Criminalizing Kids

Published — October 14, 2015 Updated — November 5, 2015 at 4:14 pm ET

Virginia moves forward on school discipline reforms

Charlie Archambault for the Center for Public Integrity

State actions follow Center stories on harsh punishments for minor misbehavior


Oct. 14, 2015: This story has been updated.

In response to troubling revelations of harsh school discipline for seemingly minor indiscretions, Virginia officials have begun an effort to retrain educators and school cops statewide and craft a new “template” for school-police agreements limiting police intervention in behavior problems.

In April, Virginia Gov. Terry McAuliffe in April asked members of his cabinet to recommend action after a Center for Public Integrity investigation found that Virginia schools were collectively referring students to law enforcement at nearly triple the national rate—based on an analysis of U.S. Department of Education data collected nationally from schools.

The Center also examined individual cases and local Virginia police records in concluding that thousands of students—many of them in middle school—were sent into the criminal justice system by school police on charges of disorderly conduct, assault and resisting arrest.

The charges stemmed from behavior like kicking trash cans, yelling, using foul language, getting into schoolyard fights and attempting to break free from police officers who grabbed them. Last fall, an autistic sixth grader, Kayleb Moon-Robinson, was wrestled to the floor at his Lynchburg school, handcuffed and arrested for disorderly conduct and felony assault on a police officer. Kayleb had struggled with a school resource officer who grabbed him after the 11-year-old left class without permission.

“We agree this is a significant issue here in Virginia,” Virginia Secretary of Education Anne Holton told the Center in a recent interview that also included Virginia Secretary of Public Safety Brian J. Moran.

“The law enforcement referrals are clearly excessive,” Holton said, and “the gaps, the disproportionate impact on minorities and (special-needs students with) disabilities is unacceptable.”

Kayleb is both African-American and autistic, with high-functioning academic capabilities.

The Center review of federal and local data showed that black students and children with special needs, particularly, were disproportionately referred to police. Police intervention often resulted in arrests and appearances before juvenile probation officers or judges who imposed consequences that included mandatory community service and juvenile detention if kids violated any probation terms.

A new direction

Holton and Moran said parts of an initiative they now call “Classrooms, not Courtrooms” were already getting underway when the Center report was published. But Moran said that the Center’s findings about the charges levied against kids and Virginia’s high rate of referrals to law enforcement “brought a lot of focus and, frankly, momentum” to hasten reforms.

A public defender in eastern Virginia told the Center that she had middle-school clients slapped with multiple charges for disruptive behavior at school. A 12-year-old girl who got involved in a fight, for example, was charged with disorderly conduct, resisting arrest and obstruction of justice—for clenching her fist at a school cop.

The new cabinet-level effort aims to decrease out-of-school student suspensions of students as well as arrests and entry into the court system.

The initiative, Holton said, involves organizing federally-funded training to schools in “positive behavioral” techniques that research shows are effective at improving children’s conduct and engagement at school, if “faithfully implemented.”

Holton and Moran also said that Virginia public-safety officials will be organizing joint training for school administrators and school police officers so both groups are aware of the dangers of criminalizing kids unnecessarily and know what their responsibilities are—including using counseling and other alternatives to having kids arrested and prosecuted.

“The problem here is not a kid walking in (to schools) with a gun,” Holton, a former juvenile judge and defender, said. “The numbers are being driven up by disorderly conduct.”

Moran, a former prosecutor and Virginia legislator, said he’s strongly in support of keeping kids out of the criminal justice system with school-based alternatives as well as community-based services.

“Once a kid gets into that (criminal justice) system,” Moran said, “you can get a judge on a bad day, you can get a prosecutor on a bad day, you can get an incompetent attorney. Once you’re in the system, the likelihood you’re going to stay in that system is great.”

Kayleb, the autistic child, has appeared in court multiple times and his case is still pending. He has been told he could be sent into detention if he gets into more trouble.

A troubling history

Virginia mother Joyce Lofty of Amherst, Virginia, recently contacted the Center to discuss her special-needs son, now 18 and in private high school, and his history of being accused of crimes at school.

The African-American student has had periodic trouble with public schools in her area ever since he was in elementary school, she said. In the fall of 2006, school and police records show, Lofty’s son was only 9 years old and in 4th grade when he was charged with assault and battery on a special-needs aide.

“Student displayed physical aggression towards a day treatment staff member by grabbing her around the wrist,” a school report says. “When told by office personnel to stop beating his fist on the table” the child said “hush your mouth.”

Lofty told the Center her son had been struggling to keep some markers he was first allowed to keep and then told to relinquish. “He didn’t understand what was going on in court. What child does at that age?” Lofty said.

Lofty said the judge put her son on probation for a year. The experience, she said, had a deeply debilitating impact on a boy already wrestling with special needs, and he later had to go to court again.

Amherst school officials did not respond to a request for comment. Local media in Virginia, however, recently reported that in 2014 a confidential discrimination complaint was filed with federal education officials about an Amherst student charged with assault. Officials with the U.S. Department of Education’s Office for Civil Rights investigated, and on Sept. 15, Amherst school officials signed an agreement to “examine the root cause of any racial disparity in the discipline of students” and take corrective action. The agreement requires a “comprehensive review” of school resource officers and every incident in recent school years when officers became involved in disciplinary problems.

Amherst County Public Schools superintendent Steven Nichols told the News & Advance newspaper in Lynchburg last month that he’s “taking a very positive approach” and “taking this seriously, to look at how we discipline children across the board.”

(Update, Oct. 14, 1:55 p.m.: Nichols contacted the Center on Wednesday and said he is unable to comment on individual cases because of student confidentiality laws. He said that school resource officers are “there to address violations of law. They are ‘invited’ into situations where a violation of law appears to have taken place; otherwise (incidents) are handled purely by the school.”)

In response to Joyce Lofty’s story about her 4th grade son in Amherst, Holton, the state education secretary, called the prosecution of a 9-year-old “crazy.”

Following the Center report last April, representatives with the Virginia PTA and the Virginia Legal Aid Justice Center urged the state to pursue mandatory training for school police and agreements, or memoranda of understanding, between school districts and police.

Moran, the state public safety secretary, said he supports pursuing reforms through persuasion because police departments are not resisting overtures for retraining. Holton said she and Moran will use their positions as a “bully pulpit” to urge schools and police to embrace reforms. They also have influence over state budgets that could lead schools to adopt reforms, she said.

Moran noted that some police departments have already enacted their own changes, including the Henrico County Police Department, which serves a populated region around Richmond.

Henrico Police Chief Douglas Middleton, Moran said, is now helping design and spread reforms for police departments statewide. As the Center reported, Middleton in July adopted new department guidelines for officers working in schools, as well as a new 40-hour training requirement emphasizing that police are not to get involved in routine matters of school discipline.

Holton said her department has already documented some “good news” reflected in data the state collects for its own measurement of discipline problems, violence and crime in schools.

The state collection includes a category known as “offenses reported to law enforcement,” Holton said. She said that while the category’s definition is not the same as the federal data category counting “referrals to law enforcement,” it does provide a window into trends. She said the most recent collection of state data, released in August, was for the 2013-2014 school year and showed a 14 percent decrease in reported offenses statewide in two years.

However, Holton said, like the federal data, the state data did not show a decrease in reported offenses that involve minority students and students with special-needs. “We have a lot more work to do,” she said.

Holton said her department will be concentrating on identifying “outliers” among districts to contact administrators and urge them to sign up for retraining and other help.

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