Break-Out Session II-C: Impact Litigation

Break-Out Session II-C:
Impact Litigation
• Agenda
• Outline
• New York City Department of Education and New York City
Board of Education Stipulation of Settlement
• PowerPoint Slides
• Letter to Interim Superintendent, re: Racial Discrimination and
Improper Police Activities in Bishop Unified Elementary
School District
• Bishop Union Elementary School District Settlement
Agreement
Impact Litigation Breakout Group
ACLU Conference
Challenging the School to Prison Pipeline:
Harms and Remedies
New York Law School
April 1, 2009
Facilitators: Ron Lospennato, Alan Schlosser & Elisa Hyman
AGENDA
Facilitators Presentations
Case Updates from the Field
Facilitated Group Discussion
Group Discussion Framework
(1) What exists now that you believe can or cannot be changed?
(2) What are the “costs” and benefits” of particular strategies?
(3) What alliances need to be built to achieve our goals?
(4) What resources are available to us to enhance our campaigns?
(5) What decisions need to be made and executed?
OUTLINE
IMPACT LITIGATION STRATEGY CONSIDERATIONS IN SCHOOL TO PRISON
PIPELINE SUITS INVOLVING THE SCHOOLS
Impact Litigation Breakout Group
ACLU Conference
Challenging the School to Prison Pipeline:
Harms and Remedies
New York Law School
April 1, 2009
Elisa Hyman
Of Counsel
Friedman & Moses, LLP
233 Broadway, Suite 901
New York, NY 10279
SCHOOL-RELATED AVENUES INTO THE PIPELINE
General School Conditions
o Connection between high school failure & juvenile and criminal justice involvement.
Causes of action: state constitutions & statutes
 Special Education - rates of 30-70% identified as needing services. In NYC, rates have ranged
range from 40 to almost 50%, depending on the population.
o Termination of services
o Illegal warehousing
o Illegal suspensions/discipline
o Denial of FAPE
o FBA & Positive Supports
Causes of action: Individuals with Disabilities Education Act (IDEA), Section 504 of the
Rehabilitation Act, state laws, 42 US §1983, Due Process
 Illegal & Discriminatory Discipline Policies/Criminalization of Behavior
o School Resource Officers/Police in Schools
o Discriminatory discipline
o Illegal discipline
o Alternative Schools
Causes of action: 42 US §1983, Due Process, state Laws, IDEA/Section 504
 Non-disciplinary Exclusions & Warehousing
o Pushouts
o Truancy
o Alternative Schools
Causes of action: 42 US §1983, Due Process, state Laws, IDEA/Section 504
 Incarcerated Youth
o Failure to educate while incarcerated
o Transition issues between community school settings and juvenile and adult facilities
Causes of action: 42 US §1983, Due Process, state Laws, IDEA/Section 504, but need to
consider PLRA
 Special populations: Foster Care, Homeless Youth
Causes of action: Due Process, State Laws, IDEA/Section 504, McKinney Vento
2
STRATEGY CONSIDERATIONS
Goal(s) of Litigation
 Written policy or procedure, illegal on its face
o Easiest to prove
o Limited discovery
 Class not necessary unless group remedy is desired
 Written policy or procedure, illegal as applied
 Unwritten policies/procedures
 Illegal Practices
o May require extensive discovery, depending on circumstances
o Groups of plaintiffs
o Enforcement and monitoring
 Quality of Education in schools, alternative sites, facilities, for special populations
o Extensive discovery
o Fact specific
o Enforcement and monitoring
o Challenges
 Remedies for individual children
o Access& Reinstatement
o Compensatory education or make-up instruction
o Expungement
o Money
o Other
 Remedies for groups of children
o Challenges
o Timing
Form & Forum
 Class Action, Group Case, Individual Impact Suit or Administrative Hearing Process
 State or Federal Court
Exhaustion
 Exhaustion of Remedies: If litigating under IDEA, PLRA or under state law where an
administrative mechanism exists
o Avoiding exhaustion
o Using Exhaustion as a litigation tool
Pre -Litigation & Multiple Strategies
 Whether to engage in pre-litigation efforts
o Administrative Complaints
o Pre-Litigation Settlement
 Press
 Legislative
 Community Outreach
Other Strategic Considerations
 Political Climate & Political Will
 /Budgetary Environment
3
4
USING THE IDEA
COMPLAINT RESOLUTION
SYSTEM TO BRING ABOUT
SYSTEMIC CHANGE
Ronald K. Lospennato
Southern Poverty Law Center
WHAT ARE ADMINISTRATIVE
COMPLAINTS?
• State Education Agency (SEA) must have
written state complaint procedures that provide
for the filing of a complaint against a Local
Education Agency (LEA) or the SEA asserting
violations of IDEA’s Part B statutory or
regulatory mandates.
34 C.F.R.§ 300.151
THE SCOPE OF COMPLAINT ISSUES
• Complaints can address both individual and systemic
issues.
• Like Due Process hearings, complaints can be used
to resolve any matter related to the
• identification,
• evaluation, or
• educational placement of the child.
See Letter to Chief State School Officers, July 17,
2000 at p. 4; 71 Fed. Register 46601, 46605
(8/14/2006).
OTHER COMPLAINT ISSUES
• Complaints also can be used to resolve
• the provision of a free appropriate public education
(FAPE) to the child,
• as well as any other allegation that a public agency
has violated Part B.
34 C.F.R. § 300.151 (b), 152(a)(5); Letter to Chief State
School Officers, July 17, 2000 at p. 4; 71 Fed. Register
46601 (8/14/2006).
