NYCLU to Testify about Discipline in NYC Schools, Questions Code Changes that Would Infringe on Students’ 1st Amendment Rights

In testimony submitted today to the New York City Department of Education, the New York Civil Liberties Union called for the city’s school Discipline Code to prohibit NYPD personnel from enforcing routine classroom discipline and asked the city to reduce the use of student suspensions as a disciplinary tool. The NYCLU also expressed concerns about several proposed additions to the Discipline Code that threaten students’ constitutional right to free speech.

A public hearing on proposed revisions to the Discipline Code will take place tonight at 6 p.m. at Tweed Courthouse. The NYCLU will be among those testifying.

“Police personnel shouldn’t be called if a student writes on the desk or has a cell phone in school, but that’s what’s happening in many New York City schools. Harsh disciplinary measures and aggressive policing are criminalizing the city’s youth, unjustly denying many children their right to an education,” said NYCLU Executive Director Donna Lieberman. “The DOE should amend the Discipline Code to forbid police personnel from enforcing routine discipline and it must reduce the use of suspensions as a disciplinary tool. Children should be educated and counseled when rules are broken, not thrown out of school for months or expelled.”

The NYCLU recommended the Discipline Code include a clear statement that school safety officers, NYPD personnel assigned to the schools, are not to enforce school discipline. The Discipline Code currently contains no language dealing with police interventions in school discipline.

NYPD personnel have handcuffed and arrested children for incidents that arose from students breaking minor school rules, such as writing on a desk, throwing a temper tantrum in kindergarten class, trying to enter school too early, violating the dress code, skipping class, being tardy and talking back. The NYCLU in January filed a federal class action lawsuit challenging the NYPD’s practice of wrongfully arresting and using excessive force against children in New York City Schools.

The NYCLU also recommended reducing the number of offenses for which classroom removals, suspensions and expulsions are disciplinary options.

Currently, nearly half of all offenses listed in the Discipline Code, including such minor infractions as dress code violations and tardiness, include classroom removal or suspension as a disciplinary option. Exclusionary discipline policies have bee shown to contribute to student recidivism, disrupt learning, and increase the likelihood that a student will drop out of school and become involved with the criminal justice system.

“The DOE must make sure that educators, not police personnel, are responsible for maintaining student discipline,” said NYCLU Advocacy Director Udi Ofer. “It’s time to adopt a fresh approach to school discipline relying on successful strategies that emphasize students’ dignity, their desire to learn, and their capacity for responsible decision-making.”

The NYCLU – a member of the Discipline Reform Campaign, which has been providing recommendations for positive discipline strategies to the DOE for the past year – commended the DOE for proposed revisions to the Discipline Code that appear to promote using positive interventions before resorting to harsh disciplinary tactics, such as suspensions and classroom removals. It urged the DOE to commit to training all its educators on positive interventions and students’ rights, and requiring them to try these approaches before resorting to punishments.

Additionally, the NYCLU expressed concerns about several proposed additions to the Discipline Code that, while addressing important issues, would threaten students’ constitutional right to free speech:

• A proposed infraction that rightly prohibits student-on-student sexual harassment should differentiate aggressive from affectionate behavior and protected expressive conduct from sexual assault. The DOE’s attempt to prohibit electronic communications of a sexual nature, including off-campus communications, is so broad as to violate students’ First Amendment rights.
• A proposed infraction that rightly seeks to target cyber-bullying is so vague that it would infringe on students’ rights by allowing teachers and principals to pry into students’ private lives and punish them for expressive conduct that takes place away from school. The constitutional standard for limiting student speech is that the speech must substantially interfere with the school’s operations. If the communication does not originate at school and does not substantially interfere with students’ education, the speech is protected by the First Amendment and is outside the reach of school personnel.
• Infractions to prohibit the distribution of violent, lewd or obscene materials are likewise too broad and would violate students’ First Amendment right to engage in non-disruptive speech.