Testimony of Samantha Pownall, Equal Justice Works Fellow/Attorney

June 20, 2013

INTRODUCTION
The New York Civil Liberties Union respectfully submits the following testimony regarding our recommendations for the 2013-2014 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. One of our primary advocacy campaigns for many years has been advocating for progressive, positive discipline in schools. Many advocates, including the NYCLU, have documented the harms of overly-punitive, exclusionary, and criminal justice responses to student behavior, including the detrimental effects on student achievement and engagement, the discriminatory impact of zero tolerance on students of color and students with disabilities, and the correlation with high-dropout rates and involvement with the criminal justice system.

This year we are pleased that the Department of Education (DOE) has continued to engage the New York City advocacy community, parents and students in their efforts to improve the discipline code. However, the improvements evident in the 2013 draft pale in comparison to last year’s significant reforms-- major changes which Deputy Chancellor Grimm and others have credited for the decrease in suspensions last year. While the 2013 draft contains a small revision for students with disabilities, the NYCLU is concerned that the DOE has made no changes that would address the disproportionate suspension rates of black and Latino students, despite the DOE’s public commitment to addressing this issue. Even as suspensions overall are declining, these concerning disparities remain.

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 (2011-2012), there were approximately 3,800 fewer suspensions (69,643 total), and yet Black and Latino students served 88.8 percent of those suspensions, and students with disabilities, 32.3 percent. State law requires the DOE to update its code of conduct each year, with a focus on the effectiveness of its provisions and the fairness and consistency of its administration. Yet the DOE’s own data demonstrates that suspensions are neither effective nor fair. The DOE must correct these inequalities. We have seven recommendations for ways the DOE can continue to improve the Discipline Code so that school rules are more fair, consistent, and effective. We discuss each of them in turn.

1. Mandate sustainable, system wide positive discipline alternatives in the Discipline Code.
The systematic implementation of positive discipline alternatives will make schools safer, calmer, and more effective places for young people to learn. The DOE has communicated its faith in positive discipline by piloting programs around the city and including positive discipline language in the Code and elsewhere. Yet, without a mandate and meaningful training, the widespread use of these alternatives is unlikely.

We recommend that the DOE invest in sustainable system-wide alternatives to suspension by providing low-cost or free training materials to administrators in charge of discipline system-wide. Without adequate training for educators, even tools like mediation and restorative practices will fail to contribute meaningfully to school climate. Without this commitment from the DOE, principals never know whether a program will be funded or for how long, or which program(s), once implemented, will have sustaining support from the DOE. In addition the DOE should track and evaluate schools’ implementation of alternatives to suspension. Collecting reliable data on the use of exclusionary and positive discipline from all schools is the only way to know if principals are using alternatives to keep students in class. It’s time for the DOE to move away from viewing positive discipline as an experiment and commit to making it a part of students’ everyday life.

2. Eliminate zero tolerance infractions and restore discipline authority to educators.
Zero tolerance has been widely discredited for being discriminatory and ineffective. It equates the most serious misbehavior with the most trivial, teaching students a lesson about neither in the process.

This year the NYCLU represented an 11-year old student with no discipline record, who was suspended from school for one week because he brought a ring with a skull design to school, even though this is not a violation of the Discipline Code. While the suspension was successfully appealed and expunged from the student’s record, it was already too late: This school’s zero tolerance response resulted in the student missing one week’s worth of valuable classroom instruction by the time the appeal was sustained.

Eliminating zero tolerance means eliminating it from the text of the Code and from the practice in classrooms and hallways. It means giving strong instructions to principals that suspensions are not to be sought in the first instance of misbehavior. It means training School Safety Officers to contribute to positive discipline programs rather than undermine them.

The simplest step the DOE can take to reduce educators’ reliance on zero tolerance practices is to reduce the number of infractions for which classroom removals, suspensions, and expulsion are available. Presenting a range of discipline options corresponding to each infraction, and a scheme of dividing behaviors into increasing levels of seriousness, is a meaningless exercise in a system where children can be removed from the learning environment for committing nearly any infraction. Even state and federal law allow exceptions to minimum suspension periods under certain circumstances.

