Changes to Citywide Standards of Discipline and Intervention

The New York Civil Liberties Union respectfully submits the following testimony regarding our recommendations for the 2009-2010 Citywide Standards of Discipline and Intervention Measures, hereinafter referred to as the Discipline Code.

With more than 48,000 members, the New York Civil Liberties Union is the foremost defender of civil liberties and civil rights in New York State. For several years, we have been closely examining the causes and effects of the School to Prison Pipeline—a combination of education policies and practices, including classroom removals, arrests, and police tactics, that push students out of school and into the criminal justice system.

Through our work on this issue, we have come to recognize the powerful and complex effects that exclusionary discipline measures and the criminalization of school discipline have on every child’s right to an education and their opportunities for a successful future.

The climate established in a school community—positive or negative—has enormous implications for the health, safety and success of its students. In large part, this climate is created and enforced through the Discipline Code and the Students’ Bill of Rights. It is with this in mind that we urge the Department of Education to consider the following core principles when revising the Discipline Code:

1. An effective discipline policy must utilize both prevention and intervention strategies, and must allow educators to draw on their experience and judgment when determining effective strategies in a given situation. It must contribute to the academic, social and emotional needs of individual students.
2. To the maximum extent possible, educators should be encouraged to address disciplinary problems without involving law enforcement.
3. An effective discipline policy must be consistent within each school and across district and borough lines. Further, efforts must be made to ensure its equitable application to students of color, students with disabilities and other disproportionately affected students.
4. All members of the school community—professional and non-professional, pedagogical and administrative, DOE employees and non-DOE employees working in or at the school—must adhere to the same discipline policies, including positive intervention strategies.

Recently, the NYCLU conducted an in-depth study of seven high schools in New York City that have mandated Positive Behavior Supports (PBS), restorative practices and other non-punitive discipline philosophies. These schools, which serve at-risk student populations, have fewer suspensions and higher attendance and graduation rates than comparable schools with traditional discipline policies. They should be viewed as replicable models for the implementation of positive discipline at other schools. The full report, Safety with Dignity: Alternatives to the Over-Policing of Schools, can be downloaded at http://www.nyclu.org/news_and_resources/publications.

This testimony will highlight areas of the discipline code that should be revised to reflect the core principles above and the findings reflected in Safety with Dignity. In addition, we examine some specific infractions defined in the Discipline Code for their potential civil liberties implications.

POLICE PRACTICES< For many years, it has been the position of the DOE that the training, activities, and even misconduct of school safety agents (SSAs) is completely outside its jurisdiction. While the DOE invited the NYPD to place agents in schools, it has subsequently denied any responsibility for their conduct, their position in the school, or their relationships with students and teachers. This is reflected in the absence of any language in the Discipline Code referring to arrests of students or police interventions in student discipline. At this time, however, it is obvious that SSAs are involved in every facet of school discipline in many schools. Often they are called by teachers and principals to deal with minor infractions such as dress code violations, skipping class, tardiness and talking back. Sometimes, they act as independent agents of the school—enforcing school rules of their own accord despite attempts at intervention by pedagogical staff. Simply ignoring them does not change this fact. The NYCLU urges the DOE to address these issues in the Discipline Code by explaining that SSAs are in schools to intervene in emergency situations where violations of the criminal law are imminent. The Discipline Code must state clearly that SSAs are not to be relied on to enforce school rules. They are not educators or disciplinarians. Their participation in Positive Behavior Support programs can and should be encouraged, but their involvement in enforcing discipline must be curtailed by the DOE, beginning with an explanation of their limited roles to students, parents and school staff. Exclusionary discipline policies (those that remove students from the classroom such as suspensions, involuntary transfers and alternative placements) are tremendously disruptive to a student’s academic and social progress. They have been shown by researchers to contribute to, rather than reduce, student recidivism;[1] they interfere with students’ ability to maintain academic standing; and they increase the likelihood that a student will be held back in school, drop out and become involved in the juvenile justice system.[2] Further, the American Psychological Association has found that exclusionary tactics are disproportionately imposed on male students, students of color and students with special needs.[3]

The Los Angeles Unified School District (LAUSD) has adopted a proactive approach to discipline that places special emphasis on intervening with students while their behavioral problems are still manageable by teachers and counselors. The policy is based on a strong commitment to tailored support solutions such as PBS and restorative practices techniques, implemented well before a student’s behavior results in a classroom removal. As LAUSD is the second-largest school district in the nation, it provides a useful model of PBS and restorative practices implementation for New York City.

