This article was originally published in The Notebook. In August 2020, The Notebook became Chalkbeat Philadelphia.
This story was produced as part of The Reentry Project, a collaborative news initiative about the challenges of — and solutions to — prisoner reentry in Philadelphia.
After learning about a 6-year-old autistic student who was put in handcuffs for biting his aide in 2013, Phoenixville parent Blake Emmanuel took action. Before she was through, a bipartisan legislative commission had investigated harsh disciplinary practices in schools and concluded that they negatively affect all students, but that children of color and those with disabilities are disproportionately affected.
Emmanuel knew there was a better way. She has an autistic son who bit his aide at age 7, but her son was treated differently. Special education staff at his school met with Emmanuel, altered her son’s behavioral plan to give him more breaks for exercise, and changed the rewards system in his Individualized Education Program.
As a result of the work that Emmanuel’s advocacy set in motion, the Pennsylvania legislature’s bipartisan research arm released a comprehensive report in October 2016 highlighting troublesome school discipline practices. And her state representative, Warren Kampf, a Republican, recently introduced legislation to revamp Act 26, the law that governs how schools define a weapon and what it means for a student to “possess” one. The legislation, referred to the House Education Committee in May, limits the ability of districts to use harsh discipline selectively. The committee has yet to take any action.
It is part of a trend away from “zero tolerance” and toward discipline that emphasizes trauma awareness, positive behavior supports, and misbehaving students’ emotional needs.
“There’s a lot you can do to work with a kid in a positive way that doesn’t put a kid in handcuffs,” Emmanuel said.
Emmanuel said she learned about the 6-year-old’s case through her work for The Arc, an advocacy organization for people with disabilities that also offers community services and programs.
“Two kids in different districts, and one ended up in handcuffs,” Emmanuel said. “I fear what is going to happen to my son, and he is not unique. There are so many children who struggle with similar things.”
The realization inspired her to start researching state and federal law, looking for answers.
“There are a couple of circumstances where a school has to refer [a student] to law enforcement,” Emmanuel said. “But outside of that, a lot of it came down to the administration’s discretion. Did the principal want to call the cops or call an IEP meeting?”
In 2015, she shared her research with Kampf. Over the course of the year, she brought him data. Parents from his legislative district told him their stories. She pushed for legislation.
“Kampf really jumped on board when I showed him the suspension data for preschoolers,” Emmanuel said. “If suspending 3- and 4-year-olds isn’t a red flag, I don’t know what is.”
Kampf agreed that the state needed to change these practices, and in October 2015, he introduced the resolution that ultimately created an advisory committee to the Joint State Government Commission, the legislature’s research arm. The advisory group, which included advocates, educators, and officeholders, collected data and studied disciplinary practices around the state. It wrote the report released by the bipartisan commission, titled Discipline Policies in Pennsylvania’s Public Schools.
The report notes that districts are given unnecessary discretion and recommends that the state clarify when districts are required to expel students, suspend them, or refer them to law enforcement. Under current state law, guidelines are vague and open to districts’ interpretation.
“Across Pennsylvania, we’re suspending high numbers of little kids for low-level offenses – almost all for misconduct, not for violent incidents,” said Deborah Gordon Klehr, executive director of the Education Law Center in Philadelphia.
She described one such incident several years ago in which the Philadelphia School District attempted to transfer a middle school boy to a discipline school after he picked up a broken pencil sharpener on the school playground while playing kickball. He handed it to his teacher before resuming his game.
Because the sharpener has a razor blade inside, officials considered it a weapon.
“They tried to transfer him to a disciplinary school for possession of a weapon, but there was never an allegation that he was trying to use it to hurt somebody, ” Klehr said.
The boy’s family sought legal representation from ELC to prevent the transfer.
Kristina Moon, a staff attorney for ELC working on the issue, said disciplinary action was the result of the language used in Act 26, which defines a weapon that can be reported to the police as any object “capable of inflicting bodily injury.”
Klehr said that because Act 26 is a “possession statute and not an intent statute,” the school doesn’t even have to prove that the student intended to use it. In her experience, she said, the definition can be applied to pencils and tweezers, for example.
ELC and other advocates want legislators to revise Act 26 to be more specific, so that school districts have clearer guidance on how to apply it consistently, fairly, and in proportion to the offense.
And that’s what Kampf’s legislation aims to do. HB 1308 would rewrite the law to replace the term “weapon” with “firearm.”
The Joint State Government Commission report, issued in October 2016, studied a representative sample of 12 Pennsylvania districts, not including Philadelphia’s. It found that those districts suspended and expelled students at significantly higher rates than the national average.
