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October 20, 2021 Feature

Creating Feedback in the Flow of the School-to-Prison Pipeline

Christopher J. Sailer

My client stomps her foot and throws her pen on the floor.

“I don’t want to do this no more!” she says.

I’ve worked with my client for the better part of a year. We’ve spent several hours on several occasions discussing her options for resolving her multiple felony cases. I figure she’s feeling overwhelmed and anxious with the magnitude of the decision she must make. I start back at square one. Here’s what it means to go to trial. Here’s what it means to plea. Only you can make this decision. This is your life, not mine. What do you want to do?

“Plea,” she says, picking up the pen. She fumbles and struggles with it like it weighs 70 pounds. Her handwriting is jagged and overly large. She spells her name differently—wrongly—on each page. When I ask if she didn’t want to sign the papers because she has trouble writing her name, she does not meet my eye. She kicks at the table leg and nods.

I met my client shortly after she picked up her second offense, a misdemeanor. She was arrested at school by the school resource officer for threatening a school staff member with an ass-whooping. It is unclear whether the staff member deserved an ass-whooping, but either way, the episode was best handled by the assistant principal, not an associate judge. My client qualifies for special education services as a student with an emotional disturbance. She also has a learning disability. Rather than recognize that her challenging behaviors were avoidance strategies that kept her safe from embarrassing displays of her own inability to read, the school labeled her a troublemaker and sent her to an alternative school. She spent most of her day in a behavior classroom with an unlicensed teacher. She never received a research-based dyslexia intervention. She never learned to read.

Shortly after my client picked up her second offense, she was arrested at school again. After that she stopped coming to school. School staff repeatedly allowed her to walk off campus in a neighborhood where assaults, sexual assaults, and even a murder were reported within blocks of the school building. Her mother was not notified of her elopements. My client hooked up with older kids who connected her to older men. She was trafficked. She picked up serious felony charges. She was briefly committed to a psychiatric facility. She was recommitted to juvenile detention. She is yet another victim of the school-to-prison pipeline.

Education as Production, Education as Cure

In her 2003 article “Movements of Mind,” education professor Allison Cook-Sather identifies two unspoken “root metaphors” that guide popular understandings of our public education system. See Allison Cook-Sather, Movements of Mind: The Matrix, Metaphors, and Re-imagining Education, 105 Teachers Coll. Rec. 946 (2003). The first metaphor, “education as production,” compares schools to factories, teachers to factory workers, and students to products. The language of production is reflected in the standardized testing movement, the “sorting” of students into tracks by grade level and apparent aptitude, and school improvement policies that reflect principles of scientific management. Once students are fully assembled, they graduate into the marketplace, where they are slotted into social positions according to the quality of their educational credentials. If students cannot pass tests of educational quality, they are rejected from school and placed on another trajectory. Often that trajectory leads to prison.

The second metaphor, “education as cure,” compares schools to hospitals, teachers to diagnosticians, and students to patients in need of intervention. Educators administer the curriculum in grade-level doses, using endless diagnostics to assess students and remedy low performance. Students who refuse the standard curricular medicine must be rehabilitated in the counselor’s office, by removal to a behavior classroom, or, in the worst cases, by referral to the juvenile courts. The cure metaphor is most prevalent among charter school proponents and educators who teach in low-income neighborhoods. Though there’s an implicit understanding that the “illness” may be beyond the child’s control—that the kid’s choices may not really be choices at all—at the end of the day, there are no excuses. The kid has to want to get better. When kids refuse their medicine, educators must use more intensive intervention.

Cook-Sather claims these metaphors have “co-existed” in our schools “since the industrial revolution,” and that each assumes a special vocabulary “which embodies and reflects certain underlying values” about schools, teachers, students, and the ultimate purpose of the school system. Id. at 6. But because our society has been so saturated in these metaphors for so long, Cook-Sather argues it can be difficult for us to “free our minds” of them. Consequently, we are unaware of the extent to which they frame our implicit attitudes toward education.

The “school-to-prison pipeline” is a metaphor within a metaphor. The pipeline metaphor came into vogue in the early 2000s, the height of “zero tolerance” policies in our public schools. It describes a set of policies and practices that criminalize challenging—yet often developmentally appropriate—adolescent behavior, making it more likely that students will be referred from the classroom to the courtroom. As educational sociologist Christopher Mallett notes, schools and juvenile courts “have not historically been mired in the discipline dispensation techniques utilized today, but there was always a focus on control of young people, particularly those difficult or troubling to manage.” Christopher Mallett, The School to Prison Pipeline: A Critical Review of the Punitive Paradigm Shift, 33 Child & Adolescent Soc. Work J. 16 (2016). After the Gun Free Schools Act of 1994—an act that was propelled into law by racial animus and fear of the fictional juvenile “super predator”—courts and schools began reaching toward each other in their efforts to control supposedly unruly, potentially dangerous children. Soon federal and state funding for school district police forces flowed into school district coffers. Then the passage of No Child Left Behind created perverse incentives for school staff to remove kids who might draw down test scores and other accountability indicators. The indicators were so important, not because educators undervalued kids and overvalued data, but because most states threatened schools with “reconstitution” when they failed to make adequate yearly progress. Schools could be shut down—principals and entire faculties fired—on the basis of low test scores. Many educators saw getting rid of poor performers as the only way to save the school, and with it their jobs.

