LEAVING HOMEROOM IN HANDCUFFS:WHY AN OVER-RELIANCE ON LAW

ENFORCEMENT TO ENSURE SCHOOL SAFETYIS DETRIMENTAL TO CHILDREN

Jennie Rabinowitz*

INTRODUCTION

In contemporary America, school administrators and public offi-cials increasingly rely on law enforcement and the juvenile and criminal

justice systems to ensure that public schools are safe. These policy mak-ers have legitimate reasons to worry that students and teachers may be-come crime victims while on school grounds; during the 1999-2000school year, 71% of public schools had at least one violent crime.' Yetcrime in schools-and violent crime in particular-decreased signifi-cantly between 1992 and 2002, the most recent year for which statisticson school crime are available.2

Although extreme measures like the presence of armed police of-ficers in schools may be necessary to ensure safety in some cases, policy-makers who craft school safety strategies should keep in mind that ar-resting children for infractions committed at school can have negativerepercussions on those children's futures.3 Furthermore, policies thatrely heavily upon law enforcement are often expensive, and alternativesexist that will not only make children less violent and schools safer, butthat will save taxpayers money.

* B.A., English, Wesleyan University, June 1999. J.D. Candidate, June 2006, Benjamin N.Cardozo School of Law. The author wishes to thank the staff and editorial board of theCPLPEJ, particularly Laura Grosshans, Eric Schwartz, and Rosalie S. Walters; Jonathan Ober-man of the Cardozo Criminal Defense Clinic; Lily Shapiro of the Bronx Defenders; and Kirsten

D. Levingston and Patricia Allard of the Brennan Center for Justice at NYU School of Law fortheir thoughtful advice. She also wishes to thank her husband Daniel Jamieson for his love andsupport, and for letting her bounce ideas off of him at all hours of the day and night.

I U.S. DEP'T OF EDUC. & U.S. DEP'T OF JUSTICE, INDICATORS OF SCHOOL CRIME ANDSAFETY: 2004, at 25 (2004), available at http://nces.ed.gov/pubs2005/2005002.pdf [hereinafterINDICATORS 2004]. Violent crimes include rape, sexual battery, physical attacks or fights withor without a weapon, and robbery with or without a weapon. Id.

2 Id. at 10. Between 1992 and 2002, the rate of violent crime at school dropped from

forty-eight to twenty-four crimes per one thousand students. Id.3 See infa Part III.4 See infra Part V.

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This article will begin in Section I by considering a school safetyinitiative in New York City, in which the city has flooded problemschools with police.5 This section will then offer a brief overview of thereliance of school administrators in other parts of the country on lawenforcement and the courts to keep their schools safe.' Section II willdiscuss some of the historical, legal, and social factors that have ledschool administrators to rely upon law enforcement and the courts tokeep students in check.7 This background information provides insightinto why school administrators are now more willing to place policeofficers and the courts in charge of student discipline, whereas previ-ously teachers and parents bore that responsibility.

Section III will discuss some of the negative effects that contactwith law enforcement and the courts can have on children. One sucheffect is that when students are arrested, they are labeled in negativeways by the police, school administrators, teachers, and often their fel-low students.8 They may receive rehabilitative treatment, which couldbe helpful in setting them on a healthier track in life, or they may beincarcerated in a secure facility, an experience which may have negativeeffects on a child's development.9 A related possible negative effect isthat reliance on law enforcement and the courts to maintain schoolsafety may exacerbate the overrepresentation of minority youth in thecriminal justice system. The percentage of minority youth who havecontact with the criminal justice system is significantly greater than thepercentage of minority youth in the total youth population of theUnited States.o Police are most often stationed in inner city publicschools that have large minority populations," thus the negative effectsdiscussed in this article are borne disproportionately by minorities.

5 See infra Part I.A.6 See infra Part I.B.

7 See infra Part II.

8 See Delos H. Kelly, Labeling and the Consequences of Wearing a Delinquent Label in a

School Setting, 97 EDUC. 371, 372-73 (1977).

9 See, e.g., John H. Laub & Robert J. Sampson, The Long-Term Effect ofPunitive Discipline,

in COERCION AND PUNISHMENT IN LONG-TERM PERSPECTIVEs 247, 254 (Joan McCord ed.,

1995).10 See infra Part III.

I U.S. DEP'T OF EDUC. & U.S. DEP'T OF JUSTICE, INDICATORS OF SCHOOL CRIME AND

SAFETY: 1998, at 126 tbl.A4 (1998) [hereinafter INDICATORS 1998]. During the 1996-1997school year (the last time the U.S. Department of Education surveyed schools on this question),

police officers were stationed at 19% of schools with 50% or more minority enrollment and at

only 5% of schools that had less than 5% minority enrollment. Id.

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Anecdotal evidence suggests that the placement of police primarilyin schools with large minority populations leads to an unequal applica-tion of the law. My own experience bears out that hypothesis. I at-tended high school in a suburb of New York City with a primarilymiddle class, ethnically homogenous student body. Police and securityguards were not regularly on campus. The summer after my first year oflaw school, I worked at a public defender office in New York City. Oneof the cases I followed concerned a high school senior who had beenarrested by a police officer stationed at his school. A female acquain-tance had accused the student of pulling her onto his lap and grabbingher breast during a basketball game in the school's gymnasium.12 Thestudent was charged with a sex crime which, were he convicted, wouldhave required him to register as a sex offender. Sex offender statuswould have had profound effects on his life, including the loss of ascholarship he had secured from a university he planned to attend thefollowing fall. While this young man had certainly made an error injudgment, was his crime so serious that it should impede his ability toreceive a college education? A student who behaved similarly at mysuburban high school would probably have received a stern talk from aschool administrator. If his behavior had persisted, the school mighthave contacted his parents and required him to participate in counsel-ing. I doubt that the police would have ever become involved.

Section IV will look at a failed federal attempt to make publicschools safer. With the No Child Left Behind Act ("NCLBA"), Con-gress sought to pressure troubled schools to prioritize safety by empow-ering parents to transfer their children out of schools that are designated"persistently dangerous."1 3 Unfortunately, the NCLBA did not providefunding or any other means of helping persistently dangerous schoolsimprove; in fact, persistently dangerous schools lose funding when achild transfers out under the Act." For that reason, states tend to craftdefinitions of "persistently dangerous," that will be met by fewschools." Thus, the law has had a very limited effect.

In light of the negative ramifications of relying upon law enforce-ment and the courts to ensure that schools are safe, and of the failure ofthe NCLBA's "persistently dangerous" provision to succeed in making

12 Details have been changed to protect his identity.13 See No Child Left Behind Act of 2001, 20 U.S.C. § 7912(a) (2002).14 No Child Left Behind Act of 2001, 20 U.S.C. § 7912(b) (2002).15 See infra Part IV.

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156 CARDOZO PUB. LAW POLICY 6- ETHICSJ. V

schools safer, Section V will examine alternative methods of achievingschool safety. This section will first discuss alternative solutions that arebeing championed by the law enforcement community, which believesthat early childhood education is essential in producing nonviolent ado-lescents.1 6 Second, Section V will explore alternatives that are promoted

by educators, some of whom believe that school curricula should be

used not just to teach traditional subjects like reading, arithmetic and

geography, but also to provide students with coping mechanisms thatwill enable them to solve problems peacefully.17 Third, Section V will

assess an approach that seeks to empower students to identify problemswith their schools and to be involved in the process of crafting solu-

tions. 8 Fourth, this section will survey the way that school facilities canbe built or renovated in a manner that promotes safety. 9 Not every

safety alternative is suitable to every school, but policy-makers, teachers,and school administrators should assess which of these alternatives seemsmost promising for achieving school safety given the location of theirschool and the size and composition of the student body.

The aim of this article is to get policy-makers to consider schoolsafety in a broader light. The best way to make schools safe is to preventchildren from embracing violence. The teaching of this lesson mustbegin early in life and continue throughout secondary education. Eve-rything, from the way a building is designed to how basic subjects are

taught, can be used to promote school safety in a manner that does notproduce ancillary negative effects.

I. CURRENT PRACTICES

A. New York City's "Impact Schools"

On September 17, 2002, New York City Mayor Michael Bloom-berg and New York City Department of Education ("NYCDOE")Chancellor Joel I. Klein announced the new "SchoolSafe" initiative, in

which the city's most dangerous schools would be flooded with policeofficers in an effort to curb crime on campuses. 20 The initiative was to

16 See infra Part V.A.17 See infa Part V.B.

18 See infa Part V.C.19 See infra Part V.D.20 Press Release, N.Y. City Dep't of Educ., Mayor Michael R. Bloomberg & Schools Chan-

cellor Joel I. Klein Announce Creation of New Office of School Safety and SchoolSafe Initiative

(Sept. 17, 2002), available at http://www.nycenet.edulpress/02-03/pr24 6-02.html [hereinafter

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be implemented in the 10% of New York City schools with the highestcriminal incident rates, which are referred to as "impact schools." Thecriminal incident rate at these impact schools was 150% greater than theaverage incident rate at New York City schools.21 Graduation rates atthe initial group of impact schools was 30% below average, and thepercentage of students at impact schools meeting minimum academicstandards was 16% below average.22 The Impact School strategy wasbased on "Operation Impact," a New York City Police Department("NYPD") initiative that achieved crime reduction by deploying largenumbers of police officers to strategically targeted locations with highcrime rates.23

The SchoolSafe initiative was coupled with a "three strikes andyou're out" policy under which students who received two suspensionsin a 24 month period would be known as "Spotlight Students." 24 In aplan based on a NYPD initiative known as "Operation Spotlight," Spot-light Students who committed another serious infraction of the disci-pline code would be transferred to Second Opportunity Schools-special schools for students who had been suspended for a period of atleast a year. 25 The new plan also included a "zero tolerance" policy,under which all students who possessed illegal weapons or who causedserious injury to someone at school were to be immediately and perma-nently removed from their schools; they too would be transferred toSecond Opportunity Schools. 26 As Mayor Bloomberg explained:

Every student has the right to seek an education in an atmosphere freeof fear or intimidation . . . . The plan we are announcing today willturn around the schools most plagued by disruptive students andcriminal behavior. It will identify problem students and send the mes-sage that disorder will not be tolerated.2 7

NYCDOE, Sept. 17, 2002]; Press Release, N.Y. City Dep't of Educ., Mayor Michael R. Bloom-berg & Schools Chancellor Joel I. Klein Announce New School Safety Plan (Dec. 23, 2003),available at http://www.nycenet.edu/Administration/mediarelations/PressReleases/2003-2004/12-23-2003-13-2-36-874.htm [hereinafter NYCDOE, Dec. 23, 2003].

21 NYCDOE, Sept. 17, 2002, supra note 20.22 Id23 NYCDOE, Dec. 23, 2003, supra note 20.24 Id25 Id. Operation Spotlight aims to keep chronic misdemeanor offenders, who commit a

disproportionate amount of crime, off the streets. Press Release, Office of the Mayor, MayorMichael R. Bloomberg Outlines Public Safety Accomplishments in 2003 (Dec. 15, 2003).

26 NYCDOE, Dec. 23, 2003, supra note 20.27 Id

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In January 2004, Mayor Bloomberg and Chancellor Klein an-nounced the first twelve impact schools.2 8 Chancellor Klein stated,"The bolstering of police resources is the centerpiece of this plan tomake schools safer." 2 9 The number of permanently assigned police of-ficers at each impact school was immediately doubled, and the numberof school safety officers (administrative aides employed by the NYPD toprovide security at New York City public schools)3 o on patrol at eachimpact school was also increased. 3 ' Furthermore, the mayor and chan-cellor announced that a school safety task force would be formed, con-sisting of 150 uniformed police officers, who would provide additionalsecurity at impact schools.32 All of these police officers would bearmed.3 3

Since the inception of the SchoolSafe initiative, crime rates at im-pact schools have decreased significantly.34 New York City has reported

28 Press Release, N.Y. City Dep't of Educ., Mayor Michael R. Bloomberg, Schools Chancel-

lor Joel I. Klein & Police Commissioner Raymond W. Kelly Announce Implementation of

Schools Safety Plan (Jan. 5, 2004), available at http://www.nycenet.edu/Administration/

mediarelations/PressReleases/2003-2004/1-5-2004-11-45-37-901.htm [hereinafter NYCDOE,

Jan. 5, 2004]. The impact schools included ten high schools and two middle schools. Id. They

comprised less than 1% of entire school system, but through November 30, 2003 accounted for

13% of all serious crimes and 11% of total incidents in New York City public schools. Id.

