Exclusionary Discipline: The New Bar to Education for African American Students in Chicago Public Schools

Written by Ashley Varnado

Imagine an African American Chicago Public School (CPS) freshmen student named Anthony. He wakes up every day at 6:30 a.m. to get ready for school. Anthony takes a shower, brushes his teeth, eats a bowl of oatmeal, checks over his homework, and then heads out the door to school. The first faces Anthony sees when he arrives at school are city police officers who command the metal detectors that he must pass through before he begins class.

During second period, Anthony takes out his cell phone to let his mother know that he arrived safely at school, but the teacher reprimands him for violating the school code on cell phone use and sends him to the principal’s office. As a result, Anthony receives a three-day out-of-school suspension. Anthony’s parents work during the day, so he remains at home unsupervised, hanging out with students who have similarly been suspended. Anthony returns to school during the week of finals and fails two of his tests because he missed important review sessions while he was suspended. Even though Anthony is only a freshmen, he is now off track to graduate on time. He is suspended again during his sophomore year for being late to class and becomes more alienated from school. By Anthony’s junior year, the out-of-school suspensions have caused him to fall so far behind academically that he loses hope and drops out of high school. His dream of attending college is now a distant memory. Like many high school drop-outs, Anthony’s job prospects are not promising. To make ends meet, Anthony falls into a life of crime that ultimately lands him in prison. What makes this story even more depressing is that this downward spiral started from his simple use of a cell phone.

Anthony’s experience is not unique. The American school system is currently faced with an epidemic of exclusionary school discipline. Exclusionary discipline is any form of disciplinary action that removes a student from the classroom. This includes in-school suspensions, out-of-school suspensions, and expulsion. A study conducted by the Department of Education’s Office for Civil Rights found that African American students are over three-and-a-half times more likely to be suspended or expelled from school compared to white students.

CHICAGO’S DISCIPLINE PROBLEM

Chicago Public Schools (CPS) is facing its own epidemic in exclusionary discipline. In the study, African Americans comprised 45% of the enrollment in CPS but accounted for 76% of the students who were suspended. In contrast, white students comprised 9% of the student enrollment in CPS but accounted for 3% of the students who were suspended. In the 2010-2011 school year, CPS students missed 306,731 days of school due to exclusionary disciplinary action. The removal from class for minor infractions increases the academic achievement gap between African American and white students, furthering the cycle of underachievement. CPS’s reliance on a Student Code of Conduct (SCC) that endorses disproportionate punishment for minor infractions and wide discretion in determining appropriate discipline that can give way to racial biases and stereotypes leads to the disparate rates at which African Americans are removed from the classroom.

FAILING SCHOOLS

When a child is not in the classroom that means he or she is not learning. Many schools are refusing to address the underlying causes of a student’s behavior and are instead relying on harsh disciplinary measures as a temporary, although damaging, solution. That is why a student who is suspended is more likely to be suspended again and to become involved in the criminal justice system.

CPS is diverting its attention from ensuring the academic success of its students to overarching disciplinary measures that make learning nearly impossible for those affected. The CPS four year high school graduation rate in 2012 was 68.5%, a decrease from 73.8% the previous year. During the past ten years, CPS’s performance on the Illinois State Achievement Test (ISAT) trails the remainder of Illinois schools. In 2012, 92% of white CPS students met or exceeded the mathematics portion of the ISAT as compared to 73% of African American students. The latest ISAT scores for the 2013 school year are even more disappointing and have declined since 2012. Only 41% of African American students met or exceeded the reading portion of the exam and only 40% of African American students met or exceeded the mathematics portion of the exam.

RACIAL STEREOTYPES AND IMPLICIT BIASES

When a child violates a CPS student code provision, the classroom teacher often determines whether a student will be sent to the principal’s office and face exclusionary discipline measures. In the 2013-2014 school year, white teachers accounted for 49.7% of the CPS teachers and African American teachers accounted for 24.3%. Racial stereotypes may come into play when determining whether a student has engaged in behavior that warrants sending him or her to the principal’s office. One of the most prominent of these stereotypes is the “black as criminal stereotype.” As a result, when an African American student misbehaves, a teacher is more likely to view this behavior as criminal in nature and feel warranted in issuing a harsher punishment. This would include giving a student an in-school suspension where a detention may have been sufficient.

