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Testimony Before the New York City Department of Education on the 2011-2012 Discipline Code

Testimony of Johanna Miller on behalf of the New York Civil Liberties Union before the New York City Department of Education on proposed changes to the 2011-2012 citywide standards of intervention and discipline measures (the discipline code and bill of students’ rights and responsibilities, k-12).

The New York Civil Liberties Union respectfully submits the following testimony regarding our recommendations for the 2011-2012 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, student-centered, positive discipline systems in schools. We have documented the many harms of criminalizing student discipline, including the detrimental effects on student achievement and engagement, the discriminatory impact of zero tolerance on students of color and students with disabilities, and its strong correlation with high-dropout rates and engagement with the criminal justice system. Classroom removals, suspensions, expulsions, arrests and other law enforcement tactics work together to push vulnerable students out of school and into the criminal and juvenile justice systems.

This year, we are very pleased to commend the Department of Education (DOE) for its efforts to engage the New York City advocacy community in building a more positive discipline regime, and the many steps DOE has taken to reduce suspensions. The Discipline Code now contains references to guidance interventions, restorative practices, counseling, mediation, mentoring, conflict resolution, community service, and referrals to community based organizations, health organizations, and outside counselors in addition to the punitive discipline options. Along with these changes, we hope the DOE is measuring the use of alternatives to suspension. We strongly believe that the systematic implementation of positive discipline alternatives will make schools safer, calmer, and more effective places for young people to learn. Collecting reliable, detailed data will be the only way to know if fewer students are actually excluded each year.

To continue to reduce the number of suspensions in New York City, we have eight recommendations for the DOE:
1. Mandate the use of positive discipline alternatives for low-level infractions. Without consistent reinforcement and a mandate from the City, schools will undoubtedly revert to the most familiar, and most expedient punishments available.
2. Continue to reduce the number of zero tolerance infractions in the Code, with the ultimate goal of eliminating them altogether. As positive discipline becomes the norm in schools, discretion in disciplinary options must be restored to educators.
3. Institute a reporting system to track the use of positive discipline alternatives and share statistical information with the public about the implementation of these alternatives.
4. Train teachers, administrators, and school safety agents on utilizing positive interventions and the importance of avoiding exclusionary discipline and law enforcement responses to common misbehavior.
5. Adjust the Levels in the Discipline Code to reflect a genuine commitment to progressive discipline. Exclusionary punishments should not be available options for Level 1 misbehavior. At the other end of the spectrum, expulsion should never be a viable option for Level 4 infractions.
6. Address police practices in the Discipline Code. The DOE must take a stronger stance on the proper role of police in schools, and parents and students have a right to be informed as to what that role is.
7. Ensure that students’ rights to free speech and religious expression are honored throughout the Discipline Code and in practice. This recommendation is made with specific reference to infractions B09, B36 and B40. In particular, we have serious concerns about the constitutionality of the DOE’s attempt to ban out-of-school “cyber-bullying” and “lewd or vulgar” internet postings.
8. Properly distinguish between physical and verbal sexual harassment and consensual physical contact in infraction B35. The NYCLU has called for this change for three years. As it is currently written, infraction B35 is illogical, imprecise, and harmful to students.

Exclusionary Discipline

In the decade from 1999 to 2009, suspensions were the primary discipline tool in many New York City schools—growing longer, more common, and more prevalent for minor infractions. The number of zero tolerance infractions in the discipline code rose by half, while the number of suspendable infractions increased by 72 percent. As a result, the number of long-term suspensions nearly doubled, and the number of short-term suspensions increased by an astonishing 149% during the same time period. In 2008-2009, students served over 73,000 suspensions. The average length of a long-term suspension is now 25 days—5 weeks’ worth of instruction.

In addition to taking tens of thousands of children out of school, zero tolerance discipline in New York City is discriminatory. Consistent with research in other school districts, the NYCLU found that black children in New York City—1/3 of the student population—served more than half of all suspensions since 1999. Black children are more likely to serve a long-term suspension than their peers (58 percent of long-term suspensions from 1999-2009); they are more likely to be suspended multiple times (of students who served 6 or more suspensions in a single year, 56 percent were black); and they are more likely to be subject to suspension for subjective misconduct than their white peers (57 percent of suspensions for insubordination, for example).

Students with disabilities—students who are arguably at the greatest risk of not graduating high school—are 4 times more likely to be suspended than general education students. Black students with disabilities represent 4 percent of total student enrollment but 13 percent of suspensions. The Discipline Code, and its annual revision process, has taken on a great importance as the primary means for reducing student suspensions and keeping children in school.

The simplest step the DOE can take to reduce educators’ reliance on exclusionary discipline is to reduce the number of infractions for which classroom removals, suspensions, and expulsion are available discipline options (currently, 100% of infractions can result in an exclusionary punishment). 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 the lowest-level infractions. Our study of New York City discipline data showed that the majority of suspensions are for Level 3 and Level 4 behaviors. If, during the 2008-2009 school year, suspensions were not an optional punishment for Level 3, no fewer than 20,000 suspensions would have been avoided.

We recommend that the levels in the Discipline Code be revisited in order to reflect a more sensible, progressive response to misbehavior. This change must include, at the very least, the elimination of classroom removals from the optional responses for Level 1 infractions. 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.

Finally, we reiterate our strongly-held belief that expulsion should under no circumstances be a disciplinary 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 very logic of dividing infractions into Levels.

Police Practices

Every few weeks the local media highlights the story of a young person who has been abused by a police officer in his or her school. For too many students, a bad morning, a frustrating interaction with a teacher, or a spat with a classmate is not merely a mistake, but a criminal act.