During the 2003 school year, these schools on average had roughly eight times as many inci-

dents as other secondary schools (117 compared to 15), six times as many assaults (7.8 com-

pared to 1.3), nine times as many major crimes (19 compared to 2) and nearly seven times as

many incidents involving weapons or dangerous instruments as other secondary schools (17.6

compared to 2.6). Id.29 Id30 "School Safety Agents provide security and ensure the safety of students, faculty and visi-

tors in the New York City Public School buildings and surrounding premises by patrolling and

operating scanning equipment, verifying identity and escorting visitors and by challenging unau-

thorized personnel and removing them from the premises." NYPD Civilian Opportunities:

School Safety Agents, http://www.ci.nyc.ny.us/htnl/nypd/html/civilian/school-safe.html (last

visited Mar. 5, 2005). In New York City, eligibility requirements for school safety agents in-

clude having a high school diploma and being at least twenty-one years of age; they are paid

$12.59 per hour. Id. Control of school safety agents was transferred from the NYCDOE to the

NYPD in 1998 pursuant to a Memorandum of Understanding drafted at then-mayor Rudolph

Giuliani's behest. Press Release, Mayor's Press Office, Mayor Giuliani Announces Release of

First Annual Joint Committee on School Safety Report (Dec. 1, 2000), available at http://www.

nyc.gov/html/om/html/2000b/pr451 -00.html.31 NYCDOE, Jan. 5, 2004, supra note 28.32 Id33 Diane Ravitch & Randi Weingarten, Public Schools, Minus the Public, N.Y. TIMES, Mar.

18, 2004, at A33.34 Susan Saulny, City Adapts a Police Strategy to Violent Schools, N.Y. TiMEs, Oct. 19, 2004,

at Al.

LEAVING HOMEROOM IN HANDCUFFS

a 48% decrease in major crimes, such as assault and grand larceny, onschool property.35 A comparison of impact school statistics for the firstfifteen days of the 2004-2005 school year showed a 40% decrease inmajor crime compared with the first fifteen days of the 2003-2004school year.36

In 2003, the Franklin K. Lane School in Brooklyn reported thehighest number of major crimes, including larceny, assault and aggra-vated harassment; one such crime occurred nearly every four schooldays.37 As of October 2004, it was the most improved of all of theimpact schools, with an 83% drop in major crime." After being desig-nated an impact school, Lane acquired a third uniformed police officer;additionally, two teams, of approximately five uniformed officers each,patrol the school daily.39 The number of school safety agents who workat the school has increased from eighteen to twenty-five, and the num-ber of deans responsible for enforcing discipline has increased from sixto fourteen.40

Some of the staff at Lane worry that the increased law enforcementpresence is not sustainable and that the initiative has not addressed theunderlying reasons for crime at the school. Virgilio Suncar, who hasworked at Lane for twelve years and is the teachers' union chapterleader, wonders, "Are we going to have police in the building forever?Somehow we have to come out with an implementation plan and have agradual decrease in police presence. If we need police in the building,something is wrong with the building."4 ' Norman Cohn, an assistantprincipal, adds, "The teachers are scared it's not going to continue ....That things get better, the police pull out-and bam!"4 2 A teacher atChristopher Columbus High School in the Bronx, another impactschool, chided New York City officials for "trying to say this is working... . The fights, the violence here-it's still out of control."43

35 Id. The statistics cover the twelve schools initially designated impact schools in January2004, as well as four schools designated impact schools in the spring of 2004. Id

36 Id.

37 Id.s Id

39 Saulny, supra note 34. The new uniformed patrols are part of the new school safety taskforce discussed above. Id

40 Id.4 1 Id.42 Id

43 Id.

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Other critics of the SchoolSafe initiative note that New York Cityrefuses to reveal how many students have been arrested at impactschools." One high school student contends that the initiative played arole in transforming her from a student who helped establish safetypolices at her high school into a youth offender on probation. 5 As shelamented to a New York Times reporter, "When it's a fight, the cops arethe ones that are called, not the school safety agents anymore." 6 Al-though New York City does not release data on the subject, John Fein-blatt, Mayor Bloomberg's criminal justice coordinator, contends thatthe SchoolSafe initiative has not resulted in criminal records for the ma-

jority of those arrested at school, because most students' offenses entaillow-level violations, such as disorderly conduct, that do not amount tomisdemeanors. 7

Many people also wonder how much the initiative is costing tax-payers.48 New York City Councilwoman Eva S. Moskowitz, chairwo-man of the Education Committee, says:

It always made sense to me that if you flood a school with law enforce-ment resources, you should be able to reduce violence. The questionis: What does it cost, and what is the precise gain for every dollarspent? I feel that is an unanswered question that deserves scrutiny.4 9

Marc Epstein, a dean at Jamaica High Schoolo in Queens, notes that"Nobody knows how much of the city's twelve billion-plus annual

44 Ellen Yan & Wil Cruz, Cops Make an Impact, N.Y. TIMES, Mar. 20, 2005, at A17.4 5 Id46 Id47 Id.48 Id. The Mayor's Criminal Justice Coordinator John Feinblatt claims that the SchoolSafe

initiative has not cost the City much because it was funded by shifting around existing resources

along with a $6.25 million federal grant. Saulny, supra note 34.49 Saulny, supra note 34. To give a sense of how much school safety measures can cost, the

New York City Council's recently-passed bill requiring the installation of video cameras at every

entrance of the City's 1,200 public schools is estimated to cost hundreds of millions of dollars.

David Andreatta, Cams for All Schools as Crime Skyrockets, N.Y. Posr, Sept. 15, 2004, at 6. The

New York City Council estimates that the installation will cost about $87,000 per school, total-

ing about $105 million. Id. However, the NYCDOE and NYPD note that it cost about

$275,000 to install surveillance cameras in the Franklin K. Lane school two years ago, and

charge that the plan will cost the City hundreds of millions of dollars. Id. A spokesman for

NYCDOE Chancellor Joel I. Klein charged that unfunded mandates like this one will not help

education in New York City. Id50 Jamaica High School is not an impact school. See NYCDOE, Jan. 5, 2004, supra note 28;

Press Release, N.Y. City Dep't of Educ., Mayor Michael R. Bloomberg, Schools Chancellor Joel

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budget is dedicated to school safety. But we do know that a significantportion of the funds that are earmarked for instruction and administra-tion is actually used to maintain security."5 1

Other critics admonish the Bloomberg Administration for choos-ing a policy that floods relatively few schools with a high dosage of lawenforcement personnel but does nothing for the rest of New York City'sschools, many of which also have safety and discipline problems.5 2

They note that despite the SchoolSafe initiative, the crime rate for NewYork City schools increased by 12% over the 2003-2004 school year.5 3

Critics further observe that despite the enormous expenditure of lawenforcement resources, the number of major crimes at one impactschool actually increased.

Since the New York Police Department began handling publicschool security in 1999, the question of whether police or school admin-istrators should have the final say on disciplinary matters has been thesubject of heated debate amongst parents, students, and policy makers."The issue became more contentious in February 2005 when a policeofficer stationed at a Bronx public school arrested the school's principalafter the principal tried to prevent a student's arrest; the principal wascharged with assault and obstructing governmental administration.5 1

I. Klein, & Police Commissioner Raymond W. Kelly Present Progress Report for First Year of

School Safety Initiative (Jan. 3, 2005), available at http://www.nycenet.edulAdministration/

mediarelations/PressReleases/2004-2005/ 1-3-2005-14-20-43-413.htm [hereinafter NYCDOE,

Jan. 3, 2005].51 Marc A. Epstein, Security Detail: An Inside Look at Safety and Discipline in the World of a

New York City High School, EDUC. NFxT, Summer 2003, at 30-31, available at http://www.

educationnext.org/20033/pdf/28.pdf.52 Saulny, supra note 34.

53 Andreatta, supra note 49, at 6. NYCDOE officials contend that the high figures are the

result of-and not despite-the SchoolSafe initiative and other school safety initiatives, which

have led to greater enforcement of school discipline and improved reporting of school crime. Id

54 Saulny, supra note 34 (referring to Evander Childs High School in the Bronx).

55 Elissa Gootman, Case Dismissedfor Principal in Bronx Clash, N.Y. TIMES, Apr. 13, 2005,

at B7.56 Robert F. Worth, Scuffle Leads To Principal's Arrest, N.Y. TIMEs, Feb. 4, 2005, at B6. A

school aide was also arrested. Id. The principal was led away from the school in handcuffs.

Gootman, supra note 55. The student whose arrest the principal had sought to prevent was

charged with disorderly conduct and resisting arrest. Worth, supra. According to a media report

that cited the officer's statement to the police, the officer had tried to issue a summons for

disorderly conduct to an unruly student who had screamed at him and a school aide and had

then fled into a classroom. Yan & Cruz, supra note 44. The officer claimed that the principal

had pushed him, which the principal denied. Id.; Gootman, supra note 51. In March 2005,two teachers at another Bronx high school were arrested and charged with disorderly conduct

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The incident occurred at a small school that was not an impact school,but which shares a building with a school that was an impact school atthe time.57 The charges against the principal were ultimately dropped,but only after a rebuke from the Bronx District Attorney, who cau-tioned, "Police officers assigned to public schools must be allowed to dotheir jobs."5

1

In response to this incident, Donna Lieberman, executive directorof the New York Civil Liberties Union ("NYCLU"), said, "Students areentitled to a safe learning environment, but they should not be treatedas suspects. Their schools should not be transformed into jails by apolice presence that does not distinguish between criminal activity andinfractions of school rules." 9 The head of a parent organization at theBronx Guild High School voiced a similar opinion, stating, "If the copsare going to be in schools, then the lines have to be clearly drawn, andthey have to be supportive of the staff."6 0 Representatives of theNYCDOE and the NYPD indicated that those lines were alreadydrawn. Rose Albanese-DePinto, NYCDOE's senior counselor forschool intervention and development,6' said, "If a crime is taking place,police have final say." 6 2 As NYPD Deputy Commissioner Paul Browneput it, "The question of who has authority is moot when it comes tointerfering with an arrest . . . That's a violation of the law, and thegeography is irrelevant."63

B. Law Enforcement at Schools in Other Areas of the Country

New York City is not the only school district that places policeofficers in public schools. Police are present in a wide array of schools in

after they sought to prevent police officers from arresting students who had gotten into a fight ina school bathroom. Catriona Stuart, Two Teachers Arrested After Students'Brawl, N.Y. SUN, Mar.9, 2005, at 10.

57 NYCDOE, Jan. 5, 2004, supra note 28. The incident occurred at the Bronx Guild HighSchool, which is affiliated with Outward Bound and situated on the campus of the Adlai Steven-son High School. Gootman, supra note 55; see also The Bronx Guild High School, http://www.bronxguild.org.

58 Gootman, supra note 55.59 Press Release, N. Y. Civil Liberties Union, NYCLU Calls for Investigation Into Abuses at

a Bronx High School (Feb. 8, 2005), available at http://www.nyclu.org/adlaistevenson hs-pr.020805.html.