THE SCOPE OF COMPLAINT
REMEDIES
• Corrective action (changes in policies and
procedures),
• Additional or different services,
• Compensatory education,
• Reimbursement , or the
• Provision of future educational services.
34 C.F.R. § 300.151 (b), 152(a)(5); 71 Fed. Register 46602
(8/14/2006).
POTENTIAL RESPONDENTS
(DEFENDANTS)
• Complaint can be against the local school
districts, public agencies, or the SEA itself.
• If against the SEA, it may contract the
investigation and decision rendering to an
independent third party.
34 C.F.R. § 300.153 (b)(1); Letter to Chief State
School Officers, July 17, 2000 at p. 9, question
15; 71 Fed. Register 46602-46603 (8/14/2006)..
STANDING
• The complaint may be filed by anyone, including
An organization (P&A) or
An individual student
An interested community or out-of-state
person.
34 CFR § 300.151(a)(1)
TIMELINES
• The SEA has 60 calendar days from receipt to
complete an investigation and issue a decision.
34 CFR 300.152 (a)
• Timeline can be extended
Exceptional circumstances (eg. systemic complaint)
Complainant and LEA agree to extend timeline for
purposes of mediation. 34 CFR § 300.152 (b)
THE COMPLAINT CONTENT
• Administrative Complaints must include:
A statement that an LEA or SEA violated Part B of
IDEA;
The facts on which the statement is based;
The signature and contact information for the
complainant.
34 C.F.R. § 300.153 (b)
CONTENT FOR A SPECIFIC
CHILD
• The child’s name and address;
•
The name of the child’s school;
•
In the case of a homeless child, contact
information and the name of the child’s school;
•
A description of the problem;
• A proposed resolution to the extent known.
34 C.F.R. § 300.153 (b)(4)
THE INVESTIGATION PROCESS
•
The SEA must review all relevant information and
conduct an on-site investigation, if necessary;
•
The complainant must be able to submit additional
information, orally or in writing;
•
The Public Agency must be able to respond to
complaint.
34 C.F.R. § 300.152 (a); Letter to Chief State
School Officers, July 17, 2000 at 8, question 12; 71
Fed. Register 46602 (8/14/2006).
THE DECISION
•
The SEA must issue written decisions that
address each allegation, including
Findings of fact and conclusions, and
Reasons for its decision
34 C.F.R. § 300.152 (a)(5)
Limitations
• The violation must have occurred within one
year of the date the complaint is received, as
compared to the two-year period for requesting due
process;
• States may allow a longer period for filing complaints.
Letter to Chief State School Officers, July 17, 2000 at 3; 71
Fed. Register 46605-46606 (8/14/2006).
SERVICE OF COMPLAINT
• The party filing the complaint must forward a copy of
the complaint to the LEA or public agency serving the
child simultaneous with filing the complaint with the
SEA.
34 C.F.R. § 300.153 (c), (d)
MEDIATION
• States are encouraged to offer mediation prior to
resolution, but it must be voluntary and the SEA
must bear the cost.
34 C.F.R. § 300.152 (b)(1)(ii); Letter to Chief State
School Officers, July 17, 2000 at 7, question 9; 71
Fed. Register 46603-46604 (8/14/2006).
RESOLUTION AND
IMPLEMENTATION
•
The SEA must provide for “effective
implementation” of its final decision,
including
The Provision of technical assistance,
Negotiations, and
Corrective action necessary to achieve
compliance.
34 C.F.R. § 300.153 (b)(2)
STATE COMPLAINTS V. DUE
PROCESS
• Parents may use the complaint procedures and/or due
process to resolve any disagreement with the school
district.
• SEA must set aside any issues raised in a complaint that
are the subject of due process until hearing is resolved.
• Any issues in the complaint, not the subject of due
process, must be investigated by SEA within 60 days.
34 C.F.R. § 300.152(c); Letter to Chief State School
Officers, July 17, 2000 at 3-5; 71 Fed. Register 4660446605 (8/14/2006).
COMPLAINTS-DISCIPLINE ISSUES
• Very High Suspension Rates and Overuse of Court
Referrals;
• Punishing Students with Disabilities at a Higher Rate than
Students without Disabilities;
• Failure to Conduct Manifestation Determination Reviews
(MDR);
• Failure to comply with IDEA discipline provisions regarding
change of placement (10-day limit on suspensions);
• Arrests Made from School.
COMPLAINTS-RELATED SERVICES
ISSUES
• Failure to Provide
Appropriate Related
Services
Failure to develop Behavior Intervention Plans
(BIP);
No or insufficient PBIS program;
Woefully inadequate levels of social work and
counseling services (e.g. 15 minutes per month of
counseling);
Lack of mental health services.
COMPLAINTS-LRE ISSUES
• Denial of Least Restrictive Environment (LRE)
Placements
High Self-Contained placement rate;
ED students required to “earn the right” to be
in less restrictive settings;
Overuse of “Alternative Schools”;
High Residential Placement rates, including
students placed residentially by juvenile courts;
COMPLAINTS-EVALUATION/CHILD
FIND
•
Failure to Timely and Adequately Evaluate
Delaying Assessment Due to Response to
Intervention (RTI);
Failure to Utilize Trained Personnel to do
Evaluation;
Ignoring Repeated Failures or Disciplinary
Problems
COMPLAINTS-TRANSITION
•
Failure to Have Appropriate (Any) Transition Plans
Routinely denying access to vocational
schools;
Failure to Involve Community Agencies in
Transition Plans;
Having Vague or Amorphous Transition
Goals
COMPLAINTS-DENIAL OF FAPE
• Failure to Provide Appropriate Educational Benefit
Poor quality teaching at every level;
Failure to Develop Appropriate IEPs;
Failure to Implement IEPs that have been
developed.
