Testimony of Johanna Miller on behalf of the New York Civil Liberties Union before The New York City Council's Committee on Public Safety Regarding the New York Police Department School Safety Division's Role and Efforts to Improve School Climate

November 21, 2017

The New York Civil Liberties Union (“NYCLU”) respectfully submits the following testimony on the New York Police Department (“NYPD”) School Safety Division’s role and efforts to improve school climate.  We would like to thank the Committee on Public Safety for giving the NYCLU the opportunity to provide testimony today on this important topic. 

I. Introduction

The NYCLU, the state affiliate of the American Civil Liberties Union, is a not-for-profit, non-partisan organization with nine offices across New York state and more than 210,000 members and supporters. 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. Protecting and expanding students’ rights is a core component of our mission, and through our Youth and Students’ Rights program the NYCLU advocates for positive school climate and equitable access to quality education for all students.

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—a first-of-its-kind reporting law on student safety and discipline in schools. The Student Safety Act has given the public a rare view into schools’ inner workings, revealing a disciplinary system that continues to be deeply biased against Black and Latino students and students with disabilities. These students are suspended and arrested 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, issues that the NYCLU has been tirelessly advocating to end.[1] We serve on the Mayor’s Leadership Team on School Climate and Discipline and we work regularly with individual educators and young people, including more than 100 members of our Teen Activist Project. Our work to reform school discipline and restrict the role of the criminal justice system in schools affords us a unique perspective on the criminalization of student behaviors and the role of the NYPD School Safety Agents (“SSO”).

The NYCLU appreciates Council Member Gibson’s efforts to contribute to the conversation regarding the role of SSOs in schools.  We hope this oversight hearing will help the NYPD identify ways to clarify the responsibilities of police in schools and recognize the important part that its officers can play in improving school climate. 

II. The Evolution of NYPD School Safety in NYC Schools

In 1998, then-mayor of New York City Rudy Giuliani led a campaign to transfer responsibility for school safety away from the Board of Education to the New York Police Department. Skeptical parents and educators were promised that the school police force would not be increased (from fewer than 2000 officers at the time) and that the officers would not have the authority to make arrests. Despite evidence that showed school crime was on the decrease, Giuliani's plan came to fruition. His promises, however, lasted only as long as his administration: today more than 5,000 NYPD officers roam the hallways of New York City's schools, issuing criminal penalties, using force and restraints, and arresting children as young as seven years old.[2] In fact, SSOs outnumber guidance counselors and social workers in Department of Education (“DOE”) schools by more than 1,000.[3]

Importing police into public schools was a natural extension of both Mayors Giuliani and Bloomberg’s investment in “broken windows” policing. Broken windows is a discredited law enforcement strategy that focuses police resources on minor offenses in the hopes of preventing serious offenses. Tragically, New York City’s experiment with this tactic is a failed one—funneling hundreds of thousands of predominately Black and Latino New Yorkers into the criminal justice system and resulting in no serious safety gains.[4] Indeed, since the city abandoned its systemic overuse of Stop and Frisk (a major tactic of broken windows), crime rates have continued to fall.[5]

NYPD officers in DOE schools perform duties that include metal detector screening of students, interrogations and searches, and enforcement of routine school discipline.  Yet, the City lacks transparent policies that make it clear which matters should be addressed by police (such as situations where there is an immediate risk of serious physical injury) and which should be addressed by educators. This lack of clarity leads to demonstrable harm by disrupting the educational environment and introducing young people into the criminal justice system at ever-younger ages. Also generally lacking is an effective mechanism for students, parents or educators to hold school safety officers accountable for their actions.           

There is a vast body of research demonstrating the clear and significant harms of police acting as school disciplinarians.[6] Students who are arrested in school have higher rates of dropping out, and they face a host of collateral consequences from involvement with the criminal justice system including barriers to higher education, housing, and employment.  It is up to the NYPD and DOE to clarify and minimize the role of SSOs in order to end the school to prison pipeline in New York City. 

III. The Need For Clear Roles, Oversight, and Accountability

Today, policing in schools regularly involves enforcing low-level and non-criminal violations of school policies with little oversight or accountability. This is particularly true of the NYPD officers who are not members of the School Safety Division, who are responsible for the greatest portion of arrests in schools. Many of these police interventions are for non-criminal disorderly conduct (which includes common student misbehavior), non-criminal possession of small amounts of marijuana, students fighting, and issues that are not related to school safety at all, such as the investigation of a crime that happened off campus.[7]

The NYCLU has represented many children in New York City and around the state who have been harmed by police practices in school. In 2015, we settled a lawsuit against the City of New York on behalf of seven middle and high school students who were wrongfully arrested and/or physically abused by police in their schools. In that case, BH v. City of New York, we represented kids who were arrested or subjected to physical force for writing on school desks, acting "boisterous" in the hallway, possessing a cell phone in school, and talking back to adults, among other minor transgressions.[8] In a demonstration of just how difficult it is to achieve accountability for school safety officers, that case took six years to litigate and resulted in not one school safety officer being disciplined.