60 Yan & Cruz, supra note 44.61 NYCDOE, Jan. 3, 2005, supra note 50.62 Yan & Cruz, supra note 44.63 Id.

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urban, suburban, and rural school districts across the country. For ex-ample, in the Los Angeles Unified School District, security personnel arearmed, as are the security personnel who oversee school dances and ath-letic events in the rural school district of Columbus, Mississippi.64

By January 29 of the 2004-2005 school year, nearly 250 studentsin Marion County, Florida schools had been arrested.6 5 During a one-month period in 2003, nearly two-dozen students were arrested atschool in Toledo, Ohio.6 6 Their offenses included being loud and dis-ruptive, cursing at school officials, shouting at classmates, and violatingthe dress code.67 In Lucas County, Ohio, the county in which Toledo islocated, there were 1,727 school-related juvenile court cases in 2002,490 more than there were in 2000.68 Juvenile Court judges in Ohio,Virginia, Kentucky, and Florida have complained that their courtroomsare at risk of being overwhelmed by student misconduct cases. Thesecases involve the type of student behavior that was previously dealt withby teachers, school administrators, and parents. 9

In Miami-Dade County, Florida, 60% of students arrested in 2001were arrested for "simple assaults"-fights that did not involve weap-ons-and "miscellaneous" charges such as disorderly conduct. 70 InPhiladelphia, public uproar erupted in December 2004 following thearrest of a ten-year-old girl who violated a school policy when shebrought a pair of scissors to school in her backpack. 7 ' Harvey M. Rice,

64 R. Baird Shuman, Big Guns, Thwarted Dreams: School Violence and the English Teacher,

ENGLISH J., Sept. 1995, at 23, 25.65 Wes Smith & Leslie Postal, Schools' Arrests Spark Furor on Zero Tolerance', ORLANDO

SENTINEL, Jan. 29, 2005, at Al.66 Sara Rimer, Unruly Students Facing Arrest, Not Detention, N.Y. TIMES, Jan. 4, 2004, at

Al. Rimer writes:Arrests in the past year or so include two middle school boys whose crime was turning

off the lights in the girls' bathroom and an 11-year-old girl who was arrested for

"hiding out in the school and not going to class," according to the police report,

which also noted, "The suspect continuously does not listen in class and disrupts the

learning process of other students."

Id.67 Id.68 Id69 Id.70 Id.71 Mensah M. Dean, Vallas, Cops Apologize for Girl's Arrest, PHIL. DAILY NEWS, Dec. 14,

2004, at 9 [hereinafter Dean, Cops Apologize]. After the teacher found the scissors in the girl's

backpack, the school called the police, who handcuffed the girl and took her in a police vehicle

to the local precinct, where she remained for eight hours before her mother, Rose Jackson, was

notified of the arrest. Id. Jackson said that her daughter had used the scissors to work on a

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safe schools advocate for the School District of Philadelphia, defendedthe policy under which the student had been arrested, noting, "Over thelast three months, twenty students have used pointed metal scissors asweapons to assault or attempt or threaten to assault other stu-dents-eighteen of whom were under the age of fourteen." 72 In May2005, a seven-year-old child in Fall River, Massachusetts, was hand-cuffed, arrested, and charged with two counts of assault, two counts ofassault and battery on a public employee, two counts of assault andbattery with a dangerous weapon (his shod foot), and disturbing aschool assembly, after he became violent at school. As these and theabove examples demonstrate, school crime is a concern across the coun-try and police presence on campuses and arrests of students are often themeans school administrators and politicians select to control theproblem.

II. HISTORICAL OVERVIEW: How DID WE GET To THIS POINT?

At the turn of the last century, schools were very different institu-tions than they are today. The average school district educated 120students at a time, and the average school had an enrollment of forty

school project at home, and probably placed the scissors into her backpack inadvertently whenshe placed the materials she had been working on into her backpack. Id.

Pennsylvania state law requires schools to contact the police any time weapons are discov-ered at school. 24 PA. CONS. STAT. § 13-1317.2 (2004). Cutting instruments are consideredweapons under that law. Id. Following the incident, Paul Vallas, chief executive officer of theSchool District of Philadelphia, noted that although state law requires reporting of such in-stances, it does not specify when such reporting must occur; in the case of non-threateningincidents at elementary schools, school administrators would have the right to refrain from re-porting such instances immediately after they occur. Mensah M. Dean, Schools Revising Cop-Notification Policy, PHIL. DAILY NEWS, Dec. 16, 2004, at 9. In making this change, the SchoolDistrict released a statement acknowledging that calling police officers off "their beats to managethe vast majority of primary-level incidents is a waste of vital law enforcement resources." Dean,Cops Apologize, supra.

72 Harvey M. Rice, Scissors 'Outrage' Look at the Context, PHIL. DAILY NEWS, Dec. 17,2004.

73 Stephanie Ebbert, Police Defend HandcuffDecision, BOSTON GLOBE, May 3, 2005, at Bl.The student allegedly tried to hit a teacher, a teacher's aide, and a student, and kicked a princi-pal and one of the police officers who responded to the scene. Id. The incident occurred on thechild's first day at a new school. Id. Although he was supposed to be enrolled in a school withclasses for children with special needs, due to a paperwork error he had been sent to a schoolthat did not have special education classes. Id.

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students.7 4 Schools were more racially, ethnically and economically ho-mogeneous, in part because neighborhoods were racially and culturallysegregated. Modern schools are bigger; in 2000, the average secondaryschool enrolled 714 students. 6 Student bodies are also more diverse,and while diversity can be an asset, it can also lead to misunderstandingsand a tendency for students of a similar background to stick together;sometimes this results in the formation of gangs.77

In addition to the increased size and diversity of student bodies,school administrators' ability to control students' discipline has alsobeen affected by greater judicial recognition of students' rights. For ex-ample, the United States Supreme Court has recognized that studentshave a Fourteenth Amendment right to due process before they may besuspended.78 Students are also protected under the Fourth Amendmentagainst unreasonable searches and seizures.79 Some legal analysts arguethat the expansion of students' rights has impeded teachers' and admin-istrators' abilities to discipline students and maintain control over theirclassrooms.80 They charge that the recognition of students' rights hasled to increased judicial review of school personnel's discipline andsafety choices. They further contend that school administrators, in theirefforts to keep their schools safe, have too often been held liable forviolating students' rights."' Under this theory, the risk of liability forinfringing upon students' rights has nearly eliminated the school's tradi-tional authority to act in loco parentis.82 These theorists think that theexpansion of students' rights has resulted in a decline in the "moralauthority" previously held by teachers and school administrators.8 3

They maintain that students take advantage of their constitutional rightsand use them as a threat against teachers who attempt to instill disci-

74 LEARNING FIRST ALLIANCE, EVERY CHILD LEARNING: SAFE AND SUPPORTIVE SCHOOLS,

at vii (2002) (citing the U.S. Census of 1900). Learning First is an organization comprised of

twelve national education associations. Id. at v.

75 Id. at vii.76 NAT'L CTR. FOR EDUC. STATISTICS, U.S. DEP'T OF EDUC., DIGEST OF EDUCATION

STATISTICs 2002 ch. 2 (2003), available at http://nces.ed.gov/pubs2003/2003060.pdf.

77 DANIEL L. DUKE, CREATING SAFE SCHOOLS FOR ALL CHILDREN 191 (2002).

78 See Goss v. Lopez, 419 U.S. 565 (1975).79 New Jersey v. T.L.O., 469 U.S. 325 (1985).

80 RICHARD ARUM, JUDGING SCHOOL DISCIPLINE 185-86 (2003).81 Id.

82 Id.

83 Id. at 195.

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166 CARDOZO PUB. LAW POLICY &' ETHICS J.

pline in their classrooms. 4 Commentators point to teachers who saythat they are "no longer so quick to break up a fight" because doing socould subject the school to litigation.15

Marc A. Epstein, a dean at Jamaica High School, a public school inQueens, New York, has stated:

State and federal court decisions intended to protect the rights of stu-dents, followed by the schools' attempts to comply with the mindlessbureaucratic directives used to implement these rulings, have made itall but impossible to expel a student unless a flagrant felony is com-mitted that results in the student's incarceration. As a result, our hallsare filled with students who cut nearly all their classes on a daily basis,whose only contribution to the educational process is to harass otherstudents and make it necessary to maintain a phalanx of security of-ficers at the school.86

Epstein and an increasing number of educators and legislatorsacross the country support creating alternative schools to handle the ed-ucation of so-called "difficult students," enabling them to be removedfrom schools where they cause disruptions and educated elsewhere.Administratively, the removal of students with disciplinary problems cantake a lot of time and resources. Hearings must be held before a studentcan be transferred involuntarily to an alternative school, and teachersand other school personnel have to spend time preparing for and attend-

84 In a random national sample, 78% of 725 middle school and public school teachersreported that students remind them that they have rights, or that their parents can sue. PUBLIC

AGENDA, TEACHING INTERRUPTED: Do DISCIPLINE POLICIES IN TODAY'S SCHOOLS FOSTER

THE COMMON GOOD? 2 (May 2004).

85 JEAN JOHNSON & ANN DUFFET, PUBLIC AGENDA, "I'M CALLING My LAWYER": PUBLIC

AGENDA PILOT STUDY ON How LITIGATION, DUE PROCESS AND OTHER REGULATORY RE-

QUIREMENTs ARE AFFECTING PUBLIC EDUCATION 5 (2003), http://cgood.org/assets/attach-ments/96.pdf.

86 Epstein, supra note 51, at 29-30.87 Id. Epstein explains:

At a large high school like Jamaica, the demands of the school day make it nearlyimpossible to give these deeply troubled kids the kind of individual attention andsupport they need. They slip through the cracks and wind up disrupting not onlytheir own education, but also that of the students around them. The schools need tobe made safe for education, and those who bring chaos to the school environmentneed alternative education settings, where teachers and counselors can work withthem and their families on a more one-to-one basis. This is especially true of studentswho have committed criminal acts in or outside of school.

Id. at 30.

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ing them." Often, the school will not be permitted to turn away thestudent until the student has exhausted all of his appeals. These theo-rists' observations about the increased bureaucracy that school disciplinerequires may explain why exasperated administrators find the alternativeof having police present at school to arrest students at the scene of theircrimes alluring."

The "moral authority" theorists often seem apprehensive of stu-dents' motives, and sometimes portray children as more keen on suingthan on learning. Yet the moral theorists may share common groundwith other scholars who have found that students who feel connected totheir schools-who have strong relationships with teachers and perceivetheir schools as communities of which they are a part-are more moti-vated to learn, have higher academic aspirations, and more positive so-cial values than other students.90 These students are also less likely touse drugs or be violent.91 A student's sense of community also corre-lates with greater achievement in math and reading.92 Unfortunately, itis unlikely that litigation-wary schools that prohibit hugs, lest a child suea teacher for inappropriate touching, foster such a sense ofconnectedness .

88 See Advocates for Children, High School Superintendent's Suspension Guide For Parents

of NYC Public High Schools, http://www.advocatesforchildren.org/pubs/hssusp.htmi (outlining

what a school must do before it can suspend a student).

89 See PHILIP K. HOWARD, THE COLLAPSE OF THE COMMON GOOD: HOW AMERICA'S LAW-

SUIT CULTURE UNDERMINES OUR FREEDOM 140-42 (2002).

The clumsy, ineffective effort of bureaucracy to tell people how to do things is the

inevitable consequence of not otherwise being able to distinguish who's doing the job

and who's not.

Bureaucracy, at least for internal management, is mainly our substitute for mak-

ing judgments about people. When people can't be judged, human instinct and initia-

tive are replaced by red tape. As the rules proliferate, everyone then loses the capacity

to make judgments about anything.

Id. at 4 1.

90 LEARNING FIRST ALLIANCE, supra note 74, at 4 (citing M. D. Resnick et al., Protecting

Adolescents fom Harm: Findings from the National Longitudinal Study on Adolescent Health,

278(10) J. AM. MED. Assoc. 823 (1997)).

91 Id.

92 Id. (citing T.D. Cook et al., Coiner's School Development Program in Chicago, 37(2) AM.

EDUC. RESEARCH J. 535).93 In a 1999 survey, 78 of 523 school principals surveyed reported banning all physical

contact, including hugging, to avoid lawsuits. Press Release, Am. Tort Reform Assoc., School

Principal Survey Reveals Fear of Liability Limits Educational Opportunities for America's Chil-

dren (Sept. 1, 1999), available at http://www.atra.org/show/91.

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168 CARDOZO PUB. LAW POLICY & ETHICS.

