ABA Journal Podcast

How do we fix the school-to-prison pipeline? (podcast with transcript)


Zero tolerance discipline policies were once all the rage in schools.

But instead of improving test scores and graduation rates, zero tolerance policies were shown to actually reduce them, says Daniel Losen, director of the Civil Rights Project’s Center for Civil Rights Remedies. Research also showed that in practice, many children—especially children of color and children with disabilities—were being suspended and sometimes expelled for extremely minor infractions.

So now that zero tolerance is falling out of favor, what does this mean for schools and the juvenile justice system? Stephanie Francis Ward speaks with Losen, an attorney and former teacher, about how school districts and lawyers can help plug the school-to-prison pipeline.

Related article:

ABA Journal: “Schools start to rethink zero tolerance policies”

Download this podcast

In This Podcast:

Daniel J. Losen

Daniel J. Losen, a lawyer, is director of the Civil Rights Project's Center for Civil Rights Remedies. A former teacher, his work focuses on how law and policy affect children who are part of a protected class.

Podcast Transcript

Stephanie Francis Ward: Zero-tolerance discipline policies were once all the rage in schools. But research showed that in practice, many children—especially children of color—were being suspended and expelled for extremely minor infractions.

Now that zero-tolerance is falling out of favor, what does this mean for schools and the juvenile justice system?

I’m Stephanie Francis Ward, and when we return, I’ll be speaking with Dan Losen, an attorney and former school teacher. He’ll tell us how school districts and lawyers can help plug the school-to-prison pipeline.

Advertiser: This ABA Journal Podcast is brought to you by Westlaw Next. Folder sharing in Westlaw Next enables you to tap into previous research across organizational boundaries like never before, saving you time from reinventing the wheel. Learn more at westlawnext.com.

Stephanie Francis Ward: Dan, will you tell us about the school-to-prison pipeline and why lawyers should be paying attention to it?

Daniel J. Losen: The school-to-prison pipeline describes the many ways in which inadequate support for kids in schools contributes to an increased flow of kids dropping out of school and winding up in the juvenile justice system. Especially lawyers representing kids but also lawyers representing school districts, and civil rights attorneys, and disciplinary rights attorneys should be concerned because there are remedies. There are things schools can do much better and differently.

Much of my work focuses on discipline policies and practices, but it really goes deeper than that. It does also include things like resource inequality, so lawyers who are interested in school finance and litigation, for example, there’s a school-to-prison component there as well. Because it’s typically the under-resourced schools that have the highest dropout rates, often the harshest discipline, and often there’s a concern that they can’t teach all kids. They don’t have the resources, so they have to kick out the so-called bad kids so the good kids can learn.

Of course, research has exposed that thinking as a myth and very counterproductive. In fact—even among schools serving the kids from high-crime districts and high-poverty neighborhoods—schools that really invest in relationships and don’t, as a result, have high suspension rates, tend to have higher achievement; higher graduation rates; and better outcomes for all students.

So, this idea that has taken hold in the minds of many that we can’t teach all kids, so we just have to kick out the bad ones so the good ones can learn, I think that’s fueling what we call the school-to-prison pipeline.

Those attorneys working on the juvenile justice system: Often students whose rights have been trampled on by school districts wind up in the juvenile justice system, so public defenders often will know it could be a violation of the protections against illegal searches and seizures by school principals, or school police officers who have taken a minor violation or a minor infraction of a school code and just accelerated that or exacerbated whatever the initial problem was, to the point where a student is arrested and winds up in the juvenile justice system directly from school.

Oftentimes, these school police officers are untrained and are doing things that are actually counterproductive to the school environment, and increasing the flow into the juvenile justice system.

Then there are kids with disabilities. Sometimes these kids are not being identified. In other cases, they may be identified but not get the appropriate kinds of supports and services they need to be successful in school. As a result, they spin out of control, and eventually they drop out, get involved in gangs or, directly as in the first example, are arrested at school for school-related behavior when in fact, they really were denied equal educational opportunity. Because of their disability, they were supposed to get supports and services. They either didn’t, or got inadequate supports and services. Things escalate out of control.

There’s a great deal that lawyers have to say about that. Also, really effective attorneys who work for school districts can encourage their clients to do the right thing.

In civil rights litigation—well, not really litigation. In terms of administrative complaints, there’s a whole way that school districts can get in trouble where if they can’t justify their disciplinary policies and practices, and it’s having a disparate impact on kids by race, or disciplinary status, or even gender, it can actually be a violation of civil rights to even continue that ineffective or counterproductive practice if it has a disparate impact along those lines, especially now that research shows us that there are alternatives. These are considered less discriminatory alternatives because they would reduce the harms from excessive out-of-school suspensions and expulsions.

Stephanie Francis Ward: If you’re not involved in the public school system, when you hear about a child getting suspelled—excuse me—suspended or expelled, you assume that maybe they brought a gun to school, had a fight or brought some drugs. From what I have seen from reporting this story, that’s not the case.