ADMINISTRATIVE COMPLAINTSADVANTAGES
• Cheaper-No filing or discovery costs;
• Faster-60 or so days;
• Discovery-State investigates, should be able
to access state file;
•
No Standing Problems - anyone can file a
complaint
ADMINISTRATIVE COMPLAINTSDISADVANTAGES
No Attorney Fees (but see Lucht v. Molalla River
Sch. Dist., 225 F.3d 1023 (9th Cir. 2000); Upper Valley
Assoc. for Handicapped Citizens v. Mills, 928 F. Supp.
429 (D. Vt. 1996);
•
•
Less Control Over Process;
• School districts filing individual due process to
invoke 34 CFR 300.152 (c) (State must set aside
complaint if due process requested on same issue);
•
Quality of State Monitors or administration
Administrative Complaints Examples
•
Examples of Class Administrative Complaints:
Jefferson Parish, Louisiana
East Baton Rouge Parish, Louisiana
Calcasieu Parish, Louisiana (complaint
threatened; case settled before filing)
Caddo Parish, Louisiana
Holmes County, Mississippi
Palm Beach, Florida
Hillsborough County, Florida
Fayette County, Kentucky
Apple Valley, California
WHAT HAPPENS IF THE SEA
SCREWS UP
• Sue SEA for denying FAPE by failing to
exercise its “Supervisory Authority”
Clear Legal Authority On Issue Beth V. v. Carrol, 87
F.3d 80 (3rd Cir. 1996); Corey H. v. Chicago Board of
Educ., 995 F. Supp. 900 (N.D. Ill. 1998); James O. v.
State DOE;
Probable Parties (State, School District, or both.
Also juvenile justice agency in some cases);
Should consider adding additional claims (ADA,
Section 504, state law, Constitutional, etc);
Can get Attorney Fees.
SEA’S SUPERVISORY AUTHORITY
DEFINED
SEA has an “overarching responsibility” to ensure that the requirements of the
IDEA are complied with by local school districts and other public agencies.
SEA’S SUPERVISORY AUTHORITY
DETAILED
SEA
must do more than passively await
notification of a violation. Cordero v. Pennsylvania
Dep't of Educ., 795 F. Supp. 1352, 1361-64 (M.D.
Pa. 1992).
“[C]reating and publishing procedures and
waiting for the phone to ring” is insufficient. Id. at
1362.
SEA must be vigilant and must correct
violations that it detects. Id.
LEGAL CLAIMS RELATED TO
BREACH OF SUPERVISORY
• State has failedAUTHORITY
to appropriately monitor or compel the
school district to correct and eliminate above IDEA
violations (Many of these systemic IDEA violations
persisted over several LDE monitoring cycles and thus
LDE was legally responsible [See e.g. Corey H. v. Ill. SBE
, 642 F. Supp. 900 (N.D. Ill 1998)];
• Failure To Ensure FAPE;
• Failure to ensure that the School District complied with
IDEA.
LITIGATION PITFALLS
• Exhaustion
of Administrative Remedies;
• Expense;
• Quality and ideology of federal judges a big
variable;
• Removal (For State Court Litigation);
• Private Right of Action Challenging Quality of
State Complaint Process (more of a pleading
issue).
REMEDIES
• School or District-Wide PBIS, including training for all staff
(including cafeteria, transportation, and SRO staff);
• Special masters, monitors, consultants;
• Significant increase in the frequency and duration of related
services;
MORE REMEDIES
• Changes in Discipline Procedures;
• Central tracking system for arrests and disciplinary
removals;
• Elimination of illegal disciplinary practices (e.g. “cool-off”
suspensions);
• New Discipline Handbook for students and parents;
EVEN MORE REMEDIES
• Improvements in Transition Services Increase coordination between school district
vocational training programs and all high schools;
Vocational training programs to provide all IEP
services (including BIPs) for special education
student;
Increase ED students’ participation in
vocational training programs;
WE’RE NOT DONE WITH REMEDIES
• Intensive reading and math remediation for ED
students more than 2 years behind their chronological
grade level;
• Elimination of policies and practices, such as a
shortened school day, that result in students receiving
less services than they need;
• Strategies for increasing ED students access to
regular education classes;
• Strategies for moving students from more restrictive to
less restrictive placements.
35
More Information Available about
Administrative Complaints and
Remedies
www.splcenter.org
Ronald K. Lospennato
School-to-Prison Reform Project
Southern Poverty Law Center
4431 Canal St.
New Orleans, La. 70119
504-486-8982; 504-486-8947 (fax)
[email protected]
QUESTIONS
October 3, 2006
VIA FACSIMILE and U.S. MAIL
Anthony,
Richard
Interim
Superintendent
Bishop Unified Elementary School
District
301 North Fowler Street
Bishop, California;
Re:
Dear Mr.
93514
Racial Discrimination and Improper Police Activities in
Unified Elementary School District
Bishop
Anthony:
The American Civil Liberties Union of Northern California ("ACLU-NC") and Morgan,
Lewis & Bockius LLP ("Morgan Lewis") have reviewed the documents you provided in
connection with our recent public records request. From our review of your records, we have
developed a deep concern that the Bishop Union Elementary School District and Home Street
Middle School (collectively, the "School") systemically discriminate against students of color,
and in particular Native American students, in its disciplinary processes. This letter is sent
jointly by the ACLU-NC and Morgan Lewis to discuss these concerns in order to begin a
dialogue to re{orm the School's disciplinary activities.
discuss the bases for our concerns and our suggestions for improvement, the
implementation of which we believe would establish a positive school climate for all students.