Another change in schools over recent decades is that high schoolstend to emphasize one goal: college. Epstein, the Jamaica High Schooldean quoted above, has noted, "Although [during the post-World WarII baby boom] Jamaica High was considered one of the school system'sacademic gems, it also provided vocational training that has long sincedisappeared."' Craig Cotner, chief academic officer for Toledo publicschools, has said that he believes part of the struggle to maintain orderin schools that school administrators are experiencing today comes froma lack of alternatives to college. He notes that thirty years ago, studentswho were not thriving in school could drop out and easily find jobs atauto plants and other factories.9 5 "For students who did not fit themold - whatever mold that may be - there were many more options. In

some cases, those students who found it impossible to sit for five hoursin a classroom could function very well in a labor environment."'

Furthermore, the composition of families and the role that parentsplay in a child's life has changed drastically since the beginning of thelast century. Historically, the father was the income-earner and themother's primary responsibilities were homemaking and child-rearing.In two-parent households with children, it has become much morecommon for both parents to work; many single parents also work. Be-tween 1985 and 1995, the percentage of single-family homes with chil-dren increased by 4%.97 On average, children in single-parenthouseholds miss more school and do worse academically than childrenin two-parent households." Also, working parents typically have lesstime to spend assisting students with homework and attending PTAmeetings and parent-teacher conferences." Studies further suggest thatin recent decades the amount of time parents spend engaging in con-structive activities with their children has plummeted by almost 50%.0A 1997 survey estimated that about four million six- to twelve-year-old-children in the United States routinely cared for themselves while their

9 Epstein, supra note 51.

95 Rimer, supra note 66.9 6 Id

97 DUKE, supra note 77, at 189 (citing ANNIE E. CASEY FOUNDATION, KIDS COUNT DATA

BOOK (1998)).98 Id. at 191.

99 Id. at 192.

100 Id. at 190 (citing James Garbarino, Educating Children in a Socially Toxic Environment, 54

EDUC. LEADERSHIP 7, 12-16 (1997)).

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parents were at work."o' Thus, while school administrators feel less ableto be disciplinarians because of increased students' rights, many parentsnow have less time to devote to teaching children positive social valuesand discipline. This may explain why contemporary society relies heav-ily upon the juvenile and criminal justice systems to assume the role ofdisciplinarian.

III. NEGATIVE EFFECTs AsSOCIATED WITH ARRESTS OF CHILDREN

When children and adolescents are arrested, they are placed underthe jurisdiction of either the juvenile or criminal justice system. A childin the justice system will typically experience one of two resolutions ofhis or her case: diversion or secure detention. Diversion may include

probation, community service, counseling (such as anger-control train-ing) or placement in a substance abuse program.o 2 Youth who are de-tained are placed in either a juvenile or adult facility. 03 In some casesthese resolutions may yield positive results and help change a problemchild into a happier, better-adapted, higher-performing child, but inother cases these punishments and attempts at rehabilitation do nothave the desired results.' For example, social scientists have long con-tended that contact with the justice system is often accompanied by asocial stigmatization that can have negative effects upon an individual'sfuture.o' This is true for juveniles as well as for adults. Children whoare labeled delinquents may respond to other people's perceptions andexpectations that they are delinquent by continuing to act inappropri-ately.' 0 6 They may also come to resent authority figures. 0 7

The negative effects associated with juveniles' contacts with the

justice system are not all theoretical. Some social scientists have ob-served that contact with police and incarceration not only fails to deterdeviant acts, but increases an individual's exposure to some deviant sub-

101 Id. at 190 (citing Linda Jacobson, Millions of School-Age Children Left on Their Own,

EDUC. WEEK, Sept. 13, 2000, at 3).102 Id. at 199.103 Id.104 Laub & Sampson, supra note 9, at 257.105 See Kelly, supra note 8, at 373 (citing older studies); Laub & Sampson, supra note 9, at

257.106 Paul R. Kfoury, Confidentiality and the juvenile Offender, 17 NEw ENG. J. ON CRIM. &

CIV. CONFINEMENT 55, 56 (1991).107 See Kelly, supra note 8, at 372-73, 374-76.

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170 CARDOZO PUB. LAW POLICY & ETHICS J

cultures.o0 This is often true when juveniles are incarcerated in facili-ties where they may be exposed to gangs.1 o' Furthermore, contact withthe justice system can make it harder for young people to get job train-ing, as is evidenced by the fact that young people who have criminalrecords are routinely denied admission to their state's Job Corps.o

Incarceration in particular can have significant negative effects on achild's future. 1 ' Social scientists have determined that the length of

juvenile incarceration may impair one's job stability later in life." 2 Inturn, low job stability during adulthood may increase the likelihood thatone will commit crime.' 1 3 Consequently, juvenile incarceration indi-rectly increases the likelihood that a person will commit crime as anadult."' Furthermore, state-raised youth who spent significant time in

juvenile detention as adolescents are believed to have been responsiblefor the development of some of the most violent prison gangs, such asthe Mexican Mafia and Nuestra Familia, gangs that now exist outside ofprison as well."' As two social scientists put it, "Stigmatizing and harshpunishment . . . by the state . . . appears to backfire over the life

course.""1

Yet another reason why relying on law enforcement and the justicesystem to maintain discipline in schools is detrimental to children is that

108 Jeffrey R. Hartman, Institutionalizing Juveniles: An Analysis by Social DisorganizationControlling for Arrest Rates 12 (May 8, 1997) (unpublished M.A. thesis, Virginia PolytechnicInstitute and State University) (citing Carl Keane et al., Deterrence and Amplification ofluvenileDelinquency by Police Contact, 29 BRIT. J. OF CRIMINOLOGY 336, 336-52 (1989)), available athttp://scholar.lib.vt.edultheses/available/etd-71197-101655/unrestricted/final.pdf.

109 MIHE CARLIE, INTO THE ABYsS: INTO THE WORLD OF STREET GANGS ch. 5 (2002),

available at http://www.faculty.smsu.edu/m/mkc096f/default.htm. Many people who becomeinvolved with gangs while incarcerated remain gang members when they leave detention andreturn to their communities. Id.

110 DAVID BROWN ET AL., JUST. POL'Y INST., WORKFORCE AND YOUTH DEVELOPMENT FOR

YOUNG OFFENDERS (2002), available at http://www.justicepolicy.org/article.php?id=302.

111 See Laub & Sampson, supra note 9, at 254-55 (incarceration leads to reduced job stabil-ity); Joan Moore, Bearing the Burden: How Incarceration Weakens Inner-City Communities, inTHE UNINTENDED CONSEQUENCES OF INCARCERATION 767, 72-73 (Vera Inst. for Justice ed.,

1996), available at http://www.vera.org/publication-pdf/uci.pdf (incarceration, especially ofyouths, leads to marginalization in terms of employment and social interactions).

112 Laub & Sampson found that length of confinement was correlated to joblessness irregard-less of other factors like alcoholism or a prior criminal past which may also have influenced thelength of confinement. Laub & Sampson, supra note 9, at 254-55.

113 Id. at 257.114 Id.

115 Moore, supra note 111, at 74.116 Laub & Sampson, supra note 9, at 257.

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many of the children who are arrested at school have mental health is-sues and need special services, not punishment.' 1 7 Laurence Steinberg, aprofessor of psychology at Temple University and the director of theMacArthur Foundation Research Network on Adolescent Developmentand Juvenile Justice, notes that schools, particularly urban schools withlarge numbers of poor children, have been forced to reduce or eliminatemental health services." He adds, "In the past a lot of these kidswould have been referred to specialists within the school or the schooldistrict. The juvenile justice system has become the dumping groundfor poor minority kids with mental health and special-educationproblems.""' Some children with mental health problems first get ac-cess to treatment after arrest; for those children, arrest may have positiveeffects. Yet those children are exposed to a double stigmatization-thestigmatization of arrest and the stigmatization of mental illness-thatcould be avoided if they had access to treatment at school.

Yet another negative aspect of relying on police and the courts tocontrol school safety is that the practice likely exacerbates the "dispro-portionate minority contact" ("DMC") that minority youth have withthe criminal justice system.12 0 Research has demonstrated that the per-centage of minority youth involved in every stage of the criminal justicesystem, from arrest through confinement, is disproportionately greaterthan the percentage of minorities in the general juvenile population.121The existence of DMC is evidence of an unequal application of the lawamongst youth in the United States. Minority youth "receive different

117 Rimer, supra note 66.118 Id.

119 Id120 The term "disproportionate minority contact" derives from a provision of the federal

Juvenile Justice and Prevention Act of 2002, which requires states to "address juvenile delin-quency prevention efforts and system improvement efforts designed to reduce, without establish-ing or requiring numerical standards or quotas, the disproportionate number of juvenilemembers of minority groups, who come into contact with the juvenile justice system." 42

U.S.C. § 5633(c)(1) (2003).121 The U.S. Department of Justice has acknowledged that minority overrepresentation "is

significant at each of the major decision points in the juvenile justice system process (e.g., arrest,detention, prosecution, adjudication, transfer to adult court, and commitment to secure facili-ties)." Heidi M. Hsia & Donna Hamparian, Disproportionate Minority Confinement: 1997 Up-date, Juv. JusT. BULL. (U.S. Dep't of Justice, Washington, D.C.), Sept. 1998, at 1, available athttp://www.ncjrs.org/pdffiles/170606.pdf [hereinafter 1997 Update].

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172 CARDOZO PUB. LAW POLICY & ETHICS J.

and harsher treatment ... even when White youth and minority youthare charged with similar offenses." 1 2 2

Recent census figures suggest that such overrepresentation mayeven increase at each stage in the criminal justice system. For example,in 1998, African American youth comprised only 15% of the totalyouth population in the United States, yet African American youth ac-counted for 26% of juveniles who were arrested; 31% of juveniles re-ferred to juvenile court; 32% of juveniles adjudicated delinquent; 40%of juveniles sent to residential placements; 46% of juveniles judiciallywaived to criminal (adult) court; and 58% of juveniles sent to adultprisons. 12 3 DMC is such a significant problem that Congress requiresstates to demonstrate that they are making an effort to reduce DMC inorder to be eligible for federal funding under the Juvenile Justice andDelinquency Prevention Act ("JJDP").12 4 States that fail to comply withthis provision risk losing at least 20% of their annual allocation of fed-eral assistance for state and local juvenile justice and delinquency pre-vention programs. 12 5

One way in which states could reduce DMC is by focusing uponthe extent to which the presence of police on campus contributes to thedisproportionate number of minority youth who are arrested. Schoolswith an ethnically diverse population are more likely than other schoolsto have police stationed on school grounds. 126 In effect, this results inan unequal application of the law, as poor, ethnically diverse student

122 EILEEN POE-YAMAGATA & MICHAEL A. JONES, NATIONAL COUNCIL ON CRIME AND

DELINQUENCY, AND JUSTICE FOR SOME: DIFFERENTIAL TREATMENT OF MINORITY YOUTH IN

THE JUSTICE SYSTEM 29 (2000).123 Id. at 28.124 42 U.S.C. § 5633(a)(22) (2003). In recommending this provision, the House Commit-

tee on Education and the Workforce noted, "[T]he criminal justice system should be colorblind.Individuals charged for the same crime under the same circumstances should be treated uni-formly by the juvenile justice system." H.R. REP. No. 107-203 (2001). The U.S. Departmentof Justice's Office of Juvenile Justice and Delinquency Prevention defines "minority popula-tions" as including African Americans, American Indians, Asians, Pacific Islanders, and Hispan-ics. 28 C.F.R. § 31.303(j)(6) (2005).

125 42 U.S.C. § 5633(c)(1).126 During the 1996-1997 school year (the last time the U.S. Department of Education sur-

veyed schools on this question), 20% of urban schools had police officers stationed at schoolcompared with 10% of town schools and 3% of rural schools; 19% of schools with 50% ormore minority enrollment had police officers stationed at schools, compared with 5% of schoolsthat had less than 5% minority enrollment; 14% of schools at which 75% or more of thestudents were eligible for free or reduced-price lunch had police officers present, as comparedwith 9% of schools that had 20-34% of such students. INDICATORs 1998, supra note 11, at 126tbl.A4.

