New Rules for Schools | The Nation


New Rules for Schools

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In October virtually every major media outlet ran a story about a 6-year-old boy who brought a Cub Scout utensil to school in Delaware. The boy wanted to eat his lunch with its little fork, but he ended up being suspended and threatened with reform school because the gadget had a knife on it.

About the Author

Amy Bach
Amy Bach is the author of Ordinary Injustice: How America Holds Court.

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Liberal groups are also concentrating on influencing the next generation of legal scholars.

On Friday, September 15, four days after the terrorist attacks, an
18-year-old Moroccan boy received an unusual request from his school
guidance counselor: Come see me as soon as you can and bring your
passport. On Monday, well before his 8 am class, the boy climbed the
steps to James Monroe High School in Fredericksburg, Virginia, and
handed over papers showing that his visa had expired. A half-hour later
he was waiting anxiously in the school security office. He didn't know
the police were going to handcuff him and take him down to the station.
"I was upset I had already missed the first period, Virginia
Government," said the young man, who spoke on the condition of anonymity
in a phone call with his lawyer listening in.

Officer Jim Shelhorse, public information officer for the Fredericksburg
police, said the police never suspected the boy of terrorist activity.
And the boy's lawyer says that he had a pending application to extend
his visa, which meant that he was free to be here. But such distinctions
were lost on the police and school. And by the time his visa did expire
on December 4, the boy was already imprisoned in an Immigration and
Naturalization Service (INS) detention center in Arlington, Virginia. "I
am treated like a criminal," he said in a phone interview from the
detention center this winter. "I am with drug dealers and gun dealers.
They are not mistreating me but I am not comfortable."

The way the school guidance counselor turned in this student is just one
example of how, post-9/11, ordinary citizens have become watchdogs
policing the gateways to this country. Whereas the INS used to be solely
responsible for enforcement, others now eagerly participate in that
task. In fact, this activity has been encouraged: Weeks after the
terrorist attacks, the Bush Administration asked people to report
suspicious activity at the same time that it announced plans to use
immigration laws to fight terrorism, giving the impression that
immigration is everyone's business. Then, in December, a month after the
Justice Department asked police around the country to track down and
interview some 5,000 Middle Eastern men, the INS announced it was
placing 314,000 immigrants wanted for deportation on an FBI database
used by nearly all police agencies to check criminal charges. Now even a
local police officer writing a traffic ticket can determine that a
violator is subject to a deportation order and presumably make an
arrest. And on January 31 President Bush announced the creation of a
national volunteer agency called Citizen Corps to engage "ordinary
Americans" in reporting suspicious activity to the authorities. The
government will also expand the "Neighborhood Watch" program, in which
people report their neighbors' suspected terrorist connections.

As critics point out, when ordinary citizens or the police and FBI do
the INS's work, they don't know what they are doing. The result is both
inefficiency and discrimination. "It discourages immigrants from
providing information when they are the victims," said Lucas Guttentag,
director of the ACLU's Immigrants' Rights Project. "And it creates this
population that is exploited, denied protections of the law to the
detriment of society as a whole." The problem isn't new. In 1997 the
police in Chandler, Arizona, conducted a sweep of illegal immigrants as
part of an effort to "beautify" the rumpled agricultural town. Working
with the Border Patrol, police approached people on the street based on
the "lack of personal hygiene" and "strong body odor common to illegal
aliens," according to police reports leaked to the press. Police then
asked to see ID and immigration papers. Among the 432 people caught in
the "Operation Restoration" dragnet were scores of US-born Hispanics who
sued the city for discrimination.

Federal immigration officers undergo a seventeen-week residential
program that includes instruction on how to legally arrest someone on
grounds like fraudulent document production. Lacking such training,
police in Chandler often wrongly concluded documents were fakes and
arrested people anyway. "There has to be a reasonable, particularized
suspicion of wrongdoing," said Stephen Montoya, a civil rights lawyer
who represented the Chandler plaintiffs. "It can't just be because you
speak Spanish." In the case of the high school boy, the school guidance
counselor had little reason to ask for papers besides his national
identity. The boy's lawyers have argued that the school had no
jurisdiction to ask for immigration documents, and that a high school
student can't be denied basic education because he is an undocumented
immigrant. But the immigration judge rejected those arguments. (School
officials declined to comment.)

Legally, the 1996 Illegal Immigration Reform and Immigrant
Responsibility Act makes it easier for law enforcement to collaborate
with the INS and request information from the government. And though the
law doesn't require schools to report immigration violations, "drawing
the line is very difficult for individual citizens," says Peter Schuck,
a Yale Law School professor. In the past, however, courts have struck
down laws encouraging citizens to become INS snitches. California's
Proposition 187, which attempted to recruit social workers and
government bureaucrats to report immigration violators so they would be
denied access to public services, was declared unconstitutional by
federal courts.