How one understands the purpose of the school-to-prison pipeline depends heavily on whether one views schools through the lens of production or cure. From a production point of view, the pipeline is a quality control mechanism that guarantees the right children receive the right credential. Academically talented, behaviorally well-adjusted children—often from whiter, wealthier backgrounds—receive diplomas and degrees that entitle them to social privilege. Children who don’t adjust well to school are adjudicated delinquent and damned to positions of social disadvantage. Their “credential” is a conviction, which justifies their placement at the lowest levels of the American social caste system.

The problem, of course, is that the credential is predetermined. Socially disadvantaged students come into the system poor and undeserving. They leave with a credential that certifies them poor and undeserving. Schools are themselves competing for credentials, constantly competing for accountability grades from the state board of education that will improve perceptions of the school campus, and, with it, school budget, property values in the neighborhood, and a slew of other economic indicators.

From a cure perspective, the pipeline operates as a triage system, determining the appropriate “level of care” for students unwilling or unable to take their educational medicine. School police officers arrest students so that they may receive more intensive treatment in rehabilitation-oriented delinquency court that ostensibly acts in the best interest of the child. The medicine tastes bad. Like chemotherapy or radiation treatment, it may even cause pain. It’s a necessary pain, our last-ditch effort to “save” the most vulnerable kids from a lifetime at the margins of our society.

More than a Metaphor

In Texas and many other states, the pipeline is more than a metaphor. It is a concrete reality baked into our legal codes. The Texas Code of Criminal Procedure, the Education Code, and the Juvenile Justice Code reference each other extensively. These references place our schools and our courts into direct conversation. Metaphors may help us conceptualize the behavior of school administrators, teachers, and the cops who walk our campuses. But there is nothing metaphorical about the Texas school-to-prison pipeline. It is black letter law.

Like so many other schoolhouse conversations, the conversation between schools and courts begins with a rumor. Whenever a kid is arrested on a felony or certain misdemeanors, Article 15.27 of the Code of Criminal Procedure requires the arresting officer to notify the child’s school within 24 hours. The school administrator who receives the notice must in turn notify all teachers and support staff who supervise the kid. The notification must include the charge and certain details of the alleged offense. School personnel are not particularly enlightened when it comes to the nuances of criminal procedure. I have yet to represent a kid in a school disciplinary hearing where the principal—or even the superintendent—understood that an arrest does not always lead to a charge. Only a few have understood that a charge is not an adjudication. Cops tend to arrest first and ask questions later, particularly when a kid is involved. When a school receives notice of an arrest before the arrest has been fully processed, probable cause found, or a police report written, we should question whether there’s any substance to the rumor cops whisper in school administrators’ ears.

When we fail to question, kids face disastrous consequences. In Texas, a child can be expelled until the end of high school for some offenses simply because they were arrested. See Tex. Educ. Code § 37.0081. Schools can expel children even if the DA refuses charges after the arrest. Schools can expel even if the case is dismissed, reduced, or receives deferred prosecution. Schools can expel kids for an arrest that has no connection to the school community. In fact, schools are encouraged to expel kids following an arrest in the community on the theory that it’s a precursor to some imagined future danger in the school building. I have seen schools expel kids as young as 11 until the end of high school for low-level felonies. Although the code gives schools the discretion not to expel in every circumstance, administrators refuse to use their discretion. See id. § 37.001. The practices and biases of individual educators broaden the aperture of the school-to-prison pipeline. But it’s the law, not the educator, that empowers the educator to propel the kid into the system.

Imagine, for example, that two kids get into a shoving match in the hallway over a social media post. No one is injured. Class is not disrupted. An assistant principal quickly breaks up the skirmish. How can the administrator respond?