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bodies are under direct police supervision much more often than otherstudents. Students at such schools are therefore more likely to be ar-rested for crimes committed at school than are students at other schools.Principals from across the country report that crime (and non-criminalbehavior that could result in arrest, such as disturbing the peace) occursat their schools much more frequently than schools report to the po-lice.' 2 7 Where there are police officers stationed on campus, however,the discretionary step of calling the police is removed, therefore arrestsare more likely to occur.

Although the rate of violent incidents in schools has been decreas-ing steadily since 1991,128 school violence is still a serious area of con-cern. During the 1999-2000 school year, an estimated 1.5 millionviolent incidents occurred in public schools, ranging from schoolyardfistfights to more serious crimes.1 2 9 Given that violence in schools re-mains a problem, it is understandable that schools have looked to lawenforcement for help in ensuring school safety. Furthermore, arrest canhave positive repercussions on some children. For example, it can resultin access to treatment for mental health issues that are the source of achild's delinquent behavior. In other cases, it can lead to detention in afacility that can provide a structured environment that the child did nothave at home and that is beneficial to his or her development. Never-theless, because arrest can have serious negative repercussions later in lifefor some children, and because of the unequal application of the lawwith regards to minorities that results from stationing police primarily atschools with large minority populations, it is important for policy-mak-ers and school administrators to consider alternative means of achievingschool safety. This is especially true in light of the congressional direc-tive to decrease the disproportionate contacts that minority youth havewith the criminal justice system.

127 JILL F. DEVOE ET AL., U.S. DEP'T OF EDUc. & U.S. DEP'T OF JUSTICE, INDICATORS OF

SCHOOL CRIME AND SAFETY: 2003, at 21 (2003) [hereinafter INDICATORS 2003]. According tothe U.S. Department of Education's School Survey on Crime and Safety (SSOCS) 1999-2000,71% of principals surveyed responded that violent crime had occurred at their schools, yet only36% of schools reported violent crime to the police; 46% of principals noted theft, but only28% of schools reported theft to the police. Id.

128 Id. at iii.129 Id. at 20. Violent incidents include physical attack or fight with or without a weapon,

threat of physical attack with or without a weapon, robbery with or without a weapon, rape, andsexual battery other than rape. Id.

2006] 173

174 CARDOZO PUB. LAW POLICY & ETHICS ] [

IV. A BRIEF LOOK AT AN INEFFECTIVE FEDERAL ATTEMPT TO

MAKE SCHOOLS SAFER

Unsafe schools are a national concern, and in 2001, Congress at-tempted to address this concern by passing the No Child Left BehindAct ("NCLBA"). 3 o One of NCLBA's core premises is "school choice,"the notion that parents should have flexibility in choosing which schooltheir children attend. To that end, NCLBA's "unsafe school choice"provision requires states to determine which of their public schools arepersistently dangerous and to permit students at such schools to transferto a safe school in the same school district. 131

Each State receiving funds under this chapter shall establish and im-plement a statewide policy requiring that a student attending a persist-ently dangerous public elementary school or secondary school, asdetermined by the State in consultation with a representative sampleof local educational agencies, or who becomes a victim of a violentcriminal offense, as determined by State law, while in or on thegrounds of a public elementary school or secondary school that thestudent attends, be allowed to attend a safe public elementary schoolor secondary school within the local educational agency, including apublic charter school.132 Schools that fail to satisfy this requirementare not eligible for federal education funding. 1 33

Under the NCLBA, states were charged with drafting their owndefinitions of the term "persistently dangerous" by June 16, 2003.'13Because states that fail to comply with the unsafe school choice provi-sion risk losing federal funding for education, most states created defini-tions of persistently dangerous that made it difficult, if not impossible,for any public school to attain the label. For example, New York definesa school as persistently dangerous if, for two consecutive years, the num-ber of incidents of weapons possession or weapons use is equal to orgreater than 3% of the school's enrollment.135 In 2003, the first year in

130 No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425.131 20 U.S.C. § 7912(a) (2000).132 Id133 20 U.S.C. § 7912(b).134 Notice of Final Deadlines for Implementation of Unsafe School Choice Option, 68 Fed.

Reg. 35,671 Uune 16, 2003).135 New York State Policy on Persistently Dangerous Schools, http://www.nyscoss.org/pdf-

upload/dangerousschools.pdf (last visited Oct. 10, 2005) (policy statement for the 2003-2004school year). Commissioner Mills established this policy pursuant to the "Unsafe School

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2006] LEAVING HOMEROOM IN HANDCUFFS 175

which states were required to label schools persistently dangerous underfederal law, New York labeled only two of its schools persistently dan-gerous. 13 6 Both schools were in New York City. California's definitioncovers schools that for three consecutive years have had violations offederal or state gun-free schools legislation or a violent criminal offensecommitted on school property. The schools also must have expelledstudents for serious offenses, such as brandishing a knife or committinghate violence, at a rate of three expulsions for a school of fewer thanthree hundred enrolled students, or one expulsion for every one hun-dred enrolled students for schools with more than three hundred en-rolled students.' 3 7 In 2003, California was one of eight states that didnot label any schools persistently dangerous. 1

3

Pennsylvania drafted a definition of persistently dangerous' 3 9 thatcaptured a relatively large number of schools-twenty-seven in 2003.40This was twenty-one more persistently dangerous schools than Nevada,the state with the second highest number of persistently dangerousschools, which had eight.' 4 ' The NCLBA requires that students whoattend persistently dangerous schools be permitted to transfer; 403 stu-dents at Philadelphia's twenty-six persistently dangerous schools exer-cised their transfer right.14 2 The following year, Pennsylvania clarified

Choice" provision of New York's NCLBA. N.Y. Comp. CODES R. & REGs. tit. 8, § 120.5(2005).

136 Press Release, N.Y. State Bd. of Regents, Two New York State Schools Designated as"Persistently Dangerous" Under NCLB (Aug. 18, 2003), available at http://www.emsc.nysed.gov/deputy/Documents/press release-8-18.htm.

137 Jennifer Covino, Fighting Danger, DISTRICT ADMIN., Nov. 2003, available at www.dis-trictadministration.com/page.cfm?p=537; EDUC. COMM'N OF THE STATES, PERSISTENTLY DAN-

GEROUS SCHOOL CRITERIA 3-4 (2003) (approving the definition of "persistently dangerous" in

California).

138 Covino, supra note 137.139 Id. Pennsylvania declares a school persistently dangerous for NCLBA purposes-if for the

most recent school year and one additional year of the two preceding years: 1) for a school whoseenrollment is 250 or less, at least five dangerous incidents occurred; 2) for a school whoseenrollment is 251 to 1,000, a number of dangerous incidents that represents at least 2% of theschool's enrollment occurred; or 3) for a school whose enrollment is over 1,000, twenty or moredangerous incidents occurred. Id Dangerous incidents include weapons possession and violentincidents. Id

140 Dale Mezzacappa, State Says 13 Schools No Longer Dangerous, PHIL. INQUIRER, Aug. 18,

2004, at B 1. Twenty-six of Pennsylvania's twenty-seven persistently dangerous schools were inPhiladelphia, and Philadelphia's persistently dangerous schools accounted for half of the persist-ently dangerous schools in the entire country. Id

141 Covino, supra note 137.142 Mezzacappa, supra note 140 (quoting Philadelphia School District CEO Paul Vallas).

176 CARDOZO PUB. LAW POLICY & ETHICS [

its definition, requiring that arrest statistics be used in place of schoolreporting to determine which schools were persistently dangerous.14 3 Asa result, thirteen of the twenty-seven schools deemed persistently dan-gerous in 2002 were removed from the list in 2003, and no schools wereadded to the list. 144

Critics of the unsafe school choice provision cite several reasons fortheir dissatisfaction with the law. One reason is that the provision en-courages underreporting of school crime. As Tim Buresh, Los AngelesUnified School District's Chief Operating Officer has said, "This is anindex that almost rewards you for turning a blind eye to problems."14 1

Another critique is the lack of uniformity in definitions of "persistentlydangerous" across the country.' 4 6 Although the NCLBA is a federallaw, under the Act children in one state may be able to transfer from aschool while children in another state, attending a comparable school,have no such option. Another concern is that there is no funding at-tached to the provision to improve those schools that are declared per-sistently dangerous. This leaves schools labeled as persistently dangerouslittle opportunity to shed the label, because safety initiatives invariablycost money. 4 7 Yet another critique is that talented school administra-tors are unlikely to accept jobs at schools that are labeled or likely to belabeled persistently dangerous because, as the president of a firm thatconsults with schools on school safety issues put it, the persistently dan-gerous label "is the kiss of death for a school administrator's career andfor the school's image."' 4 8

Because the NCLBA does not provide schools that garner the per-sistently dangerous label with the means to improve, the provision does

143 Id.; see also Pa. Dep't of Educ., Approved Standards for Persistently Dangerous Schools

(Dec. 19, 2003), available at http://www.pde.state.pa.us/svcs-students/cwp/view.asp?a=141&q=93313 (mandating the use of arrest statistics in determining which schools are persistently

dangerous).144 Mezzacappa, supra note 140.'45 Duke Helfand, School Danger Narrowly Defined, L.A. TIMES, July 8, 2003, § 2, at 1.

Kenneth Trump, president of National School Safety and Security Services, a consulting firm

specializing in school safety, says, "An administrator is going to think twice before he or she

reports each and every incident, because doing so is going to put them one step closer to the

persistently dangerous label." Covino, supra note 137.146 National School Safety and Security Services, School Safety Implications of No Child Left

Behind Law's "Persistently Dangerous School" Definitions, http://www.schoolsecurity.org/

trends/persistently-dangerous.html.147 Id148 Covino, supra note 137 (quoting Kenneth Trump, president of National School Safety

and Security Services).

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nothing to help unsafe schools become safe. The NCLBA's approach to

school safety is ineffective because it is a "band-aid" approach; it enablesstudents to leave violent schools, but it does nothing to address the roots

of the violence that found its way into the schools. The remainder of

this article emphasizes affirmative solutions to making schools safer.

These solutions are different from the NCLBA in that they attempt to

reduce factors existing at schools and in students' lives that lead to

violence.

V. ALTERNATIVE STRATEGIES FOR ACHIEVING SCHOOL SAFETY

This section examines a variety of strategies for making children

less prone to violence and for making our public schools safer. Politi-

cians and school administrators should consider these strategies as op-tions that can help achieve safety goals while reducing reliance upon law

enforcement and the courts to discipline students. Each tactic has beenimplemented, evaluated, and found to yield positive results. These

strategies can be employed alone or in combination. Policy-makers and

school administrators should consider which will work best for their

schools based on the size of the schools' facilities, the age and composi-

tion of student bodies, and other relevant considerations.

A. Law Enforcement's Perspective

Fight Crime: Invest in Kids ("Fight Crime") is an organizationcomprised of over two thousand police chiefs, sheriffs, prosecutors and

victims of violence.149 Its members include the presidents of the Major

Cities [Police] Chiefs Association, the National District Attorneys Asso-ciation, the International Union of Police Associations and parents of

children killed in the Columbine, Paducah and Jonesboro school shoot-

ings.'5 o Fight Crime's methodology consists of taking a "hard-nosed

look" at existing crime-fighting strategies, and recommending future

courses of action to legislators."' Fight Crime is adept at using eco-

nomics to show lawmakers why particular programs or approaches are

cost-effective and will save taxpayers money in the future. As Fight

149 WILLIAM CHRISTESON & SANFORD NEWMAN, FIGHT CRIME: INVEST IN KIDS, CAUGHT

IN THE CROSSFIRE: ARRESTING GANG VIOLENCE BY INVESTING IN KIDS 2 (2004) [hereinafter

CROSSFIRE].

150 Fight Crime: Invest in Kids, Frequently Asked Questions, http://www.fightcrime.org/faq.

php.151 Id.

