Expulsion epidemic draws national attention
By the Notebook on Dec 12, 2011 01:50 PM
The national issue of high rates of expulsion and suspension that disproportionately affect students of color, highlighted locally by a study earlier this year, is the subject of this investigative report just published by the Center for Public Integrity. The Center is a Notebook partner through the Investigative News Network.
by Susan Ferriss
for the Center for Public Integrity
BAKERSFIELD, Calif. — As he waited for his first disciplinary appeal hearing to begin this fall, the sixth-grade student began sobbing.
He was barely 11 years old. He had been expelled again — for the rest of the school year — from his Bakersfield elementary school district, this time for alleged sexual battery and obscenity.
The offense: “Slapping a girl on the buttock and running away laughing,” according to school documents.
The boy’s pro bono attorney, a retired FBI agent, was appalled.
“This, on his record, puts him right up there next to the kid who raped somebody behind the backstop,” said Tim McKinley, who spent 26 years in the bureau, much of it locking up murderous members of the Hells Angels motorcycle gang.
For the boy’s local school board in Kern County, the punishment fits the crime. It upheld a panel’s initial approval of expulsion.
For McKinley, the discipline is dramatic overkill sure to prove counterproductive for both the child and the community at large.
These days such disagreements are hardly unusual. In California’s southern Central Valley, Kern County is at the leading edge of a contentious debate over where to draw the line in exacting school discipline. Teachers want a safe environment in which to teach. Parents want to know their children are secure and not getting bullied. And no-nonsense school districts in this conservative oil and agribusiness region are suspending and expelling students for a broad range of indiscretions.
Meanwhile, a national reform movement is growing, fueled by reports that suspension and expulsion policies are disproportionately targeting minorities, and doing more harm than good by killing kids’ attachment to school and putting many on a fast track to failure.
Roots of a trend
Since the 1970s, multi-day, at-home suspensions and long-term expulsions have been on the rise nationally, many of them meted out, not for violence, but for lesser violations like insubordination, according to research by associates of the Civil Rights Project of the University of California at Los Angeles.
Punishment of minority students is rising especially rapidly, the researchers have found. Between 1973 and 2006, the percent of black students suspended at least once during their K-12 years grew from 6 to 15 percent nationwide while Latinos’ rate rose from 3 to almost 7 percent. White students’ rate grew more slowly, from about 3 to almost 5 percent.
A root cause for the rise in removal of students is fear, especially fear of gun violence. The 1994 Gun-Free Schools Act required each state — as a condition of federal funding — to enact laws mandating a year-long expulsion of any student caught with a firearm, with little local discretion to reduce the duration of the punishment.
The “zero tolerance” phenomenon accelerated after the shocking 1999 suicidal shooting spree by two students at Colorado’s Columbine High School, which killed 15 and injured 24.
Against that backdrop, state legislatures began adding more specific infractions that could lead to suspensions and expulsions. California lawmakers, for example, approved a law in 2008 barring students from using cell phones and email for “cyber bullying,” and this year voted to add social networks to that mix.
At the local level, school boards, administrators and individual schools began exercising their discretion more broadly in deciding how tough to be in their interpretation of behavior codes.
Kern County schools exemplify this trend, with expulsions doubling in a decade.
A focus on discipline
Kern County has a rugged but colorful history. The 2007 movie There Will Be Blood was inspired by writer Upton Sinclair’s tales of brutal ambition in Kern’s early-20th-century oil fields. John Steinbeck’s The Grapes of Wrath was a scathing portrait of Depression-era abuse of migrants here. And in the 1960s, Cesar Chavez founded the United Farm Workers Union in Kern and waged bitter strikes.
In addition to the oil fields here, residents have been drawn to harvest grapes and other crops that cover a large portion of Kern’s 8,000 square miles. Today, Kern produces 10 percent of U.S. petroleum and brings in the third-highest agricultural revenue of any county in America. Residents also work in mines, the aerospace industry and on military bases. Kern’s biggest city, Bakersfield, is home to a California state university campus and a robust country music scene founded by “Okie” native sons Buck Owens and Merle Haggard.
But many of its residents are far from rich. In 2009, about 22 percent of all residents and 30 percent of children lived below the poverty line. Most of Kern’s students countywide are ethnic minorities; in fact Latinos are now the majority.
Politically, Kern is a Republican stronghold, with 44 percent GOP registration, 35 percent Democratic and 17 percent independent. Traditional-values activists have been a strong presence on the board of the largest of the county’s 48 school districts, the Kern High School District, and they haven’t shrunk from approving expulsions of students charged with misbehavior.
Despite its sprawling geography, Kern County was home to only 173,365 students, or fewer than 3 percent of all of California’s students last year. But it was responsible for 14 percent of the state’s total of 18,648 expulsions, according to data reported by schools to the California Department of Education.
Because of its no-nonsense approach, Kern ended up with an expulsion rate of nearly 15 students for every 1,000 pupils last year, according to an iWatch News analysis of California’s discipline data for 2010-2011. That’s a rate four times greater than California’s average for the same year and more than seven times the national average for 2006, the most recent year available.
