Individualized Suspicion - Where art thou?

Well, our little hot streak of educational law news continues today. A whole class of students in Kentucky was patted down and asked to remove their shoes and socks after an envelop containing five dollars went missing from a teacher's desk.

Okay ... quick quiz. What is wrong with this search?

The first thing that probably comes to mind is that the intrusiveness of the search was not justified given the amount of money in question (see a similar issue from the 9th Circuit that the Edjurist is following here). Well, that is probably right, although it is a judgment call based on the expectation of privacy (see arrows below). In the actual event, the school in Hopkinsville, KY did have a policy that stated that physical touching of students for searches was only permitted if students were threatened and the four teachers that conducted the searches were given written reprimands.

But, what else was wrong with that search? Something more fundamental ... yeah, individualized suspicion.  Teachers too frequently forget this vital component of 4th Amendment law, as articulated by New Jersey v. T.L.O. When a teacher wants to search a student, she typically must have an individualized, reasonable suspicion that the individual student (or student's possession) you want to search contains the item you are looking for.  Blanket searches like this one in Kentucky are almost always unconstitutional unless there is a pressing and imperative reason to do so. Such reasons where blanket searching can be constitutional is where students are in immediate danger. So, if the $5 were a gun, sure, that would be reason enough to engage in a non-individualized blanket search. But, given it was only $5 and no students were in immediate danger, the appropriate thing to do would have been to conduct an investigation, get an individualized, reasonable suspicion, and then search individual student(s) as necessary. I see way too much blanket searching in schools and I know we are violating the 4th Amendment way too often in that regard.   

I just gave a presentation at Franklin College last week on Teachers and the Law, and here is the slide I used to teach this issue. It may be a helpful reference for teachers and professors on this subject.

Democratic Debate sans Education

I watched the last (perhaps) Democratic primary debate last night. I am interested in the election generally, but over the past few weeks I have been noticing that education seems to be taking a back seat. Education was not a huge topic in the first democratic debates of the season (there have been 20!), but it usually made it into a question or two. In the CNN/YouTube debate, if I remember right, there was even 4 questions related to education.

But last night, there was a grand total of ... zero. In fact, I can't remember a question related to education since it was down to Sen. Clinton and Sen. Obama (the last 3 debates) and I can't specifically remember a question on education when it was down to 3 (including Sen. Edwards). Now, on occasion, the candidates have interjected a small element of education policy into their answers (Obama's merit pay for teachers or repudiating NCLB have come up a couple times recently) but largely the topic has been forgotten. I don't know if I consider that a bad thing (I am a big supporter of state's rights in education as regular readers know), but it is worth noting because it indicates either 1) the democratic candidates don't have recognizable differences on education (likely) or 2) education is not as important as some of the other issues in the mind of the candidates and the media (also possible).

We'll see if this changes in the general election debates when there should be real differences between the candidates (Sen. McCain has finally listed Education as an issue on his website), but as of now education is not getting much play. Of course, this all is ironic because education is likely the first major domestic policy item that any of these candidates will have to address in their presidency as it is more than likely that NCLB reauthorization will wait until after the election and be a first 100 days issue.

If you have an hour and a half to spare, you can watch the whole debate from last night below (it was mildly entertaining - mostly because Sen. Clinton seemed frustrated about everything).

UPDATE: Apparently, I was not the only one that noticed. BoardBuzz has Wendy Puriefoy from PEN, with an editorial to the same effect in the USA Today.

It Comes in Waves Sometimes

Well, just a day or two ago I was thinking to myself how quiet it has been on the educational law news front. I should have known better. I have been blogging for a couple years now and one thing I have learned is that educational law news comes in waves sometimes. It seems to be heating up the last couple days ... in fact, you could say its on fire... because also up on the DrudgeReport today is the story of a Connecticut student setting her teacher's hair on fire . The teacher is okay and it only singed his hair, but the student has been charged with several crimes as a result.