3. Adjust the Levels in the Discipline Code to reflect a genuine commitment to progressive discipline.
New York City lags behind other major urban districts in reforming student discipline. For example, the Los Angeles Unified School District recently banned the use of suspensions to punish “willful defiance.” In the Buffalo (New York) Public Schools, suspensions are prohibited for misbehavior such as cheating and cutting class. In school districts like Baltimore and Denver, where discipline codes have been revised to prohibit suspensions for low-level offenses and require graduated interventions, the total number of suspensions has decreased while graduation rates have increased. Yet the current draft of the New York City Discipline Code still allows suspensions of up to five days for minor Level 3 offenses like “defying authority.”

We recommend that the levels in the Discipline Code be revisited in order to reflect a more sensible, progressive response to misbehavior. Classroom removals should not be an option for Level 1 misbehavior, and Level 2 and 3 misbehaviors should have, at the very least, mandatory non-suspension responses before a suspension can be sought.

At the other end of the spectrum, Levels 4 and 5 should be accompanied by an instruction to educators that these levels of infractions represent the most serious misbehavior, and are only to be used when lower-level infractions do not apply and where non-punitive methods have failed to correct the behavior. Expulsion should never be an option for Level 4 infractions. We needn’t explain the harm that expulsion can do to a child’s future. Allowing for the application of the most serious punishment to anything but the most serious behaviors is counter to the logic of dividing infractions into levels. Even state and federal law allow exceptions to minimum suspension periods under certain circumstances.

4. Clarify the role of School Safety Officers in the Discipline Code.
The Code must state that School Safety Officers will not arrest or ticket students for breaking a school rule and must make it clear what offenses, if any, will result in a student being arrested.

This January, a 7-year-old boy from the Bronx was arrested and charged with robbery when another student accused him of taking his five dollar bill. Even though the charges were eventually dropped when another student confessed, the child was handcuffed for four hours at school and another six hours at the precinct. Both he and his mother were traumatized by this grossly inappropriate law-enforcement response to typical childhood behavior on the playground.

Despite stories like these, the DOE continues to disclaim responsibility for the training, activities, conduct and misconduct of School Safety Officers. While the DOE invited the NYPD to place officers in schools, and contributes a large portion of the operating budget of the School Safety Division, it has subsequently denied all responsibility for the policies and practices governing the officers, their authority in schools, and their relationships with students and teachers. One way the DOE maintains this hands-off school safety policy is by abstaining from any language in the Discipline Code that refers to arrests of students, issuing of criminal summonses for school-based infractions, the use of handcuffs on students, or police interventions in student discipline. Reading the Code, a student or parent would have no sense of the fact that breaking one of these rules—particularly the lower-level rules-- could result in an arrest. At the very least the Discipline Code must inform teachers and students of restrictions on the types of discipline situations that may result in police involvement. Ultimately, we urge the DOE to embrace a policy that prohibits School Safety Officers from arresting or ticketing students for breaking a school rule.

This school year, as in past years, we have received numerous intakes from families whose children have been unnecessarily restrained or subjected to force by police or School Safety Officers, or charged with crimes for breaking school rules. While the reduction in arrests this quarter is heartening and we hope they will continue, still more than six students are arrested or ticketed each day. And, arrests still disproportionately impact students of color: 91 percent of arrests are of black and Latino youth who make up only 70 percent of the student population. The NYCLU urges the DOE to take a more proactive stance on limiting police involvement in student discipline and explicitly prohibit the arrest of young people for common, minor misbehavior. Other districts have established similar limits with the result that fewer young people are fed into the criminal justice system. As long as a criminal justice response is on the table, positive discipline can never take root in schools.

Finally, School Safety Officers must be trained to work with students with special needs, and schools must be given proper supports for meeting these students’ needs. It has been well-documented that schools and police refer students to EMS when they become unruly, particularly special education students. Advocates from all five boroughs of Legal Services New York report that over the last few years the number of EMS referrals for children who are misbehaving have skyrocketed. The vast majority of these students are cleared to return to school, yet their families are slapped with costly medical bills for the EMS transport and ER evaluation. To better meet all students’ needs, school leaders and staff must be trained in whole-school positive behavioral supports, therapeutic crisis intervention, and other positive and preventative interventions.

