The Governor has proposed a bill intended primarily to address concerns about school discipline, school violence and school safety. While we understand the urge to move forcefully to protect students in our schools, some provisions of this bill go beyond what is necessary and appropriate to accomplish those goals.
By failing to distinguish between violent students and merely disruptive students, by increasing the severity of penalties that can be enforced without a hearing, by allowing those penalties to be imposed on the spot by possibly angry teachers and by other measures that infringe the constitutional rights of students this bill allows fear to override considerations of due process.
Indeed, these measures do not constitute an appropriate or efficacious response to disruption within schools. We will better teach our students to use reason rather than force, process rather than power, when we do the same. We hope that the overreaching provisions of this bill will be modified, so that more measured efforts to address concerns about school violence can move forward. While we have concerns about many provisions of this bill, we set forth here some of our more pressing concerns.
It is important to distinguish between violent student activity and disruptive student activity. This bill, and other bills on this subject, have a single definition of “disruptive pupil” which includes both pupils who commit acts of violence or bring guns onto school property and those who, in a single instance, refuse a request to refrain from behavior that “interferes with the orderly exercise of school district functions…or disrupts the academic process.”
While a single instance of violent, destructive or threatening behavior might appropriately subject a student to disciplinary action, a student who, on a single occasion, is merely “disruptive” should not be subject to suspension and other serious disciplinary actions. Disruption, unless it persistently interferes with the educational process, should be the subject of less drastic sanctions. Even in the case of a persistently disruptive student, disciplinary procedures should be tailored to address the nature of the behavior, and such students should not automatically be subject to disciplinary procedures aimed at violent students.
School Discipline and Due Process
Length of Suspension: Under current law a student may be suspended for up to five school days without a formal hearing. This bill, and others like it, would double the maximum permitted suspension to ten days. Suspension from school is a serious measure that should not be taken without giving the student a full and fair opportunity to be heard at a formal hearing, the right to representation at the proceedings and a right of appeal. A suspension of ten full school days is a serious sanction and should not be imposed in a summary fashion without full consideration of the rights of the accused student.
Sentencing Authority: An impartial arbiter is essential to insure the fairness of any disciplinary decision. In the context of schools, the more removed the arbiter is from regular contact with the student, the greater the assurance of impartiality. A principal who has regular contact with the students, or who may be subject to pressure from an angry teacher, may be less impartial than a superintendent of schools who does not have daily contact with either the accused or the complaining teacher or student.
A teacher may be less impartial still. This bill and others like it increase the power of the principal to impose suspensions that previously could be imposed only by the board of education, trustees, or superintendents, and allows the principal to delegate that authority to a teacher. The bills also allow a teacher to remove a “disruptive” student from his or her class for up to 10 days, and limit the authority of the principal to override that decision. It is easy to imagine an angry teacher, annoyed at the behavior of a rambunctious student, banishing the student from class for 10 days and then being unwilling to reverse that decision.
This scenario is especially troubling since the bill specifically condones a situation where even though a student does not present an ongoing threat of disruption, a teacher may banish that student from class for up to ten days with no due process requirement beyond an explanation for the reason for removal, an opportunity for the student to informally present the student’s version and an “informal conference” with the principal (whose authority to reverse the teacher’s decision is limited under the bill).
Of course teachers and principals must be able to take reasonable steps to insure that the educational process can continue without excessive interference. But this can be accomplished without stripping the students of their right to a fair hearing. Students should not be subject to serious disciplinary action without a formal hearing and the right to representation.
Students also should not be subject to such discipline when the “judge” imposing it may be the chief complaining witness against them. Search and Seizure: The Governor’s bill also contains an extremely troubling provision allowing a weapon possessed by a student to be presented as evidence in suspension hearings, even in cases where a court has already determined that the weapon was obtained by an unlawful search or seizure.
The exclusionary rule, which is established by the Fourth Amendment, protects citizens from unwarranted search and seizure by law enforcement officials. By forbidding the use of unlawfully obtained evidence, the exclusionary rule discourages unlawful searches by preventing the government from benefiting from the fruits of an illegal search. This provision would negate the exclusionary rule and subject all students to unwarranted and illegal searches.
Restrictions on Dress
The Governor’s bill requires each board of education to adopt a code of conduct including “provisions regarding conduct, dress and language deemed appropriate and acceptable on school grounds...” While we cannot, of course, comment on regulations yet to be promulgated, we are concerned by the references to appropriate and inappropriate dress and language.
As long as a student’s dress does not, in fact, disrupt the educational process or constitute a threat to safety, it should be no concern of the school. As the Supreme Court observed in Tinker v. Des Moines School Dist., 393 U.S. 503 (1969), students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” No code of conduct may forbid constitutionally protected rights of students to freedom of expression.
“Potentially Violent Behavior”
he Governor’s bill contains a series of procedures for “school safety plans.” While the majority of these procedures involve planning and response to crisis incidents, one such procedure requires the board of education to develop policies for the dissemination of information “regarding the early detection of potentially violent behaviors, including but not limited to the identification of family, community and environmental factors...” The bill does not say what actions are then to be taken.
The notion of identifying potentially violent students, based not on their behavior but on where they are from, is alarming to say the least. At best it is an invitation to the kind of stereotyping that schools should be combating, not promulgating. At worst it places innocent students under a cloud of suspicion, or even subjects them to efforts at “intervention” by the school, based on a series of protocols.
The Governor’s bill creates certain new crimes, and increases the penalties for other crimes taking place on school property. Without commenting in detail on these provisions, we urge lawmakers not to allow their concerns about violence in schools to drive them to impose excessive penalties. In addition, reasonable judicial discretion in sentencing should be maintained. Because of the many concerns raised by the Governor’s bill, NYCLU opposes its passage.