Kindergartener Suspended for Mohawk

A kindergartener in Parma, Oh outside Cleveland has been suspended for his Mohawk. The Cleveland Plain Dealer has the story and a picture. The school said the boy's haircut caused a disruption.

Andrew Paulson at BoardBuzz, um, sort of defends the school and attacks the parent.

Also, Jonathan Adler picked up the story and the comments at the Volokh Conspiracy are sort of funny. But, some of the commenters have a point. A lot of people these days are sporting Mohawks (it's not my taste, but hey, I am sort of a nerd anyway so who am I to speak to fashion). It is becoming (again) a part of society. No longer is it only the deviants of society that are sporting this look. Lots of athletes and musicians are doing it now (Sean Combs - Diddy - even sported one when he ran the N.Y. marathon for charity and just a couple days ago Greg Oden, the #1 pick in last years NBA draft, broke out his). The point is that school authorities have to be hip (sorry for the pun) to society - as least as much as they can. Society moves at a quick pace these days and stuff that was deviant two years ago is now mainstream.

Interesting Bill on Teacher Decertification in Washington State

There is a bill in the Washington State Legislature that would make it easier for schools to decertify teachers for various crimes, mostly related to child abuse. I read the bill and it is pretty standard stuff. So standard, in fact, that the Washington NEA associate is backing the bill. So, why did I put it on the Edjurist ... well, I just found this an odd statement in the Seattle Times Article:

Jarvis [Superintendent of Tacoma Schools] would like to see school districts required to report
problems with teachers, even if the problem is a "boundary invasion"
that likely would not get the teacher in legal trouble. He also wants
the state to allow school superintendents to file professional-practice
complaints against employees in other districts.

The bill would address these issues as well as broaden the list of
crimes for which a conviction can result in automatic firing and loss
of credentials.

So I investigated a little. Here is the section of the Bill that, I guess, would give them authority to report all such "boundary invasions" (only underlined part is new - I added the bold).

  9  Sec. 5. RCW 28A.410.090 and 2005 c 461 s 2 are each amended to
10  read as follows:
11  (1)(a) Any certificate or permit authorized under the provisions of
12  this chapter, chapter 28A.405 RCW, or rules promulgated thereunder may
13  be revoked or suspended by the authority authorized to grant the same
14  based upon a criminal records report authorized by law, or upon the
15  complaint of any school district superintendent, educational service
16  district superintendent, or private school administrator for
17  immorality, violation of written contract, unprofessional conduct,
18  intemperance, or crime against the law of the state. School district
19  superintendents, educational service district superintendents, or
20  private school administrators may file a complaint concerning any
21  certificated employee of a school district, educational service
22  district, or private school and this filing authority is not limited to
23  employees of the complaining superintendent or administrator.

Boundary invasions, of course, means something different to me than "immorality, unprofessional conduct, or intemperance." I certainly understand the idea the superintendent is referring to and I am not against calling teachers out when they cross the line, but it seems to me that boundary invasions can be interpreted pretty broadly (so broadly that if this actually was part of the bill I really would be shocked to see the WEA back it). In fact, the superintendent in his quote even specifically says he interprets this bill as giving him the authority to report incidents that would not have legal implications (something beyond immorality, unprofessional conduct, or intemperance, I assume). In fact, it appears to me that superintendents have no additional authority to report teacher boundary invasions under this new bill - which is pretty much directly contrary to what the article says. Luckily, the term "boundary invasions" was not included in the law and will not be considered by judges in hearings after teachers are fired (although that is not to say ill-informed superintendents might not mess with a teacher's career before it gets to court), but this is a good lesson on 1) how school leaders interpret legislation and 2) how the media chooses to report such interpretations as fact, even when such a simple task as reading the bill would have told them otherwise.