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178 CARDOZO PUB. LAW POLICY 6- ETHICS ].1

Crime stated in one of its reports, "When the country fails to invest inchildren, all Americans pay far more later-not just in lost lives and infear, but also in tax dollars."l 5 2

Fight Crime is a strong promoter of pre-kindergarten education,noting, "Almost all children learn from older siblings or peers how toviolently take a toy from another child. But if young children do notlearn by kindergarten to use means other than violence to get what theywant, they are at high risk of becoming involved in serious delin-quency."'" In this vein, Fight Crime supports home visits by nurses tofamilies during a woman's pregnancy and through the first two years ofthe child's life. 1 4 Among other services, the nurses teach expectantmothers parenting skills.' 55 A fifteen-year longitudinal study publishedin the Journal of the American Medical Association showed that chil-dren whose families received such visits were significantly less likely tobe arrested by the time they turned fifteen than children whose familiesdid not receive such visits.' 56 The RAND Corporation, a non-profitresearch organization, concluded that for the "at-risk" families-familiesin which the mother was unmarried and of low socioeconomic statuswhen she gave birth-the program, which in 1996 cost an average of$6,083 per participant, would result in an estimated net savings of$18,611 per participant.15 7

152 FIGHT CRIME: INVEST IN KIDS, FROM AMERICA's FRONT LINE AGAINST CRIME: ASCHOOL AND YOUTH VIOLENCE PREVENTION PLAN (2003) [hereinafter FRONT LINE].

153 Id. at 23.

154 Id155 Id

156 Id. (citing David Olds et al., Long-term Effects of Nurse Home Visitation on Children'sCriminal andAntisocial Behavior, 280 J. AM. MED. Ass'N 1238, 1241 (1998)). Children in thestudy who received home visits received an average of nine visits during pregnancy and twenty-three visits during the child's first two years of life. Three hundred and fifteen of the adolescentoffspring participated in a follow-up study when they turned fifteen. Id at 1238.

157 LYNN A. KAROLY ET AL., INVESTING IN OUR CHILDREN: WHAT WE KNOW AND DON'T

KNow ABOUT THE COSTS AND BENEFITS OF EARLY CHILDHOOD INTERVENTIONS 85-86(1998), available at http://www.rand.org/publications/MR/MR898. In 1998, the authors con-

cluded that 80% of the savings was due to differences in behavior of mothers in the treatedgroup versus the control group during the child's first fifteen years of life; for example, mothersin the treated group used welfare less and were employed more. The rest of the savings resultedfrom differences in the behavior of the children in the treated group versus the control group,particularly savings in criminal justice costs projected across a child's lifetime, as the authorscontend it is possible by the age of fifteen to project whether an adolescent will be a careercriminal. Id. at 80, 86-87.

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Fight Crime also champions the federally funded Head Start"'program, as graduates of the program commit fewer crimes as adultsthan non-graduates."' 9 For example, a study conducted in 2000 foundthat twenty-two-year-old women who had participated in Head Start aschildren were three times less likely to have been arrested than similarwomen who had not participated in Head Start.' 6 0 Another study con-cluded that by age twenty-two, African-American Head Start graduateswere 12% less likely to have been later charged or convicted of a crimethan their siblings who did not attend Head Start.'"' Noting that in2001, only 60% of the income-eligible three- and four-year-old childrenwere enrolled in Head Start programs, Fight Crime has urged Congressto increase federal funding for Head Start programs. 16 2

Another intervention that Fight Crime espouses is Functional Fam-ily Therapy ("FFT"), an eight- to thirty-hour training program thatteaches families how to better control their children's behavior.' 6 3 Astudy that was conducted in Salt Lake City found that only 26% of SaltLake City youths whose families received FFT were re-arrested as com-pared with 50% of youths whose families did not receive FFT. 6

1 In2001, the Washington State Institute for Public Policy ("the Institute")conducted a cost-savings analysis of FFT and calculated that the pro-

158 "Head Start and Early Head Start are comprehensive child development programs which

serve children from birth to age 5, pregnant women, and their families. They are child-focused

programs and have the overall goal of increasing the school readiness of young children in low-

income families." U.S. Department of Health and Human Services, Head Start Bureau: General

Information, http://www2.acf.dhhs.gov/programs/hsb/about/generalinformation/index.htm.159 FIGHT CRIME: INVEST IN KIDS, HEAD START IMPROVES ACHIEVEMENT AND REDUCES

CRIME 1 (2003) [hereinafter HEAD START].160 Id. at 1-3 (citing SHERRI ODEN ET AL., INTO ADULTHOOD: A STUDY OF THE EFFECTS OF

HEAD START (2000)).161 Eliana Garces et al., Longer- Term Effect of Head Start, 92(4) Am. EcON. REV. 999, 999-

1012 (2002). This study was a survey of four thousand adults aged 18-30 who had participated

in Head Start. The mean age of the study participants was 23.66 years. See id. at 1002, 1003,

1007, Table 1, Table 2.162 HEAD START, Supra note 159, at 1. This percentage was obtained by dividing the number

of three- and four-year-old children enrolled in Head Start in 2001 (n=805,659), U.S. Dep't of

Health & Human Servs., 2002 Head Start Fact Sheet, http://www.acf.hhs.gov/programs/hsb/

research/factsheets/02_hsfs.htm, by the number of three- and four-year-olds in poverty in 2002

(n= 1,369,000), Bureau of Labor Statistics & Bureau of the Census, Annual Demographic Sur-

vey March Supplement: Poverty Table 23 (2002) http://ferret.bis.census.gov/macro/032002/

pov/new23_001.htm.163 CROSSFIRE, supra note 149, at 17.164 Id. (citing JAMES ALEXANDER ET AL., FUNCTIONAL FAMILY THERAPY (FFT) (Ctr. for the

Study and Prevention of Violence, Blueprints for Violence Protection Series Book Three,

1998)).

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180 CARDOZO PUB. LAW POLICY 6- ETHICS J

gram, which cost an average of $2,161 per participant, was cost effectivebecause it produced a net return to taxpayers of $14,149 for each par-ticipant by reducing the amount of taxpayer money that otherwisewould have been spent on incarceration and related costs.' 6 5 That fig-ure rose when savings to would-be victims were factored into the equa-tion. 6 6 The Institute concluded that FFT ultimately saved taxpayersabout twenty-nine dollars for every dollar spent.' 6 7

For more chronic or severe youth offenders, Fight Crime endorsesMulti-Systemic Therapy ("MST"), which is similar to but more inten-sive than FFT, as it provides participants and their families with sixtyhours of services over a four month period.' 6' In addition to the ser-vices offered in FFT, MST professionals devote a significant amount oftime to helping at-risk youth find positive influences and activities intheir communities.' 6 9 Studies show that MST is extremely effective. A1993 study in Simpsonville, South Carolina compared MST to the typi-cal methods that are utilized to reduce delinquent behavior, such ascourt-ordered curfew and referral to community agencies. The studyfound that at-risk youth who participated in MST were 43% less likelyto be rearrested than other youths.17 0 A 1995 study conducted in Co-lumbia, Missouri found even more remarkable results: MST participantswere 70% less likely to be arrested than youth treated with conventionalindividual therapy.'7 1 With an average cost of $4,743 per participant,and estimated savings on potential future costs for incarceration andother criminal justice services of $31,661 per participant (and evenmore when savings to potential victims are factored in), the Instituteconcluded in 2001 that MST would save taxpayers twenty-eight dollarsfor every dollar spent.1 72

165 Id (citing Steve Aos ET AL., THE COMPARATIVE COSTS AND BENEFITS OF PROGRAMS

To REDUCE CRIMES 18 (2001), available at http://www.wsipp.wa.gov/rptfiles/costbenefit.pdf).166 Id167 Id. at 18.168 Id169 Id.170 Id. (citing Scorr W. HENGGELER ET AL., MULTISYSTEMIC THERAPY (MST) (Ctr. for the

Study and Prevention of Violence, Blueprints for Violence Protection Series Book Six, 1998)).171 Id172 Id. at 19 (citing AoS ET AL., supra note 165, at 17).

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B. Teachers' Perspective

Although school violence has been a problem for many decades, itwas thrust into the public's eye in the 1990s, when there was a rash ofschool shootings far from the inner cities where school violence wasthought to exclusively reside.' 73 That spate of youth violence touchedoff a new wave of thinking by teachers about how best to control schoolviolence, in cities and elsewhere. Like administrators, teachers in unsafeschools fear for their own safety and for the safety of their students. Yetit is natural for teachers, as compared to administrators, to think lessabout rules and regulations than about what they can teach childrenthrough the curriculum. Several teachers have proposed-and somehave applied-classroom curricula aimed at teaching students how tolive without violence.

Evelyn McLean Brady, who teaches English to juniors at a highschool in Buffalo, New York, feels that:

Like ourselves, students have an obligation to explore the underlyingcauses of problems, be they personal or structural. If they understandcauses, and if they can distinguish what role they do or do not play incontributing to them, they can learn positive ways to respond andcope. Education offers students opportunities to change perspectiveand behaviors. Most of us do not gain this knowledge by ourselves,but with support and educational opportunities, people feel more con-trol over their lives.' 7 4

To that end, Brady devised and implemented a classroom unit designedto help students better understand violence in their lives and gain somecontrol over it.' 7 5 One of the goals of the unit is to educate studentsabout the differences between violence through what she terms "institu-tional structures"-such as drug culture, a lack of employment opportu-nities, commercialism, racism, a lack of parenting programs, and mediaexploitation-and violence caused by personal decisions.' 76 The unitfocuses on finding solutions for both types of violence, but emphasizes

173 These shooting incidents occurred in Pearl, Mississippi; Jonesboro, Arkansas; West Padu-

cah, Kentucky; Springfield, Oregon; and Littleton, Colorado. See James Sterngold, Others' Trag-

edies Helped Santee Prepare for Its Own, N.Y. TIMES, Mar. 11, 2001, § 1, at 22.

1 Evelyn McLean Brady, How to Survive Urban Violence with Hope, ENG. J., Sep. 1995, at

43, 49.

175 Ida176 Id at 43-44.

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182 CARDOZO PUB. LAW POLICY d ETHICS ].5

that while some of the roots of violence are beyond students' personalcontrol, much of violence results from personal decisions that arecontrollable. 7 7

While participating in an exercise that addresses institutionalsources of social problems that may lead to violence, Brady's classdrafted a questionnaire which it distributed to a diverse array of recipi-ents in the community, including students from other classes, school

personnel, law enforcement officials, gang members, family, neighbors,religious leaders, and business owners. 78 The questionnaire solicitedsolutions to problems affecting the community.'7 9 Recipients re-sponded with useful suggestions; for example, to facilitate parents' in-volvement with their children's educations, recipients suggested holdingPTA meetings closer to where the parents live rather than at the school,or handing out social security checks at school to draw parents there.soThe exercise not only provided ideas for school policy changes, but alsoprompted students to have serious discussions with adults outside ofschool. In addition, the exercise required the students to make and keepappointments, record answers accurately, and follow up with partici-pants for clarification and elaboration. 18

1

Brady also taught students that how they handle stressful situationsand altercations can affect whether a situation turns violent. Shebrought in a conflict resolution expert to teach students how to "respondrather than react."l8 She also taught students breathing techniques,journal writing, and other cost-free methods that students could use tocope with stressful situations in their day-to-day lives.' 8 3 Since the classwas an English class, Brady assigned literature that featured charactersdealing with conflict, including A Raisin in the Sun and The Autobiogra-phy ofMalcolm X, and focused discussion on how the characters success-fully or unsuccessfully resolved conflicts.' After the unit was over, she

177 Id. at 43-50.178 Id. at 46.'79 Id.180 Id181 Id182 Id. at 45 (emphasis in original).183 Id. at 46-47.184 See id. at 47, 49; cf Barbara Stanford, Conflict & the Story of Our Lives: Teaching English

for Violence Prevention, ENG. J., Sept. 1995, at 38-39. Stanford has developed a short story unitfor middle school students that focuses on conflict resolution; students identify the conflicts inthe stories, the poor choices that characters make that lead to conflicts, the characters' ap-proaches to resolving the conflicts, and better approaches the characters could have taken. Id.

