C RIMINALIZATION OF S TUDENT B EHAVIOR : G UIDANCE AND R ECENT L EGISLATIVE E FFORTS 1 I. Federal Guidance A. U.S. Department of Justice, Community Oriented Policing Services (COPS) Guidance: U.S. Dep’t of Justice, Office of Community Oriented Policing Services, Supporting Safe Schools (Last accessed Oct. 3, 2018) , https://cops.usdoj.gov/supportingsafeschools. U.S. Dep’t of Justice, Office of Community Oriented Policing Services, Dear Colleague Letter (Sep. 8, 2016) , https://www2.ed.gov/documents/press-releases/cops-sro-letter.pdf. U.S. Dep’t of Justice and U.S. Dep’t of Ed., Safe School -based Enforcement through Collaboration, Understanding, and Respect SECURe State and Local Policy Rubric (hereinafter “SECURe State and Local Policy Rubric”) , https://cops.usdoj.gov/pdf/sro/SRO_State_and_Local_Policy.pdf. The Community Oriented Policing Services (COPS) Office of the U.S. Department of Justice (DOJ) and the U.S. Department of Education (DOE) issued joint guidance relating to School Resource Officers in September 2016. In issuing the joint guidance, the DOJ stated that “If SROs are not properly hired, trained, evaluated, and integrated into the school community — or if they are given responsibilities more appropriately carried out by educators — negative outcomes, including violations of students’ civil rights, can and have occurred.” The guidance includes the Safe School-based Enforcement through Collaboration, Understanding, and Respect (SECURe) rubrics. These rubrics are intended to: “assist in properly implementing school resource officers (SROs) so that SRO programs can positively impact the lives of our nation's students.” There are two separate components of the guidance: (1) SECURe State and Local Policy Rubric for states and local governments working on policy reform related to SROs, and (2) SECURe Local Implementation Rubric to help school districts, schools and law enforcement agencies structure their school-police partnerships. The five action steps identified by the DOJ and the DOE related to SROs are: 1. Create sustainable partnerships and formalize memoranda of understanding (MOUs) among school districts, local law enforcement agencies, juvenile justice entities, and civil rights and community stakeholders. 2. Ensure that MOUs meet constitutional and statutory civil rights requirements. 1 This document benefited from research and work product of Stephanie Romeo, who graduated from Loyola University Chicago School of Law in 2017, and Douglass Nolan, a third year law student at Loyola University Chicago School of Law.
3. Recruit and hire effective SROs and school personnel. 4. Keep your SROs and school personnel well trained. 5. Continually evaluate SROs and school personnel, and recognize good performance. The rubrics use these action steps as a basis for providing examples of state and local policy as well as providing specific ways in which these action steps can be reflected in school district and law enforcement practices. B. U.S. Department of Justice and U.S. Department of Education U.S. Dep’t of Justice and U.S. Dep’t of Educ. (Jan. 2014), Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline , https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.html The joint guidance package on school discipline issued by the U.S. Department of Education and the U.S. Department of Justice in Fall 2018 made clear that school resource officers are covered by the non-discrimination protections in Titles IV and VI of the Civil Rights Act of 1964 (Title IV), 42 U.S.C. §§ 2000c et seq. . The Dear Colleague letter states: These statutes cover school officials and everyone school officials exercise some control over, whether through contract or other arrangement, including school resource officers. Schools cannot divest themselves of responsibility for the nondiscriminatory administration of school safety measures and student discipline by relying on school resource officers, school district police officers, contract or private security companies, security guards or other contractors, or law enforcement personnel. To the contrary, the Departments may hold schools accountable for discriminatory actions taken by such parties. U.S. Dep’t of Ed., Guiding Principles: A Resource Guide for Improving School Climate and Discipline (Jan. 2014), http://www2.ed.gov/policy/gen/guid/school- discipline/guiding-principles.pdf. This resource guide provides an in-depth explanation of factors, action items, and professional development opportunities that are necessary in fostering a positive school climate. The resource guide also explains potential roles of SROs in schools and how the SROs function in relation to teachers and other school members. II. The Council of State Governments Emily Morgan et al. (July 2014), The Council of State Governments Justice Center, The School Discipline Reform Consensus Project: Strategies from the Field to Keep Students Engaged in School and Out of the Juvenile Justice System , https://csgjusticecenter.org/youth/projects/school-discipline-consensus-project/ 2