Once you have had an opportunity to review this letter, we would appreciate meeting with you in
person to address these impol!ant issues. We sincerely hope for the School's cooperation in
resolving this matter, which will ultimately require the adoption of protective policies and
practices, as well as an ongoing commitment to prevent future unlawful discrimination.
Below,
Factual
we
Background
We became aware of potential problems at the School when the parents of Native
American children contacted us following events occurnng on October 11, 2005. On that date,
School Resource Officer (SRO) Glenn McClinton physically harmed several Native American
students, and threatened a number of others. We subsequently interviewed numerous eye
witnesses, and have concluded that Officer McClinton caused bodily injury to Thomas Stone, an
eighth grader, because Thomas wore a bandana in contravention of the School's dress code.
We further understand that Officer McClinton employed excessive force on at least two Native
Richard Anthony, Interim
October 3, 2006
Page 2
Superintendent
American students who observed the incident, including causing one to temporarily lose
consciousness. Following these events, it is our understanding that Vice Principal Car'er failed
and ratified
to obtain input regarding the events from any person other than Officer McClinton,
It is also
incident.
in
the
involved
his Conduct by, among other things, suspending the children
independent
school principal, undertook no
our understanding that Bill Kennedy, as
situation.
of
the
investigation
review of the materials provided in response to our public records request,
such conduct is not isolated, Both the disciplinary treatment imposed on Native American
that
students and the use of excessive force appear to form pad of a pattern and
preceded the October 11 incident and has continued since.
From
our
practic•
Excessive Force and Abuse of Police Power.
Our
investigation
has led
us
to conclude
that Thomas Stone has no gang affiliation. Nonetheless, in March 2006, Principal Kennedy,
along with two outside police officers and several school officials, interrogated Thomas and
almost twenty other students about gang membership. According to multiple sources, Principal
Kennedy refused to permit the children to contact their parents during the interrogation. We
understand that these students were informed that refusal to answer questions wou!d result in
body searches
suspension. As to Thomas, the police added threats of juvenile hall, probation,
and a statement regarding the ability to make Thomas' life "a living hell." Our sources know of
tS=,s interrogation session and any ongoing criminal investigation. We view this
no link between
incident as demonstrating that the School sees its function as going beyond the education of its
pupils to providing a forum for police activity.
a•so uncovered another incident during which Officer McClinton
f3hysically assaulted a Native American student because she did not immediately stop when he
called her name. Indeed, many Native American students told us that they feared Officer
McClinton and tried to avoid him. Given the history of excessive force on campus, use of the
School to facilitate police interrogation and other activity should be avoided absent compelling
circumstances requiring police presence
Our
investigation
Our analysis of the documents you produced demonstrates
white
that Native American students at the School are disciplined far more frequently than
2005-2006
through
students. An examination of the School's statistics from the 2000-2001
school years indicates that the suspension of Native American students tends Io occur
disproportionetely for discretionary offenses like "defiance", in comparison with concrete
offenses such as carrying a weapon. For the School years 2000-2006, while Native American
s•udents were about 17% of the student population, they were almost 67% of those suspended
for being "disrespectful/argumentative." In other words, they were suspended at roughly four
of
times their percentage of the population. In more concrete, less discretionary categories
only
discipline, such as "Supply/sold/possess drugs/alcohol," Native American students were
slightly more likely than other students to be disciplined. Discretionary categories such as
defiance should not operate as a catch-all to unnecessarily deprive students of color equal
Discriminatory Discipline.
educational opportunities.
Richard Anthony, Interim
Oclober 3, 2006
Page
Superintendent
3
for every year between 2000-2006, Native American students were
disciplined at more than double their percentage in the population. So, for example, in •002of
2003, Native American students were approximately 16% of the population, yet almost 43%
suspended
at
graders
the suspensions and expulsions. Indeed, in 2002-03, the only sixth
deeply
Home Street Midd{e Schoo• were Native American. Statistics such as these are
troubling, particularly since studies show that students of color are no more like!y to engage in
disruptive behavior than other students. The Color of Discipline: Sources of Racial and Gender
Disproportionality in School Discipline, Russ Skiba et al., Policy Research Report #SRS1, June
punished more
2000 at 14-16. Instead, research suggests that students of color are often
of color are often
students
and
that
severely than other students who engage in similar conduct,
interpretation."
their
punished for "behaviors that are at once less serious and more subjective in
Id.
More
broadly,
Violations of the California Education Code. Your records indicate that the School
suspended students in violation of both the California Education Code and the School's own
disciplinary policies on numerous occasions. Other than five narrowly-defined circumstances,five
offense. The
the California Education Code tlat•y prohibits suspension of students on a first
possession
of a weapon
situations all pose potential for great harm to other students, such as
of drugs on campus, etc. See Cal. Educ, Code §§ 46900,
on school grounds, the use or sale
of
48900.5. Except in the rare instances noted above, the Education Code requires use
discipline
School's
written
the
While
48900,5,
suspensions as a last resort. CaL Educ. Code §
the
policy compo•/s with these requirements, its •-ecords demonstrate otherwise, and show that
of
wide
Code
for
range
a
School suspends students in violation of the California Education
candy.
and
eating
chewing
gum
conduct, including truancy,
Leqal Implications
disparate disciplinary conduct of the
conducting discipline pose serious constitutional
The
School and its excessive use of force in
and other legal violations.
