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Dismantling the School-to-Prison Pipeline in California: Giving Schools More Discretion in Responding to Student Behaviors
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Introduction
One day, while working as a school administrator at a middle school in East Palo Alto, CA, I was called upon to handle an incident involving a student. This student (I’ll call him “M”) was approached by an acquaintance right after dismissal just outside of our campus, and that person handed him a BB gun. A staff member saw it and immediately intervened, M handed the BB gun to the staff member, and everyone came to my office.
M was an 8th grader, a 13-year-old Black boy. Our school’s normal restorative approach would have been to gather a team, including the student and parent, to collaboratively determine a method to restore any harm done from this action. However, before we could start any of that, my district Director of Student Services informed me that I must report this to the police. So we did, and the police came and went. After the police left, we resumed our restorative practice with M and his mom and decided together that M would research news articles about children his age who were in possession of a BB gun and present his findings to a classroom of his peers. M later presented his research on teens and pre-teens who had been arrested or killed by police for brandishing or using a BB or airsoft gun.
What I learned from this incident is that we - M’s parent, teachers, advisors, coaches, and school administrators - were the ones who were best equipped to handle this incident. The police, in this case, did not add anything to the process, and I could even imagine a worst-case scenario where police being on the scene with a young Black boy in possession of a BB gun could have had much more disastrous consequences. It taught me that educators should be allowed to do what they are trained to do - help students learn from their actions.
This article explores a brief history of the school-to-prison pipeline created by zero-tolerance policies in schools, as well as recent efforts in California to reduce student interactions with law enforcement, specifically through the progression of a bill (Senate Bill 1273) through the state legislature in 2022.
The School-to-Prison Pipeline
Across the nation, schools often implement harsh punishments that push students out of school and into the juvenile justice system, creating what is known as the school-to-prison pipeline.1
Students who experience discipline that excludes them from classroom learning are more likely to repeat a grade, drop out of school, and become involved in the juvenile justice system.2 According to the U.S. Department of Education’s national civil rights data, Black students, boys, and students with disabilities are disproportionately disciplined in K-12 public schools.3 In California public schools, while the average statewide suspension rate during the 2018–19 academic year was 3.5 percent, the average rate for African American students was 9.1 percent - higher than any other racial group.4 Suspensions are inextricably linked with student entanglement with law enforcement in several ways, including that many states have laws that require school officials to notify law enforcement of certain suspendable student behaviors, such as California Education Code (EC) § 48902.5
In California, there have been recent efforts by the legislature, the Department of Education, as well as at the county, district, and school levels to dismantle the school-to-prison pipeline. One of the results of this movement was the proposal of SB 1273, which was passed by the Senate in May 2022. I, along with fellow educators and other advocates, lobbied our state representatives last Spring for passage of the bill. The purpose of this bill was to eliminate unnecessary police interaction in schools. According to the bill’s author Senator Steven Bradford (D-Glendale), the proposed bill would empower “educator discretion to handle school related misbehaviors in ways that do not criminalize students.”6 Existing California Education Code includes a criminal penalty to be imposed on students for “willful disturbance” of public schools and school meetings7 and mandates for school officials to notify law enforcement of a broad range of student behaviors.8 SB 1273 sought to eliminate the criminal penalty for students for willful disturbance, as well as eliminate those duties of a principal or designee to notify law enforcement of certain student behavior and removed fines for school personnel who fail to report such incidents.9 The duty to notify law enforcement would have remained in place for specified severe offenses related to possession of firearms and weapons in school zones.10
Historical Background: Zero-Tolerance Policies
So-called “zero tolerance” policies continue to be widely used as responses to school disruption and violence.11 The establishment of zero-tolerance policies began in the 1980s and were originally primarily aimed at dealing with major offenses involving weapons and drugs. The “zero-tolerance” policy - of messaging that certain behaviors will not be tolerated by punishing all offenses severely, no matter how minor - rose to national prominence during the Reagan Administration’s intensified “War on Drugs” and became federal law beginning with the Drug-Free Schools and Campuses Act of 1989.12 The Clinton Administration’s Gun-Free Schools Act of 1994 required states to enact legislation to expel students in possession of a firearm at school.13 Originally, the bill covered only firearms, but later amendments included any instrument that may be used as a weapon, which has led to some outlandish results, such as a student suspended for nail clippers and a 5-year-old suspended for a plastic ax that was part of his firefighter Halloween costume.14 Over the ensuing decades, more school districts throughout the country began adopting zero tolerance discipline policies with recent studies finding that 94% of all schools have zero tolerance policies for weapons or firearms, 87% for alcohol, and 79% reporting mandatory suspensions or expulsions for violence or tobacco.15 While these policies may sound like common-sense, actual practice has shown high rates of unnecessary contact with law enforcement for many minor offenses.
