C RIMINALIZATION OF S TUDENT B EHAVIOR : G UIDANCE AND R ECENT L - - PDF document

CRIMINALIZATION OF STUDENT BEHAVIOR: GUIDANCE AND RECENT LEGISLATIVE EFFORTS1

• I. Federal Guidance
• A. U.S. Department of Justice, Community Oriented Policing Services (COPS)

Guidance: U.S. Dep’t of Justice, Office of Community Oriented Policing Services, Supporting Safe Schools (Last accessed Oct. 3, 2018), https://cops.usdoj.gov/supportingsafeschools. U.S. Dep’t of Justice, Office of Community Oriented Policing Services, Dear Colleague Letter (Sep. 8, 2016), https://www2.ed.gov/documents/press-releases/cops-sro-letter.pdf. U.S. Dep’t of Justice and U.S. Dep’t of Ed., Safe School-based Enforcement through Collaboration, Understanding, and Respect SECURe State and Local Policy Rubric (hereinafter “SECURe State and Local Policy Rubric”), https://cops.usdoj.gov/pdf/sro/SRO_State_and_Local_Policy.pdf. The Community Oriented Policing Services (COPS) Office of the U.S. Department of Justice (DOJ) and the U.S. Department of Education (DOE) issued joint guidance relating to School Resource Officers in September 2016. In issuing the joint guidance, the DOJ stated that “If SROs are not properly hired, trained, evaluated, and integrated into the school community—or if they are given responsibilities more appropriately carried out by educators— negative outcomes, including violations of students’ civil rights, can and have occurred.” The guidance includes the Safe School-based Enforcement through Collaboration, Understanding, and Respect (SECURe) rubrics. These rubrics are intended to: “assist in properly implementing school resource officers (SROs) so that SRO programs can positively impact the lives of our nation's students.” There are two separate components

• f the guidance: (1) SECURe State and Local Policy Rubric for states and local

governments working on policy reform related to SROs, and (2) SECURe Local Implementation Rubric to help school districts, schools and law enforcement agencies structure their school-police partnerships. The five action steps identified by the DOJ and the DOE related to SROs are:

• 1. Create sustainable partnerships and formalize memoranda of understanding

(MOUs) among school districts, local law enforcement agencies, juvenile justice entities, and civil rights and community stakeholders.

• 2. Ensure that MOUs meet constitutional and statutory civil rights

requirements.

1 This document benefited from research and work product of Stephanie Romeo, who graduated from Loyola

University Chicago School of Law in 2017, and Douglass Nolan, a third year law student at Loyola University Chicago School of Law.

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• 3. Recruit and hire effective SROs and school personnel.
• 4. Keep your SROs and school personnel well trained.
• 5. Continually evaluate SROs and school personnel, and recognize good

performance. The rubrics use these action steps as a basis for providing examples of state and local policy as well as providing specific ways in which these action steps can be reflected in school district and law enforcement practices.

• B. U.S. Department of Justice and U.S. Department of Education

U.S. Dep’t of Justice and U.S. Dep’t of Educ. (Jan. 2014), Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline, https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.html The joint guidance package on school discipline issued by the U.S. Department of Education and the U.S. Department of Justice in Fall 2018 made clear that school resource officers are covered by the non-discrimination protections in Titles IV and VI of the Civil Rights Act of 1964 (Title IV), 42 U.S.C. §§ 2000c et seq.. The Dear Colleague letter states: These statutes cover school officials and everyone school officials exercise some control over, whether through contract or other arrangement, including school resource officers. Schools cannot divest themselves of responsibility for the nondiscriminatory administration of school safety measures and student discipline by relying on school resource officers, school district police officers, contract or private security companies, security guards or other contractors, or law enforcement personnel. To the contrary, the Departments may hold schools accountable for discriminatory actions taken by such parties. U.S. Dep’t of Ed., Guiding Principles: A Resource Guide for Improving School Climate and Discipline (Jan. 2014), http://www2.ed.gov/policy/gen/guid/school- discipline/guiding-principles.pdf. This resource guide provides an in-depth explanation of factors, action items, and professional development opportunities that are necessary in fostering a positive school