NY Investigation of School Lawyers Expands Across Long Island

Oh boy. The New York Attorney General Andrew Cuomo has caught wind of the school attorney scandal in a few districts on Long Island (see my earlier post) and is now requesting records on payments to school attorneys from all school districts across Long Island, reports Newsday and the ABA Journal. Newsday uncovered additional attorneys that have been on multiple district payrolls and this has triggered a systemwide investigation.

This could get ugly quickly, I am afraid. Certainly I support Mr. Cuomo's investigation and lawyers that were improperly billing schools should absolutely be punished (disbarring seems a likely and justified outcome). But, this could easily turn into a witch hunt. How nice for a politician to claim that they are protecting your children by eliminating the nasty lawyers that steal their money. Makes for a real nice headline, doesn't it. I certainly support this investigation and I am really looking forward to the data it will generate on legal usage by school districts, but I just want to point out that this could be the start of something really ugly if this spreads across New York and into other states. Schools, communities, and lawyers already have a tenuous relationship. Already I get suspect looks from school leaders when they find out I am an attorney. A national scandal like this could easily become would really harm the work that I and others across the country have been doing over the past few decades to strengthen those relationships. The fact is we need school boards, school leaders and school attorneys working closely together in the operation of schools and the better the relationship between those entities is, the better off the school system and our kids are. Let's find and punish those that did wrong, but let's not start with the supposition that every school district attorney is corrupt. It seems to me that Mr. Cuomo is not very far away from that supposition with this investigation.

Puerto Rican Teachers on Strike - Yeah, the Whole Island

Teachers across Puerto Rico are on strike. Because of their centralized education system (in which strikes are illegal) collective bargaining decisions are made at the state level; so, the strike is an Island-wide, illegal strike by the FMPR, a 42,000 teacher strong association. Their press release says that 26,000 teachers went on strike late last week and 85% of schools across Puerto Rico are not functioning property. The strike has even included a little violence as teachers were injured and arrested in clashes with authorities.

Cruz at Daily Kos has an opinion on the issue and a petition you can send to Puerto Rican authorities.

Anyway, it presents an interesting picture of what would/could happen if states moved to a centralized system for collective bargaining decisions instead of keeping the decentralized, local school board decision making system in place. As collective bargaining and teacher compensation become a bigger and bigger issue in the States, this is something to keep in mind.

The Restrictiveness of Student Speech Codes

There was an interesting back and forth between Thomas Sowell ( RealClearPolitics - their daily summary is one stop shopping for political articles) and Eugene Volokh (the Volokh Conspiracy - my favorite legal blog). The debate is over the relative restrictiveness of campus speech codes in schools, universities in particular. Not surprisingly, the debate started with Berkeley and their recent rebuke of Marine Corp recruiters. This event of course irritated conservatives (check out this Tucker Carlson tirade) including Thomas Sowell who had this to say:

Liberals in general, and academics in particular, like to boast of
their open-mindedness and acceptance of non-conformity. But they mean
not conforming to the norms of society at large.

They have little or no tolerance to those who do not conform to the
norms of academic political correctness. Nowhere else in America is
free speech so restricted as on academic campuses with speech codes.

In response, Eugene Volokh said:

I have often criticized campus speech codes -- but I think we need
to put them in perspective: Speech on campuses (at least outside graded
class projects, which necessarily must be evaluated based on their
content) is generally far more free of institutional punishment than
speech in many other places.

The obvious example, which probably affects about ten times more
people than do campus speech codes, is restrictions on speech in
workplaces. In most workplaces (again, university workplaces are in
some measure something of an exception) speech is quite seriously
restricted.

...