Recent California Provisions to Decrease Law Enforcement
Recently enacted legislation has aimed to prevent students from losing learning opportunities for disciplinary reasons.16
Ending suspensions for willful defiance in grades Kindergarten through Eight. In 2013, the Legislature approved Assembly Bill 420, which prohibited suspensions for willful defiance or disruption for students in grades kindergarten through three. Then, in 2019, the Legislature approved SB 419, which extended this prohibition to students in grades four through eight. However, criminalization of willful disturbance as a misdemeanor finable up to $500 remains applicable, as part of EC § 33210. Multiple bills in the last few legislative sessions have included provisions to repeal or amend this provision.
Minimize Suspension for Attendance Issues. EC § 48900(w)(1) promotes alternatives to suspension or expulsion for students who are truant, tardy or otherwise absent from school activities.
Instead of Suspension, Support: EC § 48900(v) states that the superintendent or principal is encouraged to provide alternatives to suspension or expulsion, using a research-based framework that improves behavioral and academic outcomes. EC § 48900(w)(2) adds that a Multi-Tiered System of Support includes restorative justice practices, trauma-informed practices, social and emotional learning, and schoolwide positive behavior interventions and support.
Suspensions as a last resort. EC § 48900.5 provides that suspension shall be imposed only when other means of correction fail to bring about proper conduct.
Efforts in California School Districts
School boards have also taken steps to limit severe punishments exclusively for severe student behaviors. In 2015, Oakland Unified School District (OUSD) became one of the first school districts to eliminate suspension and expulsion of students based on the broad and nebulous category of “disruption and willful defiance.”17 The policy change was accompanied by $2.3 million in district funding to expand violence intervention and prevention programs, like ensuring restorative justice programs at all OUSD schools.18
In 2017, in response to a lawsuit filed by Latino and Black students enrolled in Kern High School District (Kern County, CA), the district agreed to a settlement that included immediate changes to its discipline practices.19 Examples of these changes included the incorporation of mandatory training for teachers and staff (including security and police); public reports at public forums regarding data on school discipline rates, alternative discipline practices, school survey results, and training; and providing educational funds to student plaintiffs who were suspended, expelled, or transferred unfairly.20
School districts have formed partnerships with local organizations in an effort to identify the cases of disparities in school discipline. For example, Antioch Unified School District (Contra Costa County, CA) worked in partnership with the NAACP East County Branch to examine the subtle, complex, and often unintentional ways in which race, disability, and discipline intersect.21
Supporters of Eliminating Mandatory Notifications for Student Behaviors
The proponents of bills like SB 1273 that advocate decriminalizing certain student behaviors and eliminating certain mandatory notifications to law enforcement include Alliance for Boys and Men of Color, ACLU, California School-Based Health Alliance, Children’s Defense Fund- California, Disability Rights California, Dolores Huerta Foundation, East Bay Community Law Center, National Center for Youth Law, Public Counsel, and United Teachers Los Angeles. The proponents represent a broad spectrum of organizations representing the interests of youth, students, students of color, students with disabilities, teachers and educators, civil rights advocates, healthcare providers, and more.
Comments by the Alliance for Boys and Men of Color for SB 1273 included reference to research of the “long-term harm to young people” of even minimal contact with justice systems and the alarming disproportionality of Black, Indigenous, and Latinx students, as well as students with disabilities, being referred to law enforcement, cited, and arrested.22 ACLU California Action added that a bill like this would not eliminate the option of relying on law enforcement for serious student actions. Instead, for most other school-related behaviors, it would “restore flexibility to educators” to decide when law enforcement should be notified, which would in turn protect students from unnecessary contact with the criminal legal system, decrease school related law enforcement referrals and arrests, and keep students in school.23
Opponents of Removing Mandatory Notifications for Student Behaviors
Opponents of SB 1273 consists of over a dozen Police Officer Associations throughout the state, California State Sheriffs’ Association, and California Coalition of School Safety Professionals. The opponents mostly represent law enforcement organizations.
