.8 referrals to court per 1,000 students in a school year. African American children were referred at a rate of 25.3 per 1,000, Hispanic children at a 12.1 rate, white children at 13.1, and children with disabilities at 33.4. The national rate was 6 per 1,000, with nineteen states higher than the average. The lowest was the District of Columbia at 1.2 per 1,000.
These statistics are reported by race and disability because the U.S. Department of Education has enforcement power in these areas under federal civil rights laws. Catherine Lhamon, assistant secretary for civil rights in the Obama administration, says that the children sent to court are overwhelmingly from low-income families. The story is one of poverty as well as race and disability, regardless of how the data are kept.
“SCHOOL RESOURCE OFFICERS”: CONDUCTORS FOR THE SCHOOL-TO-PRISON PIPELINE
Concern about violence within schools goes back at least to the violence-ridden school in the 1955 film Blackboard Jungle, although real life was nothing like what the film portrayed. Schools gradually developed security plans as the years passed, with two-thirds of all big-city senior high schools having professional security personnel by 1978. The National Association of School Resource Officers was founded in 1991. While this might sound like an organization of educational administrators, school resource officers, or SROs, are in reality sworn, often armed, law enforcement officers who are stationed in public schools.
By 1996, about 19 percent of America’s public schools had a full-time police officer or some other law enforcement person. In the 1990s, Professor John DeIulio and former Reagan administration secretary of education William Bennett coined the term “superpredator” to describe some juvenile offenders, raising the temperature of an already overheated atmosphere. The Columbine massacre occurred in 1999. Today, there is a police presence in almost half of all public high schools—and a quarter of all public elementary schools—especially those serving poor African American and Latino communities.3 (And probably none in private schools, except for the Secret Service.) Ironically, the tragedy of white boys murdering white students in suburban schools morphed into the school-to-prison pipeline for poor African American and Latino youth and youth with disabilities.
Since 1999, the U.S. Department of Justice has given $750 million to more than three thousand schools, which has translated to over 6,500 more resource officers, a 38 percent increase. Meanwhile, badly needed mental health personnel were not hired. In 2008–9, New York City had 5,246 law enforcement officers in its public schools and 3,152 guidance counselors.4 Nationwide, 1.6 million children go to a school that has a school resource officer but no guidance counselor.
The combination of zero tolerance and the omnipresent SROs and other police officers has exacerbated the overzealous enforcement of non-serious offenses, especially when officers are poorly trained and do their jobs badly.5
The omnipresence of police in schools has also brought a new (or greatly enlarged) phenomenon that might be called “skip the middle man”—don’t bother with school discipline, just send the child to court (or do both). Nationally, in the 2011–12 school year, 92,000 students were the subjects of school-related arrests and 260,000 were referred to law enforcement, according to the U.S. Department of Education Office of Civil Rights.6
Jason Nance of the University of Florida did a study that documented what one might suppose. “A police officer’s regular presence at a school,” Nance concluded, “significantly increases the odds that school officials will refer students to law enforcement for various offenses, including these lower-level offenses that should be addressed using more pedagogically sound methods.”7 Denise Gottfredson of the University of Maryland summed it up: “There is no evidence that placing officers in the schools improves safety. And it increases the number of minor behavior problems that are referred to the police, pushing kids into the criminal system.”8 In her book Pushout, social justice scholar Monique Morris adds that school resource officers “blur lines between education and criminal justice, as daily exchanges and interactions with law enforcement expand the surveillance of youth of color and normalize prison terminology and culture in school settings.”9
Some locales have improved in recent years in their training and the accountability of school resource officers, but many experts continue to believe strongly that their presence is excessive and in need of major reform.
SENDING POOR CHILDREN TO ADULT COURT
Texas is famous and sometimes infamous for its outsized way of doing things. One of the infamous stories involves the state’s policy of prosecuting students in adult courts for misbehavior in school and for truancy. Texas is one of just two states (Wyoming being the other) that utilize adult courts, in large numbers, for both in-school behavior and truancy (“failure to attend” in Texas). The story begins in 1991 when the Texas legislature moved a set of misdemeanors involving juveniles from juvenile court to adult courts. The “official” explanation was that this would save expensive juvenile court resources for more complicated cases and that the number of cases moved, including school-misbehavior offenses, would be small.
Beginning in 1995, students who had ten or more unexcused absences within six months were sent to adult court, and schools also had discretion to send to court students with three unexcused absences within four weeks. These were labeled as crimes. Truants were labeled as criminals. The judge could offer community service but could also fine the student and assess costs. The conviction created a criminal record and could mean collateral consequences regarding higher education, employment, and military enrollment. Parents could be fined as well. The stage was set for what followed.
Deborah Fowler of Texas Appleseed doubts the official story of why the misdemeanors were moved and says the reason was that “broken windows” law enforcement and worries of superpredator juveniles were gaining momentum and “zero tolerance” was taking hold. The legislative records of the time reveal a rhetoric of requiring accountability for youth (“if you can do the crime, you can do the time”) and belief that young people were shoplifting and the like without suffering any consequences in the juvenile justice system. At the same time, Texas greatly increased the number of school resource officers, especially in districts with large numbers of poor African American and Latino children.
