Testimony of the New York Civil Liberties Union 1 before The New York City Council on Intros No. 730, 719 and 65 April 14, 2015 The New York Civil Liberties Union respectfully submits the following testimony in strong support of Intros 730 and 719, which will amend reports on school discipline and police department activity relating to schools. We respectfully oppose the passage of Intro 65, which will require the NYPD to provide school safety officers to private schools, including religious schools. With more than 50,000 members and supporters and nine offices across the state, the New York Civil Liberties Union is the foremost defender of civil liberties and civil rights in New York. For nearly a decade, as part of our dedication to protecting the right to a quality education for all of New York's children, we have worked to better understand the impact of overly harsh school safety and disciplinary practices on New York City's students, including improving transparency and issuing a series of reports to educate policymakers and the public. We are dedicated to eliminating the school-to-prison pipeline in New York City, through representing individual students in discipline hearings, challenging school-based arrests, and, this year, working closely with NYPD, DOE, the Council, and the Mayor's office to bring meaningful policy change to schools as part of the Mayor's Leadership Task Force on School Climate. Thanks to the leadership of Mayor de Blasio, a team of experts, advocates, parents, students, and policymakers is currently engaged in a top-to-bottom examination of all aspects of school safety and discipline policy -- from data collection to training for school safety officers to ways to support principals in creating positive discipline programs. Recommendations from the Leadership Task Force on School Climate will be issued later this spring, and we are particularly thankful to Chief Brian Conroy and Assistant Commissioner Ramon Garcia of the School Safety Division, and Lois Herrera and Mark Rampersant of the DOE, for engaging so thoughtfully with advocates on these important issues. The City Council has a key role to play in supporting the work of the Task Force: by amending the Student Safety Act to improve public reporting on student discipline, the Council can indicate its support for school climate improvement, and give the city an important tool to measure ongoing progress in the schools. Introduction Emergence of Exclusionary Discipline and Policing in Schools a. In 1998, Mayor Rudolph Giuliani and the then-Board of Education entered into an agreement that transferred school safety responsibilities to the New York Police Department. With this transfer, Broken Windows policing philosophy entered NYC public schools. In practice, this has meant that students have been subjected to criminal punishments for minor infractions, such as writing on a desk, and the school safety division of the NYPD has grown such that, standing alone, it is the fifth largest police force in the nation. 2  However, suspending and arresting students for minor offenses, and issuing summonses to misbehaving teenagers do not make schools safer. In fact, these practices push New York City's most vulnerable students out of classrooms and into courtrooms and disciplinary programs, potentially depriving them of their right to an education. Indeed, exclusionary school discipline is directly linked to student failure: a single suspension in high school lowers the odds that a student will graduate in four years by 46 percent, and students who are arrested in school are at least twice as likely to drop out of high school as their peers. 3  b. The Student Safety Act of 2011 Enacted by the City Council in 2011, the Student Safety Act (Local Law 6) represented a critical first step toward creating safer schools that treat all young people with dignity and respect. The law has provided policymakers and the public with invaluable access to data about student suspensions and the activities of the NYPD in schools, including data that showed New York City's children of color and students with disabilities were unfairly impacted. Today, the DOE and NYPD are exploring and investing in profound changes regarding the management of student behavior and school climate. It is no exaggeration to say that change came about because of the Student Safety Act. c. Trends in School Safety and Discipline Reporting under the SSA shows that suspensions and arrests in schools have declined since reporting began. Suspensions are down from over 73,000 in School Year (SY) 2010-2011 to fewer than 55,000 in SY13-14, arrests dropped from 882 in SY11-12 to 393 in SY13-14, and summonses dropped from 1,666 in SY11-12 to 563 in SY13-14. The School Safety Division has added some content on conflict resolution, adolescent development, and de-escalation to its school safety officer training. The DOE has refined the Discipline Code to favor positive interventions before suspension, and eliminated suspension as a disciplinary option for several infractions. However, racial and disability disparities in school discipline remain a persistent problem. Black and Latino students make up three-quarters of the student population, but represent almost 90 percent of students suspended from school and arrested by school safety officers. Additionally, only 12 percent of NYC public school students have individualized education plans (IEPs), yet students with IEPs make up around one-third of suspended students. 