In July 2014, the Council of State Governments Justice Center issued The School Discipline Consensus Report, which was based on interviewing over 700 experts in education, behavioral health, juvenile justice and law enforcement. The report was consensus-based, so policy statements reflect “a point of agreement among stakeholders with very diverse perspectives on an extensive range of recommendations related to school discipline.” The executive summary of the report identified four highlights of the recommendations related to school-police partnerships: 1. “School -police partnerships should be determined locally, through a collaborative, data- driven process that engages students, parents, and other stakeholders.” 2. “Police should not be engaged in routine classroom management, and whenever possible should use alternatives to arrest for students’ minor offenses that can be appropriately addressed through the school’s discipline system.” 3. “School -based officers working with students should be properly selected, trained, supervised, and evaluated. Off-campus officers should be given guidance on how to respond to students and how to access alternatives to arrest.” 4. “School systems and law enforcement agencies should create detailed, written memorandums of understanding when placing officers on campuses and for other school- police partnerships.” III. Model Memoranda of Understanding Several organizations, including the ACLU of California and the Advancement Project, have created model Memoranda of Understanding governing the relationship between school and police. A. National Association of School Resource Officers National Association of School Resource Officers (2018), Standards and Best Practices for School Resource Officer Programs, https://nasro.org/cms/wp- content/uploads/2013/11/NASRO-Standards-and-Best-Practices.pdf This document contains a suggested set of standards related to selection and training of School Resource Officers, together with guidelines for collaboration between school districts and law enforcement agencies. Sample MoU topics are included. B. ACLU of California Model MoU ACLU of California (2016), Model Memorandum of Understanding Between School District and Police Department, https://www.aclunc.org/docs/Appendix-D-Model- MOU.pdf One of the most comprehensive is the ACLU of California’s Model MoU, which, in its guidance on roles on responsibilities, specifies that the MoU should make clear that school discipline is the responsibility of school administrators, while law enforcement’s 3
role relates to prevention of serious crime. School administrators should conduct an investigation prior to referring a matter to law enforcement, except in situations when “there is a real and immediate physical threat to student, teacher, or public safety.” The MoU also provides model guidance on various relevant areas, including: • School Disciplinary Issues • Low Level School-Based Offenses • Serious Offenses • De-escalation Procedures for District Staff and Department Officers • Officer Entry on Campus • Questioning Students on Campus • Searches of Students on Campus • Seizure of Student Property • Arrests of Students on School Campus • Prohibition of Racial Profiling • Notification of Parent/Guardian of Student’s Arrest, Searches, Restraint or Seclusion, or Questioning by Police Officer • Use of Force C. Advancement Project MoU Advancement Project (2013), Model Memorandum of Understanding Between A School District and A Police or Sheriff’s Department, https://advancementproject.org/resources/sample-agreements-police-schools/. The Advancement Project also has a model MoU, which outlines its purpose as “to set forth guidelines to ensure that the Police Department (“PD”) and the School District (“the Dis trict”) have a shared understanding of the role and responsibilities of each in maintaining safe schools, improving school climate, and supporting educational opportunities for all students.” The areas covered are: • Involvement of the Police Department (“PD”) in a School -Based Infraction • Procedure for PD Involvement in a School-Based Infraction • Procedures Concerning PD Conduct in Schools • Transparency, Accountability, and Training IV. State MoUs Several state agencies or statewide entities have produced model MoUs for adoption by local school districts. These include: 4
Recommend
More recommend