Violation of Race Discrimination Laws. At a November 16, 2006 School Board meeting,
higher
Superintendent Geyer admitted that Native American students are disciplined at much address
efforts
to
ra•es than other sb.•den•s, it does not appear that the School has made any
the vocal protests from
this disparity, despite the School's acknowledgement of the problem and
the School to
Native American parents at the meeting, We view Ihis lack of responsiveness by
See42 U.S.C.
its admitted discriminatory conduct as constituting deliberate indifference.
Rights
Act of 1964, 42
Civil
of
the
VI
Title
§ 1983; United States Constitution Amendment XIV;
U.S.C. §§ 2000(d) etseq.; California Constitution, Article § 7.
A•erican
students has caused attrition of these
The increased suspension of Native
investigation, the
students al higher rates tha6 the School's other students. According to our
Some students cannot attend the School as a
cause of these departures has two sources.
students have
result of the number of suspensions they have received. The parents of other
for
disdain
the School's
of
fear
of
either
or
removed their children from the School because
have been told
instead.
We
schools
treatmen• their children, placing the children in continuation
Richard Anlhony, Interim
Oclober 3, 2006
Page
Superintendent
4
that for the 2005-06 academic years, half or the Nalive American students in the sixth grade
class were sent to the continuation school and seven of the twenbJ-six Native American
students in the eighth grade went to the continuation school. This removes these children from
the college track and places long-term limitations on their later career opportunities.
Violations of the Education Code. As noted above, your records show repeated
violations of the California Education Code in connection with suspension and expulsion
practices, Education Code Sections 48900 through 48927 establish the procedures that
schools must follow in suspending or expelling a student. Numerous reasons given by the
School for suspension of Native American students are not permitted under Section 48900. The
School has inappropriately suspended students for violating its dress code, chewing gum, minor
altercations, reasons denominated as "miscellaneous," and even without explanation. The
School's slatistics show a discriminatory practice of applying labels of "disruptive activities" or
"willful defiance" without consistent application. While the California Education Code explicitly
prohibits the use of suspension for truancy or tardiness, School records reflect that such
conduct formed the basis for multiple suspensions. Cal Educ. Code § 48900(v).
Section 48900.5 mandates that schools use suspension only as a last resort "when other
conduct." It permits suspension of a pupil for a
means of correction fail to bring about proper
in
first offense only if the student has engaged in one of the first five enumerated subdivisions
to
48900, or where "the pupil's presence causes a danger to persons or properly or threatens
disrupt the instructional process." The October 2005 incident with Officer McClinton exemplifies
physical
the School's excessive response to a dress code violation, which included the arrest,
suspensions
for
multiple-day
and
assault
physical
assault and suspension of one child, and the
suspension,
for
appropriate
nor
others. Wearing a bandana is neither an enumerated reason
process"
does il "cause a danger to persons or property'or threaten[] lo disrupt the educational
Code
Educ.
and therefore is not a suspendible activity under the Education Code• Cal.
§ 48900.5.
inl:ormal
conference conducted by the
decision to suspend and be
for
the
basis
told
the
principal, at which time students should be
Code § 48911(b). fi is our
Educ.
Cal.
their version of events.
g•ven an opportunity to
understanding that the School regularly violates this requirement.
Further, suspension should be preceded by
an
pre•ent
of
We believe the School's' conduct is actionable. However, we devote the remainder
voluntarily
this letter to discussing procedures that, if employed by the School, would permit it lo
reform its conduct to adhere to applicable legal standards.
Creatinq
a
Positive School Climate:
Current Policies
complaints. While we are not aware of any specific attempts to address the
racial disparity in the suspension rates, we are aware that the School has attempted to address
parental concerns raised at School Board meetings, including compiling statistical information
requested by Shawn Bengochia, the Director of the Indian Education Center. Specifically, we
attended the presentation of that information given at the November 16, 2006 Board Meeting, at
Parental
Richard Anthony, Interim
October 3, 2006
Page 5
Superintendent
questions from parents. Additionally, we recognize that the
regarding
the SRO is being re-drafted, and tha• Officer
Memorandum of Understanding
McClinton is no longer housed at Home Street Middle School,
Policies. We understand that the School has nondiscrimination policies in place, as we•l
the responsibilities the School officials
as policies regarding the role of the SRO on campus,
have when police question or remove s•udents from campus, and policies on student discipline.
which School authorities answered
use of anti-bullying programs.
and
students become aware of bullying
School
s•aff
the
These progra•ns are very useful to help
of
such
programs, particularly those
in all of its forms. We encourage the continued use
programs which address issues of cultural diversi•y.
Staff Development. We commend the School for i•s
that the School has conducted training for i•s staff on
recognizing and handling gang activity. In responding to our Public Records Act request• the
School provided no docum6nts responsive to the request seeking documents about active
gangs in the School. It •herefore appears tha• •he School may be focusing on non-existent gang
activity to the detriment ol giving its attention to other problems.
We note with
some
surprise
Student Development. We are pleased that the School has adopted the Teaching
Tolerance curriculum of Rosa Parks. This sort of program is likely to provide students (and
teachers) with a better understanding of and respect for diverse cultures, and the roles people
from different backgrounds have played in our history. We further commend the School for its
adoption of a conflict resolution program. In our view, such a program can •each children how
to resolve conflicts in a healthy manner, thereby reducing the likelihood of violence at school,
and increasing students' understanding of each other, We were particularly pleased to note that
the advanced program addresses issues of diversity. It was unclear whether •he School has
utilized this advanced program, and we encourage its use in •he future.