We notice campus speech codes, I think, in part precisely because
student speech is otherwise so generally protected, both at public and
private universities. In my experience, academics -- certainly
including liberal ones -- are actually quite tolerant of a wide range
of criticism, and generally speaking wouldn't try to restrict the sort
of speech that is routinely restricted in workplaces (again, consider
most criticism of the institution or even of named faculty members).
Against this decades-old tradition of broad student free speech, the
restrictions on allegedly racist, sexist, anti-gay, and similar speech
stand out as exceptions. I'm glad they stand out, and I'm happy to
condemn them as generally unconstitutional (in public universities) and
generally improper (in all universities). But we shouldn't let these
exceptions blind us to the broader rule, and view campuses as unusually
speech-restrictive places, where in reality they are quite
speech-protective places.

 
I certainly have to agree with Eugene here. You can attack schools and universities for being a lot of things, but overly restrictive of free speech probably isn't one of them. How many business do you know that set up and area on their campus for daily protests? How many businesses do you know that would allow employees to wear Korn and ICP other t-shirts (sorry that was the popular t-shirt to wear when I was in the classroom, it may have changed by now). The point is that student speech, while sometimes not as protected as adult speech such as in K-12 schools, is generally not as restricted as speech in other places, such as the workplace and now even public workplaces under Garcetti. You can make the argument that academic institutions are too liberal, but to say that such liberalness has become legally restrictive of conservative views is a bit too far.

English Language Learners & Litigation

One of the biggest challenges facing schools today are English Language Learners and the increased attention this group has received under NCLB. Next to special education, the English Language Learner population is the AYP subgroup most frequently responsible for schools being classified as in need of improvement. Not that these students should not be receiving special attention, because they should and the disaggregation of the ELL data under NCLB has really been a help. But, integrating these students and still meeting federal accountability demands has been particularly troublesome for school leaders as they try to keep their schools in the AYP passing column. .

Well, this issue is now at the center of a controversy between the federal government and Chicago Public Schools. In their latest filing in an ongoing desegregation fight, the Justice Department claims that CPS was not providing native language instruction to ELL students.

On Feb. 16, the Department of Justice unleashed its biggest filing
to date -- a motion and hundreds of pages of exhibits accusing CPS of
violating agreements involving "English Language Learners'' who must
receive certain services in their native language under the decree.

The latest motion contends that last school year, close to 3,000
children who were still learning English did not receive required
services, or were given inadequate or untimely service. CPS has been
aware of the problem since a 2002 analysis, but since then, the number
of such children has grown, the motion contends.

Continue Reading ...

The English Language Learner aspects of No Child Left Behind is where we are going to continue to see increases in litigation as schools try to navigate the requirements. While under the current laws I don't think ELL litigation will ever rival the volume of special education litigation, it is going to become a larger and larger specialty of educational law.

Two Million Minutes: A Global Comparison

A new documentary, Two Million Minutes, is starting to get a lot of play. It follows the high schools years of students in India, China, and Carmel, Indiana (a rich Indianapolis Suburb). The movie has been released and I ordered a copy today and will report back when I watch it, but here is the trailer for the movie:

Also here is an ABC News Interview with the Authors (Sorry about the Advertisement) and below is a local news story on the documentary:

Also, for those of you that have not seen it yet, here is a link to Did You Know (I) and Did You Know 2.0. I think the Did You Know Series will wind up being the Nation At Risk of our time, so it is sort of important that you begin paying attention to the issues of globalization and education. Anyway, I will report back a few days from now on the movie and with some more thoughts on globalization and education.

And This is Why We Get a Bad Name ...

So, this is why we lawyers get a bad name. A school district lawyer in New York has been suspended from his law firm and is under investigation for being employed by multiple school districts as well as law firms as outside counsel. Apparently, he was hired as a full-time employee in five separate school districts at the same time and the ABA Journal reports he was credited with working 1,286 days in one year.  So ... yeah, not good.