• climate. The resource guide also explains potential roles of SROs in schools and how the

SROs function in relation to teachers and other school members. II. The Council of State Governments Emily Morgan et al. (July 2014), The Council of State Governments Justice Center, The School Discipline Reform Consensus Project: Strategies from the Field to Keep Students Engaged in School and Out of the Juvenile Justice System, https://csgjusticecenter.org/youth/projects/school-discipline-consensus-project/

3 In July 2014, the Council of State Governments Justice Center issued The School Discipline Consensus Report, which was based on interviewing over 700 experts in education, behavioral health, juvenile justice and law enforcement. The report was consensus-based, so policy statements reflect “a point of agreement among stakeholders with very diverse perspectives on an extensive range of recommendations related to school discipline.” The executive summary of the report identified four highlights of the recommendations related to school-police partnerships:

• 1. “School-police partnerships should be determined locally, through a collaborative,

data-driven process that engages students, parents, and other stakeholders.”

• 2. “Police should not be engaged in routine classroom management, and whenever

possible should use alternatives to arrest for students’ minor offenses that can be appropriately addressed through the school’s discipline system.”

• 3. “School-based officers working with students should be properly selected,

trained, supervised, and evaluated. Off-campus officers should be given guidance

• n how to respond to students and how to access alternatives to arrest.”
• 4. “School systems and law enforcement agencies should create detailed, written

memorandums of understanding when placing officers on campuses and for other school-police partnerships.” III. Model Memoranda of Understanding Several organizations, including the ACLU of California and the Advancement Project, have created model Memoranda of Understanding governing the relationship between school and police.

• A. National Association of School Resource Officers

National Association of School Resource Officers (2018), Standards and Best Practices for School Resource Officer Programs, https://nasro.org/cms/wp- content/uploads/2013/11/NASRO-Standards-and-Best-Practices.pdf This document contains a suggested set of standards related to selection and training of School Resource Officers, together with guidelines for collaboration between school districts and law enforcement agencies. Sample MoU topics are included.

• B. ACLU of California Model MoU

ACLU of California (2016), Model Memorandum of Understanding Between School District and Police Department, https://www.aclunc.org/docs/Appendix-D-Model- MOU.pdf One of the most comprehensive is the ACLU of California’s Model MoU, which, in its guidance on roles on responsibilities, specifies that the MoU should make clear that school discipline is the responsibility of school administrators, while law enforcement’s

4 role relates to prevention of serious crime. School administrators should conduct an investigation prior to referring a matter to law enforcement, except in situations when “there is a real and immediate physical threat to student, teacher, or public safety.” The MoU also provides model guidance on various relevant areas, including:

• School Disciplinary Issues
• Low Level School-Based Offenses
• Serious Offenses
• De-escalation Procedures for District Staff and Department Officers
• Officer Entry on Campus
• Questioning Students on Campus
• Searches of Students on Campus
• Seizure of Student Property
• Arrests of Students on School Campus
• Prohibition of Racial Profiling
• Notification of Parent/Guardian of Student’s Arrest, Searches, Restraint or Seclusion,
• r Questioning by Police Officer
• Use of Force
• C. Advancement Project MoU

Advancement Project (2013), Model Memorandum of Understanding Between A School District and A Police or Sheriff’s Department, https://advancementproject.org/resources/sample-agreements-police-schools/. The Advancement Project also has a model MoU, which outlines its purpose as “to set forth guidelines to ensure that the Police Department (“PD”) and the School District (“the District”) have a shared understanding of the role and responsibilities of each in maintaining safe schools, improving school climate, and supporting educational

• pportunities for all students.”

