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Patrick S. Metze

Excerpted from:  Patrick S. Metze, Plugging the School to Prison Pipeline by Addressing Cultural Racism in Public Education Discipline, 16 U.C. Davis Journal of Juvenile Law & Policy 203 (Winter 2012)(460 Footnotes Omitted) (460 Footnotes Omitted)


A. The Prison Model and Effectiveness of Treatment Therein

Beyond the unwelcome, even toxic, classroom environment, this evolution of institutional responses to child misbehavior in the classroom, and the resulting statistics just described, indicate a more severe crisis with today's school age children. This is particularly apparent with children who are easily identified as coming from historically disadvantaged demographics with low student achievement, creating the crisis of criminalizing children. The adults who designed the current system made the children “the victims of adult mistreatment, indifference, neglect, even violence.” For example, there has been a dramatic increase in the criminal prosecution of juveniles for minor law violations over the past decade.

The misdeeds of children - acts that in the near recent past resulted in trips to the principal's office, corporal punishment, or extra laps under the supervision of a middle school or high school coach, now result in criminal prosecution, criminal records, and untold millions of dollars in punitive fines and hefty court costs being imposed against children ages 10 through 16.

Some blame Chapter 37 of the Texas Education Code as the reason so many school children have been charged with crimes while at school --what with the “over-infusion of law enforcement in public school, the misapplication of the crime control model, and the zeal for zero toleranceFalse”

Within the public schools, using the methodology of prisons as a model for disciplinary response, children are now arrested at alarming rates for “crimes” which are merely bad acts not traditionally calling for the extreme response of an arrest. Many times these children are sent to alternate education programs for reasons unrelated to actual criminal behavior, but due to more traditional adolescent misbehavior. These “crimes” are often labeled as “status offenses” or violations of the student code of conduct. In Texas, the 60% of public school students with at least one disciplinary action are more than eleven times more likely to have contact with the juvenile justice system during the seventh through twelfth grade, as compared to the 40% of the students with no disciplinary action. Furthermore, almost half of the students classified as having “an emotional disturbance” in school go on to have contact with juvenile justice. It is also argued we are creating an “adolescent criminal class” by combining status offender children with those children who are delinquent and segregating the entire group from the rest of the class. Moreover, when the public schools and their alternative education programs resemble prison or detention environments, it is only logical that the child exposed to this begins to identify with the “adolescent criminal class.”

One problem with basing public school disciplinary programs on the prison model has been the increased use of segregation within prisons as the rehabilitative method of choice. Segregation creates psychological issues and recidivism concerns within the affected prison population and there is no reason to assume this same effect is not experienced by children segregated from their peers. Further, by segregating these students, who are mostly minority and economically disadvantaged, and housing them altogether away from their home campuses, a primary purpose of public education is thwarted--the goal of exposing every child to a diverse, heterogeneous student body and curriculum. Although the use of seclusion as a disciplinary technique has been forbidden in the public schools in recent years, the segregation of children from their peers and home school campuses by the use of the Disciplinary Alternate Education Program is none the less a removal from the child's normal school environment for disciplinary reasons or concerns for safety - the same rationale used to justify segregation in the adult prison.

This segregation model ignores the science that behavioral treatment of adult offenders can be beneficial as part of a return to the philosophy that prison can be an environment in which true rehabilitation is possible. To illustrate the suggestion that rehabilitation is still a viable option in corrections, one can look to the work within the corrections community that shows the effectiveness of treatment programs for the most serious offenders --the “life-course-persistent” offenders. In addition, those working with juvenile offenders would do well to distinguish between those whose life course appears to be wrought with violations of the law and the person whose criminal life is “adolescence-limited.”

In 1990, the Texas Department of Criminal Justice implemented its Program for the Aggressive Mentally Ill Offender (PAMIO) for those with antisocial personality disorder, narcissistic personality disorder, borderline personality disorder and other criteria showing dangerous, predatory or aggressive tendencies. Using biological and psychosocial interventions such as extensive biopsychosocial assessments, psychotropic medications, individual and group therapies, habilitation therapies, and behavioral cognitive-behavioral therapeutic techniques, the median annual rate of total disciplinary problems in the sample group of “life-course-persistent” offenders dropped 71%; inmate assaults and assaults on staff dropped to zero; and the loss of good time because of misbehavior decreased from an annual loss of 311 days down to only seven days after the PAMIO treatment.

An underlying theme of this article is if behavioral modification in a prison environment is effective, - and also, as shown later, in the juvenile justice setting--surely the program can be effective in the public schools with children K-12, if properly implemented. So, is there a program that will effect such dramatic change in misbehavior in public school children that remains consistent with the current Zero Tolerance (ZT) mindset, or does the overall approach to public school discipline require overhauling?