The result was truly amazing—a veritable flood of cases. Deborah Fowler thinks no one knew it would be as bad as it turned out to be. The adult courts that handle these cases essentially have no due process. Under the Texas Family Code, every child in the juvenile court gets a lawyer, which is expensive. But in adult court, there is no real cost for prosecuting—no appointed counsel, no probation, and often no prosecutor in many places unless the child enters a not-guilty plea, which is rare. The school resource officers as well as local police showered a staggering number of tickets on children and youth. Data from the Texas Office of Court Administration for 2009 show that adult courts handled more than 158,000 juvenile cases, mainly involving alleged misbehavior in schools. Truancy violations added 120,000 more cases—in 2012, 36,000 in Dallas County alone. The truancy number was more than twice the number in the entire rest of the country; in every other state except Wyoming these cases are handled in juvenile court.10
The fine for either in-school offenses or failure to attend could be as much as $500, plus court costs of up to $70. Many students received multiple tickets in a single year and ended up owing thousands of dollars.11 So the courts made out well, to say the least, and school districts received a cut of the proceeds as well. The Texas Office of Court Administration told the Associated Press that $10 million was collected from fines and costs in truancy cases in fiscal year 2014.12 Texas Appleseed found out that in Harris County (Houston), which is the largest county in Texas and the third-largest in the country, the fines and fees from parents were helping to support both the school districts and the prosecutors who brought the cases. And Harris County’s student body is 75.5 percent “economically disadvantaged,” according to the county’s own statistics.
Students who do not pay their fine or finish community service can be arrested and jailed at age seventeen. Texas Appleseed found that 1,238 teenagers were jailed for this reason over the years 2013 and 2014.13
Most of the in-school infractions are the vague offenses of “disruption of class,” “disorderly conduct,” and “disruption of transportation,” and also simple assault stemming from student fights and curfew violations (leaving campus without permission). Very few are matters appropriate for sending students (who can be as young as ten) to court. Schools all over the state have abdicated to the resource officers the responsibility to manage behavior in the school building and its environs.14 As elsewhere, students ticketed are disproportionately poor African American, Latino, and students with disabilities.
School resource officers in many parts of the state lack professional training and use force in schools that includes pepper spray, “stun gun beanbags,” guns, and dogs, although it should be noted that a 2015 law required specific training for SROs in the largest school districts.15 Besides all too often acting inappropriately, school resource officers are expensive.16
Texas state senator John Whitmire and a few others began pressing for legislation to get some control over the in-school ticketing of students, but they did not have enough data to support their proposals. Texas Appleseed did three reports on suspensions and expulsions and then wrote an extensive report on sending students to courts called “Texas’ School-to-Prison Pipeline.”17
The report provided the elected officials and other advocates with the data they needed. It garnered wide media attention because the facts were so bad—school police officers writing tickets to ten-year-olds. The attention given the report in turn helped mobilize other families to tell their stories. This all led to the first major reform in 2013. It was a seemingly small thing, but it made a significant difference: Instead of issuing tickets, the officers would now have to file a formal complaint in court. Requiring the resource officers to do this additional work cut the number of cases for in-school behavior in half.
But the remaining cases stayed in adult court, and they were still criminal, and there was still no right to counsel, and the race and ethnic disparities continued. The juvenile judges and the juvenile probation people did not want the cases returned to them. Their caseload was already about 40,000 a year. Taking back these misdemeanor cases as they had ballooned would swamp the juvenile system. Even if they took only half of the in-school cases, that number would still be in the area of 80,000, and the failure-to-attend cases had been 115,000 in 2013, which would make a continuing total of 200,000 total cases. So the juvenile justice people refused to take the cases back.
The best reform measure would be not to use the courts at all except for behavior that anyone would agree is a real crime, while simultaneously overhauling the suspension and expulsion systems. Second-best would be to use the juvenile courts rather than the adult system, but as minimally as possible. Another fallback idea, Fowler says, would be to keep the cases in the adult court but make the cases all civil. So there was much more to do, but the first step—requiring the officers to do more paperwork for each citation—was clever, and helpful.
CRIMINALIZING TRUANCY
In 2015, Texas Appleseed issued another impressive report with jaw-dropping numbers and evocative personal stories about the criminalization of truancy, especially among poor children of color. A homeless teenage boy who sometimes just could not get to school, a teenage girl with clinical depression who achieves success in her academics despite frequent absences, another teenage girl who is home much of the time caring for her mother who has dementia—these students were all convicted as criminals. Often they have multiple convictions and owe tens of thousands of dollars. When they find a lawyer or a lawyer finds them—neither occurs with regularity—the issues can be dealt with and worked out. If not, it does not go well. If they get to be seventeen and still owe money, they can be put in jail, and it really happens.