Creatinq
a
Positive School Climate:
Assessment and
Suqgestions
for
Improvement
on eliminating discrimination,
the relationship between the
ensuring
that
particularly discriminatory discipline, as
as
and builds trust with their parents.
of
students
School and law enforcement enhances the safety
As Janet Schofield, a psyohology professor at the University of Pittsburgh, explains, "it has •o be
'We really value kids from different
more than, 'We don't tolerate fights here.' It has to be,
backgrounds.'" JoAnna Natale, Education in E•lack and White, American School Board Journal,
February 1998, at 8. While we reference below specific programs for your consideration, we do
not endorse any program in particular, nor do we attempt to provide an exhaustive list, Rather,
beginning of a conversation regarding the kinds of
we hope that this letter serves as the
programs that we hope can effectively redress the systemic racism at the School.
It is
our
belief that the School should focus its efforts
well
been designed to create long-term solutions to discrimination in
schools. The Nalional Mental Health Association strongly supports "no reject, no eject" policies
aimed at responding to misbehavior with appropriate resources that support behavioral change
Many programs have
Richard
October
Page 6
Anthony,
3,
Interim
Supenntendent
2006
positive, non-punitive ways. National Mental Health Association, Position Statement:
Opposing the Blanket Application of Zero Tolerance Policies in Schools, available at:
http:llwww.nmha.orqlposition/zerotolerance,cfm. Schools play an important role in preparing
in
students to live In a diverse society. Rosemary C. Henze, Leading for Diversity: How School
Leaders Achieve Racial and Ethnic Harmony, Center for Research of Education, Diversity and
in
Excellence (June 2000), at 4, available at
staff
from
all
levels,
strategies
at
order to effectively prepare students, schools must implement
practices,
to
and
development, student training, changes to curriculum, changes to policies
working with both parents and community institutions such as the Indian Education Center.
http:l/www.acal,orQ/credelpubs/ResBrief6.htm,
Overview of Current Problems. At a global level, we are troubled that the School has
focused so much on a punitive approach to discipline as evidenced by both its suspension
statistics as well as the often minor reasons given for those suspensions. Our investigation did
of
not uncover any serious efforts by the School to address Officer McClinton's excessive use
force or the School's admitted discriminatory discipline rates.
schools should have at least two purposes. The first, obviously,
sometimes illegal) behavior. The second, however, is to educate
is to
students about why certain behaviors are inappropriate, how those behaviors can harm others,
and how •o respond more appropriately to similar situations in the future. Unfortunately, the
School's own s•atistics on discipline indicate that the School seems to focus solely on the
Discipline in the public
punish inappropriate (and
punishment
p•ng of
discipline,
little indication that the School has used assemblies or any other forum •o
have an educated, thoughtful and respectful discussion about why teachers and administrators
should not discriminate against studenls, about the psychological harm it causes, or about the
history of discrimination in this country and, in padicular, in Bishop. Without proper education
and
and an oppodunity to think deeply about these issues, it is extremely unlikely that teachers
situations.
of
administrators will be able to respond adequately to these sorts
We have
seen
Many psychologists believe that one of the developmental needs of school-age children
relationships with adults. The Civil Rights Project of Harvard University and
•s to form trusting
of Zero
The Advancement Project, Opportunities Suspended: The Devastating Consequences
June
Tolerance,
Zero
Summit
National
the
from
on
Tolerance and School Discipline, A Report
significantly
of
children
disciplining
more
one race
15-16, 2000, Washington, D.C, at vi. By
children, the School is encouraging children to mistrust adults and possibly form
adversarial relationships with them. On the other hand, imposing proportionate punishments for
than other
rule violations and ensuring that one race of students is not
increase students' faith in authority. Id,
unfairly targeted
for
discipline
would
While we commend the School for having nondiscrimination policies, it is unclear if and
how often these policies are disseminated to parents, administrators or teachers. On a
substantive level, we recommend you clarify both the definitions of harassment and
discrimination in your policies as well as the illegality of such conduct. The School's policies
Richard Anthony, Interim
Superintendent
October 3, 2006
Page 7
should be
that
they
and disseminated. Teachers and administrators must be trained
understand not just the policies, but the need for them.
regularly updated
Accountability.. The ERASE Initiative recommends
keep and annually publish key statistics, disaggregated by
that all school districts be
race,
required
ethnicity, and income.
so
to
See
the Consequences: An Exam•alion of Racism •o U.S. Public Schools, available
Once these Racial Equity Repor• Cards are
at
a basis for
publicly released, policy makers can base decisions on research that provides
help the
projecting the likely racial outcomes of such decisions. These repor• cards would bealsomodified.
In
School understand which programs or policies are beneficial, and which need to
students
of
the
the
just
track
not
race
maintaining its disciplinary records, the School should
administrators should
Staff
and
discipline.
for
students
refer
who
teachers
also
the
involved but
prevent and
address,
know that their methods of disciplining students, as well as their ability to
resolve problems, will be part of their overall performance evaluations.
ERASE, Facing
http:l/www.arc.orgleraselFTClintro_iLhtml.
Complaint Procedures.
In
spite
of any school's best
efforts, incidents of racial discri-
procedures is
mination in school are bound to occur. Having effective and sensitive complaint
of
the
track
types
should
procedures
crucial component of any school equity plan. Such
incidents,
the
responded
to
school
transgressions reported, who the participants are, how the
complaint and
whether the consequences were an appropriate response to the facts of the
patterns of behavior by particular individuals.
a
conflict resolution program, the documents we
this
program has been utilized, whelher the advance
received do not show the extent to which
when it was used, or how many students
completed,
training (addressing diversity issues) was
In
were
addition, while the School has
a
affected.