The areas covered are:

• Involvement of the Police Department (“PD”) in a School-Based Infraction
• Procedure for PD Involvement in a School-Based Infraction
• Procedures Concerning PD Conduct in Schools
• Transparency, Accountability, and Training

IV. State MoUs Several state agencies or statewide entities have produced model MoUs for adoption by local school districts. These include:

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• A. Massachusetts

Office of the Attorney General for the State of Massachusetts, the Massachusetts Executive Office of Public Safety and Security, and the Massachusetts Department

• f Elementary and Secondary Education, Model Memorandum of Understanding

Between Schools and Law Enforcement (Sep. 5, 2018), https://www.mass.gov/news/state-agencies-release-model-memorandum-of- understanding-for-massachusetts-school-resource This is a recent model MoU released by the state of Massachusetts are part of implementation of sweeping criminal justice reform legislation (more information on the legislation is provided below).

• B. New Jersey

Office of the Attorney General for the State of New Jersey and the New Jersey Department of Education, A Uniform State Memorandum of Agreement between Education and Law Enforcement Officials (2015), http://www.state.nj.us/education/schools/security/regs/agree.pdf This MOU is a comprehensive example of policies to respond to serious and minor

• ffenses. The MOU also provides policies for arresting and questioning students as well

as conducting school searches.

• C. Connecticut

Office of Policy Management, Juvenile Justice Advisory Committee, State of Connecticut, Memorandum of Agreement By and Between _____ Public Schools and ____ Police Department, https://www.ct.gov/opm/cwp/view.asp?a=2974&Q=471720. This model Memoranda of Agreement provides a detailed graduated response model chart that contains suggested roles of the classroom teacher, principal or administrator, student assistance team, and police. It also provides a suggested approach for data collection and monitoring. The Juvenile Justice Advisory Council also offers a training for school staff on effective interactions with students and police that covers the following topics: · Youth behavior · Strategies for interacting with students · The role of law enforcement in school More information is on the webpage linked above.

• D. Pennsylvania

Pennsylvania Department of Education, Model Memorandum of Understanding, https://www.education.pa.gov/Documents/K- 12/Safe%20Schools/Model%20Memorandum%20of%20Understanding%20with%20La w%20Enforcement%20Agency.pdf

6 This is a sample statewide model MoU between school districts and law enforcement.

• E. Illinois

Illinois Association of School Boards, Memorandum of Understanding for School District and Local Law Enforcement Agency This sample MoU is available free of charge by following the instructions at the following link: https://www.iasb.com/law/understanding.cfm. V. Sample District MoUs and Codes of Conduct

• A. Denver, Colorado

Denver City Council (Nov. 6, 2017), Intergovernmental Agreement Concerning the Funding, Implementation and Administration of Programs Involving Police Officers in Schools between the City and County of Denver and School District Number One, https://denver.legistar.com/LegislationDetail.aspx?ID=3190865&GUID=E2FB2B14- 0992-4FF7-990F-D28A2EB4CCD6 This intergovernmental agreement outlines the separate responsibilities of the city of Denver, the local school district, and the police department. The MoU provides detailed information about the separate roles of the school district with respect to school discipline and the training the school district must offer to the SRO, including the option to offer trainings on relevant topics like “child and adolescent development and psychology; age- appropriate responses; cultural competence; restorative justice techniques; special accommodations for students with disabilities; practices proven to improve school climate; and the creation of safe spaces for lesbian, gay, bisexual, transgender and questioning students.” The MoU also calls upon SROs to, “Understand that the District has adopted a Discipline Policy that emphasizes the use of restorative approaches to address behaviors, and is designed to minimize the use of law enforcement intervention.”

• B. Philadelphia, Pennsylvania

Memorandum of Understanding between the Philadelphia Police Department and the School District of Philadelphia, (Sep. 6, 2016), https://www.philasd.org/studentrights/wp-content/uploads/sites/67/2018/08/MOU-City-

• f-Philadelphia-PPD-292F17-fully-exec-1.pdf

This document is an example of a MoU between a school district and a local enforcement

• agency. The MOU especially provides detailed law enforcement responses to

notification, including responding to conduct of students with disabilities.

