Testimony Before The New York City Council Education, Public Safety and Juvenile Justice Committees on School Climate and Safety

April 15, 2013

The New York Civil Liberties Union respectfully submits the following testimony on school climate and oversight of the Student Safety Act.

INTRODUCTION

The NYCLU, the state affiliate of the American Civil Liberties Union, is a not-for-profit, non-partisan organization with eight offices across New York state and nearly 50,000 members. The NYCLU’s mission is to defend and promote the fundamental principles, rights and constitutional values embodied in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York. Securing students’ rights is a core component of our mission, and through our Youth and Students’ Rights program the NYCLU advocates for positive discipline systems that reduce classroom removals, suspensions, expulsions and school-based arrests.

As a founding member of the Student Safety Coalition, the NYCLU partnered with students, parents, and advocates across the City to urge the Council to enact the Student Safety Act (SSA)—a first-of-its-kind reporting law on student safety and discipline in schools. The SSA has given the public a rare view into schools’ inner workings, revealing a disciplinary system that is deeply biased against black students and students with disabilities. These students are suspended at alarmingly high rates relative to their enrollment, and are suspended more often, for longer periods of time, and for more subjective infractions than their peers. During the 2011-2012 school year, black students accounted for more than half of all suspensions, and students with disabilities accounted for nearly one-third.

Three weeks ago, the most recent SSA data showed a marked decline in both principals and superintendents suspensions. While we applaud the DOE for reducing the number of suspensions over the past six-month reporting period, the fact remains that 16,000 suspensions in a single semester – a semester with fewer school days due to Hurricane Sandy – is far too many. Troublingly, the last reported annual data show the discipline disparities against students of color and students with disabilities persist even when the overall number of suspensions has decreased. For example, in the 2010-2011 school year there were 73,441 total suspensions; 88.7 percent were served by Black and Latino students and 31.4 percent were served by students with disabilities. The following school year, there were approximately 3,800 fewer suspensions, and yet Black and Latino students served 88.8 percent of those suspensions, and students with disabilities, 32.3 percent.

On March 27 of this year, the American Academy of Pediatrics issued a policy paper on the school suspension crisis and resulting detrimental health consequences to the young people. The paper, citing a study from the United States Centers for Disease Control and Prevention, warned that adolescents who are suspended out of school are more likely to smoke, drink alcoholic beverages, abuse illegal drugs and engage in sexual intercourse at a premature age. These youth are more susceptible to suicidal ideas due to their isolation from their peers and from trained school counselors. These findings have been echoed in literally dozens of research papers from across the country. There is consensus that overreliance on suspensions is more detrimental to students than many people realized.

The SSA’s added transparency, coupled with the work of organizers, advocates and researchers, has lead to the DOE taking more reasonable positions on student misbehavior, and has begun to reduce the incidence of suspensions.

In light of the research and data from New York City and around the country, we have three specific recommendations for the Council today:

• Strengthen the Student Safety Act to provide more meaningful data on school discipline and police activities in schools while maintaining student privacy protections;
• Monitor the implementation of the Discipline Code in schools, including out-of-school suspensions for behavior that is constitutionally protected and minor misbehavior for which tailored, in-school responses are appropriate. Require the use of alternatives to suspension and a progressive discipline ladder;
• Limit the role of police in schools to responding to emergencies where safety is seriously compromised. Require that SSOs collaborate with administrators in all situations.

REDACTIONS AND MISSING INFORMATION

The Student Safety Act provides for annual and bi-annual reporting of student suspensions, and quarterly reporting of summonses and arrests by the School Safety Division of the NYPD, to the City Council. The suspension data are disaggregated by school, race/ethnicity, gender, grade level, age, special education status, English Language Learner status, Discipline Code infraction and length of suspension. The NYPD arrest data are broken down by borough patrol, race/ethnicity, gender, age, and penal law section. Unfortunately, the SSA has serious limitations, primarily the egregious censorship of key data points due to a misapplication of student privacy law.

For example, the New York Police Department (“NYPD”) is not required to report, or has failed to report, in several key categories. For example, arrests and summonses recorded by officers outside of the School Safety Division of the NYPD are not reported, though we know from anecdotal reports that these officers are regularly called into schools to handle incidents. This likely results in an undercount of arrests. In addition, the NYPD reports on thousands of non-criminal incidents in schools in seven categories – marijuana possession, fireworks, trespass, loitering, harassment, disorderly conduct and dangerous instruments – but does not report what makes something a non-criminal incident (rather than merely a discipline incident) or how that designation captures police involvement in student misbehavior. We recommend that the Council consider amending the Student Safety Act to include reporting on what actions were taken by law enforcement in response to an incident categorized as non-criminal.

But the most pressing issue is that the Student Safety Act permits data redactions where there are zero to nine suspensions in any particular category of information. The effect of this is that the reports are heavily redacted – approximately 34 percent of the information required by law is censored by the DOE. In certain categories, redactions are more common than data points, making it impossible to sum up totals. In fact, the public has only ever received the total number of suspensions in the aggregate through DOE press releases, because they are not provided in the data. The overall number of suspensions, and the total number of suspensions in each category are reported selectively. For example, the DOE provides the total number of suspensions of black students, but does not give the total number of suspensions for horseplay.