5. Clearly state the due process protections students are entitled to for each type of discipline response listed in the code.
The DOE should add a third column on page 13 explaining the Due Process protections that attach to each type of exclusionary discipline. The description of Classroom Removals should include the right to parental notification of the removal within 24 hours. Principal suspensions should, at minimum, include the right to written notice within 24 hours, the right to request a conference with the principal and the right to alternate instruction. Superintendent suspensions should, at minimum, include the right to written notice, the right to a hearing with representation within five days of the suspension and appropriate notice of special education protections.

In addition, the Code should state that students have a right to access video surveillance footage to defend themselves in suspension hearings and suspension appeals. Restricting students’ access to footage to only that which will be used to make the school’s case, but not exculpatory footage, is fundamentally unfair.

6. Clarify vague infractions and consequences in the code.

The Code must make clear that students must not be suspended from school when the underlying offense is infraction A04/B05, possession of a cell phone.
This year the NYCLU received numerous calls from parents whose children had been suspended because they were caught with a cell phone in school – even though the maximum punishment in the Code is a detention, not a suspension or even a classroom removal. The DOE must require principals to train their staff and students in the provisions of the code—and particularly the major changes to the code—each school year.

Properly distinguish between physical and verbal sexual harassment and consensual physical contact in infractions A38 and B34.
Infractions A38 and B34 rightly prohibit the sexual harassment of students. The NYCLU is concerned, however, that the DOE has conflated “making sexually suggestive comments, innuendoes, propositions or similar remarks,” with “engaging in … physical conduct of a sexual nature.” Two students kissing in the schoolyard, a student passing a flirtatious note to a classmate, and a student sexually assaulting another are vastly different situations. Yet, based on this overbroad infraction, all three can be punished by a one-year suspension. Most outrageously, students who are 17 and engage in this behavior could be expelled from school.

The NYCLU recommends that DOE amend this infraction to differentiate expressive conduct that is neither “dangerous” nor “violent” from behavior that is. First, the DOE should separate this infraction into two separate sections. One should prohibit verbal harassment of a sexual nature and ensure that this behavior triggers counseling and interventions for offenders. This infraction could also prohibit sexual harassment via electronic messages or images that enter into the school environment, materially and substantially interfere with the school’s educational mission, and meet the foreseeability requirement set out by the Second Circuit in Doninger v. Niehoff. Such an infraction should be no higher than a Level 2 misbehavior, properly designated as “disorderly” or “disruptive.”

A separate infraction should address physical harassment of a sexual nature, redefining the prohibited conduct so as not to criminalize consensual, age-appropriate displays of affection (particularly considering that public school students in New York can be as old as 21 years of age) and ensuring that the corresponding interventions and disciplinary responses are appropriate.

7. Ensure that students’ rights to free speech and religious expression are honored throughout the Discipline Code and in practice.
This recommendation, which we have made for several years, is with specific reference to infractions A08/B09, A32/B35, and A36/B39, A37/B40.
A08/ B09: “Wearing clothing, headgear (e.g. caps or hats), or other items that are unsafe or disruptive to the educational process.”
Infractions A08 and B09 are currently accompanied by the following text: “If there is a question regarding whether or not clothing or headgear is representative of religious expression, the school should contact the Youth Development Liaison in the CFN.” This instruction is based on the flawed premise that a person who adopts a particular expression of his religious practice is observing a stricture that will be recognized by the Youth Development Liaison.

The Supreme Court has consistently held that the sincerity of an individual’s religious belief cannot be doubted merely because it departs from other commonly-held tenets, nor can a particular religious practice be questioned just because it is singular or unprecedented. In order for a school to clarify a “question regarding whether or not clothing or headgear is representative of religious expression,” the school needs to look no further than the student in question. We recommend that the DOE amend this instruction to schools to adhere to minimum constitutional requirements.

A32/ B35: “Distributing Violent, Lewd, or Obscene Materials.”
The NYCLU is also concerned about the constitutionality of infractions A32 and B35, which prohibit “posting, distributing, displaying, or sharing 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.”

While the Supreme Court has recognized schools’ interest in curtailing in-school speech that is “vulgar,” this power has not been extended to students’ out-of-school communications. As the Third Circuit Court of Appeals stated: “It would be an unseemly and dangerous precedent to allow the state, in the guise of school authorities, to reach into a child's home and control his/her actions there to the same extent that it can control that child when he/she participates in school sponsored activities.”