In May of this year, CNN’s Soledad O’Brien told the story of Messiah Smart, a high-achieving high school student in Manhattan who was handcuffed, dragged out of his school, and formally arrested for writing on his desk. A few weeks before that, the Daily News reported the story of Joseph Anderson, a first grade special education student who was restrained in metal handcuffs by a school safety officer after throwing a temper tantrum. A year ago, 9-year-old Jaheim Williams appeared in the Daily News, after being handcuffed for two hours for fighting with another student.

Despite all of this, the DOE continues to disclaim responsibility for the training, activities, conduct and misconduct of school safety officers (SSOs). 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 their policies and practices, 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 this document, a student or parent would have no sense of the fact that breaking one of these rules could result in an arrest, physical restraint by police, and criminal charges against the student.

The NYCLU urges the DOE to acknowledge and address these issues in the Discipline Code—at the very least to inform teachers and students of restrictions on the types of discipline situations that may result in police involvement. For instance, if it is the DOE’s policy, as has been suggested in the media, that students are subject to arrest for writing on desks, this fact must be reflected in the Discipline Code. The NYCLU strongly recommends, however, that the DOE take a more proactive stance to 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.

The remainder of our testimony will expand on our recommendations regarding the potential of specific infractions to violate students’ constitutional rights. For simplicity, we will refer to the infraction codes that correspond to grades 6-12, however, our recommendations apply to both sets of infraction codes where applicable. Our recommendations are as follows:

Recommendations for Specific Infractions

B09: “Wearing clothing, headgear (e.g. caps or hats), or other items that are unsafe or disruptive to the educational process.”

This infraction is 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, however, is based on the flawed premise that a person who adopts a particular expression of his or her religious practice is necessarily observing a stricture that will be recognized as sanctioned religious practice by the Youth Development Liaison.

The Supreme Court has consistently recognized 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. See Frazee v. Illinois Dept. of Employment Sec., 489 U.S. 829, 833 (1989). What a student believes to be a necessary part of his or her religious practice may come from a religious authority or not, and the DOE cannot condition a students’ ability to practice his or her religion on the validation of an outside source. 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 constitutional requirements.

B35: “Making sexually suggestive comments…or engaging in…physical conduct of a sexual nature…”

Infraction B35 rightly prohibits the sexual harassment of students. The NYCLU is concerned, however, that the DOE has inappropriately conflated “making sexually suggestive comments, innuendoes, propositions or similar remarks,” with “engaging in … physical conduct of a sexual nature.” The code inexplicably conflates the use of sexually-charged language with age-appropriate, consensual displays of affection, and physically aggressive sexual contact. Two students kissing in the school yard, a student passing a flirtatious note to a classmate, and a student sexually assaulting another are wildly 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 at least two separate offenses. 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 (please see the section on cyberbullying), that materially and substantially interfere with the school’s educational mission, and that meet the foreseeability requirement set out in Doninger. Such an infraction should be no higher than a Level 2 behavior, 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.

B40: “Engaging in intimidating and bullying behavior, including cyber-bullying”

The NYCLU commends the DOE for its dedication to protecting students from bias-based harassment and bullying, which has long been a problem in New York City schools. In implementing the Dignity Act (NY Educ. Law §§10-18, 801-a, 2801 (2010)), New York State’s anti-bullying statute, we hope the DOE will take note of its legislative sponsors’ intent to avoid a zero tolerance response to bullying, which can be counterproductive to finding real solutions to bullying.

We commend the DOE for including in this infraction a long list of enumerated categories of students who are protected from bullying. Though the Dignity Act prohibits harassment for any reason, studies have demonstrated that enumerating categories actually increases safety for students in the listed groups by reinforcing schools’ commitment to those children.

That said, we continue to be troubled by the DOE’s inclusion of “cyber-bullying” in this infraction without acknowledging the constitutional limits on schools’ power to punish students for First Amendment-protected communications. The Second Circuit has held that off-campus, electronic student speech can only be regulated by the school when that speech meets two requirements: 1) the speech materially and substantially interferes with the work or discipline of the school, and 2) it was reasonably foreseeable, to the creator of the communication, that the speech might enter the school. Further, the Court expressly stated that its holding was not meant to sanction the legality of suspending a student for off-campus speech, but was specific to the unique punishment in the Doninger case (the student was prohibited from running for senior class secretary).

In order to legally enforce a code provision against “cyber-bullying,” the DOE must, at minimum, include language reflecting the requirements of the Doninger decision in this code. In light of the Doninger court’s careful excision of suspensions from its opinion, however, we strongly suggest the DOE go further in protecting students’ rights, and consider adopting the following four requirements before a student can be punished for First-Amendment-protected electronic speech:

a. the electronic 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 (counseling, peer juries, parent conferences) have been employed and have failed.

B36: Distributing Violent, Lewd, or Obscene Materials

The NYCLU is also concerned about the constitutionality of infraction B36, which prohibits “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 electronic communications. In a decision issued this month, 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.”

Once again, student speech on the internet is protected by the First Amendment. In order for a school to punish a student speaker for electronic speech, the communication must meet, at aminimum, the standard set out in Doninger: 1) the speech materially and substantially interferes with the work or discipline of the school, and 2) it was reasonably foreseeable, to the creator of the communication, that the speech might enter the school. The code must be amended to reflect adherence to this First Amendment standard.

Finally, the NYCLU disputes the characterization of non-disruptive 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 y reinforcing the concept that punishable speech must be disruptive.


We look forward to continuing our collaboration with the DOE on discipline and bullying 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. Please contact us if we can assist with this process.

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. 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.