IX. Positive Behavior Interventions and Support

ZT policies assume that by removing disruptive students from the classroom that the remaining students will be deterred from disruption and consequently the learning environment for those remaining will improve. However, the opposite effect occurs. Schools with higher suspensions and expulsions have less satisfactory learning environments and spend inordinate resources on disciplinary matters.

Effective strategies for dealing with school discipline have now evolved into a three tier model of intervention and support. “As schools have moved beyond simply excluding children with problem behavior to a policy of active development of social behaviors, expectations for discipline systems have changed.” This model is most commonly referred to as “positive behavioral intervention and support” (PBIS). School districts are encouraged to adopt this program because it is consistently recognized nationwide as an effective strategy to handle school behavioral problems.

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XI. Conclusion

Disciplinary Alternate Education Programs have been called the “expanding black hole” of the Texas education system. The bias against the children who find themselves in alternate education must change. The public holds negative opinions of these children and looks at them as merely having “behavior problems.” These students may be “disconnected” or “turned off” by the public school education system--or indeed, many institutions of society seen as main stream--but they are not by nature “disruptive, deviant, and dysfunctional” or a “detriment to the traditional school.” When so many children are dumped into DAEP's every year--resulting in millions of citizens over time without the basic tools of a high school education--one must ask, is it the children that are the problem, or is it the adults? Professional educators know that the basic needs of children include more than food, clothing, and shelter. Children require “a safe environment, acceptance by others, and a feeling of being cared about, needed and loved.” When students are removed from their home schools, labeled as discipline problems, treated like criminals, and pushed out of the public schools by a system which favors the protection of the status quo, is it no wonder they dropout?

None of these issues are new; they are all within the knowledge of policy makers in Austin. The Texas Senate Committee on Criminal Justice prepared an Interim Report in December 2010, as ordered in the Interim Charges of the Lieutenant Governor of the State of Texas to the Committee in anticipation of the 82nd Regular Legislative Session, in 2011. Interim Charge Nine was to “[c]onsider the impact that secondary education school disciplinary laws and policies have on the juvenile justice system and the adult prison system [and r]ecommend changes, if needed, to current law.” The Committee heard testimony from a wide variety of activists, educators, and other experts in the field. Eleven recommendations to the committee were made in the report, but neither recommendation seven, to “[r]equire school district(s) to implement some form of evidence based programs that are proven to reduce truancy, crime, and drug offenses” nor recommendation nine, requiring more training for teachers and administrators in discipline techniques and intervention options, made it into law.

During the recently completed legislative session, HB 1340 was introduced addressing these recommendations by attempting to create a state leadership team to provide assistance from assessment to evaluation, from coordination with other state agencies to funding, and to develop a framework and infrastructure for a statewide plan to enable school districts to implement PBIS. The bill's sponsor touted the measure as giving teachers and administrators more time to teach when appropriate behavior becomes the norm in the classroom. The bill fell short when it did not mandate implementation of PBIS and failed political truthfulness, and consequently credulity, when the author claimed PBIS costs would be minimal, if none at all. Although the bill was left pending in committee and never made it to a vote, the author should be commended for taking the first step toward implementation of PBIS statewide. Should the recommendations of this Article be adopted--for the elimination of Disciplinary Alternate Education Programs throughout the state--a state mandated implementation of PBIS will provide school districts with the tools to manage behavioral problems at the student's home campus. Certainly some of the cost can be offset by the elimination of the DAEP's. But, the cost will be returned many times over with the resulting productivity that comes with a better educated population. In today's time of budget shortfalls and economic downturn, it will be difficult politically for the Legislature to require school districts to meet a mandated implementation of PBIS. If the districts on a leap of faith will hire the appropriate professionals to assess, develop, train, implement, and manage the PBIS program--and evaluate its progress--the cost will be returned.

But whenever one loses hope, the Texas Legislature will surprise. Passed in the 82nd Legislative Session was SB 501 that amended the Texas Human Resources Code by establishing the Interagency Council for Addressing Disproportionality. The Council is to examine the disproportionate involvement of racial or ethnic minority children in juvenile justice, child welfare, and mental health systems--including the delivery of educational services--to make recommendations, and to assist in the “elimination of health and health access disparities among racial, multicultural, disadvantaged, ethnic, and regional populations.” By December 1, 2012, the Council shall file a report of its findings and recommendations for corrective action. So, all is not lost. There are those in leadership in Texas that are trying to understand the effect of the disparate treatment of children based upon their racial background, ethnic origins, and socioeconomic status. But, then again, the same legislature seems to turn a blind eye when it decides to turn up the heat on local districts and students by instituting a new generation of high-stakes accountability tests.