Comments by the California State Sheriff’s Association claimed that SB 1273 would erode collaboration between school officials and law enforcement to respond to unlawful behaviors on campuses. The Association says that removing requirements for notification blocks access to information about potentially unlawful activities and “impedes law enforcement from being able to best protect our school” and “will only reduce the level of student safety.”24
Looking Ahead
SB 1273, after passing the California Senate on May 26, 2022, failed in the Education Committee of the Assembly in late June 2022. Following the successful Senate vote in May, some California local news outlets decried the fact that the bill would eliminate requirements for schools to report threats and attacks to law enforcement; the coverage was critical that the bill would make schools more unsafe and invoked the school shooting in Uvalde, Texas, which happened just days earlier.25
Even though SB 1273 retained mandatory notifications for firearm-related student behaviors, and proponents of the bill pointed out that by eliminating mandatory notifications for other minor behaviors school officials and law enforcement can focus on gun violence prevention, the bill and those like it have been characterized as hampering efforts to prevent school shootings. Though there have been many attempts to roll back zero-tolerance policies from the 1980s and ‘90s, it remains difficult for schools to regain authority from law enforcement for fulfilling their educational purpose, which includes helping students learn and grow not only academically but also from their behaviors and misbehaviors.
1 End The School To Prison Pipeline, Nat. Ctr. For Youth L., https://youthlaw.org/initiativ... (last visited: Mar. 31, 2023).
2 U.S. Gov’t Accountability Off., GAO-18-258, K-12 Education: Discipline Disparities for Black Students, Boys, and Students with Disabilities (March 2018).
3 Id.
4 The Black Minds Matter Coalition, Suspending Our Future: How Inequitable Disciplinary Practices Disenfranchise Black Kids in California’s Public Schools (Feb. 17, 2021).
5 Cal. Educ. Code § 48902
6 School safety: mandatory notifications: Hearing on SB 1273 Before the S. Comm. on Educ. (Apr. 6, 2022).
7 Cal. Educ. Code § 32210
8 Cal. Educ. Code §§ 44014, 48902
9 School safety: mandatory notifications: Hearing on SB 1273 Before the S. Comm. on Educ. (Apr. 6, 2022).
10 Id.
11 Russell J. Skiba, Zero Tolerance, Zero Evidence: An Analysis of School Disciplinary Practice (Ind. Educ. Pol’y Ctr.).
12 Id.
13 Id.
14 Id.
15 U.S. Dep’t of Educ., Off. of Educ. Rsch. & Improvement, Violence and Discipline Problems in U.S. Public Schools: 1996-97 (March 1998).
16 Cal. Dep’t of Educ., State Guidance for New Laws on Discipline (Aug. 19, 2021).
17 Victory for Equity: Oakland Unified Eliminates Willful Defiance Suspensions, ACLU Northern California (Jun. 9, 2015), https://www.aclunc.org/blog/vi...
18 Id.
19 Kern Latino and African American Students Achieve Victory in Landmark Settlement with Kern High School, Equal Justice Society (Jul. 26, 2017), https://equaljusticesociety.or...
20 Id.
21 Antioch School Officials Agree to Groundbreaking Collaboration to Address NAACP East County Branch Complaint of Civil Rights Violations in Schools, Equal Justice Society (Mar. 26, 2015), https://equaljusticesociety.or...
22 School safety: mandatory notifications: Hearing on SB 1273 Before the S. Comm. on Educ. (Apr. 6, 2022).
23 Eliminating Unnecessary Police Interaction in Schools, ACLU Cal. Action, https://aclucalaction.org/bill... (last visited: Mar. 31, 2023).
24 School safety: mandatory notifications: Hearing on SB 1273 Before the S. Comm. on Educ. (Apr. 6, 2022).
25 California Senate Passes Bill to Allow Schools Not to Report Threats to Police, East County Today, Jun. 3, 2022, https://eastcountytoday.net/ca...