School's use of
Policies Reqardinq Police on Campus. We do not see the basis for the
from the
minutes
After the incident with Officer McClinton on October 11, 2005,
a SRO.
modify the
October 20, 2005 and November 16, 2005 Board meetings indicate a decision to
handout answering
School's SRO policy. The only new document We received, however, is a
Police
frequently asked questions about {he MOU between the School and the Bishop
remains
School,
Middle
Street
housed
Home
at
Department. Officer McCllnton, while no longer
removal
his
request
conduct,
we
the SRO for the School. In light of Officer Mc•linton's past
from the School
with the School's policy regarding its role in situations
unclear whether this policy is
where the police question or remove children from school. It is
followed.
disseminated to parents, teachers and administrators, as it seems that it is not always
school
the
further
into
parents
welcoming
We suggest revision of the policy with an eye towards
their
question
police
when
the
community. While paren!s do not have a right to be present
inform parents
children, it is certainly better practice for school districts to make every effO•L to required by law
police question their children. School officials are
as soon as possible any time
time children are removed fro m
to take immediate steps to notify parents or guardians any
In addition,
we
have
concerns
Anthony, Interim Superintendent
Richard
October 3, 2006
8
Page
school.
police
the
Cal. Ed. Code § 48906. Ensuring that schools work to inform parents as soon as
School.
and
the
parents
question their children should ser•e to build trust between
Proqressive Discipline Policy. We commend the School for its progressive discipline
However, we
policy that includes disciplining instances of racial harassment and discrimination.
making racial remarks can lead to immediate suspension, referral to
are disturbed to see that
delicacy.
police, or expulsion. This policy applies a blunt instrument to a situation requiring
for a first
suspension
prohibits
which
Moreover, it also violates Education Code Section 48900,
except for
offense
five
reasons, none of which
clearly articulated
are
relevant here.
Staff Development. The School does not appear to provide staff programs devoted to
meeting
enhancing cultural sensitivity to Native American concerns, despite School E•oard
unprepared to handle cultural
minutes reflecting that many members of the School's staff feel
diversity
•ssues.
documentation of trainings
exclusively
staff how to
to
on
agreed
While the School
or
meetings in
suggest
these issues. We
ensure
that
respond appropriately
they
are
not
to
provide
which staff
were
implement programs designed to teach
discriminating against Native American students and how
the School
when confronted with complaints of racial discrimination. Strategies
the racial awareness and racial diversity of staff
implementing virtually any new School effort.
that
training, we have seen no
given the opportunity to focus
relevanl
target
are
crucial because staff is central to
the school
The goal of any staff development program should be to develop or enhance
of
all
which
students
climate. Teachers are essential to creating an environment in
recognized
backgrounds can feel safe, welcomed, and appreciated. The School has already
Climate."
That
"Positive School
the centrality of this principle in the student policy entilled,
nondiscriminatory
and
policy states, "The Governing Board desires to provide an ordedy, caring,
pride
in their school and
take
and
comfortable
feel
learning environment in which all students
the meaning of
students
teach
staff
to
their achievement.... The Governing Board encourages
School
to have
the
equality, human dignity, and mutua• respect...." The policy encourages and to promote
policies,
nonstudents take an active role in thinking about and implementing
discussed
above,
but,
your
goals,
such
applaud
absolutely
as
We
violent conflict resolution.
documents show • failure to implement these goals.
ongoing •raining
The School's Positive School Climate policy cannot be achieved without
plans for implementing
and commitment by all School staff. Training should provide concrete
component of success
critical
We
believe
a
the policy in the day-t0-day activities in classrooms.
Native
discipline
overly
is to include in the evaluation of all staff members whether they
from
children
American students (intentionally or not), and h•,w they handle conflicts among
different ethnic backgrounds.
While
there
are
School
we
do not have statistics
on
staff
diversity, anecdota• information suggests
that
few, if any Native American teachers, including Native American liaisons, in the
Increasing faculty diversity is a critical component of addressing systemic discrimi-
nation. Moreover, faculty
when they are denied the
is not only crucial to kids of color: students of all races suffer
opportunity to learn from teachers of color, and white students derive
diversity
Richard Anthony, Interim
October 3, 2006
Page 9
Superinlendent
lessons when their role models include teachers of color
important
Facing the Consequences
at 7.
and racial diversity in the School's
curriculum can shift the way students perceive themselves and each other, as well as keep
education about race
teachers engaged in these important issues. Curricular change integrates
"extra" that can be
something
it
making
and diversity issues into lessons' substance, rather than
have the
relations
easily dismissed. School "programs that promote positive inter-group
and
backgrounds
potential to help the nation's youth learn to get along with people of diverse
for
Group
become engaged and responsible citizens." Facing History and Ourselves and The
of the Research:
the Study of Interpersonal Development at Harvard University, A Synopsis
of
and
of
the
Processes
Study
Youth:
A
Improving Inter-group Relations Among
Chanqes to Curriculum. Including
issues of
race
Ou!comes
Facing History
and
Ourselves, at 2.
example
of such a program is Facing History and Ourselves ("FHAO"). This
"[e]xamine history in all of ils
program trains teechers to trust that students will benefit if they
complexities, including its legacies of prejudice and discrimination, resilience and courage."
One
http://www.facinghistorycampus.orglcampuslcanlpus.nsflnewbieaboutus.