Ironically, some of the post-9/11 policies actually obstruct
antiterrorism efforts by discouraging people from cooperating with
authorities. When the Justice Department asked 5,000 Arab-American men
to come forward, it was unclear whether the men were putting themselves
at risk of being turned in to the INS. "That's not a good law
enforcement strategy," said Ben Johnson, associate director of advocacy
at the American Immigration Lawyers Association.

Perhaps even more disturbing, alerting the government because someone
appears swarthy or wears a turban is now considered acceptable behavior.
"What is wrong with calling the FBI?" said Father James Mueller, a
priest in Queens, New York, when I asked if he had any regrets about
making a report on Rafiq Butt, a 55-year-old Pakistani, after neighbors
saw six Middle Easterners go to an apartment he shared with three other
Pakistani men. Butt died in detention of a heart attack. In another
case, on November 13, FBI agents wearing biohazard gear swooped into the
home of two Pakistani men; their neighbors reportedly suspected them of
manufacturing anthrax after they saw them dumping a cloudy liquid (soapy
water from a clogged sink) and handing over a silver canister (a food
dish for a friend) outside their home. The men said they understood.

The Virginia high school student was similarly charitable. He came to
this country by himself last year trying to escape what he would only
describe as discrimination based on his sexual orientation. A Queens
mosque helped him with a place to stay and he eventually met a friend
who offered him his country house in Fredericksburg while he completed high school. He had only attended the school for three days when
he was arrested. "This happened because of one person," he said. "The
majority of people treated me very good. The students were nice. They
showed me the whole school. They were helpful. The math teacher liked
me. It was Algebra II. I had it when I was in eighth grade. I did the
exercises very fast." At press time he was out on bond, living with a
foster family in Washington, working on getting his GED and waiting for
a July asylum hearing. His future plans are to attend college and major
in finance, perhaps in Canada.

The incident is one of a litany of examples that clearly show how "zero tolerance" school discipline policies have gone too far. The policies are at their worst when enforced by police officers stationed in schools to prevent serious incidents. Too often the cops end up being used as disciplinarians on matters that once would have been handled by school principals. Officers are handcuffing, pepper-spraying and arresting kids for being boisterous or cursing. The result is a flood of prosecutions and a wave of students denied education.

Child advocates have dubbed this phenomenon "the school-to-prison pipeline." Studies show that children who are jailed or forced to appear in court are more likely than their peers to drop out of school and get into trouble again. And it's unclear whether schools are getting safer.

A startling case in point is the juvenile court system of Clayton County, Georgia, which was buckling to the point of collapse in 2004. In the mid-'90s, after police officers were placed in the schools, the number of kids charged with crimes jumped 600 percent. By 2003, it had jumped another 400 percent. The increase wasn't due to felonies--the cops were enforcing a "zero tolerance" policy against disorderly conduct or disruption.

Juvenile Court Judge Steven Teske saw the problem. School police and probation officers could not do their jobs because the court was overloaded with minor cases that didn't belong there. "Technically, the behavior may be a crime," Teske said, using the example of a kid who gets into a fight to protect his sister. "But it shouldn't be, in the context of adolescent youth behavior."

So Teske brought together school officials, law enforcement, prosecutors, parents and heads of child-services programs. "I am telling you zero tolerance is not improving safety," he told them. Not everyone agreed. But it was obvious that too many kids were getting arrested. Teske proposed something rather ordinary: give kids warnings and a workshop on behavior before dragging them into court. The committee discussed it before a neutral arbiter.

Nine months later, Clayton County had a system that worked. As of 2008, the county had reduced the number of referrals by 68 percent, and in turn had seen another improvement: serious weapons charges were down 70 percent since 2004 (from sixty-three incidents to seventeen). Teske attributes the drop to the fact that officers are spending less time shuttling to court and more time gathering "intelligence" so future incidents can be avoided. Last year, instead of arresting a student who had gotten into a fight, Officer Robert Gardner talked to her. She spoke about a drug dealer's house two blocks from the school. The information led to a search, which yielded two AK-47s, two drums of ammunition, seven handguns, a shotgun, five pounds of pot and $7,000 in cash.

Everyone wants safe schools. But the Clayton model may prove that the best, most cost-effective way to neutralize violence is not by arresting kids. By paying attention to everyday circumstances, the potential for extraordinary tragedy is defused.

Different communities are now asking Clayton County, How did you do it? In 2008 Jay Blitzman, a judge in Middlesex County, Massachusetts, invited Teske for a lunch meeting with his community. It lasted three hours. Today Middlesex is looking for ways to adapt the Clayton model. Birmingham, Alabama, also plans to use it. And this fall, Teske will be touring the country talking about it with the help of the Annie E. Casey Foundation.

Maybe there's a lesson here. Paying attention to young people prevents day-to-day injustice. And young people who aren't treated like criminals are less likely to become them.

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