In another overbroad application of student privacy law, the DOE redacts any categories that equal zero—including entire schools that report zero suspensions. Surely, reporting zero suspensions does not intrude on any student’s privacy interests. Reporting zero suspensions allows us to ask both what a school is doing right in order to replicate practices that are proven to reduce suspensions, and whether a school has failed to report at all. The DOE’s reasoning for not providing the data for zero suspensions defies logic and common sense. Without that data across all categories, we are missing 97.3 percent of what should be reported.

The NYCLU stands with the DOE on the principle that protecting student privacy is a priority, but we believe that the DOE is using student privacy laws as a shield for bad policies, where there is no logical basis for redactions. The Family Educational Rights and Privacy Act (“FERPA”) mandates that “personally identifiable information” not be shared in any way that would compromise a student’s anonymity. Guidance from the United States Department of Education recommends using a case-by-case basis to determine whether release of large data sets of student information would allow a particular student to be identified.

Additionally, the Federal Committee on Statistical Methodology, an interagency committee of the United States Office of Management and Budget, recommends a method of de-identifying confidential records by redacting under a minimum cell size of five. Under such a policy, a reasonable person in the school community would not be able to identify a student with reasonable certainty, which is the standard required under FERPA regulations. We agree with this approach and urge the Council to reconsider the unnecessary and harmful redactions permitted under the law.

STUDENT SAFETY OFFICERS

The 1998 Memorandum of Understanding between the DOE and NYPD, which is the governing document for SSOs in New York City’s public schools, makes no mention of SSOs having a say in student disciplinary matters traditionally left to school officials. In fact, it says the opposite. Yet, we hear story after story of SSOs inserting themselves into situations in which teachers or school administrators would be more appropriate to intervene. In 2010, the NYCLU filed a federal lawsuit to challenge these practices, which can result in handcuffing and arresting students for breaking school rules. The original complaint detailed 25 such incidents that had been reported to the NYCLU. While many individual officers are strongly connected to schools, staff, and students, SSOs are still NYPD officers; they are not DOE staff, they are not trained educators, and they should not be tasked with maintaining student discipline.

In order to return the balance of power in school discipline matters to school administrators, SSOs should only address serious safety concerns and should always work in consultation with school officials. Educators, and not SSOs, should be responsible for enforcing school rules enumerated in the Citywide Standards of Discipline and Intervention, also known as the Discipline Code. SSOs, as employees of the NYPD, should be responsible only for addressing serious criminal law matters that pose a real and immediate threat to members of the school community. Law enforcement responses to common student misbehavior, which escalate minor situations and rain down harsh consequences on children, should never be the default. Other jurisdictions have begun to seek these approaches to school safety—closely restricting police involvement in student misbehavior—because the harm to students is so great.

In addition, SSOs must be meaningfully trained alongside educators from their assigned school in child and adolescent development and psychology, cultural competency de-escalation and conflict resolution, and restorative justice approaches. Recent nationwide research on school suspensions clearly demonstrates that schools which implement positive discipline systems including alternatives to suspension, and which provide culturally competent training to members of the school community, including SSOs, are able to reduce both their overall suspensions and their racial disparities.

FIRST AMENDMENT

As the primary defender of the Constitution and Bill of Rights in New York State, the NYCLU has repeatedly expressed concern over aspects of the DOE’s Discipline Code that are likely unconstitutional. Primarily, we have gone on record to express serious concerns about the DOE’s kneejerk reaction to bullying and harassment in schools. Through the Discipline Code, the DOE purports to have the power to suspend students for off-campus First-Amendment-protected speech that it considers to be “cyberbullying.” This approach is neither legal nor effective in reducing bullying incidents. While we are fully aware that students have limited rights in school as compared to other spaces, we remind the Council of the Supreme Court’s now-famous adage from the Tinker v. Des Moines case that students do not “shed their constitutional right to freedom of speech or expression at the schoolhouse gate.”

The NYCLU was a leader in advocating for and securing enactment of the Dignity for All Students Act (“DASA”) which reformed New York state law to ensure that all students are protected from harassment in school. The DOE has been a close partner with the NYCLU in this work, and in developing best practices for implementing the new law, as a co-member of the State Education Department’s Dignity Task Force. At the same time, however, the DOE’s discipline-based approach to “cyberbullying” ignores many of the best practices approaches the DOE is fully aware exist.

In New York, schools are bound by the parameters of the Second Circuit Court of Appeals’ Doninger v. Niehoff decision. Doninger requires a student’s off campus speech, including internet and other electronic speech, to present a foreseeable risk of a “material and substantial disruption” in order for the school to limit the speech. Anything less will conflict with the First Amendment and is subject to constitutional challenge. Yet the DOE’s instruction to educators, via the Discipline Code, is that students are subject to a three-month suspension for “bullying behavior through electronic communication,” with no requirement of any disruption whatsoever, either actual or predicted.