See
of the effectiveness of FHAO shows "increased
Indeed, a study
maturity and decreased fighting behavior, racist
comparison students," The Group for the Study
University and Facing History and Ourselves, A
attitudes, and insular ethnic identity relative
to
Interpersonal Development at Harvard
Synopsis of the Research: Improving Inter-group Relations Among
Processes and Outcomes of Facing History and Ourselves, at 4.
of
Youth: A
Study of the
the Southern Poverty Law Center to
provide educators with tree materials that promote respect for difference and appreciationthatof the
diversity, offers many sample classroom activities online (tolerance.org). We recognize
School has used curriculum from Teaching Tolerance at least once in the past, and encourage
classes on a
to delve further into the suggested curricula by incorporating it into more
Teaching Tolerance,
a
program founded in 1991
by
you
regular
basis.
Student Development. Student training is a crilical part of any efforts to eradicate
training to
systemic discrimination in the schools. To help counteract the tendency for diversity
lessons
enable
the
that
skills
fostering
focus
on
go in one ear and out the other, some programs
National
example,
the
For
activities.
promoted to be carried back to mainstream school
leadership to end
Coalition E•uilding Institute (NCBI) strives to teach skills that provide influential
See
discrimination, reduce intergroup conflict, and build multi-group coalitions.
be
http:llwww.ncbi.orqltraininqproqrams. Ideally, students (especially older studentS) should
in the
involved in formulating discipline policies as well as implementing them, as suggested
Records
Act
Public
the
to
article on peer mediation provided by the School as a response
requests.
noted above, one goal of any program should be to build trust both between
students, and between students and adults. Punishing children proportionately and consistently
for the same rule violations will enhance that trust. Children will learn that there are
Further,
as
Richard Anthony, Interim
Superintendenl
October 3, 2006
Page
10
which will be empowering for
consequences for their actions, but those consequences are fair,
them, because they will learn that by controlling their behavior, they can help control whether (or
children
and how much they are punished. To that end, staff should avoid labeling individual
"trouble-makers." Instead of teaching 'children to trust authority figures, it
races of children) as
teaches them that no matter wha• they do, they will no• be trusted or respected by those
authority figures. This should not be countenanced.
work of
Increase Parental Involvement: BUESD should view parents as allies in the
should
educating children. To that end, policies and other documents given to parents well reflect
involvement of parents, as
as the
that BUESD officials trust, support, and encourage the
sent
documents
of
all
Thus,
the
tone
school
climate.
goal of creating or enhancing a positive
out to
parents
parents
should empower
rather than
disempowering
them.
benefit from close working relationships
in the
with local organizations. In particular, BUESD is fortunale that it has a wonderful partner
Indian Education Center, particularly on issues of diversity and cultural awareness.
Communitv Involvement: BUESD
Increase
can
Student Handbooks. We received only one parent and student handbook, the Bishop
Elementary School Handbook for academic year 2005-06. The handbook makes no reference
relating to discrimination. We
to •he School's anti-discrimination policy or complaint precedures
explanation
suggest the School's handbooks include these policies with an easy to understand
phone number of the
of the method by which complaints can be lodged, including name and
The anti-discrimination policy should protect
person charged with addressing such issues.
define the key terms such as discdminatioh
persons of any race, gender or sexual orientation,
from
and harassment, and provide a mechanism •o protect those reporting alleged violations
retaliation.
_Summar
ested Ste
of Su
s
In summary, to address the substantial racial
procedures,
disparities
in the School's
disciplinary
recommend taking the following steps:
we
1.
Remove the SRO from the School
2.
Create
an
a.
Defining "success"
b.
Developing
i.
foster
a
positive
and
as
including
staff
through:
school climate
emphasizing proactive
Encouraging
1.
and open school climate
and
preventive
measures
development through:
Providing training
to slaff
on
the School's
policies
such
as:
Richard Anlhony, Infedm
Superintendent
October 3, 2006
Page
11
Providing programs
2
diversity
of cultural
that will enhance staff's understanding
issues. These trainings should include:
discussions with staff about why it is important not
to discriminate against students, particulady in the
context of discipline
discussions about th• historical context of
discrimination and harassment
3.
4.
Creating clear
and consistent
responding
problems
accountability by lying teachers'
Create
overall
and administrators'
of anti-
evaluation to the implementation
discrimination and harassment policies, including ensuring
that
Encouraging
1.
to
policies regarding
discipline comports
student
legal requirements
with all
development through:
Integrating conflict
into the day-to-day
resolution and cultural diversity training
lives of students, including in the
curricula
2.
Empowering
and
implementing
bullying
participate
in
programs addressing peer
formulating
harassment,
and other mistreatment
Utilizing programs specifically designed
additional support to students of color
3
iii.
student groups to
to
provide
Ensuring that students and their parents know the School's
policies by improved parent/student handbooks, which include:
1.
A statement of the School's
anti-discrimination policies and
procedures
parents
2.
Explanation
3.
A statement that the School
of how
or
students
can
lodge
complaints regarding discrimination or improper discipline,
including contact information of those designated to
resolve such complaints
complaints
addressed
and that any
prohibits
alleged
retaliation for
retaliation will be
filing
Richard
Anthony,
October
3,
Page
Interim
Superintendent
2006
12
iv.
Maintain data
and
v.
regarding discipline
in
a
form
disaggregated by
gender
Building relationships
teachers, parents and
between and among administrators,
local institutions such
as
the Indian
Education Center
at 415.442.1312 or the undersigned at
time when we can discuss this matter fur[her.
Please contact either Nicole Diller of
Morgan Lewis
your earliest convenience to arrange
a
cc:
Nicole A. Diller,
Morgan Lewis & Bockius LLP
race