The state ranks 13th in the nation for expulsions and 20th for suspensions.
“Research shows,” Klehr said, “exclusionary discipline does not make schools safer, does not impact students’ behavior, and makes it more likely that the child who is suspended and excluded from class will be excluded again and ultimately put on a trajectory to end up dropping out of school and be more likely to end up in the juvenile justice system.”
In policy circles, this is called a zero-tolerance policy; activists refer to it more bluntly as the school-to-prison pipeline.
Harold Jordan, senior policy advocate for the American Civil Liberties Union and one of many contributors to the report, said research shows that removing kids from the classroom as a form of punishment can be a “self-fulfilling prophecy.” (Disclosure: Jordan is co-chair of the Notebook board.)
It creates a negative relationship with teachers, it creates a record for students, and it creates a label,” Jordan said. “That stereotyping sticks with kids. … The last thing you’d want is for kids at the early stages to become disengaged from school.”
He said that harsh exclusionary punishments are often used on students who committed nonviolent violations of student conduct.
The commission’s report calls for the state to reduce the use of zero-tolerance policies, to explicitly tell districts that expulsion and suspension should be reserved for the most severe offenses, and to restrict the use of expulsion/suspension for children under 10 to offenses of a violent or sexual nature, among other recommendations.
“I see it as a call to action,” Jordan said, “Pennsylvania has a problem. Kids in Pennsylvania are not temperamentally different than kids in other states.”
In August 2016, Philadelphia’s School Reform Commission banned the suspension of kindergarten students, except for offenses that cause bodily injury. In April of this year, a coalition of groups, including the ELC, urged the SRC to extend that ban up through the 5th grade.
The legacy of zero tolerance
Zero-tolerance policies mandate a specific punishment for a certain kind of violation.
For example, the School District of Philadelphia once had a zero-tolerance policy for assaults, resulting in automatic referrals to law enforcement. That meant that school officials were required to call the police on any students caught fighting.
The adoption of that policy caused the District to go from expelling very few students annually to “an average of 300 or more expulsions per year” by the spring of 2009, Jordan said.
The policy was ultimately abandoned by the District in 2012 in favor of one that dealt with student infractions on a case-by-case basis. Expulsions have since fallen dramatically.
This change in policy was the result of a protracted push from advocates, Jordan said. Although they made little progress initially, he thought the turning point came in 2010 after the release of a report by the District’s African American and Latino dropout task force, which named zero-tolerance policies as a contributing factor to high dropout rates in those communities.
The biggest problem with zero tolerance cited by the Joint State Government Commission report is that, despite how concrete it sounds, the policy requires school districts to interpret the imprecise language of Act 26.
The report points out that zero-tolerance policies “do not exist in the laws of Pennsylvania.”
“The closest the Commonwealth comes to a zero-tolerance law is in its requirement of expulsion for one year of any student possessing a weapon at school,” the report states, but it also notes that federal law requires this of all states.
Any student caught with a gun would have to be expelled, but if a student is caught with a weapon that is not a gun, the policy is open to interpretation and can be selectively enforced.
Both the commission’s report and the Education Law Center recommend changes to Act 26 that would limit the definition of a weapon to firearms, as it is defined in many other states and in the federal Gun-Free Schools Act.
Although the report found that the number of expulsions and suspensions in Pennsylvania declined between 2011 and 2015, the same is true of all forms of discipline, even less-punitive ones.
That could mean that fewer incidents were being reported in general during a period when school staffs were decimated by state budget cuts, rather than reflecting a change in discipline policy by school districts.
A state full of disparities
The state study found that certain demographic categories of students are more likely to receive harsh punishments than others, primarily students of color and students with disabilities.
According to the U.S Department of Education’s Office for Civil Rights, 17 percent of all students in the United States have a disability, yet these students received more than 25 percent of all out-of-school suspensions in the 2011-12 school year.
The state report used this national disparity as a comparison point as it examined a sample cross-section of Pennsylvania school districts.
All 12 districts included in the report suspended students with disabilities at a higher rate than the national average.
In addition, five districts (42 percent) expelled these students at greater than the national average and nine (75 percent) referred them to law enforcement at higher than the national rate.
During the 2011-12 school year, 71 percent of Pennsylvania’s students were white. But white students received only 41 percent of the out-of-school suspensions. Their non-white peers, who represented 29 percent of the students, received 59 percent of the suspensions.
“As for the causes [of this disparity], the report falls short,” Jordan said.