One that comes to mind is a kid got kicked out of school for cutting in the lunch line. It’s not because they’re bringing a gun to school or drugs. It’s stuff probably most of us would’ve gotten kicked out for 20 years ago.

Daniel J. Losen: Right. The slight slip of the tongue you had is sort of emblematic because people do associate getting suspended with the kinds of violations that usually would result in a full-scale expulsion. Expulsions from school are usually less than 1 percent of any enrollment. Expulsions are usually for these very serious offenses, so most of the data when I’m talking about suspensions, don’t involve the very serious offenses that involved assaults on teachers, or bringing illegal drugs to school, the kinds of things that students get expelled for now.

That’s not to say there aren’t many students who are expelled for repeated violations of minor school rules, or where the underlying trigger was actually a minor violation, and it may be escalated into something that could’ve been prevented. I don’t want to leave expulsions off the table.

On the other hand, the vast majority of the offenses in the states that report these data to the public, we find the vast majority are from minor infractions, categories like disruption, willful defiance, truancy, dress code violations—all sorts of minor offenses.

There are 24 offense codes for which a student can be suspended out of school. One of those is the category of “disruption or willful defiance.” It’s sort of the catch-all, and you can be suspended for rolling your eyes at the teacher, or throwing a pencil, or not following directions. Forty-eight percent of all the suspensions in California fall under that one category.

There are other minor offense categories like “possession of tobacco” and “minor altercations” that are also suspendable offenses. This huge catch-all “minor offense” category accounts for also the largest racial disparities, and the largest disparities between kids with and without disabilities. So there is a sort of misconception, maybe because (at least when I went to school and when you went to school) I think you suggested it was only the really serious kinds of offenses where the schools would respond with a removal from school, whether it be a suspension or expulsion. Today, suspensions in many districts are handed out right and left.

It’s important also to say that we looked at every middle school and high school across the country that was surveyed by OCR, so this is over 7,000 districts and tens of thousands of schools, and found out there were many, many schools–the majority actually I would not consider high suspending, but there were also many that are way above the national averages for suspension rates. We see rates for black students in many districts exceeding 50 percent of their enrollment. That’s in K through 12. We looked at the middle school rates, and the high school rates that are even higher than that.

Los Angeles has done a great job recently in eliminating this category of willful defiance and disruption as a reason for suspension out of school. So they don’t do that anymore, and they’ve dramatically reduced both racial disparities and the use of suspensions.

So there’s a lot that can be done and that, in fact, is being done now in schools and districts across the nation.

Stephanie Francis Ward: I’m curious. Are you seeing many instances where a school’s counsel or maybe a district compliance office will look at their suspension and expulsion numbers and say, “Look. You are expelling and suspending way too many children who are in a protected class. You need to look at this, and we need to really think about this.”

Daniel J. Losen: We hope that will start happening–

Stephanie Francis Ward: Before they get sued first and then they get the lawyers’ attention.

Daniel J. Losen: In January of 2014, the U.S. Department of Education Office for Civil Rights issued a letter to all school district administrators and state administrators detailing the standards for discrimination, in particular with regard to discipline, so they went over the—sort of the typical discriminations, which were similarly situated students treated differently because of their race or disability. That’s called different treatment, the classic discrimination case that most people are familiar with.

Then they also spelled out that a school district could be violating civil rights protections because of disparate impact. The three components of that are: one, the policy or practice is leading to more suspensions for one protected subgroup or another compared to other children. There’s a disparity that’s harmful.

Then two, that the policy or practice in place is not educationally sound or justifiable. I give the example of suspending kids for truancy where all the research suggests this is counterproductive. It’s actually not a deterrent to truant kids to suspend them and tell them they can’t come to school. Surprise, surprise! So that’s a blatant example.

The examples OCR provides are not the limits, but just to illustrate the concept. And so they use truancy, and I think they might mention dress codes as another possible area. If you’re worried about gang involvement yet you’re putting kids out on the street where they’re unsupervised, and suspending them for violating a dress code—where they’re much more likely to become involved in a gang—that doesn’t seem to make a lot of sense.

The truth is that by and large, especially the excessive use of out-of-school suspensions—a lot of times, suspensions for all these minor offenses, there is no support in the research for that approach, even for things like willful defiance and disruption. That doesn’t mean that students should never be removed from the classroom. In other words, there’s a whole range of things folks can do in the schools to address misbehavior that reserves suspension to really be used as a measure of last resort.

That brings up the third prong. The question is, are there less discriminatory alternatives? The OCR letter and research since has pointed out that yes, there are many alternatives that would reduce the number of kids suspended and most likely reduce the racial disparities therein.