4  And despite recent declines, exclusionary discipline still occurs with alarming frequency. For example, during SY13-14, there were 144 schools that issued at least 100 suspensions. Even more alarming, some smaller schools did not issue as many suspensions overall but issued almost as many suspensions as they had students enrolled. We also see that students are subjected to very long suspensions, increasing their time away from school, and decreasing their chances of success. The average suspension length in NYC in 2010 was 25 days. This is 2.5 times longer than the maximum suspension length in many states, which cap suspensions at 10 days. It is promising that in SY13-14 the average length decreased and there were more short-term suspensions than long-term suspensions. However, even among short-term suspensions, twice as many students were suspended for the maximum time (5 school days) as the minimum time (1 school day). Most egregiously, there were more than 600 suspensions that lasted 30 school days (a full six weeks of school). Clearly, the Student Safety Act has been vital to shedding light on problems with school climate. However, the current law still has many gaps in reporting that need to be addressed – gaps that must be closed in order to present an accurate picture of school discipline practices citywide. d. Missing Pieces Despite the valuable information provided under the Student Safety Act, questions remain. The censorship of key data points under the SSA seriously limits the ability to fully understand fully discipline practices in New York City public schools. i. Redactions The DOE redacts any cell totaling up to nine suspensions, including zero, meaning that year after year, up to 85 percent of suspensions reported by category are redacted. For example, in SY13-14 (the most recent reporting year), almost 65% of suspensions reported by infraction were redacted, and all cells on suspensions lasting longer than 30 days were redacted. This means we have no way of knowing any information about the 600 suspensions that resulted in students missing six weeks of school, or any suspensions longer than that -- including the students' race, special education status, age, or what they were accused of doing. While the NYCLU acknowledges and respects adherence to federal student privacy protections (indeed, the ACLU was integral in enacting the Family Educational Rights and Privacy Act in the 1970s), these redactions go far beyond what is required under the law. We urge the Council to require the DOE to report any cell totaling zero suspensions, as well as those totaling six through nine. Redacting cells with zero suspensions does not protect any student's privacy; moreover it obscures what could be vital information about schools with the most successful positive discipline programs. ii. Citywide Totals In addition, the DOE must provide citywide totals for each reporting category, with no minimum cell size requirement. While individual schools may not meet the minimum cell size for disclosure of each infraction, it is unlikely that citywide totals for such a large population would fall below that threshold. Additionally, given that over one million students attend New York City public schools, the privacy risk inherent in such disclosure is minimal, even where the cell size does not exceed the established minimum. The value of knowing citywide totals, however, is immense. For example, from the little information we do have about individual infractions, we know that insubordination and minor altercations (previously known as "horseplay") result in a large proportion of all suspensions, but we don't know how many. Likewise, understanding citywide totals for each race/ethnicity category and totals for students with and without IEPs is vital to understating the apparent disparities in suspensions. The redactions make it impossible for the public to access these most basic -- and most relevant -- pieces of information. Having a complete picture of infraction totals would allow policymakers and the public to make an even better-informed assessment about removing students from school for such minor misbehavior. iii. Missing NYPD Data Under the SSA, the NYPD only reports arrests and summonses by eight regions (each borough, with Brooklyn, Manhattan, and Queens each broken into two reporting areas), rather than by campus or by school, so little is known about the schools at which the majority of arrests and summonses occur. We know anecdotally that a handful of schools are responsible for the majority of student arrests, but there is no transparency about which schools those are, and whether the DOE and NYPD are getting them the resources and interventions they need. iii. Missing Requirements There are additional disciplinary tactics that are not reported at all under the 2011 law. For example, students can be removed from classrooms for disruptive behavior for up to five days (sometimes called teacher removals), and we know students are too often referred to emergency medical services (EMS) as a means to address disruptive behavior, particularly special needs students. We also know that the NYPD uses permanent and temporary metal detectors in many schools, and handcuffs are used on students as young as five years old. But none of these areas are captured by current law -- though physical restraints and emergency transports are certainly some of the most traumatic disciplinary events a child could experience. Additionally, the law only requires the NYPD to report on interactions between students and members of the School Safety Division, even though precinct-based police are often called into schools. There is literally no public understanding of the operations of uniformed NYPD officers in schools, including arrests, interrogations, or the use of handcuffs. Understanding all interactions between the NYPD and students is vital to improving school climate. The amendments to the Student Safety Act captured in Intro 730 will address these and other gaps in current law, allowing us to recognize improvements in school discipline, and to better identify those areas where schools and young people need more support. We urge the Council to pass Intro 730, the much-needed amendments to the Student Safety Act, and to make the City a leader in reforming the school-to-prison-pipeline. 