Cultural differences also contribute to racially disproportionate school discipline. While many believe that everyone living in the United States shares a common “American” culture, this is simply not the case. African Americans and whites have a number of cultural differences that contribute to the disproportionate rate at which African Americans face exclusionary discipline, one being differing forms of communication. Some African American males speak in what may be perceived as a more “active and boisterous tone.” The behavior is then misinterpreted, resulting in the disproportionate number of African Americans receiving out-of-school suspensions.

LIMITED MEASURES BY CPS TO ADDRESS THE DISCIPLINE DILEMMA

CPS does not have on blinders when it comes to the disparity of exclusionary discipline policies. The district began to make revisions to its Student Code of Conduct in response to outcry over its harsh disciplinary measures. For example, in the 2012 revision, mandatory ten day suspensions for “serious offenses” such as arson and sexual assault were eliminated and reduced to five, giving the principal the discretion to issue a ten day suspension if he or she deemed it necessary. Despite changes that have been implemented, the Code is still largely punitive in nature and open to much discretion, giving way to possible discrimination and bias when deciding an African American student’s punishment. Students still face disproportionate discipline for minor infractions. Among these include an out-of-school suspension for the unauthorized use of a cell phone or inappropriately wearing a Military Academy Uniform.

KEEPING STUDENTS IN SCHOOL

Due to the lack of success that CPS has had in decreasing the rate at which African American students are removed from the classroom, federal government intervention is necessary. To combat exclusionary discipline, the following steps must be taken:

(1) CPS, in conjunction with the U.S. Department of Education and U.S. Department of Justice, must implement an action plan. A federal task force will review every middle and high school to study the severity of exclusionary discipline. After a report has been made, each school will develop a plan to ensure that students are not removed from school for behavior that does not put staff and classmates in danger. Action plans will include targeting at-risk ninth grade students and implementing cross-cultural and classroom management workshops for teachers.

(2) A re-vamping of the Student Code of Conduct will have the biggest impact on keeping students in school. An emphasis must be placed on alternative discipline such as restorative justice programs. The SCC must limit school removal to only violent offenses. As it currently stands, a student can be removed from school for something as simple as using offensive language.

Targeting the Vulnerable: Female Inmates and Prison Sexual Assault

Written by Christina Piecora

A pop culture phenomenon griped the country this past summer. Everywhere you went you just couldn’t escape the excitedly posed question: “Have you seen it?” At work, at the gym, on the subway, and in the grocery store, it seemed that all anyone could talk about was Orange is the New Black. People couldn’t wait to share just how quickly they had binge watched the Netflix show. And you couldn’t turn on a TV or open a magazine without seeing one of the show’s stars. Yes, the country was officially buzzing over this “ground-breaking” show that follows an upper-middle class yuppie serving her one-year sentence in federal prison. 

Although women comprise only seven percent of the state prison population, they comprise forty-six percent of sexual abuse victims in state prisons.

Superb acting, emotional storylines, and a diverse cast, unlike any we have ever seen, were only some reasons that people couldn’t stop talking about the show. Another, more significant reason, was that the show shed light on many problems of the American incarceration system. The problems addressed include the disproportionate amount of women in prison for drug offenses, a plethora of creepy power-hungry prison staff, and recidivism rates for women. However, for all of the important issues the show raised, it failed to substantially address the most devastating problem facing women in prison: sexual assault. 

The rate of inmate-on-inmate sexual victimization is at least 3 times higher for females Inmates than male inmates.

The Numbers

The federal government has labeled the problem of prison sexual assault as an “epidemic.” Female inmates face a constant threat of sexual assault. Currently, there are over two hundred thousand women behind bars in the United States. Of these women, a reported 85-90% have a history of domestic and sexual abuse. And according to a Human Rights Watch Report anywhere from ten to forty percent of incarcerated females have been the victims of prison sexual assault. Female prisoners identifying as bisexual or lesbian are twice as likely to be abused by staff as prisoners identifying as heterosexual (8 percent for both bisexual and lesbian inmates versus 4 percent for heterosexual inmates), while transgender women were three times more likely to be sexually assaulted. 