One is something called “restorative practices,” which comes out of the juvenile justice realm. The idea is that there is more adult involvement. In the school setting, you’re trying to keep kids in school and to be part of the community, and to be more responsible for the community, and understand that they are wanted and needed part of that community—but that their behavior is detrimental to the needs of the community and also to themselves.

And so part of restorative practices not only addresses some sort of paying retribution of some sort, but also getting to the root cause of the issue so it doesn’t recur. So there’s a major preventative aspect. That’s where you have these restorative justice circles, and you know, that’s in response to something really significant.

In the regular, everyday classroom, the approach of the teacher changes. It’s that sense that “I want to keep all these kids in the classroom, but I need to have an effective learning environment.” When kids are disruptive, instead of escalating the situation or immediately kicking them out, the teacher finds a way to sort of problem solve with the child so they understand that their misbehavior is having a detrimental effect, but also showing the child they care about them and don’t want to kick them out of the classroom. They want to help find out why they’re being disruptive or doing something that’s detrimental to the classroom community, so they can be successful.

A lot of what goes in in restorative practices is about strengthening those relationships, strengthening relationships with the parents of children, and also helping all the students feel like they are vital members of the community so that they want–and are heavily invested in–the success of their classroom and their school.

That’s just one. There are “positive behavioral interventions and supports,” which is a tiered system. It starts with a core values approach about getting every staff member on board with the idea that they’re going to encourage positive behavior and not highlight negative behavior.

Where they do see students misbehaving, they can identify: Is this a general issue that the classroom teacher can address? And they’ll think about different ways of intervening at a very sort of light level if that’s appropriate, but also identify kids who need more supports and services at these different levels.

If the problem behavior persists, it involves getting supports. It could involve special education referrals, but it really addresses the issue as a problem-solving one. It also entails the whole community embracing these core values, and reinforcing positive behavior rather than harping on the negative behavior.

Those are just two. If teachers are forming closer relationships, more trusting relationships, more positive relationships with their students, that’s the kind of thing that tends to push back against stereotypes and unconscious bias against students of color or students with disabilities. Working on developing those positive relationships is really critically important.

Stephanie Francis Ward: So if you’re a lawyer and you’re tasked with—maybe you have a consent decree, or you’re tasked with getting school administrators and staff to get on board with some of these ways to a create supportive school climate. What do you do with administrators and staff who may not have really bought in? I think it’s an issue perhaps that they’ll do what you tell them to do, but if they don’t embrace the plan, you’re probably not going to have meaningful change.

Daniel J. Losen: Ultimately, you have to change the way principals and teachers and administrators are interacting. You have to change their approach to discipline. If they are really resistant, that is more difficult.

The good news is that usually the kinds of alternatives we’re talking about are not only more effective, but most teachers and administrators don’t go into education thinking, “We’ve got to kick out bad kids.” They go in thinking, “We can educate these students,” and they’re dedicated to that goal. They may be misguided about how to achieve it, but because these alternatives I’m talking about are research-based and the research strongly indicates that they are more effective, success breeds success.

One way to address a recalcitrant district might be to start with pilot programs. Usually within a large district, there will be some folks who will buy in to show what’s possible and to sort of work that way. That may not be satisfactory when there’s a lot of resistance. And also when there is obstruction at the district level, it can quiet those who may be interested in trying something else. They may be sort of silenced by the teacher’s union, or by the administrators, or by the principal. That does create real difficultly.

I think one of the things that’s really important for any agreement is to monitor the data by race, by disability, with very clear, quarterly analysis. You know, there is the ultimate threat for an OCR complaint, is to withdraw the federal funding from the district. I don’t think any superintendent wants that on their record. So ultimately, the combination of the fact that alternatives really do work, and most people who, once they do try them, find them to be more successful, are really pleased with that.

I was a teacher for 10 years, and I started out as one of those teachers who sent kids to the principal’s office right and left. You know, chaos isn’t fun. It’s not fun to be that teacher. You don’t feel like you’re being very effective.

And the other thing is that test scores tend to be much lower, and graduation rates tend to be much lower when you have excessive discipline. And that’s borne out by the research. So, oftentimes you can appeal to resistant teachers and administrators by showing them the data. If they do work on changing their ways, their test scores will go up. Their graduation rates will go up. The school district will be a higher performing, not a lower performing one.

Stephanie Francis Ward: All right. That’s everything I have. Thank you so much for your time. I appreciate it.

Advertiser: This ABA Journal Podcast is brought to you by Westlaw Next powered by WestSearch, the world’s most advanced legal search engine delivering the best results in seconds. Learn more at westlawnext.com.

End of transcript.

Updated on Aug. 7 to add the transcript.

Previous:
Innocence Project seeks ethics probe of prosecutor in Willingham case

Next:
Ginsburg says she's not retiring and asks: Who would you rather see on the court than me?


We welcome your comments, but please adhere to our comment policy. Flag comment for moderator.

Commenting is not available in this channel entry.