• C. Ashland, Oregon

2013-2017: School Resource Officer Memorandum of Understanding between the City of Ashland Police Department and the Ashland School District, (Oct. 1, 2013), https://www.ashland.or.us/Files/Police_and_School_MOU.Atch.pdf

7 This document serves as a sample MOU between a school district and SRO. The MOU particularly offers lists of duties and responsibilities for SROs and school districts as the

• rganizational structure of law enforcement and SROs.
• D. Broward County, Florida

The Code Book for Student Conduct: 2017-2020, Broward County Public Schools (updated 10/10/18), http://browardschools.com/codeofconduct. This student conduct code book is as an in-depth example of school discipline policies and procedures for many serious and minor offenses and guidance related to referrals to law enforcement. The code book also provides some information-sharing considerations that accompany law enforcement responses. A prior version of the Broward County Collaborative Agreement on School Discipline, which contains a 2013 agreement between the local school district, law enforcement, and juvenile justice authorities is available here: http://www.ncjfcj.org/sites/default/files/Broward%20Co%20Collaborative%20Agreemen t%20on%20School%20Discipline%20-%20MOU.pdf.

• E. Clayton County, Georgia

The Juvenile Court of Clayton County et al., Clayton County School Protocol Agreement, http://www.ncjfcj.org/sites/default/files/Clayton%20Co.%20School%20Protocol%20Agr eement%20(2).pdf This is an example of a multi-stakeholder agreement designed to reduce referrals from schools to law enforcement in one county that was entered into by the local school district, police department, district attorney, child welfare agency, behavioral health services, and juvenile justice department. VI. Other Resources

• A. Data

U.S. Dep’t of Ed., Office for Civil Rights, Civil Rights Data Collection, https://ocrdata.ed.gov/ U.S. Dep’t of Ed., Office for Civil Rights, School Climate and Safety, 2015-16 Civil Rights Data Collection, School Climate and Safety, https://www2.ed.gov/about/offices/list/ocr/docs/school-climate-and-safety.pdf The Civil Rights Data Collection contains data collection related to student demographics in schools and school districts. In addition, the Civil Rights Data Collection Snapshots provide annual reports related to school discipline, law enforcement referrals and school- based arrests.

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• B. National Association of School Resource Officers Report

To Protect & Educate: The School Resource Officer and the Prevention of Violence in Schools, National Association of School Resource Officers, https://nasro.org/cms/wp-content/uploads/2013/11/NASRO-To-Protect-and-Educate- nosecurity.pdf This document provides targeted guidance on the role and responsibilities of SROs in schools and how the role of SROs relates to other school personnel roles, including teachers.

• C. National Association of School Boards

Kimberly Small, Illinois Association of School Boards, National Association of School Boards Publication (2014), Improving Memoranda of Understanding for School Resource Officer Services, https://www.iasb.com/law/NSBAImprovingMOUForSRO2014.pdf This article provides suggestions for school boards that are putting in place MoUs between the school district and law enforcement agencies. Topics covered include: the alignment between the SRO’s role and the school district’s educational mission, the role

• f school authorities, and supervision plans.

II. State Statutory Provisions Relating to School Resource Officers

• A. 50-State Overview

Attached as an appendix find a 50-state survey of the statutes related to School Resource Officers in various states. A few recent examples of state legislative initiatives are described below.

• B. Illinois

Illinois General Assembly, Public Act 100-0984 (eff. Jan. 1, 2019), http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=100-0984 This statute amends the Illinois Police Training Act to require the Illinois Law Enforcement Training and Standards Board to develop or approve a course for school resource officers that is created “in consultation with organizations demonstrating expertise and or experience in the areas of youth and adolescent developmental issues, educational administrative issues, prevention of child abuse and exploitation, youth mental health treatment, and juvenile advocacy. Any law enforcement agency providing a school resource officer is required to provide to the school district certification that the

• fficer has completed the course within one year of assignment or that the officer has

received a waiver of the course based on the officer’s prior training and experience.