One thing I have been seeing more and more of lately, though, are attorneys being hired as actual district employees, as this fella was. Used to be that only some of the largest districts in the country employed General Counsels, your Chicago's, LA's and whatnot, and everyone else just retained law firms. But, now many medium sized districts are beginning to employ an attorney as part of the district leadership team. This is something new and does warrant some investigation. What are these attorneys at these medium sized districts doing? How are they prepared for this job? Are they working for multiple districts (preferably under agreements which reduce their time for each instead of what this New York guy did). Just how much influence on the decisions of the district do they control? These are all questions that I am not really sure we have answers to at the moment and for any of you young edjurists out there, this would make a really nice study.  We need to get our head around this issue of K-12 school district general counsels. It is becoming a large enough pool of individuals that we need to start examining them more in depth. As long as we are blind to this issue, there will be more room for shady individuals, like this one in New York, to game the system.

Paying for Term Papers

Well, my infatuation with AfterEd continues. In a new video, they look into the term paper industry. (Here is the transcript of the chat).

Couple thoughts. First, I am highly, highly concerned about this type of activity in educational leadership programs. Although I don't have any research to cite, the anecdotal evidence I have heard from many professors in educational leadership programs raises alarms. I have not heard a professor tell me that they had students actually purchase a completed term-paper online (although as the video shows, adult students in education programs are a large percentage of the online term paper market), but I have had professors tell me that many of their students pay to have their research done for them. We are not just talking about computing the math, we are talking about actually paying someone to find something interesting in a dataset that is dissertation worthy and then run those numbers and transfer that completed analysis to the student, who then writes it up in text form and turns it in. I have actually heard accounts like that from multiple sources to the point that at some places it is the expected norm in dissertation writing. Obviously, highly concerning.

Second,  again, I just want to continue to point out that there is a difference between plagiarism and cheating. Buying a term paper online is not plagiarism, it is cheating (and clearly academic misconduct). While their continues to be some debate about how to catch and punish plagiarism, there is no debate that cheating should be punished or how we catch it. Online sites like TurnItIn are really not designed to catch cheating, they are only designed to catch plagiarism. The only way we can really catch cheating is to have engaged teachers. The idea of someone else doing your homework for you is not really new -- this has been happening for hundreds of years. Our only line of defense against this type of misconduct are engaged teachers that know students and their work and intuitively know when something is not right. While technology may make it easier for students to cheat, it does not change the teacher's job.

Publishing 2.0

Check out this interesting vote by the Harvard University Faculty of Arts and Sciences. Basically, the move is designed to subvert the copyright power that scholarly journals have to limit access to scholarly research only to paying customers. This move allows professors and researchers on the faculty to post much of their research online, freely available to worldwide audiences. Cool, right? Here are the concerns. First, it takes money to pay editing staff. Most of the top journals employ editors (some journals don't). To keep these editors employed the journal has to make money somehow. Also, there is some concern that academics just publishing their work online without peer review will affect the quality of the work. These are legitimate concerns.

Here is the solution (or at least one possible solution) ... electronic, peer-reviewed journals. Keep the peer-review because it really is a decent way of ensuring quality, but put it online for free. If a journal needs to make money on it, do online advertising. If your journal really is that important and well read it should generate enough online advertising revenue to pay a staff. Heck, this might even force academic journals to be more creative ... for instance, instead of just dry black and white letters on a page, how about posting a video of an interview done with the authors? There really is a whole world of media possibilities that are currently not being employed that could be possible in an online format. The point of academic research (at least from this researcher's perspective) is to make a difference in the world, however small. Usually, the best way to do that is to get as many people to read your journal as possible. Andy Carvin at Learning.Now thinks this is the shot heard round the world signaling the beginning of Publishing 2.0 in the academic world. I tend to agree with him. 