We believe that this single infraction has resulted in literally thousands of suspensions from school, some of which are most likely unconstitutional violations of students rights (though fewer than 1,000 are actually documented through the Student Safety Act). Perhaps more troublingly, research has repeatedly demonstrated that suspending students for bullying makes neither schools nor students safer. Alternative strategies for responding to problematic student speech—including counseling, parent conferences, and empathy training—are both more effective and less likely to create legal liability. The DOE itself has participated fully in the drafting of the NY State Education Department’s Promising Practices guidance on bullying, which enumerates these strategies and the First Amendment concerns quite clearly.

ALTERNATIVES TO SUSPENSION

Punitive exclusionary school discipline policies are not the way to correct normative adolescent and youth behavior that disrupts the classroom. Study after study has shown that educating and counseling students when they break school rules is a more effective and longer-lasting means to ensure compliance than simply suspending them. Furthermore, there are numerous positive alternatives to suspensions that are proven to work to curb the exclusion of students from school and significantly help to improve school climate, many of which are already in use quite effectively in New York City.

In 2009, the NYCLU joined with Make the Road New York and the Annenberg Institute on a report in which we analyzed and compared New York City public schools with positive school climates, high graduation rates, and low suspension rates. The constants that remained from school to school, neighborhood to neighborhood, were that student misbehavior was most often addressed through positive alternatives; students have a meaningful voice in developing school rules; SSOs were considered a valued part of the school community and did not act unilaterally; and students were provided with non-academic supports in the community schools model.

On a pedagogical level, studies on suspensions and school climate have demonstrated that suspensions do not serve their intended purpose of reducing student misbehavior to improve the learning experience. As the American Academy of Pediatrics recently stated “out-of-school suspension and expulsion are counterproductive to the intended goals, rarely if ever are necessary, and should not be considered as appropriate discipline in any but the most extreme and dangerous circumstances, as determined on an individual basis rather than as a blanket policy.” If anything, suspensions and heightened security measures, including the unimpeded activities of SSOs, only exacerbate the problems faced by many students which led to their suspensions and do not improve student safety.

There is a larger harm to society when we exclude students from the classroom. In the short term, there is a strong correlation between students who are suspended being more likely to recidivate, disrupt learning for their peers upon their return, or drop out of school and become embroiled in the criminal justice system. In the long term, governments must take heed of the enormous costs of psychological, medical and counseling services these students will eventually require as a result of their inability to finish their education and become productive members of society.

CONCLUSION

In conclusion, the purpose of the Student Safety Act was to ensure transparency in student discipline in New York City’s public schools; the hope was that through access to data, policymakers and the public could make better-informed decisions using sophisticated analysis of trends in school safety, and students would benefit from reduced reliance on suspensions that are both ineffective and discriminatory. While these benefits are beginning to emerge, there is work to be done.

By heavily redacting the data, the DOE has not allowed for a meaningful level of analysis and remains the only party with access to detailed discipline information. Similarly, by flooding schools with Student Safety Officers who are not appropriately trained to work in educational settings and who limit the authority of school administrators, the DOE and NYPD have undermined the ability of schools to function in a manner that best serves the needs of students. Finally, while the DOE has taken steps to improve the Discipline Code to reflect a better understanding of student needs, it continues to violate constitutional principles and best practices with that document, particularly in the area of bullying.

The NYCLU strongly urges the City Council to carefully consider the testimony it hears today. The DOE has taken important steps to stop New York City’s suspension crisis and work more collaboratively with key allies. But tens of thousands of students are still suspended each school year for minor, easily correctible misbehavior. Thousands of young people are arrested or slapped with court summonses for non-criminal, normative adolescent mistakes. Pilot programs on restorative justice and other alternatives to suspensions are narrow, hidden from public scrutiny, and have not been scaled up to serve the majority of students. Funding for training on alternatives is minimal, while the apparatus for suspending students, including formal hearings and an entire cadre of “suspension schools,” is going strong.

Our recommendations to the Council today are as follows:

• Strengthen the Student Safety Act to provide more meaningful data on school discipline and police activities in schools while maintaining student privacy protections;
• Monitor the implementation of the Discipline Code in schools, including out-of-school suspensions for behavior that is constitutionally protected and minor misbehavior for which tailored, in-school responses are appropriate. Require the use of alternatives to suspension and a progressive discipline ladder;
• Limit the role of police in schools to responding to emergencies where safety is seriously compromised. Require that SSOs collaborate with administrators in all situations.

We recognize that the Council’s power is limited in some of these areas, and we thank you for your contribution to the discourse by holding oversight hearings like this one. We urge the Council to take a proactive role in setting DOE policy, for example by passing resolutions in support of our recommendations today and those of the Dignity in Schools Campaign, by participating in the annual hearing on the Discipline Code, as chair Robert Jackson has several times in the past, and by continually improving reporting requirements under the Student Safety Act. Sunshine on school policy has helped us arrive at a turning point in school discipline—one where advocates, the Council, and the DOE agree that there are better ways to make schools safe than through zero tolerance. But we need continued transparency and increased policy leadership to cross the finish line. We urge the Council to take a proactive role in improving school climate for the good of all New York’s children.