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• C. Ohio

Ohio Legislature, 132nd General Assembly, House Bill 318 (eff. Nov. 2, 2018), https://www.legislature.ohio.gov/legislation/legislation-summary?id=GA132-HB-318 This law provides specific training requirements for new school resource officers that include both: (1) completion of an approved basic training program for peace officers, and (2) completion of at least a 40 hour training program for school resource officers

• ffered by approved entities. The statute specifies specific components of the instruction

to be offered in the training program, including the following:

• “Understanding the psychological and physiological characteristics consistent

with the ages of the students in the assigned building or buildings;

• Understanding the appropriate role of school resource officers regarding

discipline and reducing the number of referrals to juvenile court;

• Understanding the use of developmentally appropriate interview, interrogation,

de-escalation, and behavior management strategies.

• The mechanics of being a positive role model for youth, including appropriate

communication techniques which enhance interactions between the school resource officer and students; and

• Providing assistance on topics such as classroom management tools to provide

law-related education to students and methods for managing the behaviors sometimes associated with educating children with special needs.” The statute also requires that school districts utilizing school resource officer services enter into a memorandum of understanding between the district and law enforcement. If school districts are currently utilizing school resource officer services, then the memorandum of understanding must be entered within one year of the law’s effective

• date. Areas to be addressed within the MoU include:

a) “Clearly defined set of goals for the school resource officer program; b) Background requirements or suggested expertise for employing law enforcement in the school setting, including an understanding of child and adolescent development; c) Professional development, including training requirements that focus on age- appropriate practices for conflict resolution and developmentally informed de- escalation and crisis intervention methods; d) Clearly defined roles, responsibilities, and expectations of the parties involved, including school resource officers, law enforcement, school administrators, staff, and teachers; e) A protocol for how suspected criminal activity versus school discipline is to be handled; f) The requirement for coordinated crisis planning and updating of school crisis plans; g) Any other discretionary items determined by the parties to foster a school resource officer program that builds positive relationships between law enforcement, school staff, and the students, promotes a safe and positive learning environment, and decreases the number of youth formally referred to the juvenile justice system.”

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• D. Massachusetts

M.G.L.A. 71 § 37P (eff. July 12, 2018) Massachusetts amended its statute on school resource officers as part of a comprehensive criminal justice reform law. The statute provides that candidates for school resource

• fficer should be given preference if they “have received specialized training in child and

adolescent development, de-escalation and conflict resolution techniques with children and adolescents, behavioral health disorders in children and adolescents, alternatives to arrest and other juvenile justice diversion strategies and behavioral threat assessment methods.” The statute also requires a written memorandum of understanding between the superintendent and the chief of police that clearly defines the role and duties of the school resource officer. The statute provides specific components that must be in the MoU, including training for SROs that includes “continuing professional development in child and adolescent development, conflict resolution and diversion strategies.” The MoU must state that “SROs shall not serve as school disciplinarians, as enforcers of school regulations or in place of licensed school psychologists, psychiatrists or counselors and that SROs shall not use police powers to address traditional school discipline issues, including non-violent disruptive behavior.” The Massachusetts statute also provide that the chief of police, in consultation with the school superintendent, should develop standard operating procedures to provide guidance to SROs. Among other things, the standard operating procedures should include a description of the students’ legal rights, a chain of command that includes an explanation

• f how the SROs should work with school administrators, performance evaluation

standards, and protocols to divert at-risk students and refer them to school- and community-based supports.

• E. Maryland
• MD. CODE ANN. EDUC. § 7-1508 (eff. June 1, 2018)

This statute requires that The Public Safety Education and Training Center develop a specialized training for school resource officers and school security that is to be approved by the Maryland Police Training and Standards Commission. The training must cover the following topics: “(1) De-escalation; (2) Disability awareness; (3) Maintaining a positive school climate; (4) Constructive interactions with students; and (4) Implicit bias and disability and diversity awareness with specific attention to racial and ethnic disparities.” All school resource officers. Beginning September 1, 2019, all school resource officers and school security employees must either complete this approved training or complete an approved law enforcement training developed by a local law enforcement agency that covers the topics outlined above. The statute also includes data collection and reporting requirements related to school resource officers, including the use of force.