The structure also creates and perpetuates a lack of accountability. Principals have no authority over school safety; indeed, the NYCLU has represented students who were arrested over the objections of educators. School safety officers in New York City are accountable only to the NYPD but, unlike all other NYPD officers, are not subject to oversight by the Civilian Complaint Review Board.[9] The Department of Education will not accept or act on complaints of officer misconduct, even regarding officers who work full time in schools. The only way for students, parents, or educators to file a complaint against a school safety officer is by contacting the NYPD Internal Affairs Bureau (IAB), which is not independent, has no specialized knowledge of school safety or the education system, and is staffed entirely by police officers.

In order to return the balance of power in school discipline matters to educators, SSOs should be strictly limited to addressing only serious safety concerns and they must be required to work in consultation with school officials.

The City must update its 20-year-old The Memorandum of Understanding (“MOU”) between the DOE and NYPD to address excessive policing in schools and lack of accountability.  The document needs to delineate clearly the roles of school staff, SSOs, and NYPD precinct officers when responding to incidents in the school—both minor and more serious.[10] Educators should be responsible for enforcing all other matters including violations of school rules, as defined in the Citywide Standards of Discipline and Intervention, the Discipline Code. Law enforcement intervention should always be the last resort, not the default. It should incorporate the specific recommendations presented in Appendix 7 of the Mayor’s Leadership Team on School Climate and Discipline’s “Maintaining Momentum” report[11], including the following:

First, the MOU should prohibit police intervention in instances of student misbehavior. Broken windows tactics have been discredited on the streets; there is no place for them in schools either. Where there is no immediate threat of serious physical injury, police should never get involved in disciplining students or maintaining classroom decorum. The DOE should adopt clear prohibitions on police intervening in issues such as dress code violations, tardiness and cutting class, insubordination, and non-serious fights.

Second, the MOU should eliminate the use of criminal summonses in school. A criminal court summons is an inappropriate response to school misconduct and enforcing these low-level crimes in schools does not make students safer. As with an arrest, a summons requires a young person to miss school in order to attend a court hearing; but, unlike an arrest, a summons can be issued for minor misbehavior such as talking back to a teacher, running in the hallway, or doodling on a desk. The consequences, however, are not trivial. Criminal court summonses can result in large fines and fees and even an arrest warrant if the young person misses their court date.  In the 3rd quarter of 2017 (July 1, 2017 – September 30, 2017), the NYPD issued 85 summonses to students.[12]

Third, the MOU should prohibit the use of handcuffs on students unless there is a threat to physical safety.  Handcuffs, zip ties, and other restraints should never be used on children, on students with disabilities (especially by untrained officers), or as a means of punishment or convenience. In 2016, 92% of arrests in schools involved the use of handcuffs.[13]

Fourth, the MOU should have provisions that ensure effective accountability and oversight procedures.  Too often, school police are inadequately supervised, trained, and supported by both the school district and the police department. Educators, students and parents must have an effective and accessible path to submit a complaint about the conduct of an officer in school, and must be able to trust that the officer will be held accountable. Officers with serious substantiated complaints against them, especially for use of force or harassment or discrimination against students, should not be permitted to work in schools.

IV. NYPD Activity Disproportionately Affects Black and Latino Students

The “grey area” where the NYPD operates in schools creates opportunities for discrimination. Young people of color in failing or struggling schools are more often criminalized for minor infractions; of the 100,000 students who walk through a metal detector each day on their way into school, more than 90% are young people of color. In highly successful schools and schools with disproportionately white student bodies, this type of activity by the police would not be tolerated. Yet this is the continual damage caused by the NYPD’s strategies—a tale of two cities that affects even our youngest residents.

Black and Latino students are more likely to be subject to physical force, the use of handcuffs, and police intervention in mental health matters. In 2016, nearly 100% of NYC students handcuffed during a "child in crisis" situation—a child in need of emergency mental health support—were Black or Latino. Overall, in more than 90% of police-involved incidents in schools, the students were Black or Latino.[14] These same trends have continued in 2017. In the most recently released NYPD data for the 3rd quarter of 2017, 90% of the students in police-involved incidents were Black or Latino.[15]  Further, 86% of the students on which the NYPD used restraints were Black or Latino students.[16]  Finally, nearly 100% of students handcuffed during “child in crisis” situations were Black or Latino.[17]  

The NYPD and DOE should study this data carefully to implement strategies to reduce racial disparities in arrest data including those from the Mayor’s Leadership Team on School Climate and Discipline’s “Safety with Dignity” report.[18] By revising the MOU to limit the role of police, the City can make it clear that all children deserve a second chance when they make a mistake, regardless of the color of their skin. In addition, the City must provide adequate funding for all school personnel to be thoroughly trained in recognizing and correcting implicit biases.

