Criminalizing Kids

Published — February 25, 2016

Uphill climb for school discipline reform in Virginia

Three measures die in legislature but two other remain alive


Virginia legislators have rejected three bills crafted to limit school policing statewide, exposing a rift among GOP lawmakers, in particular, over a prominent criminal justice issue being debated across the nation. A pair of other related measures are still winding their way through the legislative process.

Republican assemblyman Dave LaRock has introduced bills that would have exempted students 14 or younger from criminal disorderly conduct charges at school or on a school bus, among other reforms.

Among the bills that failed this month was a Republican-sponsored proposal to bar police from criminally charging students 14 and younger with disorderly conduct at school or on school buses. Another proposal that faltered would have eliminated language in state code mandating that educators inform law enforcement of any incident that could be construed as a misdemeanor. A third bill would have prohibited expulsion or student referrals to law enforcement unless “feasible” alternative responses are first considered or if a student is found with a gun or other weapon.

Last year, the Center for Public Integrity found that Virginia schools, collectively, led the country in the rate at which they referred students to law enforcement agencies. National data showed that special-needs students and black students were disproportionately affected. A sampling of local police data in Virginia revealed that thousands of students have been arrested mostly for misdemeanor charges that critics say should be matters of school discipline, rather than crimes — especially disorderly conduct or simple assault allegations. In one jurisdiction, Chesterfield, more than half of 3,538 complaints police filed over three years were against students 14 or younger. Felony arrests for any age were comparatively few.

During a floor debate in the Virginia House of Delegates, Dave LaRock, a Republican representing parts of Clarke, Frederick and Loudoun counties, argued in favor of his bill, HB1134, which would have exempted students 14 or younger from criminal disorderly conduct charges at school or on a school bus. The debate between skeptics and supporters was posted on YouTube.

“This bill merely proposes that disruptive but otherwise non-criminal behavior of our children in the schools be handled by in-school discipline rather than courts and police,” LaRock said. “HB 1134…is very targeted. Current law makes it a crime to act up in school.”

Delegate Robert D. Orrock, Republican of Caroline and Spotsylvania counties, objected to carving out a schools exception.

“I think it sends the wrong message to our students. In spite of their young age of 14 or younger, the law is the law,” said Orrock, who is a Spotsylvania High School teacher. He said that “we shouldn’t be down here telling them that the law doesn’t apply” as long as students are on school grounds.

The Center’s analysis of national education data for the 2011-2012 academic year — the most recent available — found that in Virginia, the rate of student referral to law enforcement was about 16 per 1,000 students enrolled statewide. That was close to three times the U.S. average of about six referrals per 1,000. The Spotsylvania County school district — Orrock’s district — had an even higher rate of referral at 35 students per 1,000. Spotsylvania High School’s rate was 62 per 1,000.

Orrock did not respond to requests for an interview.

The Center’s story last year focused on Kayleb Moon-Robinson, a student in Lynchburg, Va., who is African-American and autistic—and was charged with disorderly conduct twice, as well as a felony, within three months of starting sixth grade.

Kayleb’s school police officer first charged the 11-year-old with disorderly conduct after he saw Kayleb kick a trash in the fall of 2014. Days later, the same officer grabbed Kayleb, who had left class without permission. Kayleb struggled and swore, and the officer handcuffed him and put him under arrest for disorderly conduct again as well as for a charge of felony assault on a police officer. The child has been in and out of court for months, facing the possibility of detention if he acts up at school again.

During the floor debate on LaRock’s bill, co-sponsor Jennifer McClellan, a Democrat representing the city of Richmond and parts of Henrico County, said that she’s been gathering examples of students “being held to a higher standard than developmentally they should be.” She said that a 13-year-old child in a school for students with special-needs was charged with disorderly conduct for failing to obey instructions, storming out of a room and banging on a keyboard. “He had no history of violence,” McClellan said.

“What this bill says is they should be handled through the discipline process — for young kids, who are going to act out,” McClellan said, “but aren’t criminals.”

Other legislators who opposed the bill suggested finding ways to reduce referrals without “blanket immunity,” or allowing for future review of the proposal before the House Committee on Courts of Justice. LaRock’s bill passed the House Committee on Education with a bipartisan 16-6 vote but subsequently failed 60-30 on the House floor. The Virginia School Boards Association came out against LaRock’s bill, but did not respond to Center requests for an interview.

In 2013, Texas legislators adopted a bill that prevents school police from issuing court summonses to students, at school, for “disruption” of classes or transportation, such as a school bus. However, officers can still file complaints with prosecutors.

Another LaRock bill, HB1132, also passed the House Committee on Education with a 20-2 vote, but subsequently died after being referred to the Committee on Courts of Justice. By amending state code language, it would have eliminated a requirement for school principals to report a range of incidents to law enforcement if they could be considered misdemeanors.

LaRock told the Center that he attended a dinner not long ago with members of the Prison Fellowship, a socially conservative religious organization seeking criminal justice-reforms. He was part of a discussion about Kayleb’s story, LaRock said.

“How did this 11-year-old boy in Lynchburg get charged with felony assault for what seemed such a fairly minor incident?” LaRock said. “I’m certainly glad I didn’t come away from school with a record that could have lasted long into my life.”

The third failed bill directly related to school policing was HB1061, by Lamont Bagby, Democrat representing parts of Henrico and Charles City County and Richmond. The bill would have blocked students, except those found with weapons, from expulsion or referral to law enforcement unless alternative responses to conduct were attempted. It passed the House Committee on Education 17-7 but was referred to the Committee for Courts of Justice, where it died.

A pair of other school discipline –related measures are still alive. The House of Delegates approved 95-2 a proposal by McClellan that would relieve school police officers whose positions are funded with state grants from responsibility to enforce school rules in addition to criminal law. The bill, HB487, has been assigned to a Senate public education subcommittee. Most school resource officers, however, are not funded by the grant program referenced in the bill.

Another bill that the House approved 99-0 would allow students facing disorderly conduct charges in court to submit special-needs behavioral assessments as part of a defense they did not act willfully. That proposal, HB1213, was sponsored by David Albo, Republican of Fairfax County. The bill is now before the Senate Committee for Courts of Justice.

After the Center’s story came out last year—along with a radio piece done in collaboration with Reveal Radio—some jurisdictions in Virginia began reforming local school-police agreements to explicitly keep officers out of disciplinary matters. Gov. Terry McAuliffe appointed cabinet members to figure out how to reduce unnecessary student arrests statewide. State officials also began a program to train school police statewide.

In July, the nonprofit Strategies for Youth group conducted training for about 80 school police officers in Virginia. The group’s organizers, who have trained school police nationally, said a short time frame allowed only for relatively deep training on adolescent brain development and the “traumatized” child brain. But the training did not cover the implications of learning disabilities, organizers said. Time was also too short and the group too big, they said, to effectively tackle the problem of “implicit bias” — meaning how children of certain ethnicities might be judged more harshly.

Lisa Thurau, executive director of Cambridge, Mass.-based Strategies for Youth, said the training was a “good start” but would be more effective with smaller groups of 30 to 40 officers. “To be effective,” she said, “these trainings must also address students with special education needs and the way students’ race is perceived by school personnel and officers.”

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