January 16, 2018 Articles

20 Years of Policy Advocacy Against Zero Tolerance: A Critical Review

By Rosa K. Hirji

As of the writing of this article, officials from the U.S. Department of Education are meeting to discuss the scrapping of a 2014 school discipline guidance passed by the agency under President Obama. This will follow the rescission of two other Obama-era guidances that addressed the discrimination of transgender students and student sexual assault.

The outcomes of the last 10 years of policy-based advocacy may potentially be eviscerated by one stroke of Education Secretary Betsy DeVos's hand.

What Is the Lesson?
According to legal scholar Derek W. Black, in his new book Ending Zero Tolerance: The Crisis of Absolute School Discipline:

The lesson . . . is simple. Even if a national consensus turns against zero tolerance and harsh discipline, the shift will have little effect on the lives of students in many communities. Only judicially enforced rights can bring justice and fairness to these communities. Even if policy could eventually resolve the problem, courts should not ask students to wait on states and schools to respect their rights. Constitutional rights exist to protect citizens against the whims of local, state, and federal majorities. Each unjustifiably imposed suspension and expulsion is a deprivation of a right that demands a response. Each suspension or expulsion represents a potential educational death sentence and second class citizenship.

I would also add to this that the compartmentalization of school discipline as a policy-based issue, without understanding its place in the weakening of fundamental civil and political rights of the most vulnerable in our society, resulted in lawyers promoting narrow solutions over broader structural changes. We did not sufficiently challenge the political and legal foundations that drive the school-to-prison pipeline.

Zero tolerance legislation occurred in the context of an era starting in the 1980s that saw a rise in mass incarceration, and shocking disproportionate rates of incarceration of people of color. Driven by the "War on Drugs," the Clinton administration promoted harsh sentencing laws such as three strikes laws and mandatory minimum sentences. During the mid-1990s, arrest rates for juveniles reached never before seen levels. It is in that context that the Clinton administration signed into law a zero tolerance policy that mandated expulsion from school for certain offenses.

This fomented a nationwide zero tolerance mania that expanded the web of zero tolerance offenses. Advocates responded.

ABA Efforts and Policy
The American Bar Association (ABA) passed a 2001 resolution stating that it opposes "'zero tolerance' policies that mandate either expulsion or referral of students to juvenile or criminal court, without regard to the circumstances or nature of the offense or the student's history." Robert G. Schwartz, executive director of the Juvenile Law Center in Philadelphia and one of the authors of the resolution, stated that he hoped the resolution and report would "remind folks that due process still applies in schools."

Much of the early efforts of both the advocacy community and the Children's Rights Litigation Committee of the ABA Section of Litigation (CRLC) involved exposing stories of the extreme nature of how zero tolerance policies were applied to school-based misbehavior. We never talked about it in the context of mass incarceration.

Since 2001, the CRLC and other groups within the ABA participated in a coalescing national movement consisting of community-based organizations, social justice organizations, and civil rights organizations to use data, stories, and public advocacy to expose the systemic disproportionate impact that students of color face in school systems that rely heavily on policies—including overreliance on suspension, expulsion, and zero tolerance discipline and policing—that criminalize school-based misbehavior. We were only able to come to this understanding because we worked in coalitions with community-based organizations, educators, and policy advocates.

In 2009, the ABA passed a resolution promoted by the ABA Commission on Youth at Risk, urging legislation and policy to limit the exclusion of students from school in response to disciplinary problems, provide full procedural representation in disciplinary proceedings, and reduce criminalization of truancy, disability-related behavior, and other school-related conduct. Furthermore, the resolution urges monitoring the implementation of civil rights in school discipline.

Also in 2009, the CRLC convened a national summit in Chicago, where we worked with advocates and community organizers from around the country to develop a Model School Code that presented a set of recommended policies to schools, districts, and legislators to help end school pushout and protect the human rights to education, dignity, participation, and freedom from discrimination.

In 2012, the president of the ABA, Laurel Bellows, submitted a statement before a U.S. Senate Committee for a hearing on the school-to-prison pipeline. In addition to reaffirming the ABA's opposition to zero tolerance policies, Bellows put forth policy proposals to end harsh school discipline, provide full procedural protections in disciplinary hearings, end the criminalization of truancy and disability-related behavior, and implement strong civil rights monitoring and enforcement.

Continuing the policy-based efforts, the ABA Joint Task Force on Reversing the School-to-Prison Pipeline convened a series of national Town Hall meetings to discuss issues surrounding disproportionate outcomes for certain students involved in the school-to-prison pipeline. The Town Hall meetings accumulated an impressive array of anecdotal information of how the school-to-prison pipeline was affecting communities on the ground. An extensive report recommends that the ABA take steps to adopt resolutions, convene meetings with stakeholders, provide trainings, and support legislation and policy that removes or ameliorates punitive punishment. The report sheds a critical light on the role of law enforcement in schools.