A policy bulletin sent to principals and teachers by LAUSD explains that suspensions are to be used as a last resort:

Suspension is a significant consequence, generally to be used only when other methods of correction have failed. When student misconduct requires disciplinary action, before imposing an out-of-class [in-school] or out-of-school-suspension, on-site remedial measures, resources, and interventions that address the needs of the student should be considered…. Schools are required to be proactive and to implement interventions at the earliest sign that a student’s behavior is impeding his or her learning.[4] (emphasis added)

Because of their unique power to derail a student’s academic and social progress and future opportunities, classroom removals should be used only in extreme circumstances, and then only after students’ due process rights have been stringently honored. The LAUSD policy bulletin quoted above reflects the District’s central priority: ensuring that all its students are learning, despite disciplinary challenges. Therefore, the NYCLU recommends that language be included in the Discipline Code that urges educators to consider classroom removals only for the most severe and disruptive infractions. We recommend the following language:

New York City students have the right under the state constitution to attend public school. The Department of Education recognizes that classroom removals are detrimental to the fulfillment of that right.

As educators, it is our job to ensure that each student in New York City is learning, and that his or her emotional, psychological, and developmental needs are addressed. Being removed from a classroom for just a few days can irretrievably interrupt a student’s educational progress.

Therefore, teachers and administrators should view classroom removals, including teacher removals, suspensions and police intervention, as last resorts. They are to be used only in the most extreme situations. In all other disciplinary incidents, other options should be explored to keep the student in the classroom and ensure that his or her educational progress is not disrupted.

In order to ensure that all students have equal opportunities to succeed, the Department of Education urges teachers and administrators to embrace preventative, positive intervention strategies. The Office of Positive Behavior Support is available to assist with training and implementation. Please visit our website at (http://schools.nyc.gov/Offices/District75/Departments/PBS/default.htm) for more information on PBS.

GUIDANCE INTERVENTIONS

In many cases, a student’s disruptive behavior is caused by undiagnosed special needs, psychological or emotional challenges, and/or disruptions in the student’s home or social life. Educators, counselors, psychologists and social workers will often be able to identify the reason for a student’s disruptive behavior and help the student correct it, rather than subjecting him or her to punitive discipline measures.

The guidance supports offered by LAUSD include alternative programming (tailoring a student’s academic schedule to better suit his or her needs); behavior monitoring with consistent feedback; tutoring; community service; counseling; restitution (financial or in kind); and parent supervision in school. Importantly, these positive interventions are described in LAUSD policies as “alternatives” to suspension, and are required steps for defusing common discipline problems.[5] The program has been successful in reducing suspensions only because of a commitment by the District to enforce the use of positive alternatives by educators.

The NYCLU recognizes the DOE’s efforts to provide principals and teachers with a holistic framework for discipline that includes some options for counseling, peer mediation and mentoring. These measures are listed in the Discipline Code as “Guidance Interventions” to be used “at all stages of the disciplinary process” “in addition” to other discipline tactics listed. We believe, however, that the DOE must mandate the use of positive interventions as disciplinary measures unto themselves, rather than simply listing them as extraneous props to punitive discipline tactics. In order to have a successful impact, positive interventions must be mandated alternatives to classroom removals.

Finally, we believe that the DOE’s “menu” of guidance interventions is incomplete. Our study of positive school environments found that students who have a voice in crafting their school rules and discipline policies felt more engaged and were less likely to be suspended. We recommend that the DOE insert language into this section of the Discipline Code encouraging principals to solicit student opinions on school rules and disciplinary responses.

STUDENT DISCIPLINE CODE- ADMONISHMENT BY PEDAGOGICAL STAFF

As the lowest-level discipline response listed in the Discipline Code, “admonishment by pedagogical staff” sets the tone for a negative, punitive relationship between students and faculty from the very outset. In order to foster a more nurturing school environment, where student behaviors are viewed as teachable moments, the NYCLU strongly recommends that this earliest intervention be redefined as a “student conference” or “discussion of behavior and consequences” with pedagogical staff.

BILL OF STUDENT RIGHTS AND RESPONSIBILITIES- MILITARY RECRUITMENT

The Bill of Student Rights and Responsibilities for the 2009-2010 school year has been amended to reflect the DOE’s adoption of a Chancellor’s Regulation on military recruitment activities in schools. This is reflected in item 15 of the Bill of Rights, which states that students have the right to “have their parents request to withhold their contact information from institutions of higher learning and/or military recruiters.”

The adopted Chancellor’s Regulation, however, states that students have the right to withhold their own contact information; this right does not solely reside with parents. The Student Bill of Rights must be amended to reflect this; item 15 should state that students “have the right to withhold their contact information from disclosure to non-Department of Education entities.”

INFRACTIONS- A51

Infraction A51 prohibits “using force against or inflicting or attempting to inflict serious injury against school personnel or school safety agents.” This behavior is punishable by up to a one-year suspension. The NYCLU believes that the behavior described in this infraction is vague, overly broad and poorly defined. It creates the risk that students could be severely punished for a display of “force” that presents no real physical threat. For example, one can imagine a situation where a kindergarten student becomes upset and acts out physically against a teacher. While classroom management and dynamics can present complex and challenging situations for teachers, it seems hard to imagine any act of “force” by a 5- or 6-year-old child being fairly punished by an extended (or even temporary) removal from the learning environment.

