School District Client Advisory: The Elimination of “Willful Defiance” – A Debate Worth Having

Save Common Core standards, no subject in public education invokes more visceral impulses and perplexing questions than student discipline. Why can’t students just behave? Are our public schools a breeding ground for violence and criminality? How do we maintain order and protect human dignity? Must the needs of the many be sacrificed for the needs of the few? Can we maintain time-honored traditions like respect for authority while at the same time honoring diversity? What is more important – safety or self-expression? If these issues are not complicated enough, unfortunately, they are further complicated by local institutional factors, politics, and good old-fashioned human nature. As former General Counsel of a large suburban school district I felt these forces converge simultaneously on unwitting students, parents, teachers and administrators who are simply trying to survive and want no part of a larger sociological crusade.

At the very epicenter of this controversy is Assembly Bill (“A.B.”) 420. Recently reintroduced by Democratic Assemblyman Roger Dickinson, A.B. 420 would ban expulsions based on “willful defiance” and prohibit “willful defiance” suspensions for California’s youngest students, those in kindergarten through third-grade. Recent statistics from the California Department of Education (CDE) demonstrate that 43% of the approximately 700,000 suspensions imposed in the 2012-2013 academic year list “willful defiance” as a reason. Schools’ reliance upon willful defiance is particularly striking when you consider there are literally dozens of codified grounds to recommend expulsion related to violence, controlled substances, theft, vandalism, sexual assault, bullying, harassment and even profanity. Why then expel a student on such ill-defined grounds? Some would argue that teachers need latitude in classroom management; while others believe the real answer can be found in the vestiges of racial prejudice. Regardless of your position on A.B. 420, one cannot dispute that the debate will bring important issues of disproportionality and alternatives to discipline to the forefront. It’s a debate worth having.

I.    Why is there debate over willful defiance?

Education Code section 48900 (k) provides that a student may be suspended or expelled if they “disrupted school activities or otherwise willfully defied valid authority of supervisors, teachers, administrators, school officials or other school personnel engaged in the performance of their duties.” However, the law does not define “disruption” or “willful defiance.” The ostensible justification for this vague catchall provision is to provide school officials with “flexibility” to administer discipline when the conduct does not fall neatly into another ground for discipline set forth in the Education Code.

In opposing an earlier bill introduced by Assemblyman Dickerson, California Teachers Association (“CTA)” Legislative Advocate Seth Bramble stated, “While the idea of alternatives to suspension and expulsion is critical to us, we don’t want to tie the hands of school staff at any grade level to deal with what they have to deal with at a school site.” (Emphasis added.) In fact, when Governor Brown vetoed this bill he stated, “I cannot support limiting the authority of local school leaders, especially a time when budget cuts have greatly increased class sizes and reduced the number of school personnel.” Although “willful defiance” can be used to suspend for such conduct as failing to remove a hat or complete homework, opponents have less quarrel with flexibility than they do with the apparently disproportionate manner with which the flexibility is exercised.

The numbers are alarming. According to the CDE, California fails to graduate 34.7% of its African-American youth and 25.5% of its Latino youth as compared to 12.2% of its white youth. African-American males are 3.5× more likely to be suspended than their white classmates. Latino males are 2.5× more likely to be suspended than their white classmates. After these initial suspensions the consequences cascade and multiply. Students who are suspended are 2× more likely to drop out of school and 3× more likely to end up in the juvenile justice system. These students do not receive instruction, and the school does not receive attendance-based school funding. Children who drop out of school will cost the state approximately $46 billion per year, including $12 billion in crime costs alone. CDE statistics demonstrate that last year more students were suspended than sent to college. Although there is broad consensus that willful defiance is overused and applied disproportionately, based largely on cultural misunderstanding, there remains disagreement on how far the law should go.

II.    Where are we now?

On August 14, 2014, Assemblyman Dickinson made an impassioned plea on the capital steps to an audience comprised largely of students of color, exhorting them to help him convince, “an audience of one… Governor Brown.” As stated above, Governor Brown vetoed an earlier bill; but to be fair, he was not alone in his opposition. The bill was opposed by not only CTA but also the Association of California School Administrators (“ACSA”) A.B. 420 is a scaled-back version of the earlier bill that focuses on grades 1-3 hoping to allay the concerns of the Governor as well as those powerful advocacy organizations. The bill passed in the Assembly. Now, CTA has taken a neutral position and ACSA has dropped its opposition. The bill now sits in the Senate Education Committee’s inactive file.