A. Seeing “Staars”

The future of high-stakes testing in Texas begins anew with the 2011-2012 school year. In response to legislative mandates in 2007 and 2009, the class that is entering the ninth grade for the 2011 school year will be subject to new testing requirements. Ask yourself if you could answer the following questions:

#1, “You should know the characteristics and behavior of waves. Analyze the characteristics of waves, including velocity, frequency, amplitude, and wavelength, and be able to calculate using the relationship between wavespeed, frequency, and wavelength.”

#2, “Compare characteristics and behaviors of transverse waves, including electromagnetic waves and the electromagnetic spectrum, and characteristics and behaviors of longitudinal waves, including sound waves.”

#3, “Describe how the macroscopic properties of a thermodynamic system such as temperature, specific heat, and pressure are related to the molecular level of matter, including kinetic or potential energy of atoms.”

Replacing the current Texas Assessment of Knowledge and Skills (TAKS) test will be the State of Texas Assessments of Academic Readiness (STAAR) test. Twelve core subjects will now be tested in high school at the end of the course, along with new assessments in grades three through eight to begin in the fall of 2011. “The new tests will be significantly more rigorous than previous tests and will measure growth.” Under the new 2010-2011 Graduation Credit Requirements, there will still be three tracks to graduation, two twenty-six credit paths, the Recommended High School Program, and the Distinguished Achievement Program (DAP), and a twenty-two credit option called the Minimum High School Program. As an example of the new rigor, the Texas Education Agency has published assessment requirements in each of the twelve core areas. The questions in the previous paragraph are from the Physics Assessment publication, which sets out four reporting categories, or minimum essential knowledge requirements, to pass the Physics end of class exam. So, as an example of the new more rigorous test, knowledge of physics will be required to graduate high school in Texas, even in the Minimum Program.

Under the current assessment program, only 66% of Texas public schools, 52% of charter schools, and 50% of school districts made “adequate yearly progress” (AYP) during 2010-2011. This means, under the old, less rigorous testing requirements, 34% of Texas public schools, 48% of charter schools, and 50% of school districts failed in reading, mathematics, attendance, and/or graduation. Now the testing requirements are more rigorous including questions such as “define and explain Coulomb's constant.” If we have a dropout crisis under the old testing program, soon it will be a dropout Apocalypse.

Some believe the new testing system is designed to fail as the next step toward the privatization of education. Under federal law, all states are to have a 100% passing rate on state academic assessment achievement tests by the end of the 2013-2014 school year. This may now be attainable in Texas as the schools have more students repeating grades or taking remedial classes to learn about Coulomb's constant or transverse waves. Texas will certainly graduate fewer students as more students become academic liabilities and are pushed out. More children will become frustrated, disengage and give up on good behavior, while getting further behind and dropping out. This testing change does not address the racial effects of the current testing system. It only amplifies them.

Even though racism based on biology has been rejected by modern society, our cultural racism, even if unintended, must be acknowledged. In today's society, surely Anglos do not consciously believe that African American and Hispanic “cultural products, values, methods, and structures” are inferior to their own - or certainly they dare not admit it out loud. As a society we have crossed that Rubicon. But “the cultural consequences of race-based discrimination and inferiority/superiority assumptions” can't be denied from the multitude of statistical examples given above. We must not fail to acknowledge that “the intersection of race and culture” is the reason for these “race effects.” In understanding that racism is a contributing factor we can craft public policy that addresses in a frank way the necessity to correct the problem and positively mitigate the future “race effects” of our bias.

The first step is to address the issue of how we approach discipline in the public schools. The existence of DAEPs is too big a temptation to the public school administrator who finds himself having to “game the system” to satisfy accountability requirements, especially now with resources being reduced. Additionally it is not in a child's best interests to be “excluded from school based solely upon inappropriate social behavior.”

The Legislature should force the districts to hire the necessary professionals to provide the training and expertise to create a statewide implementation of PBIS. PBIS has been shown to work in the public schools, in juvenile justice settings, and with adult prison populations. If it will work there, it will work throughout the state. Eliminate the DAEP's as they now exist and reunite all children with their home schools. Give the local districts no other option but to deal with their children and train all the teachers and staff on a campus who contact students, “how to reinforce positive behavior and how to teach, model and reinforce standards of behavior expected at school. . .to improve school climate, reduce disciplinary referrals and boost academic performance.” We must stop telling these children they belong in alternate education, especially disciplinary alternate education. “I do not believe that schools or programs that seek to serve the variety of youths and families in today's society should be separated out as ‘alternatives.’ Ensuring that all individuals have the opportunity to become successful is not an alternative - it is a necessity.”

. Associate Professor of Law and Director of Criminal Clinics at Texas Tech University School of Law; additionally teaches in the areas of Capital Punishment and Texas Juvenile Law. B.A. Texas Tech University 1970; J.D. The University of Houston 1973.