One more push for NCLB Reauthorization before the Election

The rumors are starting to swirl again on NCLB Reauthorization. It seems Sen. Ted Kennedy and House Education Committee leaders are interested in giving NCLB Reauthorization one more push in the coming months before the election. While many still feel it is unlikely, including myself, Sen. Kennedy has amazed in the past and given his alliance with Sen. Obama, the possible Democratic nominee may not stand in the way if Sen. Kennedy wants to push forward. Certainly it seems that Sen. McCain would likely not stand in the way as education reform is not one of the central issues of his campaign and does not even appear as an "issue" on his website. The candidate most likely to stand in the way of any reauthorization effort is probably Sen. Clinton as she has been especially critical of Sen. Kennedy and NCLB (even thought she voted for it). So, depending on how the Democratic nomination fight plays out, reauthorization may be a possibility.

Personally, at this point, I would rather see it wait for next Spring. I know there is value in making changes as soon as possible, but I would rather the new leadership in the Whitehouse have a chance to make a big change in education policy rather than just tinkering with the existing framework. If we wait, just as with President Bush, the new president will have a chance to make education central to their domestic policy agenda goals in the first 100 days and I would look forward to that national conversation instead of the likely backroom deals that will be necessary to pass reauthorization in the next couple months.

We'll see what happens and there is no reason yet to get excited about reauthorization, but keep an eye on it especially if Sen. Obama and Sen. McCain are the nominees.

The Other Side in Educational Law: College President Removed in Religious Dispute

Perhaps a question I get asked more than any other by educational leadership practitioners is where to draw the line between following the black letter of the law and following the wishes of the community when they don't conform with the law. Of course, as a lawyer, I would never (or at least close to never) advocate a school leader disregard the law. The law is but a democratic expression of the people's will and as such does represent the views of the community in itself. But, occasionally, the views of the narrowly defined community (your local district) conflict with those of your more broadly defined community (the nation or state). Well, that seems to be the case at the College of William and Mary where the president of the university has resigned over a controversy surrounding his ordered removal of a cross from the college's chapel ( William and Mary is a public university). Here is some commentary from Hannity and Combs which introduces you to the story:

I am not going to weigh in on the controversy, but the point is that at some time in their careers every school leader comes face to face with the line between legally correct and socially correct (as defined by their employers, school boards or boards of trustees). This university leader was faced with such a decision and decided that as a lawyer, he would side with the law. I respect his decision, but the decision did not come without consequences and the ultimate consequence for any school leader is removal from their job. The question of crossing the line is not one easily answered and requires as much internal political and ethical considerations as it does black letter law considerations and it is a question I cannot answer for any student or school leader. Suffice to say that this is one of the many perils of leadership in a democracy and the kind of decision our school leaders need to be prepared to make when they leave our leadership preparation institutions.

A Little on Leadership Preparation and Employment (While it Lasts)

It's not very often that my little group of researchers on educational leadership preparation makes the news, so when they do, I want to point it out. Ed Fuller, who works for UCEA at the University of Texas, is quoted in an article in the Austin-American Statesman, and his research on principal movement out of the profession is presented in the article. Here is a bit of the article:

School districts nationwide are finding it harder to hold on to
principals as standards get tougher and the list of demands from the
state and federal governments gets longer.

Statewide, high turnover is particularly apparent in high schools.
About 61 percent of high school principals leave their schools or the
field within three years; by the fifth year, that figure increases to
76 percent. Austin's turnover rates are slightly higher: 64 percent
after three years and 82 percent after five years.

The district's annual high school principal turnover rate
is just over 25 percent, a figure that is on par with other urban
districts, where yearly turnover tends to average 18 percent to 25
percent.

When the principalship is a revolving door at a school, experts say,
it trickles down to teacher retention efforts and school reform
initiatives, which have vast implications for a district like Austin,
where the 11 traditional high schools are in various stages of reform,
with middle schools soon to follow. Local changes have included
redesigning high schools to resemble colleges.

"We know that school reform takes time — much more than one year's
time," said Ed Fuller, associate director of the University Council for
Educational Administration at the University of Texas. "If a principal
leaves within three to five years, the principal's vision for reform is
left incomplete. Over time, teachers become jaded and simply ignore the
reform effort. ... Teachers believe the principal will leave and all of
their efforts will be wasted."