In order for a school to punish a student for out of school speech, the communication must meet, at a minimum, the standard set out in Doninger: the speech materially and substantially disrupts the work or discipline of the school, or it was reasonably foreseeable to school administrators that it might create such a disruption. The Code must be amended to reflect adherence to this First Amendment standard.
Finally, the NYCLU disputes the characterization of any student expression as a “dangerous or violent behavior” that can result in a student’s suspension for up to one year, or even expulsion. We strongly recommend that this behavior be re-categorized as a Level 2, “disorderly disruptive” behavior. This will also help students and teachers adhere to the First Amendment standard, reinforcing the concept that punishable speech must be disruptive.

A36, B39/ A37, B40: “Engaging in intimidating and bullying behavior, including cyber-bullying.”
Clarifying and defining bullying behavior under A36/B39 is an important addition to the Discipline Code. However, we are concerned about the inclusion of “derogatory language,” which remains undefined, and could include many different types of student speech. Most troubling, students may be suspended for up to one year under this vague description, without the possibility of reinstatement (in grades 6-12, and up to 90 days in grades K-5). The NYCLU recommends that “derogatory language” be eliminated from this infraction or at the very least defined and reclassified as a Level 2 offense. Punitive responses to bullying and harassment do nothing to make schools safer places for current or future targets of bullying.

The NYCLU commends the DOE for its dedication to protecting students from bias-based harassment and bullying under A37/B40. In implementing the Dignity for All Students Act, New York State’s anti-harassment statute, we hope the DOE will take note of its legislative sponsors’ intent to avoid a zero tolerance response to bullying and of language in the amended law (taking effect in the 2013-2014 school year) requiring a progressive discipline ladder for responding to bullying complaints.

That said, we continue to be troubled by the DOE’s inclusion of “cyber-bullying” in these infractions without acknowledging any constitutional limits on schools’ power to punish students for First Amendment-protected speech. The Second Circuit held in Doninger that off-campus student speech can be regulated by the school only when it materially and substantially disrupts the work or discipline of the school, or it was reasonably foreseeable to school administrators that it might create such a disruption. Importantly, the discipline at issue in Doninger was not a suspension (the student was prohibited from running for senior class secretary) and the court made note of this distinction in its decision.

In order to legally enforce a Code provision against “cyber-bullying,” the DOE must, at minimum, include language reflecting the requirements of Doninger. In light of the non-exclusionary punishment at issue in Doninger, however, we strongly suggest the DOE take a stance that is more protective of students’ rights, and errs on the side of problem-solving over censorship. As recently stated in guidelines issued by the First Amendment Center (endorsed by the National School Boards Association, National Association of State Boards of Education and American Association of School Administrators), “the skill of listening to speech with which one profoundly disagrees nevertheless remains an essential element of preparation for democratic citizenship.”

Therefore, we recommend that the DOE consider adding the following elements to any infraction that seeks to punish students for protected speech.
a. The speech was directed at a student or group of students.
b. The speaker intended or could have reasonably predicted the speech would come to the attention of the targeted student or group, and it did in fact come to the attention of that student or group.
c. The speech materially and substantially disrupted the work and discipline of the school, or the speech was sufficiently severe, pervasive and persistent so as to create a hostile environment in school that substantially and materially interfered with the educational opportunity of the targeted student or students.
d. Punishment is a last resort in a progressive discipline system where other responses have been employed and have failed.

CONCLUSION
We look forward to continuing our collaboration with the DOE on discipline and due process issues. We urge you to consider seriously our recommendations today, and to publish responses to the public’s commentary during the Discipline Code revision process. Responding to comments will help interested members of the public to understand the DOE’s motivations, its interpretations of applicable law and its long-term strategies for student discipline.

Students have a right to a public education—a right that is seriously compromised when young people spend weeks or months serving suspensions, or when they are pulled from their classrooms by police. They also have rights to free expression and religion—rights that should be respected in school as they are outside. We recognize the DOE’s efforts to create a more positive discipline policy and we urge you to continue improving in this area. Thank you for considering our recommendations.