However, the report provides no recommendations for training lawyers to represent students in disciplinary proceedings or juvenile delinquency proceedings, or for the legal community to engage in political and litigation campaigns to preserve and strengthen our civil rights. There is no discussion on the impact of school privatization on the constitutional rights of students.

The Right Approach?
In the last few years, the work of the CRLC involved placing political pressure on the Department of Education's Office for Civil Rights (OCR) to engage in policy reform. The CRLC, in solidarity with the larger advocacy community, celebrated the OCR's announcement in 2010 that it would take a more aggressive approach to enforcing civil rights in educational outcomes, discipline disparities in particular, using a "disparate impact" analysis. The new policy for analyzing discrimination complaints represented a major shift in practice at the OCR because the George W. Bush administration pursued cases mostly using a "different treatment" or "intentional discrimination" standard.

Using a disparate impact analysis broadened the scope of the OCR investigations and provided a vehicle to substantiate the movement's long-standing claim that the problem was systemic and that alternative solutions are viable. The CRLC issued a legal memorandum designed to assist lawyers in filing disparate impact claims with the OCR.

But as advocates we supported these policy-based reforms, at the expense of other traditional legal and political strategies—that lawyers are uniquely situated to pursue. One CRLC member wrote: "It is often difficult for attorneys to take a back seat, but school policies are and should be a community concern, and community-based and community-directed actions have proven to be the most effective means of achieving meaningful policy change. Children's rights lawyers, especially, can provide needed leadership, guidance, and support because they understand the stakes."

This represents a regressive position, inasmuch as it parallels the rationale of many federal courts which, despite the U.S. Supreme Court decision in Goss v. Lopez, claimed that discipline was within the purview of educators and not the courts. However, school discipline that deprives students of their entitlement to public school is a concern for lawyers.

Even as leaders of the CRLC supported the filing of disparate impact claims with the OCR, we expressed caution with the Department of Education's policy reforms. In a previous article, my coauthor and I wrote: "The OCR's commitment to remedy disparities in school discipline and the school-to-prison pipeline is vulnerable to political influence, depending on the level of support it gains from the current administration."

We began to express concern that while the Obama administration was making positive steps in the area of school discipline, it was at the same time creating the conditions that would allow for a significant increase in privatized schools and that would undermine civil rights. In 2014, I wrote:

Charter schools promote the idea that, like public schools, they are tuition free and open to all students. However, public schools cannot be selective about the students that they enroll and keep. On the other hand, charter schools—according to recent court decisions from the California Court of Appeal and a U.S. district court in Hawaii—have the discretion and ability to dismiss students in a manner that would be unconstitutional if done by a public school. As it becomes more apparent that students in charter schools do not enjoy the same rights as they would in public schools, the "public" nature of charter schools is called into question.

This movement toward privatization has in fact set the foundation for the Trump administration's two goals in education: to significantly limit the role of the federal government in rights-based enforcement, and to maximize the role of the market in the public school system. Both of these are inherently disruptive to civil rights.

It is now manifestly clear that the Trump administration's primary goal in education will be to privatize and defund public schools, and significantly withdraw the role of the federal government. President Trump's budget proposal includes slashing the budget of the Department of Education, while at the same time increasing funds to support school privatization efforts such as charter schools and voucher programs. At the very least, advocates can no longer count on the Department of Education to enforce civil rights laws in the context of school discipline.

Under our noses, the Obama administration created the legal environment for school privatization to become essentially a federal mandate. In reflection of this, I have recently written: "The lasting effects of the Obama administration's education policy will not be in the reforms intended to reverse the school to prison pipeline but those that set the stage for a withdrawal of the federal government's role in the arena of educational equity and civil rights through neoliberal policies. In such an environment, there will be no enforcement mechanism available to protect the civil rights of students caught in the pipeline."

Where Do We Go from Here?
Let's go back to the basics:

The grassroots and political fight for civil rights in the 1950s and 1960s led to legal challenges to school segregation and the Civil Rights Act, both of which transformed our educational systems and forced our society to operate and see education in a completely different way. It was a sea change. It could not have occurred without the struggles and sacrifices of people on the ground. Lawyers, too, played a significant role. It is time to step up again.

We must fund programs and train lawyers to provide defense to students undergoing school and delinquency proceedings that disproportionately criminalize them and push them out of the school system. We must litigate in order to forestall the weakening of constitutional and civil rights in the courts.

We must fight back against school privatization by exposing it as a direct threat to equality and access to education.

We must ally with and support political movements that are fighting for the civil rights of young people and people of color.

The school-to-prison pipeline is not a problem that can be compartmentalized. It is deeply intertwined with the mass incarceration of people of color and inequality in our society. Policy solutions are short-lived. Instead, advocates need to respond to the attacks on the very nature of public education and the reversal of federal structures that protect civil rights. Efforts must focus on preserving those rights that are necessary to fight against the school-to-prison pipeline: the right to due process, equality, and a public education.

Rosa K. Hirji is a former cochair of the ABA Section of Litigation Children's Rights Litigation Committee and the managing partner at the Law Offices of Hirji & Chau, LLP.


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