Like Jordan, Klehr doesn’t think that the report’s recommendations for the state and districts will eliminate the disparities, but she said they could reduce them.
“Most of the disparities in suspensions come from this overarching category called ‘misconduct,’” Klehr said. “It’s very subjective. What is misconduct? I think it’s that subjectivity that results in disproportionalities.”
The Education Law Center’s Moon cited more imprecise language in the law: the definition of disruptive students who are eligible for the transfer to disciplinary schools. ELC recommends “removing the factor for ‘disregard for school authority including the persistent violation of school policy,” Moon said. “Right now it’s very vague and subject to ambiguous determinations.”
Removing kids from schools “should be a last resort,” Moon said. “We would go further and suggest that the language of misconduct is also too broad a criteria.”
The report calls for the Pennsylvania Department of Education to take the analysis a step further by identifying schools that have abnormal disparities in their use of exclusionary discipline, such as out-of-school suspensions, on different student subgroups and initiate “corrective action,” Klehr said. Such further analysis could lead to specific findings of discrimination against a school district.
In 2014, the U.S. Department of Education and Department of Justice released a set of guidelines to help school districts use data to curtail discriminatory behavior. In its own data collection on discipline, the Department of Education found, for instance, a pattern of different punishments for students of different races who commit the same offense.
Another issue involves seemingly race-neutral language that nonetheless disproportionately impacts students of one race, such as banning certain clothing and hairstyles.
“You have to look at whether the stated reason for the rule is the actual reason for the rule,” Jordan said. “The department found that in some of these cases, ‘neutral’ rules were devised in order to harm a particular group of children.”
Calling the police
Although only 29 percent of Pennsylvania’s students are non-white, they represented 44 percent of all school-based law enforcement referrals and 49 percent of all arrests in 2011-12.
That means in Pennsylvania, nonwhite students are nearly twice as likely as white students to have their infractions reported to the police, and once referred to the police, they are more likely to be arrested.
In a separate report, the American Civil Liberties Union compiled data on student arrests for each state and found that students in Pennsylvania school districts have the highest per capita rate of arrest in the country, despite having a lower number of referrals to law enforcement than many other states.
Pennsylvania police departments arrested 42 percent of students referred to law enforcement by their schools in the 2011-12 school year, although the commission report says that preliminary data indicates that the referrals have decreased in subsequent years.
The Joint State Government Commission’s report also notes that each district in Pennsylvania is required to issue a Memorandum of Understanding detailing when and how law enforcement should be involved in school safety and discipline. Again, Act 26’s list of “discretionary” offenses probably added to districts’ high rate of law enforcement referrals.
“The law created confusion because it had two sections – a section on mandatory reporting offenses and a list of discretionary reporting offenses,” Jordan said.
Pennsylvania law requires these memoranda to be renegotiated every few years, and the state is also responsible for creating a “model” memorandum for districts.
Philadelphia has been working to address the number of school-based arrests by creating the Police School Diversion Program. It reduced arrests in schools by taking first-time offenders who have been referred to law enforcement and instead referring them to a social worker who places them in a program with a DHS partner organization, such as The Good Shepherd Mediation Program. The first year of the diversion program saw a 54 percent reduction in student arrests.
But, Klehr said, “We’re still seeing instances in Philadelphia where the [school police officers] are being used as school disciplinarians,” referring to an incident in May 2016 at Benjamin Franklin High School. “Is it really the school police that should be hall monitors? We don’t think so.”
The report recommends that the state require districts to change their Memoranda of Understanding with law enforcement to remove the category of discretionary referral entirely.
“This list has been used by many districts as an excuse for reporting offenses that they’re not legally required to report,” Jordan said.
Students’ early years
Of particular concern to the commission was the use of exclusionary discipline tactics on elementary-age children and even preschoolers. Some of the authors concluded that “expulsion is never an appropriate disciplinary response for children in this age group,” although the authors were not unanimous in this opinion.
ut the entire commission agreed that there are also problems in disparity among this age group and concurred with the recommendation to ban all out-of-school punishment for children under 10, except for incidents of a violent or sexual nature.
The data from the federal Office for Civil Rights reports that, for the 2011-12 school year, while black children made up 18 percent of all preschool enrollment nationwide, 48 percent of preschool children who are suspended more than once are black children. Three out of four preschool suspensions are given to boys.
Philadelphia, in its 2016 Code of Conduct, bans the suspension of kindergarten students “unless their actions result in serious bodily injury.”
The ELC’s Klehr wants the District to add more elementary school grades in the coming year.
“Districts across the country are recognizing that we cannot be suspending such high numbers of little kids,” she said.