V. NYPD Activity and its Impact on Students with Disabilities

Federal law protects students with disabilities from discrimination in school. Both the Americans with Disabilities Act and the Individuals with Disabilities Education Act include important procedural protections to keep students from being pushed out of mainstream classrooms, ensure they are receiving proper supports, prohibit the use of abusive restraints and seclusion, and guarantee timely evaluations of their needs. Yet, when it comes to the actions of police in schools, these protections are routinely disregarded.

Police in schools have no legal access to information about students' disabilities or health needs, as these records are protected by federal privacy law. Yet they can use physical force and restraints against these students, and can remove them from school without even consulting the principal. The NYPD refuses to maintain records on in-school arrests of students with disabilities (the DOE maintains no records of student arrests whatsoever), so the city has no clear picture of the impact of police on students with disabilities. Without greater school accountability for police activities, the true impact of school police on students with disabilities will continue to be hidden from view.

VI. Metal Detectors in Schools

Metal detectors have been used in city schools since the late 1980’s with the stated purpose of “maintain[ing] a safe and secure school environment and prevent[ing] weapons from being brought into the schools.”[19] However, according to DOE data, a majority of the items seized after a student passes through a metal detector include cell phones, hairpins, cameras, and school supplies.[20] There is no criteria for determining if a metal detector is working to make kids safer, is contributing to a negative school climate, or even if it is functioning properly.

During the 2015-2016 school year, there were 88 scanning sites across the city.[21] However, there is no transparent criteria for the addition or removal of metal detectors from a school.  The process involves an opaque “data review” conducted by the DOE’s Office of Safety and Youth Development (OSYD) and the NYPD School Safety Division.  However, “the final determination will be made by NYPD SSD.”[22]

There is no indication of the type of data reviewed, any benchmarks, or important indicators that are considered.  The DOE and NYPD should develop clear criteria for the data review that includes multiple years of data, the number of weapons found and confiscated, the number of scanning incidents that resulted in the issuance of summons, arrest or school discipline, and whether students are chronically late to class due to scanning delays.[23] The inquiry into the effects and effectiveness of a metal detector should be repeated throughout the school year and in real-time. Parents and the community must understand where and why metal detectors are added or removed.

VII. Alternatives to Police Action

Restorative justice techniques that equip educators with the tools to avoid overreliance on police are critical to improving school climate.  The most recent Student Safety Act data shows that discipline disparities against students of color and students with disabilities persist even when the overall number of suspensions has decreased. 

Nationwide research on school suspensions clearly demonstrates that schools that implement positive discipline systems and provide cultural competence training to members of the school community, including SSOs, are able to reduce both their overall suspensions and their racial disparities.[24]  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 way to improve behavior.[25]  Furthermore, there are numerous positive alternatives 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 fact, in the 2013-2014 school year, suspensions dropped 21 percent at schools that received training in restorative justice practices.[26]

VIII. Recommendations

            The NYCLU has the following recommendations to improve school climate and better outline the role of NYPD School Safety Agents:

1.      Update the MOU to be consistent with the following guidelines:

a.       Prohibit police intervention in instances of student misbehavior.

b.      Eliminate the use of criminal summonses in school.

c.       Prohibit the use of handcuffs on students unless there is a threat to physical safety.

d.      Ensure effective accountability and oversight procedures, including pathways for reporting unacceptable officer conduct.

2.      Review arrest data to identify trends and take steps to reduce disproportionality against students of color.

3.      Increase accountability for police regarding students with disabilities through better data transparency.

4.      Create transparent criteria for the introduction and removal of metal detectors in schools.

5.      Increase the use of restorative justice practices.

6.      Increase training for SSOs in schools—including Respect For All, Collaborative Problem Solving, de-escalation, restorative justice approaches, cultural competency, conflict resolution, implicit bias, and trauma.

IX. Conclusion

 

We thank the New York City Council’s Committee on Public Safety for considering this testimony. Matters of school climate are fundamental to the notion of a quality, safe, and supportive education and NYPD officers in schools bear responsibility for contributing positively to each school’s climate.


[1] NYCLU, Student Safety Act Reporting on Suspensions 2016-2017, https://www.nyclu.org/en/student-safety-act-data.

[2] See NYCLU, Criminalizing the Classroom, 2007, available at https://www.nyclu.org/en/publications/report-criminalizing-classroom-2007.