The best thing in the report is Chief Justice Nathan Hecht’s statement in his 2015 State of the Judiciary address to the Texas legislature, quoted in the report’s foreword. The chief justice wrote that the truancy and attendance laws, “while intended to keep kids in school, often operate to keep them out.” Then, in bold, “But when almost 100,000 criminal truancy charges are brought each year against Texas schoolchildren, one has to think, this approach may not be working.” Hecht went on to say that this realization “has led the Texas Judicial Council, a policy-making body for the Judiciary, to call for decriminalizing the failure to attend school.”18
The bill that passed in 2015 was bipartisan, co-sponsored by Representative James White (R) and Senator John Whitmire (D). The new law ends the criminalization of truancy in Texas and is a significant step forward, although it evidences areas where compromises were made and further change is needed. Adult courts will still handle chronic absentees, but the penalties will be civil, not criminal. The law mandates school policies to help students with the problems that are pushing them away from coming to school. No more crimes. No more criminal records.
Beyond the schools’ mandatory truancy prevention efforts, they may not send a student to court until there are ten unexcused absences, and even then they are not required to do so. They may not send students to court if the students are pregnant, homeless, in foster care, or the main income earner for the family, and the courts must divert them back to the school if the schools sent them. Every school system must adopt truancy prevention measures set out by the Texas Education Agency.
For a student referred to court, a truancy prosecutor will decide whether to file a civil case. There will be truancy courts specifically designated to hear the cases. The court can order students back to school, require them to take the GED instead of going back to school (for which parents have to pay), or mandate counseling, community service, or participation in a tutorial. It can suspend a student’s driver’s license or permit. It has to dismiss a case if the school fails to disclose that the student is receiving special education services or received truancy prevention counseling that was not successful. It may dismiss charges against students who have a mental illness.
The advocates did not get everything they wanted. Parents can still be fined, but only if the school can prove that the absences were the result of the parent’s negligence, and the fines are now graduated from $100 at the first offense to $500 for the fifth and subsequent offenses. The court can charge the student a $50 court fee, but only if the family can afford to pay. A student can be held in contempt for disobeying an order of the court, for which the court can levy a fine up to $100 or suspend the student’s driver’s license or permit. Students younger than seventeen who are found in contempt two or more times can be sent to juvenile probation or to the juvenile court, which can place them in detention. All convictions under the previous law are to be expunged automatically and all records under the new law are to be sealed after the student’s eighteenth birthday, but the student must apply to have that done.
Some people predicted the new law would result in more prosecutions of parents, and others predicted that attendance would decrease and dropouts would go up. In fact, the law has had a stunning effect on prosecutions. During the first four months of 2016, truancy filings were 5,000 compared to 60,000 for the same period in the previous year, and filings against parents dropped from 45,000 to 8,200. But while the number of juveniles sent to adult court decreased considerably from the 158,000 of 2009, it is still substantial. In 2015–16 the state Office of Court Administration registered 59,054 non-traffic-related Class C misdemeanor juvenile cases in adult courts, consisting primarily of misbehavior in school.19
REAL REFORM
Broward County, Florida, is often cited for having abolished its strict zero tolerance regime, but one of the earliest, most widely cited and emulated efforts to do this was undertaken by Clayton County, Georgia, beginning in 2003, led by Chief Judge Steven Teske of the county’s juvenile court. Clayton County, Georgia, is just south of Atlanta and encompasses most of Atlanta’s airport. Its population is about a quarter of a million people, two-thirds African American, and almost a quarter of whom have incomes below the poverty line. Teske is a state and national leader in juvenile justice generally and particularly so with regard to zero tolerance and sending children to juvenile court.20
Noting national trends of increased use of the courts as well as the similar statistics in the county, Teske convened the county’s school superintendent, the chief of police, the directors of mental health and social services, and a community volunteer. His initial goal was to reduce referrals from the county’s schools to the juvenile courts. The discussion quickly added a focus on police behavior in the schools, sanctions other than referral to the courts, underlying problems causing disruptions, and positive measures to prevent such disruptions. The group met frequently and came to a number of decisions that were implemented a year later through two agreements, one on reducing referrals to the courts and the second on an integrated services referral plan to get children appropriate help when needed.
The results have been remarkable. The previous situation was woeful. The number of referrals to court had grown by 1,248 percent from 1991 to 2004 and graduation rates had declined by 58 percent. The probation caseload had risen by an average of 150 per probation officer, due overwhelmingly to minor offenses that took officers’ time away from high-risk and serious offenders. Following implementation of the new approach, referrals to the court went down 67.4 percent and graduation rates increased by 20 percent. The number of youth of color referred to court declined by 43 percent.
The simultaneity of the increase in sending children to court and the growth in the use of school resource officers is not an accident. In 1993 one student was sent to court. By 2003 1,147 students were sent to court on misdemeanors. Felony referrals peaked at 198 in 2004. The two agreements mentioned above became operative in 2004 and referrals immediately began to plummet. By 2013 the number of students referred to court on misdemeanors had dropped to 154 and the number of felonies was 97.
It is not surprising that Clayton County and Teske are regarded as national models.