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critiqued the experience in The English Journal, a periodical widely readby English teachers, noting what worked well, and what had been lesssuccessful. 1 5 For example, Brady felt that her very brief segment onMartin Luther King, Jr. may have done more harm than good, as stu-dents found his nonviolent tactics naive. s6 She notes, "No real learningoccurs in a vacuum, and students have not experienced cultural or edu-cational support for what I was advocating."' 8 7

Brady does not suggest that her approach to violence prevention isall that is needed to solve the problem, but she believes that educationcan be instrumental in providing young people with the tools to betterrespond to adversity. She concludes:

There are no illusions that one unit will radically change the thinking,let alone the behaviors, of students. Education regarding alternativesto violence needs to start when the students are much younger. Weneed to inform, shape, and change people's attitudes about the unac-ceptability of violence in an ongoing way. And we need to providepractical strategies. Think of how differently we view smoking be-cause of a concerted educational and media campaign. Violence is acultural paradigm that must also change. 88

Some teachers are consciously designing new curricula in responseto what they view as administrators' "band-aid" approach to the prob-lem of unsafe schools-increasing the presence of law enforcement oncampus. Professor R. Baird Shuman, a former professor of English atthe University of Illinois who has written extensively about educationissues, suggests that students can be empowered in English class to armthemselves mentally against the problems that have led some schools toplace school security in the hands of armed guards.'" 9 Among his cur-riculum suggestions for English classes is to have students produce newspieces about the real-life impact of violence on people's lives in theircommunities; one of the lessons taught by such an assignment would bethat people-youth included-are not immortal, a misperception thatShuman believes contributes to youth violence.o90 He also thinks that

185 Brady, supra note 174, at 49.186 Id. at 47.187 Id188 Id. at 49.

189 Shuman, supra note 64, at 25-26.

190 Id at 26-27.

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English class is an appropriate place to teach young people how to ana-

lyze advertising,1' a skill that could help students deconstruct the mate-rialistic desires that often fuel violence between adolescents. Similarly,teaching students how to critically watch film, television, and other me-dia teaches them about how stereotypes are reinforced in our society. 192

C. The Student Problem-Solving Approach

A promising means of making schools safer is what is known as theStudent Problem-Solving Approach ("SPSA"), which was implementedin a pilot study in the Charlotte-Mecklenburg County School Districtin North Carolina in 1993.'" At the time the study was conducted,79,800 students attended the school district's 109 schools.194 In 1992,the year before SPSA commenced in one target high school, the Char-lotte Police Department responded to 1,409 incidents at the school dis-trict's eight high schools.'" Worried about the crime rate at the city'sschools, a police official contacted the developers of SPSA seekingassistance."

On the first day of classes in the year the study was implemented,the principal of the school addressed the students, advising them thatthey would "be engaging in research activities that might include devis-ing and administering surveys and conducting interviews to determinewhat the real concerns at the school are," and assuring them that theywould "enjoy the full support of the school and extended communi-ties."' 97 The principal had agreed to add the problem-solving unit tothe mandatory eleventh grade government and history classes.'19 At thebeginning of the year, the school's police liaison officer spoke to theclass about community policing, which had been underway in Charlottefor about four years and utilized a similar problem-based model as the

191 Id. at 26.192 See id. 23-26.193 DENNIS JAY KENNEY & STEUART WATSON, U.S. DEP'T OF JUSTICE, RESEARCH IN BRIEF:

CRIME IN THE SCHOOLS: REDUCING CONFLICT WITH STUDENT PROBLEM SOLVING (1999).

194 Id

195 Id. at 1, 2.196 VERA INST. FOR JUSTICE, APPROACHES To SCHOOL SAFETY IN AMERICA'S LARGEST CIT-

IEs 41 (1999) ("[SPSA] was developed . . . by Dr. Dennis Kenney of the Police Executive

Research Forum and Dr. Steuart Watson of Mississippi State University.").

197 KENNEY & WATSON, supra note 193, at 3.

198 Id. at 2.

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one the students would be using.'99 Students in the classes were in-formed that, in collaboration with teachers and police representatives,they would devote one to two days a week to identifying school safetyproblems, strategizing solutions, and working to get their proposed solu-tions implemented.2 00

After the overview of the SPSA, the teachers introduced the pro-gram's four-stage problem-solving model, which consisted of problemidentification, analysis, strategy formulation, and assessment.20 1 Afterintroducing some basic concepts about problem-solving,20 2 the teachersbroke each fifteen to twenty-five student class into groups of four to sixand they began the process of identifying problems.2 0 3 During thisproblem identification stage, participants were asked to look to theirown experiences, official records, and interviews with other students,teachers, administrators, and the police to get a sense of the problemsthat concern the community.2 0 4 The participants were to then decidehow to prioritize the different problems they had identified.2 0 5

During the analysis stage, the group gathered additional informa-tion about the problems, focusing on the forces that contributed to theproblems and a range of strategies for combating them.2 06 The group

199 Id. at 3. In community policing, the police tailor their law enforcement activities toaddress the community's concerns. Id.

200 Id. at 2, 3, 5, 7.201 Id at 3, 6-7. Kenney and Watson's approach to problem-solving is derived from Herman

Goldstein's concept of problem-based policing, which Goldstein first wrote about in the 1970s.Herman Goldstein, Improving Policing: A Problem-Oriented Approach, 25 CRIME & DELINQ.

236 (1979). Goldstein has more recently outlined the basic elements of problem-based policing,upon which Kenney and Watson's model is based. See HERMAN GOLDSTEIN, PROBLEM-Om-

ENTED POLICING 32-49 (1990).202 KENNEY & WATSON, supra note 193, at 3. The teachers explained to their classes that

they would not be "directing" the problem-solving process, but would instead be serving asfacilitators, while the students would direct the project. Id. In that capacity, one of the teachers'primary responsibilities was to guide the students towards obtainable goals. Id. at 6. Socialscientists have observed that reformers often try to address large-scale problems, defining suchproblems in a way that overwhelms any possible solution. Id. Karl E. Weick, a psychologistwho has studied this phenomenon, suggests that deconstructing large problems into smaller onesmakes it easier to tailor solutions. Id. (citing Karl E. Weick, Small Wins: Redefining the Scale ofSocial Problems, 39(1) Am. PSYCHOLOGIST 40 (1984)).

203 Id. (a total of 250 students participated in the project over the year).204 Id205 Id206 Id Group members think realistically about whether the problem can be completely

eradicated, reduced, or whether the best approach instead involves improving the methods forcoping with the problem.

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then proceeded to the strategy formulation stage, at which point it se-lected responses to the problems it had identified and had decided toaddress.2 0 7 Students were not expected to enforce new rules or imple-ment any changes to the physical plan that they had suggested; ratherstudents called upon other members of the community, such as the po-lice or school administrators, to assist in implementation.2 0 8 Finally,group members again collected data and compared it to data collectedduring the problem-identification stage in order to determine whethertheir response had been effective.20 9 Documentation of each step thegroup takes and each participant's role is crucial to such assessments.2 10

Several concrete results were accomplished by the SPSA in Char-lotte-Mecklenburg. For example, one group decided to focus onproblems related to the cafeteria, where fights often broke out. 2 11 Thehostile cafeteria atmosphere existed in part because almost all of the stu-dents ate during a single lunch period, a problem that could not besolved immediately.212 Students met with lunchroom staff and wereable to convince them to open more service lines and to increase theavailable quantity of the most popular menu items, the scarcity of whichhad previously been a source of line-cutting and fighting.2 13 Studentgroups focused on a broad range of other issues as well, ranging fromthe safety and cleanliness of restrooms to the larger problem of teenpregnancy.214

The cumulative impact of the student groups' accomplishmentshad a significant effect on the student body's perception of safety atschool. At the end of the test year, 40% fewer students "were afraid thatsomeone would hurt or bother them during school hours." 2 15 Therewas an 11% decrease in the number of students who "usually tried to

207 Id.208 Id209 Id. at 7.210 See id. at 6-7.211 Id. at 7.212 Id213 Id214 Id. The authors note:

Although the usual issues of drugs, guns, and gangs were included, more mundane (oreveryday) problems (e.g., clean restrooms, cafeteria) consistently emerged ahead of themore sensational (or rare) ones (e.g., weapons brought to school, fighting). This wasanticipated based on problem-solving efforts in other community settings, where"quality of life" issues have consistently shaped "community safety" issues.

Id. at 5.215 Id. at 9.

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'stay away' from school restrooms out of fear of being hurt or both-ered."21 6 Before the project began, one in five students reported havingto fight to protect themselves, a ratio that dropped to less than one inten by the project's completion.2 17 Teachers also reported feeling saferat school at the project's completion.2 18 It is likely that SPSA led tothese improvements because there were no similar improvements at thecontrol school.2 19

Social scientists have observed that SPSA not only improves schoolsafety, but also empowers students by strengthening their abilities tobring about positive changes, leading to improved attitudes towardschool and the police.2 2 0 Because this effect occurs amongst minorityand non-minority students, some social scientists predict that SPSAcould improve retention of minority students, who drop out of school ata much higher rate.22 1 Nonetheless, SPSA is not without its weaknesses.The program has proven less effective when implemented in schools inwhich the student body has low feelings of fear at school to begin withand where the school administration is less dedicated to and supportiveof the project.2 22

D. Building Design

Environment affects human behavior,22 3 and that fact is just as truein schools as it is in any other environment. This concept is not purelytheoretical; architects, urban planners and politicians have been design-ing buildings and public spaces to effectuate certain results since ancienttimes. 22 4 Ideally, schools are built with safety goals in mind, but even

216 Id. 27% of students tried to "stay away" from the restrooms during the pre-test year,whereas by the project's completion, that number had dropped to 16%. Id.

217 Id218 Id219 Id. The test school and control school were chosen because of similar demographics,

student performance, disciplinary variables, and teacher characteristics. Id. at 8.220 Id at 8 (citing H. Smith, Group vs. Individual Problem Solving and Type of Problem Solved,

20 SMALL GROUP BEHAV. 357 (1989)).221 Id. (citing Stuart Cernkovich & Peggy Giordano, School Bonding, Race, and Delinquency,

30(2) CRIMINOLOGY 261 (1992)).222 See Dennis J. Kenney & Robert McMamara, Reducing Crime and Conflict in Kentucky's

Schools, 1 YOUTH VIOLENCE & JUV. JUST. 46 (2003).223 TIMOTHY D. CROWE, CRIME PREVENTION THROUGH ENVIRONMENTAL DESIGN 1

(1991).224 Id. at 28. For example, planners in early city-states designed governmental assembly

chambers to appear as though the roof was caving in so as to encourage legislators to workquickly. Id.

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188 CARDOZO PUB. LAW POLICY & ETHICS J4

when that is not the case, renovations and building management tech-niques can make poorly designed school facilities safer.

The National Institute of Law Enforcement and Criminal Justicehas developed the Crime Prevention Through Environmental Design("CPTED") program to assist planners in developing physical environ-ments that are designed to reduce the occurrence and fear of crime.22 5

CPTED's design guidelines draw on studies and concepts that havebeen evolving for the past forty years.226 At their core, CPTED designprinciples are based on the premise that reducing a physical environ-ment's ability to support criminal behavior reduces the likelihood thatsuch behavior will occur.22 7 CPTED design principles are aimed atpreventing specific crimes that have been identified as concerns by thefacility planners. 2 28 Facilities planners who use the CPTED method aretrained to consider the intended uses of the space, and how the designscan help achieve that goal.22 9 CPTED principles have been used in de-signing a variety of environments, including public streets and pedes-trian areas, 230 shopping centers and malls, 2 3 ' residential streets, 2 3 2 officebuildings and industrial sites,2 33 and convention centers and sports sta-diums,23 4 in addition to schools.2 3 5

One goal common to planners of various sites is access control, aconcern that is paramount to school administrators. 2 36 Access controlensures that people who do not belong in a school-those who are notstudents, teachers, or parents-cannot get into a school.2 37 Access con-trol also ensures that those people who are permitted to enter the schoolstay only in those areas of the school to which they need access.