Males are the perpetrators in ninety-eight percent of staff-on-inmate sexual assault of female inmates. Forty-one percent of guards in the average state correctional center who work with female inmates are men. The job entitles guards to observe prisoners in their most intimate settings and have access to the prisoners in their most vulnerable states. Furthermore, male guards in state prisons are allowed to perform strip searches and full-body cavity searches of female inmates. Therefore, it should be no surprise that although women comprise only seven percent of the state prison population, they comprise forty-six percent of sexual abuse victims in state prisons.

The Assaults

In an early episode of Orange is the New Black, as main character Piper Chapman takes off her bra in her cell, she notices the aptly nicknamed prison guard Pornstache pausing to creepily watch her. “Is he allowed to do that?” Piper asks. “He can do whatever he wants,” her cellmate responds.

“Pornstache” gets up close and personal with Piper: a practice that is allowed in prisons under cross-gender supervision policies.

Male prison officials not only use force and violence to commit sexual assault against female prisoners, but also use their positions to coerce, threaten, and intimidate female inmates into sexual activity, which still constitutes prison sexual assault. Thousands of documented accounts exist of prison staff demanding sex in exchange for drugs, favors, promises of more lenient treatment, and access to educational and rehabilitative programs. Similarly, prison officials often use the threat of longer sentences, going to the parole board with false reports of bad behavior, or planting drugs on prisoners if they do not perform sexual acts. Furthermore, prison officials often coerce female inmates into engaging in sexual activities by threatening to withhold basic necessities such as feminine hygiene products or permission for visitation with their children. Undoubtedly it is incredibly repugnant that those charged with protecting female inmates and acting in the name of the public are too often the ones sexually assaulting them. However, prison officials are not the only perpetrators of sexual assault against female inmates. 

The rate of inmate-on-inmate sexual victimization is at least 3 times higher for females (13.7%) than males (4.2%). Numerous scholars attribute this to the fact that a majority of prison officials do not view female-on-female sexual assault as “true rape,” making them less likely to reprimand inmates committing sexual assault. Furthermore, as the female prison population has grown at a dramatic rate states have been unable to keep up. Therefore, female prison facilities tend to be overcrowded and poorly designed, which makes them much more difficult to police. Additionally, because of this lack of available space female inmates are often placed in any facilities that have room. Thus, nonviolent first offenders and juvenile inmates are often placed with violent offenders in maximum-security prisons, where they become easy targets for abuse. Furthermore, no federal legislation exists requiring that prison staff be specifically trained to deal with different types of inmates. Therefore, most prison staff are trained to deal solely with adult male inmates. Consequently, there is a lack of properly trained staff to deal with sexual assault problems for females. 

Legal Roadblocks

In addition to cross-gender supervision and poorly designed facilities, prison sexual assault against females is prevalent for a number of other reasons. First, victims of prison sexual assault are often blocked from bringing charges against prison staff, who were either complacent or the culprits in their attacks, by the Prison Litigation Reform Act (PLRA). Under the PLRA prisoners must exhaust all the administrative remedies open to them via internal grievance procedures before they are allowed to file suit in federal court to challenge prison abuses. For victims of prison sexual assault, this PLRA provision means that they must report their abuse to the very people committing or facilitating that abuse. This often results in the prisoners’ accusations going uninvestigated or the prisoners themselves being reprimanded. In fact, inmates who complained of staff sexual misconduct were written up for punishment 46.3 percent of the time. Therefore, due to fear of retaliation few victims ever choose to exhaust administrative remedies. This effectively means that they are barred from bringing suits while imprisoned and that their attackers go unpunished.

Secondly, even if victims of prison sexual assault can overcome the PLRA their constitutional claims are rarely successful. The Eighth Amendment establishes the right to be free from the infliction of cruel and unusual punishment. The Founders believed this right so important that they enshrined it in the Bill of Rights. However, the definition and scope of the term cruel and unusual punishment has been evolving since that moment the Constitution was ratified, and it has not been established that all sexual assault in prison constitutes cruel and unusual punishment. Instead, for victims of prison sexual assault to establish a violation of their Eighth Amendment rights they must prove that the prison official had a “seriously culpable state of mind” by satisfying the two-part deliberate indifference test.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

– U.S. Const. amend. VIII.