More pressure

The accountability system has changed expectations.

"While principals put stress on teachers to improve outcomes,
teachers often do not lose their jobs over low accountability ratings,"
said Fuller, who has analyzed cumulative state turnover rates.
"Principals do."

I am not going to go on a whole expose on this topic (believe me I can - here is a link to my Indiana study), but I do think there is something significant developing here. Ed's point that principals are under increased pressure to perform under the accountability standards and that that may be contributing to the increase in principal movement is a very good one. I just had a meeting with a state official last week that reiterated this point to me that it is the principals and the other school leaders that are the easiest to change when schools do not perform. The state official and I talked at good length about what to do about it and we both suggested possibilities (there is a greater role for universities here), but the fact of the matter is that when a team is losing it is always far easier to get rid of the coach than it is to change the players. This is probably just a developing fact of life for school leaders in the future. There are lots to ways to help alleviate this reality and the article mentions some, but it is probably a developing reality in the accountability age. Sometime to think about for all you aspiring principals out there.

New Award for Students Writing in Educational Law

Just wanted to pass along word that the Education Law Association has announced a new award for students writing in educational law: The George Jay Joseph Education Law Writing Award. The award is in conjunction with the Journal of Law and Education and the winning entry will be published in that legal journal. Essentially, any student (law or education) studying educational law will write a 35-55 page article (with footnotes in BlueBook) that is not under consideration elsewhere. If you win, you get the article published, free attendance at the conference where you will present the paper, a plaque and the vita bump (no real $$$, but the other stuff is worth quite a bit). People interested in Ed. Law should attempt this because it is a good way to get a publication and a good deadline to help you do so. Even if you don't win, there are other educational law publication opportunities the paper may work in or you can always publish it at the Educational Law and Policy Forum at Georgia. This is a good opportunity and I hope a lot of people take advantage of it.

For more details, I made a pdf of the award announcement because I did not see it on the ELA website.

Blogs on the Rise

As I mature in my blog use, I try to keep up with research on the increase of the use of blogs in the law. Well, the Law Librarian Blog has posted some statistics on the increase in the citations to blogs in Law Reviews. I know some of my readers are legal bloggers themselves, so keep up the good work. We are beginning to have an impact not only on the teachers and administrators that read our blogs regularly, but we are also beginning to enter the mainstream legal literature.

Hat tip:  The Adjunct Law Prof Blog

False Imprisonment: Teacher tapes student to chair in Chicago

Well, it continues to happen. When I teach intentional torts and false imprisonment to my
students I can see them sitting there thinking ... who would ever do
anything like that to a kid? And I tell them, you know, it happens all
the time (unfortunately). Well, a rookie teacher in Chicago taped a special education student to a chair using masking tape -- and was fired, of course.



I
can't help but think this is exactly the type of incident that could
have been prevented had the rookie teacher had educational law in her
pre-service preparation program. Clearly, any teacher should know that
it is wrong to tape a kid to a chair. But, teachers that have taken
educational law know why it is wrong and know how they are liable.
There is less debate in their mind concerning the legality of their
actions. I
understand that pre-service teachers need lots of classes to get ready
to enter the classrooms, but seems like a class that clearly informs
teachers of
what is legally right and what is legally wrong and why, would be a
good idea. There is a reason we have laws against these things, but we
are just assuming that teachers will miraculously know this on their
own. Why are we doing that? We could make a lot of little things like
this go away. Not all of it, but a good deal of it. I am tired of
reading about this stuff in the papers.



Crossposted At the Schoolhouse Gate

Thoughts on Misconduct and Police in Schools

I just wanted to point you all to a thoughtful post at Teaching in the 408 on police patrolling in schools. TMAO reflects on the first year of the police presence in his school. I am going to post a lot of it here (with my thoughts after) because I want you to read it, but do me a favor and click over into his blog and finish it. I think a lot of my teacher-readers will really like his blog.