She could choose to call the skirmish a “hallway disruption,” a level two offense under the district code of conduct. She could counsel both students and send them back to class with a write-up. She could choose to call this “mutual combat/fighting,” a level three offense under the district code of conduct. She could refer one or both students for counseling, a parent-teacher conference, in-school suspension, or a three-day out-of-school suspension. But let’s imagine one of the students has behavioral challenges, doesn’t do much schoolwork, and is at risk of failing the state-mandated end-of-year exam. The school is in “improvement required” status for the second year. The principal may lose her job if too many students fail the test. The principal has an incentive to call the fight an assault and radio for the campus police officer to arrest the troublemaker. Penal code assault and code of conduct mutual combat have nearly identical definitions. But if the child is referred for arrest, this little hallway skirmish is automatically elevated to a level four offense, requiring off-campus placement in an alternative school. The principal can remove or expel the student from the campus based on the arrest alone, even if the district attorney refuses to file a delinquency petition. This simple, split-second choice of words—disruption, fight, or assault—will have profound consequences for the remainder of the child’s life. It’s not an accident that these definitions overlap.

Now imagine the principal loves the student. He’s one of her favorites. The principal may feel that her hands are tied, that she has no choice but to refer the kid to the police. Section 37.015 of the Education Code explicitly states that certain offenses occurring on school campuses must be reported to law enforcement. Educators don’t know the legal definitions of most crimes, nor do they often know which crimes are on the list. Many school district policies require staff members to report all crimes. Moreover, Education Code section 37.155 grants educators civil immunity for their good faith reports, even if the report is wrong. Conversely, the educator will suffer sanction from the district and possibly the state educator licensing board if they fail to report a serious criminal offense. Many educators err on the side of caution by calling in the cops to sort it all out. Once the cops are called, there will be an arrest.

This is just one example of the many ways the legal regime directs and influences educator decision-making along the school-to-prison pipeline. Were we to delve deeper, we would see how chapter 58 of the Texas Family Code interacts with chapter 37 of the Texas Education Code to create a rich regime of information sharing between schools and courts. We would see how this information sharing between institutions—ostensibly in the best interest of the child—can profoundly and negatively shape perceptions of challenging children on both ends of the pipeline. We would see how even an attempt to reduce the scope of the school-to-prison pipeline—Education Code section 37.085, a law prohibiting arrests on school campuses for most Class C misdemeanors—actually encourages campus administrators and police officers to charge kids at a higher level. The closer we look at the code, the more conduits we find from the classroom to the courtroom. As it turns out, our schools and courts are not connected by a pipeline. They’re connected by a sewer system.

Creating Feedback in the Flow

DefendEd is the educational advocacy project of the Harris County Public Defender’s Office—Juvenile Division. We defend our teen clients in the classroom and courtroom by providing fully integrated civil and criminal advocacy. Our attorneys have dual professional backgrounds in education, social work, or healthcare and law, which uniquely positions us to work with clients who intersect multiple systems, leveraging better outcomes for our clients across those systems.

Our program has adopted best practices from allied disciplines like public health to increase the quality of services. We screen every client who comes into our office for educational, health, housing, and other holistic issues. Once an issue has been identified, we conduct an extensive series of interviews with our clients. Techniques like educational journey mapping and biopsychosocial approaches to interviewing help us elicit detailed stories of how a kid has come into contact with the system. We capture our clients’ stories from a legal and an educational perspective, drilling down so that we can make sure we’re truly working toward our clients’ stated long-term goals and interests. Soon a new case management system will allow us to aggregate certain anonymized data points from our client interviews so that we can home in on systemic issues that affect large subsets of vulnerable kids. This population-based approach to harm reduction also borrows heavily from the public health profession and will help us target our systemic litigation efforts.

Our program is less than two years old. In that time, we’ve saved 36 kids approximately 2,800 days in an alternative school; advocated for approximately 70 kids in special education team meetings and administrative litigation; and re-enrolled roughly 50 kids in school. We’ve diverted kids out of secure facilities and into nonsecure medical and special education residential placements. We filed 18 writs of habeas corpus on behalf of kids detained at the beginning of the pandemic. We created a mentor program to support kids following their re-enrollment. We worked with community partners to develop a beat-making class in the detention center and are assembling a trauma-informed yoga class for kids this summer.

I believe we get results because we are constantly working to develop a new legal playbook that will create feedback in the flow of the school-to-prison pipeline. We’re creating our playbook by mapping, then inverting, the many intersections between our schools and courts. Here are some examples.

A middle school–aged client is expelled for a year because of an alleged felony. He’s a “good kid” in advanced classes who likes to play sports and hang out with friends. The client lives 35 miles away from the alternative school. His family does not have a functioning car. His mother is often in crisis and unable to provide consistent support. The school district refuses to provide bus transportation or any other help. The Education Code does not obligate the school to provide transportation, even though he will be unable to attend school without it. The school district has turned a promising kid into a dropout.