The test, established in Farmer v. Brennan, requires that the prison official must (1) “both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists,” and (2) “also draw the inference.” The deliberate indifference standard is a subjective standard, which substantially raises the standard of proof for plaintiffs in prison sexual assault cases. For victims, the difficulty lies in proving that prison administrators were aware of the risk and ignored it. Applying the Farmer test in subsequent litigation, federal courts have severely limited the liability of prison officials for permitting sexual misconduct within their prisons.

State Failures

Another major reason for the high incidence of prison sexual assault is the limited oversight of state prisons, where the majority of prisoners are located. Recently the federal government took a historic step towards combating prison sexual assault by passing the Prison Rape Elimination Act (PREA). The goal of the PREA is to make the prevention of prison rape a top property in each prison system. To do so the PREA was passed with the intention to develop and implement national standards for the detection, prevention, education, and punishment of prison rape. However, the PREA standards only apply to federal prisons. State and local facilities that fail to comply with the standards are not automatically acting illegally and, therefore, inmates who have been sexually abused in such facilities cannot obtain relief in court under the PREA. Thus, because state prisons and local jails confine the majority of American inmates, the majority of inmates are not protected by the national standards.

Solutions

One way Congress can protect female inmates is through the power of the purse. Congress passed the PREA under its spending power and, therefore, can incentivize states to pass the national standards by withholding or increasing federal grant money. Additionally, while the PREA was a good first step, many other provisions can be incorporated into the PREA to make it more effective. These provisions should address prison overcrowding, establish a national hotline so prisoners can anonymously report sexual abuse (ARHA), and create a national taskforce to investigate prisons with a high incidence of sexual assaults.

Proposal #1: Anonymous Reporting Hotline Act (ARHA)

• Provide the DOJ with funding to create an anonymous telephone hotline, to which prisoners could report sexual abuse. 

• Hire staff members that deal with specific regions of states.

• Require prisoners to provide enough information (such as how and when the attack occurred) to show a substantial claim, but not their names.

• Provide information and resources about how best to report the abuse, receive medical and psychological treatment, and obtain legal counsel.

Additionally, to ensure that female inmates are no longer thrown into situations that would make them even more vulnerable to sexual assault, the federal government must adopt an act entitled the Protecting Vulnerable Inmate Populations Act (PVIP). This federal act would mandate that all prison officials working in female correctional facilities be trained to interact specifically with female inmates, prohibit all cross-gender supervision of female prisoners while they are in vulnerable positions (such as showering), and prohibit non-violent first offenders from being placed in the same prison as violent offenders. Additionally, this act would allocate funding to help modernize female correctional facilities so they are easier to police and monitor. Furthermore, I propose that the Department of Justice establish an independent task force to examine the prisons that repeatedly are reported to have high incidences of sexual abuse. The job of the taskforce would be to complete an extensive review of the prison (its policies and practices), and issue individualized recommendations to the prison on how it can best reduce such incidences. Federal funding for prisons would be tied to how well the prison implements these recommendations.

Proposal #2: Protecting Vulnerable Inmate Populations (PVIP) 

• Prohibit non-violent first offenders from being placed in the same facility as violent offenders.

• Mandate that all prison officials working in female correctional facilities be required to be trained to interact specifically with female inmates. 

• Mandate that non-violent first offenders under the age of 18 be placed in juvenile detention facilities.

• Mandate that transgender individuals in the process of transition be placed in a facility of the gender they now identify with.

• Allocate funding to help modernize female correctional facilities to make them easier to police and monitor.