The myopic, seemingly p.r.-driven decision was made to install police
officers on middle school campuses this year. About this atrocity, I wrote:

When
you bring an officer onto campus, you undermine [the teachings of
inclusion and full adult control]. Rather than sending the message to
kids that adults expect your best and are fully in control of the
school environment, the patrolling presence of police sends the message
that we expect your worse and are not in control. Rather than sending
the message that you will do the right thing because strong, successful
people do so naturally, we are sending the message that you will do the
right because we will punish you otherwise. We once used the phrase family to describe the school environment we sought to create. External controlling agents are no part of any family
I know. Instead of kids hearing a message of inclusion and warmth, one
that softens that self-defeating mantle of hard so many reach for, we
are sending a hardening message that this is a place for thugs, a
ghetto place where the kids are so bad actual armed police officers are
needed to ensure control.

Every word of that has been
born out and proved accurate this year. Every word has been driven home
not only by the presence of the police, but through the actions of an
unsettled first-year administrator, who has consistently and
obstinately brought a police presence into areas of school function in
which they can serve no beneficial purpose. This isn't even about the
absurd rate of suspension, the removal of dignity in discipline
situations, or just the daily unpleasantness that has arisen on campus.
This is about how the police have been used to undermine and chip away
at the very core of what it was that made our school a successful and
special place.

This year, officers have been brought into
discipline scenarios time and time again in defiance of our norms,
understandings, and wishes, but apparently in compliance with the
wishes of district leadership. The inclusion of police represents a
continued gross escalation and over-reaction. We're not talking about a
kid selling drugs or using a weapon in an assault. Those are crimes.
Our kids are being put into the system, cited and arrested over actions
that, while unacceptable, are nevertheless not criminal. A playground
fight is not a crime. Yelling things at someone is not a crime. Being a
jerk to a 6th grader is not a crime. Having a Sharpie in your posession is not a crime.

Students at my school have received citations and court dates for all these actions.

It's
awful. We do not need more black and brown kids in the criminal justice
system. We do not need kids with booby-trapped cumulative files, rigged
for explosion the first time they step out of line, because suddenly
it's a pattern and a repeat offense. We do not need to set so many kids
up for failure in navigating legal whitewater (as if it's so out of the
realm of possibility that we're handing out court dates to families who
lack the money, social capital, immigration status, or plain
with-it-ness to get themselves through something like that in an
acceptable way). We do not need to function this way to have an
orderly, safe campus.

This is what we do now. Kid gets sent to
the office, there's almost no chance they escape interaction with a
police officer, no matter how piddling the offense. Citations are
written at such a mind-boggling rate that teachers have been told
officers are too encumbered with paperwork to remove trespassers from
campus. I hate it. I see the reliance on, and the acceptance of, a
police role in routine matters of discipline and I want to vomit. But
this is what we do now.

This is never what we have done.

Continue Reading ...

These are very legitimate points and something I struggle with in teaching ed. law. Just because you can legally have police in the hallways, doesn't mean it is a good idea everywhere (or possibly anywhere). I also think Kilian has a good point regarding the role of the administrator. I don't know the situation in question so I am not going to speak specifically, but the reason we give administrative discretion to administrators ... is to use it. We (and the law) want administrators to use their judgment. I think when some people think of the law, they think of cut and dry and black and white. Commit offense X and there is a 3 step discipline process ... kind of thing. That is not really accurate. The law actually builds quite a bit of discretion in the system on purpose because we want educators to use student discipline as a way to help students learn. Ninety-five percent or more of student discipline is fairly innocuous. When student misbehavior arises to the level of a crime, I agree the police should be involved. But, otherwise, the primary purpose of the discipline is to help the student learn. Police, and most of the criminal justice system, are not trained for the purpose of learning, especially student learning. So, why are they there?