We recommend that the “using force” language be removed from the infraction altogether, which should instead read “inflicting or attempting to inflict serious injury against school personnel ….” This rewording preserves the safety of school staff while protecting students from being unfairly punished.

Alternatively, teachers, principals and school safety personnel must be expected and required to consider the age and size of the child when determining whether the “force” actually presents a threat that could be considered “dangerous or violent.”

INFRACTIONS- A33

The NYCLU is concerned about the constitutionality of infraction A33, which prohibits “posting or distributing literature or material containing a threat of violence, injury or harm, or depicting violent actions against or obscene, vulgar or lewd pictures of students or staff (including posting such material on the Internet).”

First, the NYCLU is concerned that this prohibition is too broad to pass constitutional muster. Nowhere in the Discipline Code are there usable definitions of the terms “violence” or “obscene, vulgar or lewd,” which implies that teachers and administrators will be asked to impose their understanding of those terms onto acts of student expression. This will inevitably lead to situations where students in some schools receive harsh punishment for expressive acts, while students in others do not—or even where particular “problem” students are punished for expression that would be acceptable if created by a classmate. The very existence of this broad prohibition will chill student expression as students have no way of determining how these terms will be defined.

Non-disruptive student speech is protected by the First Amendment and this protection must be recognized by the Discipline Code.[6] We recommend that the Discipline Code be amended to reflect adherence to this First Amendment standard—one that focuses on the potential of the expression to disrupt the learning environment, rather than on the content of the expression.

Second, the NYCLU disputes the characterization of any non-disruptive student expression—including expression that may be distasteful or disagreeable—as a “dangerous or violent behavior” that can result in a student’s removal from the classroom for up to 10 school days. This is true for students of all ages, but is particularly important for students in lower grades, where the students’ maturity level must be considered when judging the appropriateness of their expressions. Therefore, we recommend that this behavior be listed under “disorderly disruptive behaviors.” This redefinition will also help students and teachers adhere to the appropriate First Amendment standard of disruptiveness.

Finally, the inclusion of language banning students from posting certain items on the Internet is deeply troubling from a First Amendment perspective. While the DOE may reasonably choose to prohibit disruptive expression in school, it is a severe infringement of students’ civil rights to attempt to control the form and content of their expression outside of school. If the DOE is concerned about the effect of Internet postings on the learning environment, those concerns would perhaps be better addressed by educating students on the social and individual harms that flow from posting derogatory or threatening materials online.

INFRACTIONS- B35

Infraction B35 deals with student-on-student sexual harassment, combining “making sexually suggestive comments, innuendoes, propositions or similar remarks,” with “engaging in … physical conduct of a sexual nature.” The NYCLU recommends that this infraction be revisited to correct its potential First Amendment problems (see A33 above, for a reiteration of students’ First Amendment rights), as well as its failure to differentiate non-violent from violent behavior and consensual displays of affection from sexual assault.

This infraction as written makes no distinction between using sexual language or innuendoes and engaging in physical contact of a sexual nature. Both infractions can be punished by up to a one-year suspension or even expulsion. The NYCLU recommends that this infraction be separated into two separate offenses. One should prohibit verbal harassment of a sexual nature and ensure that this behavior does not trigger exceptionally harsh exclusionary punishments. The other should address physical harassment of a sexual nature, redefining the act so as not to prohibit mild, age-appropriate displays of affection.

Second, the infraction allows for no early intervention response—the lowest-level discipline response being an out of school suspension for up to five days. Not only does this contribute to the long list of offenses for which a child can be removed from the learning environment, it also limits the school’s ability to deal with these types of behaviors before they escalate. Therefore, the NYCLU recommends that this behavior be downgraded to a “seriously disruptive behavior” which allows for school staff to intervene in a variety of non-punitive ways, including counseling and parent conferences.

[1] Russell Skiba and M. Karega Rausch, Zero Tolerance, Suspension, and Expulsion: Questions of Equity and Effectiveness in Evertson and Weinstein, Handbook of Classroom Management (Lawrence Erlbaum Associates, 2006) 1063-1077; American Psychological Association Zero Tolerance Task Force, Are Zero Tolerance Policies Effective in the Schools? An Evidentiary Review and Recommendations (2006).

[2] Id.

[3] American Psychological Association Zero Tolerance Task Force, Are Zero Tolerance Policies Effective in the Schools? An Evidentiary Review and Recommendations (2006).

[4] Los Angeles Unified School District Policy Bulletin, Guidelines for Student Suspension, August 21, 2007. Available here.

[5] Los Angeles Unified School District, Student Health and Human Services, Top Ten Alternatives to Suspension, August 21, 2007. Available here.

[6] At least to the extent that it refrains from a pro-drug message, Morse v. Frederick (439 F. 3d 1114, 2007)