2. Additional Reforms Data alone will not fix the problems associated with harsh discipline or police in schools, nor will it end discriminatory impact of discipline on certain groups of students. Access to data is a first step, but the Council must respond to data that indicates infringements on students' rights, and reform the policies that drive them. a. Increase the Number of Social Workers and Guidance Counselors There are 1.5 times as many school safety officers as guidance counselors in New York City schools. This averages to about one guidance counselor for every 367 students, meaning that student support services are severely lacking (the national professional body for guidance counselors recommends a ratio of 50:1 5). The staffing of New York City schools represents a misplaced use of funding and misguided ideas about how to create safe and supportive school climates. This allocation of resources also sends a harmful message to young people about the mission of our city's educational system and the expectations for their futures. Hiring enough social workers and guidance counselors to more fully staff schools could have a real impact on suspension rates citywide, and expanding access to school-based mental health services could decrease the need for EMS referrals. Intro 719, being considered today, is a step in the right direction. b. Fund Restorative Practices and Alternatives to Suspension The Council can also support positive behavioral interventions and restorative justice practices, such as conflict resolution guidance, and improved training in school buildings on de-escalation tactics through budgetary measures. Schools need uninterrupted funding assistance to hire personnel and obtain trainings that will reduce student disciplinary referrals. Intro 65 The NYCLU opposes passage of Intro 65, which would make School Safety Officers available to private and religious schools upon request. Currently, the School Safety Division is an enormous police force (outnumbering guidance counselors by 50%), with an equally enormous budget, in a climate where budget dollars are scarce. The Division is working hard to improve training and supervision to further reduce the number of arrests in schools, and additional strain on its resources could set back this important work for New York's one million public school students. Further, the NYCLU is strongly opposed to the use of government funding and services to support religion, including religious schools. This is an inappropriate use of city resources, and skirts dangerously close to government sponsorship of religion, forbidden by the First Amendment to the U.S. Constitution. Conclusion In its first incarnation, the Student Safety Act provided much-needed transparency on the discipline of New York City students. Data reported under the SSA have permitted the public, press, and policymakers to analyze exclusionary discipline as never before. We commend the Council for its leadership enacting this law. However, the data show that schools are still disproportionately removing black students and students with special needs from classrooms for minor infractions, and the data still has many gaps. We thank the Council for its continued work to promote equal access to education and safe schools for all of NYC's students, and urge the Council to pass Intros 730 and 719 to further promote vital transparency around this area of education policy. Reporting laws are powerful when they are enforced and monitored. Indeed, the Student Safety Act has focused the public's attention on the school to prison pipeline operating in our own city. Sunshine on school policy has helped us arrive at a turning point in school discipline -- one where advocates, lawmakers, and DOE and NYPD leadership agree that there are better ways to make schools safe than exclusionary discipline. But we need continued transparency and policy leadership to cross the finish line. We look forward to working with the DOE, NYPD, and the Council to ensure that all our students are given a fair chance, and our educators are given the right tools to create safe, supportive schools.  

Footnotes 1  This testimony was written by Becca Cadoff, Lauren Frederico, and Johanna Miller. It was edited by Lauren Frederico, Johanna Miller and Ujala Sehgal. 2  American Civil Liberties Union and New York Civil Liberties Union, "Criminalizing the Classroom: Over-Policing of New York City Schools" (2007); Annenberg Institute for School Reform, Make the Road New York, and New York Civil Liberties Union, "Safety with Dignity: Alternatives to the Over-Policing of Schools" (2009). 3  Gary Sweeten, Who Will Graduate: Disruption of High School Education by Arrest and Court Involvement, 23 Just. Q. (2006) 462, 473-477. Available at . Douglas Ready et al., The Experiences of One New York City High School Cohort: Opportunities, Successes, and Challenges, Education Funders Research Initiative, Oct. 8, 2013: 16. Available at www.edfundersresearch.org. 4  Between 2010 and 2014, 31- 36 percent of students suspended annually had IEPs. 5  Student-to-School-Counselor Ratio 2010-2011, American School Counselor Association. Available at https://www.schoolcounselor.org/asca/media/asca/home/Ratios10-11.pdf.