But new legislation is not enough. We need changes at the judicial level too. No legal roadblocks should stand in the way of prison sexual assault victims getting the justice they deserve. Therefore, the PLRA should be amended to allow for suits in cases were a sexual assault claim exists and exhausting administrative remedies would be dangerous, frivolous, or unnecessarily cumbersome.Additionally, the Supreme Court should revisit its decision in Farmer and make the deliberate indifference standard an objective standard.Currently victims must prove that individual prison administrators were aware of the potential risk of sexual assault and ignored it. A constitutional violation should not turn on a state actor’s intent. Therefore, the deliberate indifference standard would be better applied as an objective standard, which would require victims to show only that a reasonable person would have been aware of the risk and ignored it. 

Proposal #3: DOJ Taskforce

– The DOJ should assign an independent task force to examine the prisons that repeatedly (for three years or more) are reported to have high incidences of sexual abuse. 

– This task force should consist of correctional authorities, judges, former prisoners, and prisoner rights advocates. 

-The job of the taskforce should be to complete an extensive review of the prison (its policies and practices), and issue individualized recommendations to the prison on how it can best reduce such incidences. Federal funding for prisons would be tied to how well the prison implements these recommendations.

Proposal #4

• Amend the PLRA. 

• Supreme Court needs to revisit the Farmerstandard.

Conclusion

The fact that prison sexual assault is occurring at admittedly epidemic levels in the United States right now is a moral stain on our character. Furthermore, it is an abomination to the Constitution that we hold so dear. The federal government has finally taken historical first steps in combating the problem, but we must do more. We cannot allow this epidemic to continue. So instead of just being invested in the storylines of fake female prisoners on television, let’s invest time in helping real female prisoners combat this cruelty. Because for each moment we stand by simply watching, more women are being victimized and subjected to the devastating effects of sexual assault. 

Why the Remote Sender of A Text Message Should Not Be Held Liable for Distracted Driving Accidents: Case Comment of Kubert v. Best

Written by Elyssa Shifren

Imagine yourself at 17 years old. You have been text messaging your crush all day. You know your crush is leaving work soon, and you send another text. Your crush stops responding. You immediately fear your crush lost interest in you. Later that evening, you discover the real reason for the unresponsiveness.

Your crush was in a serious accident, around the time of your last text. Your crush was barely harmed, but the couple whose motorcycle your crush’s truck hit, sustained severe injuries. You are in shock. You are well aware of the dangers of texting and driving. However, you never thought merely pushing “send” could make you responsible for someone’s texting and driving. But the injured couple alleges that, by sending your texts, you are legally liable.

This scenario is based on Kubert v. Best, the first and only case about liability of the remote sender of a text. In 2009, 18-year-old Kyle Best and 17-year-old Shannon Colonna texted throughout the day. Best left work to drive home. At the same time, Linda and David Kubert rode around on David’s motorcycle. At 5:49pm, Best’s truck collided with the Kuberts’ motorcycle. The Kuberts’ injuries were so severe that both lost their left legs.

The Kuberts sued Best in 2010, and added Colonna as a defendant in 2011. The New Jersey trial court granted Colonna’s motion for summary judgment on the grounds that the Kuberts failed to provide evidence of Colonna’s liability.

The Kuberts appealed, arguing that Colonna owed a duty of care under 2 alternate theories of liability: 1) Colonna owed a duty as a passenger, and by texting, Colonna and Best were acting in concert, and 2) more importantly, even if Colonna did not have a duty as a passenger, she had an independent duty not to text Best when she knew he was driving. The court rejected the first argument. For the second argument, the court used what the New Jersey Supreme Court called a “full duty analysis.” The court held that the Kuberts failed to prove Colonna’s liability. However, the court concluded that the sender of a text “has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving.”

The Full Duty Analysis Considers the:

1. Relationship of the Parties

2. Nature of Inherent Risk of Harm

3. Opportunity/Ability to Exercise Care

4. Public Interest In the Outcome

The court was incorrect in determining that the remote sender of a text can be liable for resulting injuries in certain situations. Holding the remote sender of a text liable is not an appropriate solution to texting and driving. Rather, appropriate solutions involve changes in the laws on texting and driving, changes in technology, and most importantly, social change. If the full duty analysis is correctly applied, the remote sender of a text does not owe an independent duty.