Access control strategies are often distinguished according to threecategories. The first consists of mechanical strategies, which can include

225 Id. at 28-29.226 Randy Nason, Maintaining Security in an Insecure World: New Strategies Are Emerging to

Help Architects Design Without a Bunker Mentality, ARCHITECTURAL REc., Dec. 2000, at 153.227 CROWE, supra note 223, at 29.228 Id.229 Id. at 105.230 Id. at 108-15.231 Id. at 134-37.232 Id. at 146-57.233 Id. at 122-28.234 Id. at 172-78.235 Id. at 162-72.236 DuKE, supra note 77, at 176.237 Id

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the use of locks, fences, and alarm systems. 2 38 The second category en-compasses organized strategies; for example, the use of guards posted atschool entrances.2 39 Planners who use the CPTED program most oftenemploy the third category of access control methods, which are referredto as natural strategies. 240 Natural access control strategies include de-signing a school in a manner that makes it difficult for a potential of-fender to access the school or certain parts of a school, and facilitates thedetection of intruders who infiltrate areas that are off-limits. 2 41 An ex-ample of natural access control is placing restrooms and water fountainsin or adjacent to recreation areas so that students in those areas have noreason to enter other parts of the school during recreation periods.2 42

The CPTED program focuses on natural access control strategies be-cause mechanical and organized crime prevention techniques do nottypically affect the attitudes and motives of potential offenders.24 3 Inschools, where offenders are often students who are legitimately onschool grounds, it is important that the school grounds not only dis-courage offenses, but also encourage positive behavior.

CPTED designs also implement surveillance strategies in an effortto observe potential offenders, and to increase potential offenders' per-ception that they are being observed.24 4 Surveillance strategies are oftendistinguished according to the same categories that distinguish accesscontrol strategies. Mechanical surveillance strategies include the use ofgood lighting and electronic surveillance technology such as closed-cir-cuit television cameras ("CCTV").24 5 Organized surveillance strategiesinclude the use of police patrols on school campuses.2 4 6 Natural surveil-lance strategies include positioning windows near school entrancewaysto facilitate the observation of people present just outside of theschool.2 47 The CPTED program emphasizes natural surveillance for thesame reasons that it focuses on natural access control strategies.248

238 CROWE, supra note 223, at 30; FLA. DEP'T OF EDUC., FLORIDA SAFE SCHooL DESIGN

GUIDELINES (2003), available at www.firn.edu/doe/edfacil/pdf/fl-ssg.pdf.239 CROWE, supra note 223, at 30; FLA. DEP'T OF EDUC., supra note 238.240 CROWE, supra note 223, at 30.241 FLA. DEP'T OF EDUC., Supra note 238, at vii.242 Id. at 10.243 CROWE, supra note 223, at 31.244 Id.245 FLA. DEP'T OF EDUC., supra note 238, at vii-viii.246 Id. at viii.247 CROWE, supra note 223, at 30-31; FLA. DEPT OF EDUc., supra note 238, at vii.248 CROWE, supra note 223, at 31.

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The CPTED program promotes the idea that physical design cangive students a sense of proprietorship over their school environment. 9

Thus, they will feel a responsibility to protect and defend the environ-ment. 2 5

0 This notion is called "territorial integrity, "251 and is crucial inthe design of schools.

The use of CPTED design principles in designing schools was pio-neered in Broward County, Florida, following a federally-funded studyconducted there between 1975 and 1980.252 For example, the studyresulted in a strategy for the design of bathrooms. First, planners as-sessed the types of problems that typically occurred in school bathroomsin Broward County, concluding that the primary problems were assaultand extortion.2 5 3 They then assessed how the environment supportedthe problem activities, noting that: 1) criminal activity primarily oc-curred in restrooms located near school entrances and exits, away fromthe normal flow of traffic during the school-day, and 2) because thebathrooms' interiors were designed for privacy, it was hard for studentsand teachers to survey what was going on inside, thus isolating thosewho were inside.25 4

In confronting the first flaw, the researchers came up with a strat-egy to limit access to bathrooms that were located near school entrancesand exits during the times when the areas were less trafficked.2 5 5 Inorder to implement the strategy, they issued a design directive to installlockable, collapsible gates at the entrances to those bathrooms.2 56 Inorder to address the second flaw, the researchers employed a strategymeant to remove obstacles-such as doors-in an effort to increase nat-ural surveillance of the bathrooms while preserving privacy. Naturalstrategies are often creative. For example, bathroom entrances can con-sist of mazes instead of doors-a device that is often used in airportbathroom entrances-thus preserving privacy while enabling people

249 Id250 FLA. DEP'T OF EDUC., supra note 238, at viii.251 Id252 CROWE, supra note 223, at 105; see also e-mail from Timothy D. Crowe to Jennie Rabino-

witz (Jan. 3, 2006, 13:09:09 EST) (on file with author).253 Id254 Id.255 Id256 Id

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outside of the bathrooms to detect fights, cigarette smoke, or calls forhelp. 2 57

The Florida Department of Education relied heavily upon CPTEDstrategies in crafting the Florida Safe School Design Guidelines (" Guide-lines"), which it published in 2003.258 In advising facilities planners onhow to design each part of a school building or ground, the Guidelinesprovide suggestions on how to best utilize natural access control, naturalsurveillance, and territorial integrity.2 59 For example, the Guidelines en-courage planners to avoid ninety-degree turns when designing schoolcorridors as they hinder students' movement during classroom changesand provide offenders with opportunities to hide and surprise passersbyby blocking views around corners. Corridors that turn gradually allowfor increased natural surveillance. If a graduated turn, which is morecostly to build than a sharp angled turn, is too expensive an option, theGuidelines suggest using convex mirrors to enhance surveillance. 2 60 TheGuidelines also suggest: 1) making corridors wider than the buildingcode requires in order to enhance territorial integrity by ensuring thatstudents are not crammed into a tight space during classroom changes,and 2) recessing lockers in hallways so that they do not take up valuablehall space or provide nooks and crannies in which contraband can behidden.26 1

No matter how well designed a school may be, teachers and ad-ministrators will have trouble supervising students if a school is over-crowded. In general, students who attend schools with smaller studentbodies do better academically. 26 2 Yet for a long time, the trend was tomake schools large and to have fewer of them, as opposed to making

257 DUKE, supra note 77, at 174.258 According to the Florida Department of Education, the guidelines "are based on the

fundamental idea that the proper design and management of the physical environment can helpprevent and deter criminal behavior in Florida's schools and community colleges." FLA. DEI"T

OF EDUC., supra note 238.259 Id. at v-viii; see also E-mail from Timothy D. Crowe, supra note 252.260 Id. at 36.261 Id.

262 See PATRICIA A. WASLEY ET AL., BANK STREET COLL. OF Eouc., SMALL SCHOOLS:

GREAT STRIDES, A STUDY OF NEW SMALL SCHOOLS IN CHICAGO (2000); CRAIG B. HOWLEY

ET AL., RURAL SCH. & CmTY. TRUST, SMALL WORKS: SCHOOL SIZE, POVERTY AND STUDENT

ACHIEVEMENT (2000); LEANNA STIEFEL ET AL., N.Y. UNIV. INST. FOR EDUC. & Soc. POICY,

THE EFFECTS OF SIZE OF STUDENT BODY ON SCHOOL COSTS AND PERFORMANCE IN NEW

YORK CITY HIGH SCHOOLS (1998), available at http://www.nyu.edu/iesp/publications/effects/effects.pdf.

2006] 19 1

192 CARDOZO PUB. LAW POLICY & ETHICS J.

more schools with smaller student bodies,26 3 because the former ar-rangement is more economically efficient. In schools large enough toaccommodate their student bodies, poorly designed entrances, corridors,and stairways can nonetheless lead to a sense of overcrowding.26 4 Oneschool principal describes an effect of such overcrowding as "hallrage." 2 6 5 He explained, "Everyone needs space around them. Goodkids, nice kids, lose their temper when they've been stepped on for theone hundredth time, get elbowed or bumped, or drop stuff and can'tpick it up."2 66 With three thousand students, Centreville High Schoolin Fairfax County, Virginia, is a school that had experienced suchproblems. 6 In an effort to reduce the number of fights that occurredduring classroom changes, school administrators arranged for ninth- andtenth-graders to change classes on a different bell schedule from elev-enth- and twelfth-graders. 2 68 The change was successful. Another strat-egy for ameliorating overcrowding was to clearly demarcate routesthrough the school by designating specific staircases as "up" staircases,and other staircases solely for the use of students going down, duringclass changes.2 69

A well-designed school building keeps out people who do not be-long inside and facilitates the surveillance of students. Such a buildingalso makes students' lives easier and less stressful. When both of thesegoals are accomplished, schools should become safer, reducing the needfor significant reliance on law enforcement and the justice system forroutine school discipline.

CONCLUSION

School crime is a real problem, and police intervention is an appro-priate response in some stiuations. If, however, the alternative strategiesdiscussed above are used, there will be fewer students whose actions war-rant such extreme measures. Policy-makers must seek out alternativeslike those discussed above because while arrests of students who commitinfractions at school may have positive effects on some students' lives,

263 See supra notes 74-77 and accompanying text.264 DuKE, supra note 77, at 170.265 David Nakamura, At Crowded Suburban Schools, Frustration Turns to 'Hall Rage,'WASH.

PosT, Apr. 25, 1998, at Al, quoted in DUKE, supra note 77, at 171.266 Id267 Id.268 Id.269 DuKE, supra note 77, at 172.

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the effects of arrest on other students' lives are likely to be detrimental.

Possible negative effects include stigmatization, exposure to gangs, loss

of employment opportunities, and the increased likelihood of becoming

a career criminal. Furthermore, a disproportionate percentage of minor-

ity youth end up in the juvenile justice system, perhaps in part because

police are more often present on the campuses of schools with large

minority populations. This unequal application of the law must be

remedied. While some might argue that this should be accomplished by

stationing police on every campus, this article posits that employing the

alternative remedies discussed would be more cost-effective and would

do more to address the roots of the problem.

Strategies for achieving safe schools in America need to begin with

preschoolers, with programs like Head Start, a program that has been

proven to produce people who are less prone to criminal behavior than

similarly situated people who did not participate in Head Start. 2 70 For

older children, tactics like Functional Family Therapy and Multi-Sys-

temic Therapy will help address individual problems, make families

stronger and integrate at-risk children into their communities. Like

Head Start, these programs have been found to save taxpayers' money

by reducing the costs associated with crime, including the cost of prose-

cution, defense, and incarceration, as well as costs to victims. 271

Teachers teach our students many subjects; thus, it is not unreason-

able to charge them with teaching students how to live non-violent lives.

Furthermore, teachers can do this as part of their existing mandates to

teach other subjects, as high school English teacher Evelyn McLean

Brady2 7 2 and some of the government and history teachers in the Char-

lotte-Mecklenburg County School District have demonstrated.27 3 As

students get older, it is appropriate to teach them about the social ori-

gins of violence, and how issues like poverty and diversity are relevant to

understanding why youth violence has become part of our culture.

Older students should also be empowered to become stakeholders in

their schools, and to have a say in what problems they want fixed.

Schools should be designed to ensure that students are safe and

that potential offenders are easily noticed and apprehended. Schools

should also be designed in a manner that avoids adding to students'

270 HEAD START, supra note 159, at 1.271 See supra notes 165, 166, 172 and accompanying text.272 See supra Part V.B.273 See supra Part V.C.

1932006]

194 CARDOZO PUB. LAW POLICY &' ETHICS J [Vol. 4:153

stress while at school. Ideally, a school's physical design should inspirestudents to preserve and protect their environment. The more studentsare invested in their schools, the more they will want to keep it safe.

The alternative tactics for achieving school safety presented abovecannot make schools completely safe, but they can probably makeschools safer while reducing students' exposure to the negative repercus-sions that can accompany arrest. Schools are an appropriate place forstudents to learn to respect the law, but it is unjust for minority studentsto face the threat of arrest for actions that are treated differently atschools where the students are wealthier and whiter. There may alwaysbe a place for the police and the courts, but that place must be outsideof the school if children are to flourish and have successful lives.