[3] There are currently 4,177 guidance counselors and social workers in NYC DOE schools.  New York City DOE, Report on Guidance Counselors Pursuant to Local Law 56 of 2014, February 15, 2017, available at http://schools.nyc.gov/NR/rdonlyres/4C83BFEB-35F5-4263-B614-84D61A8149A4/0/GuidanceCounselorReportandSummary21517final.pdf.  There are approximately 5,200 school safety agents.  https://twitter.com/nypdschools?lang=en.

[4] See NYCLU, Beyond Deliberate Indifference: An NYPD for All New Yorkers, 2013. pp. 1-14, available at https://www.nyclu.org/sites/default/files/publications/nypd_report_final_0.pdf.

[5] See NYCLU, Stop and Frisk Data, available at https://www.nyclu.org/en/stop-and-frisk-data.

[6] See, e.g., Council on State Governments Justice Center, Breaking Schools Rules: A Statewide Study on How School Discipline Relates to Students' Success and Juvenile Justice Involvement, 2011, available at https://csgjusticecenter.org/youth/breaking-schools-rules-report/.

[7] See NYCLU, Student Safety Act Data, 2011-2017, available at https://www.nyclu.org/en/student-safety-act-data.

[8] BH v. City of New York, amended complaint, E.D.N.Y., Index No. CV 10-0210 (2010) (available at https://www.nyclu.org/sites/default/files/Amended_Complaint.pdf).

[9] New York City Council, Oversight: School Safety, Joint Hearing of the Committees on Public Safety and Education, October 10, 2007. pp. 90-91, available at http://legistar.council.nyc.gov/View.ashx?M=M&ID=75528&GUID=627027FF-3798-4761-8703-F972A5C78F8BSee also, Civilian Complaint Review Board FAQs, https://www1.nyc.gov/site/ccrb/about/frequently-asked-questions-faq.page.

[10] See Maintaining the Momentum: A Plan for Safety and Fairness in Schools, The Mayor’s Leadership Team on School Climate and Discipline, July 2016, available at http://www1.nyc.gov/assets/sclt/downloads/pdf/SCLT_Report_7-21-16.pdf.

[11] Id.

[12] NYPD School Safety Data, Third Quarter 2017, available at https://www1.nyc.gov/site/nypd/stats/reports-analysis/school-safety.page.

[13] See NYCLU, Student Safety Act Data, 2016, available at https://www.nyclu.org/en/student-safety-act-data.

[14] See, NYCLU, Student Safety Act Fact Sheet 2015-2016, available at https://www.nyclu.org/en/student-safety-act-data.   

[15] NYPD School Safety Data, Third Quarter 2017, available at https://www1.nyc.gov/site/nypd/stats/reports-analysis/school-safety.page.

[16] Id.

[17] Id.

[18] Safety With Dignity, Complete Report by the Mayor’s Leadership Team on School Climate and Discipline, p. 34-35, July 2015, available at http://www1.nyc.gov/assets/sclt/downloads/pdf/safety-with-dignity-final-....

[20] NYCLU Report, A,B,C,D, STPP: How School Discipline Feeds the School-to-Prison Pipeline, Oct. 2014, page 32-33, http://www.nyclu.org/files/publications/nyclu_STPP_1021_FINAL.pdf (last visited Nov. 16, 2017).

[22] Id.

[23] Safety With Dignity, Complete Report by the Mayor’s Leadership Team on School Climate and Discipline, p. 30, July 2015, available at http://www1.nyc.gov/assets/sclt/downloads/pdf/safety-with-dignity-final-....

[24] Dan Losen & Tia Elena Martinez, Out of School & Off Track: The Overuse of Suspensions in American Middle and High Schools 21,The Center for Civil Rights Remedies, Apr. 8, 2013,  available at http://civilrightsproject.ucla.edu/resources/projects/center-for-civil-rights-remedies/school-to-prison-folder/federal-reports/out-of-school-and-off-track-the-overuse-of-suspensions-in-american-middle-and-high-schools/OutofSchool-OffTrack_UCLA_4-8.pdf (last visited Nov. 16, 2017).

[25] See, e.g., Johanna Miller, Education Interrupted, New York Civil Liberties Union, Jan. 2011, available at https://www.nyclu.org/sites/default/files/publications/Suspension_Report_FINAL_noSpreads.pdf (last visited Nov. 16, 2017); Tony Fabelo et al., Breaking Schools’ Rules: A Statewide Study of How School Discipline Relates to Students’ Success and Juvenile Justice Involvement, Council of State Governments, Jul. 2011, available at https://csgjusticecenter.org/wp-content/uploads/2012/08/Breaking_Schools... (last visited Nov. 16, 2017); Losen, supra note 1.

[26] Safety With Dignity, Complete Report by the Mayor’s Leadership Team on School Climate and Discipline, p. 13-14, July 2015, available at http://www1.nyc.gov/assets/sclt/downloads/pdf/safety-with-dignity-final-....

 

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