Setting Sacramento politics aside, proponents of A.B. 420 need not only convince the Governor, but also they must change the hearts and minds of some school officials. Teachers and site administrators are mindful of the debilitating effects of disproportionality, and their ability to implement creative and effective disciplinary alternatives. However, sometimes the “press of business” makes that just too hard. Many school officials are simply too overworked to address the root causes of disciplinary problems. Consequently, teachers pressure principals to remove unruly students. Principals pressure Student Services to support their staffs’ expulsion recommendations. Student Services pressure school boards to endorse their departments’ findings. Day in and day out those who devote their lives to children become unwilling participants in a cycle that disconnects our most at-risk students from the education they so direly need. Something has to change.

III.    What can we do?

School districts throughout the state have been experimenting with alternatives. Los Angeles Unified School District, San Francisco Unified School District and Vallejo Unified School District are phasing out willful defiance suspensions and encouraging teachers to delve into what underlies the behavioral issues. Regardless of whether A.B. 420 ultimately becomes law, the following are some suggestions for disciplinary policies that emphasize accountability and reward positive behavior. Such policies can be implemented under the new Local Control Funding Formula for schools which requires districts to create a Local Control and Accountability Plan to improve school climate, including minimizing suspensions and expulsions.

A.    Positive Behavior Teams

Positive Behavior Teams are a proactive data-driven approach to discipline. A school behavioral team comprised of teachers, administrators, psychologists and classified staff identifies at-risk students and provides individualized interventions and clear behavioral expectations. This approach has successfully reduced office referrals and raised academic achievement.

B.    Define Willful Defiance

If A.B. 420 remains in committee, each district may still adopt policies which define “willful defiance” to eliminate subjectivity to the greatest degree possible. The definition may depend on the culture and challenges of the particular district, however, a definition such as — Willful defiance shall only occur when the student repeatedly disobeys the lawful direction of school personnel and that disobedience has a detrimental impact on the effective or safe functioning of the school or classroom — will help lessen human susceptibility to personal preconceived notions. The more specificity contained in the discipline policy the lesser the chance for disproportional implementation.

C.    Restorative Justice

School districts throughout California have complemented the traditional disciplinary structure with Restorative Justice Programs. The theory behind Restorative Justice is to bring all shareholders together to discuss problems underlying the misbehavior and to collectively find solutions and appropriate consequences. Justice is achieved when the offender repairs the harm he or she committed against another person and/or the school community. School staff is trained to create problem-solving structures in the classroom and in the school community.

D.    Peer Courts and Mediation

Peer courts and mediation are often part of a broader Restorative Justice approach. Such alternative programs employ different structures to allow students charged with minor offenses to be judged by their classmates. Participants are trained in health, safety and respect and generally administer sentences involving restitution and community service. Also peer mediation provides another forum for students to resolve disputes calmly and constructively. This involves training of students and staff and providing a safe and comfortable setting for the mediation sessions.

E.    After School Suspension

Where practicable, schools should implement after school and weekend suspension programs. School suspensions compromise school funding, but more importantly deprive students of necessary instruction. This model runs contrary to the purpose of public education.

IV.    What Is the Answer?

A.B. 420 cannot by itself solve the problem of disproportionality. Furthermore, alternative and experimental means of discipline are by no means panaceas. However, it cannot be denied that what we are doing is not serving all students. Laws, policies, and programs cannot by themselves correct all societal ills. However, A.B. 420 is on the right track in one respect… schools are the place to start. And it starts with people. One well-meaning teacher who asks a misbehaving student, “What’s really wrong?” may save them from a cycle of crime and poverty. One principal who seeks to understand why a child acts differently instead of suspending them sends the message, “We want you in, and we want you to succeed.” Every person can make a difference.

What is so rare about this debate is that everyone agrees on the goal; maintaining a safe and orderly school climate while eliminating disproportionate exclusion of African-American and Latino students. Also, if everyone understands each other’s viewpoint – students and parents understand why teachers need to maintain discipline; and teachers and administrators understand that students of color are disproportionately expelled and suspended, then why can’t we find a solution? It is hard to find a solution because all too often each and every one of us succumbs to fear, fatigue and self-interest. We act in the moment instead of considering the future. Perhaps A.B. 420’s greatest utility is that it’s forcing us to consider the future… one student at a time.

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September 11, 2014