The Full Duty Analysis:

1. Relationship of the Parties: Cases have held that for passenger liability, the passenger must have been “in a position to ‘know or have reason to know, from past experience, that there [was] a likelihood of conduct on the part of [a] third person[]’ that was ‘likely to endanger the safety’ of another.”

The court applied this rule to remote senders of texts. The court concluded that for the sender to be independently liable for distracting the driver, the sender must be in such a relationship with the driver that the sender knew/had reason to know that the driver would text and drive. The court determined that the Kuberts failed to prove Colonna knew Best would immediately read and respond to her text.

–77% of young adults think they can text and drive safely.

–55% of young adults think it is easy to text and drive.

…BUT, young adults who text and drive tend to drive outside of their lane for 10% of their time driving. statistics

However, the court’s standard for liability may lead to arbitrary and inconsistent application. The facts of Kubert appeared to fall perfectly within the parameters of the standard created by the court, because Colonna knew Best was responding to her texts and was leaving work at the time, yet the court declined to find Colonna liable. With such unclear guidance courts are not likely to know how or when to use the standard,

which will render it useless.

2. Nature of the Inherent Risk of Harm: This consideration is determined by the foreseeability of the risk of harm. The court said that the sender should be liable because the risk of an accident is severe and foreseeable to the sender. However, the court failed to consider the view of many people who text, the flawed view that people can be “good” at texting while driving. To these people, getting into an accident is less foreseeable.

–188 billion texts were sent monthly in the U.S. in 2010

–88 texts per day is the average amount of texts received by Americans age 18-29 statistics

3. The Opportunity and Ability to Exercise Care: The court determined that the sender has the opportunity and ability to exercise care by simply not sending the text. However, due to the nature of sending a text, the remote sender of a text will never have sufficient opportunity and ability to exercise care in a way that would permit any liability to be placed upon the sender. Unlike in other cases where courts found liability for failure to exercise care, the remote sender of at text cannot control what happens once the text is sent. There is nothing for the sender to do other than hope the driver is responsible enough to read the text when it is safe. The court’s suggestion that people should merely refrain from texting, in light of the frequency with which we text today, is highly unrealistic.

-23%: the amount of car accidents that involved cell phones in 2011.

-23 times more likely to crash if you are texting while driving. statistics

4. Public Interest in the Outcome: The court viewed the public interest mainly in terms of deterrence of texting while driving. However, Kubert was not just about texting and driving, it was about sending texts to drivers. Thus, if people know they could be liable for texting a driver, it can create a chilling effect, making people afraid to send texts. Additionally, imposing liability on senders diverts the attention of courts and the public from the real issue at hand: the dangers of texting and driving. The court and the legislature should address the issue of texting and driving head-on by targeting the driver, who will actually be texting while driving, rather than the sender of the text.

3 Part Framework:

1. Changes in the law

2. Changes in technology

3. Changes in society

The Solution: Although Kubert focused on the liability of the remote sender, the underlying concern is a driver texting while driving.

With the proper concern in mind, Julius Genachowski, chairman of the Federal Communications Commission, laid out a three-part framework to effectuate a change in texting and driving in his informational article.

First, the law should be amended to increase bans on texting while driving. Because almost all states have laws that ban text messaging while driving, other types of solutions are needed to address this serious issue.

Second, technology must change, as “a problem born from technology requires technological solutions.” Makers of cell phones have made innovations, such as apps for cell phones that block the ability to text while driving. However, people must want to use these technologies in order for them to be truly effective.

This is where the third, and most important, change enters. There must be social change to make any other change effective. As society has seen with drunk driving, social education and condemnation of a destructive habit can pressure people to no longer engage in it. The government has established a distracted driving website with suggestions and materials to deter people from texting and driving. Social change must also occur at an individual level. Even small things, such as visiting the government website and taking the pledge not to use your phone while driving, can effectuate change.

Conclusion: The NJ state court erred in stating that the remote sender of a text could be liable for any accident that results. Potentially imposing liability on the remote sender of a text is a round-about way of resolving the issue of texting and driving. The only way to effectively resolve the issue of texting and driving is through a head on approach, such as further laws, technological advances, and increased public awareness. Given the number of potential solutions, there is no reason to hold the remote sender of a text liable.