Our client’s pre-adjudication court supervision officer is aware of the school district’s decision and is angry about it. If we ask for a review hearing before the judge—a hearing typically used to admonish kids for not following their pre-adjudication supervision rules—we can put the district in the hot seat by subpoenaing the assistant superintendent for student support, the transportation supervisor, and the campus principal to appear in court to explain why they’ve made it impossible for our kid to follow his rules. Add in some testimony from the mother and the probation officer regarding how badly our kid wants to go to school, and we’ve accomplished two objectives. First, we’ve created a favorable impression of our client with the judge who will eventually decide his delinquency case outcome. Second, we’ve increased the odds that the school district staff—who have never had to appear before a judge and are likely uncomfortable with the prospect—will reconsider their position on transportation, or, better yet, pull him back to an in-district alternative school.

If this “soft” approach doesn’t work, we may initiate litigation. Conventional wisdom says the juvenile court does not have jurisdiction over the school district. We disagree, though we have not yet had the opportunity to test the theory. Because the education and juvenile codes require schools to report all expulsions to the juvenile courts regardless of whether a child is justice-involved—and because in many Texas counties juvenile probation operates the alternative school—we have developed theories of jurisdiction that we hope will allow us to hold schools accountable when an expulsion decision will deprive a student of their education.

Here’s another play from our playbook. Before schools can remove a special education student, the student’s special education team (which includes a licensed psychologist) must convene a manifestation determination review, or MDR. If the team decides either that the student’s alleged conduct was directly and substantially related to her disability, or that the conduct resulted because the district failed to implement the student’s individual education program (IEP), the student generally cannot be removed to the alternative school. The team must hold an MDR regardless of whether the alleged conduct happened at school or in the community. At the MDR, our team presents medical records, testimony from outside psychiatrists or psychologists, and, in the case of community offenses, contextual information about the circumstances of the charge so that the school psychologist can better understand the complete picture. As a result of our advocacy, the team will often find that the conduct was directly and substantially related to the child’s disability. We immediately turn around and present the MDR finding to the prosecutor. We prepare packets with ample documentation and an explanation of the MDR finding. In many instances, we’re able to obtain a dismissal.

When the prosecutor refuses to dismiss, the MDR finding and the medical evidence that underpins it can be used in one of four ways. First, we can use it to attack the intent element of a crime. Our program’s most frequent school-based charge is assault—public servant, which in Texas is a felony. See Tex. Penal Code § 22.01. In many instances, the alleged assault happens in a self-contained special education classroom and involves disability-related conduct. Assaults require intentional, knowing, or reckless contact. I do not believe that a child whose conduct is directly and substantially related to their disability can act with any of those intents. Second, we could use the MDR to attack other elements of the crime. For example, for a person to be considered a public servant, they must be lawfully discharging their official duties. If the school district acknowledges that its employee failed to follow federal law, state law, district policy, and their job description by correctly implementing a child’s IEP, I do not see how that employee could be lawfully discharging their official duties. Third, the MDR may help us make a case that the child lacked responsibility for the offense. In Texas, a child is not responsible for their conduct if they were unable to conform their conduct to the requirements of law. See Tex. Fam. Code § 55.51. Though this standard is different from an MDR standard, there are important similarities that could allow for some leverage. Fourth, if the child is adjudicated, we may be able to argue for no disposition or minimal supervision because we can go back to the student’s special education team and arrange for counseling, psychological services, or even residential treatment to be provided by the school system instead of the court system. We believe we must minimize a child’s contact with the court system at every turn, and that education law and health law can be used to arrange alternative service plans that negate the state’s argument that a child can only be rehabilitated through court intervention and supervision.

Integrating Advocacy

I chose a career as a public educator because I believe—as Thomas Jefferson did—that our public schools should teach Americans to judge for themselves what will endanger or secure their liberties. I chose a career as a public defender because in school after school I saw the system depriving kids of their liberties, and their futures. I found a way to be an educator and an attorney because I believe there’s power at the intersection.

Though some might call our practice holistic, I tend to chafe against the term. Holistic practice concerns itself with collateral consequences of a client’s contact with the criminal justice system. The term “collateral” implies that the civil problem is separate and apart from the criminal case, though the criminal case is the root cause of the civil problem. Our intersectional practice is integrated civil and criminal advocacy. The school case and the delinquency case are two sides of the same coin. As lawyers and specialists, we’re often trained to dive deeply into one domain of the law. Working in a collaborative, interdisciplinary team can help us look across legal domains to develop new intersectional playbooks. We can create feedback in the flow, turning our courts back on the schools and away from our children.

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Christopher J. Sailer is an educator, lawyer, and founder and director of DefendEd, the youth special advocacy project of the Harris County Public Defender’s Office.