In the Kern High School District, 11 high schools reported expelling more than 100 students each last year. Bakersfield High School, in Kern’s biggest city, reported ejecting 232 of its 2,755 pupils.
Most students are expelled from an entire district, not just their school, for a semester or a full year as punishment.
Christine Lizardi Frazier, Kern County’s superintendent of schools, paused when asked if she thought some of the hundreds of expelled Kern students might not have better been handled through some other sort of in-school discipline or special counseling. Frazier’s responsibilities include supervising nine county-run alternative “community” schools designed to serve kids kicked out of their regular county districts.
Schools are trying to be selective when they expel pupils, she said, but must be sure to think about getting kids out who jeopardize safety.
“They are not being expelled for pushing and shoving,” Frazier said. For schools, “it is really hard to look away when they’re bringing a gun or a knife or selling drugs.”
But the statistics in Kern tell a more complicated story.
The iWatch News analysis shows that relatively few of Kern’s 2,578 expelled students were accused of serious violations that actually require an administrator to urge expulsion of a student. One of those violations is brandishing a knife — 15 reported cases in Kern last year — and another is possessing or furnishing a firearm. Only one expulsion case was reported in Kern last year resulting from a statute specifically prohibiting firearms at school, according to individual school data released by the state in September of this year.
Instead, the majority of Kern expulsions fell into several broad categories encompassing a range of allegations for which administrators have discretion — discretion to recommend expulsion or some other punishment to local school boards, which have the ultimate authority.
One of the most common categories for which Kern students were expelled is associated with fist fights, or what schools call “mutual combat.” The offense is “causing, attempting to cause or threatening to cause physical injury to another person,” for which 522 Kern students were ousted. Another 142 were expelled for violating one of two other codes with narrower language charging a student with “willfully” injuring another in an incident that was not self-defense.
Another most common reason for expulsions in Kern was use, possession or sale of intoxicants, a single broad infraction that can range from accusations of drinking a beer to using street drugs or pilfered prescription drugs. Schools expelled 843 students in Kern for this violation.
Last year, school reports show, expulsion numbers in Kern were also driven up by an unusually large number of two other types of alleged infractions: disruption or willful defiance of authority, and obscenity, habitual profanity or vulgarity.
More Kern students — 232 — were expelled last year for disruption or defiance of authority than for drug dealing or possession of dangerous objects. In Los Angeles County, which has nine times the number of students as Kern, only 89 students were expelled for defiance. Kern schools also expelled far more students than Los Angeles for obscenity and profanity, 105 compared to 39. In fact, last year, more than one in four expulsions statewide for obscenity or vulgarity occurred in Kern County.
Some disciplinary specialists consider accusations of defiance and profanity, especially, to be highly subjective, and argue that they should rarely be grounds for expulsion.
Others worry that expulsions are being handed down in a discriminatory manner.
According to raw numbers supplied by the Kern High School District, students identified as Latino, who are today 55 percent of district enrollment, were roughly 60 percent of those expelled over a five-year period; whites were 32 percent of enrollment and 22 percent of the expelled; blacks were less than 8 percent of enrollment but about 15 percent of expelled pupils.
In 2006, East Bakersfield High School reported expelling 30 out of 115, or 26 percent, of its African American students, according to data the school submitted to the U.S. Department of Education as part of a national survey for its Office for Civil Rights.
Numbers aside, no one in authority in Kern County is apologizing. Bryan Batey, a parent and president of the board of trustees of the Kern High School District — where most of the expulsions occur — defends his district’s decisions.
“There has been no call for a change from students’ parents or the community,” Batey said. “No one is running for the board on a platform of keeping obscenity-spewing or drug-selling kids in [regular] school.”
But for McKinley, now a family attorney in Kern with the nonprofit Greater Bakersfield Legal Assistance Inc., the data is troubling.
Kern’s unusually high rates of expulsion “show there is something seriously wrong going on here,” the former G-man said. “You can’t tell me kids here are any worse than in Los Angeles or other places,” he said.
McKinley’s complaints dovetail with similar concerns that have been expressed about discipline in other states.
A study released in July out of Texas strongly suggests that frequent suspension and expulsion is counterproductive to putting vulnerable students on a path to graduation.
Sponsored by the nonpartisan, Lexington, Ky.-based Council of State Governments, the study tracked, for six years, all Texas students from seventh grade through their senior year. It found that a startling 60 percent were suspended or expelled at least once, but on average, eight times.
About 15 percent of the nearly 1 million Texas students tracked were referred to an alternative educational program as a result of being disciplined, and 8 percent were sent to a juvenile-justice education program for an extended time.
Almost 75 percent of the state’s special education students experienced suspension or expulsion. And among a large core group of students suspended or expelled 11 times or more, about 60 percent failed to finish high school.
The analysis also found that 97 percent of disciplinary actions in Texas were at the discretion of local school directors, not based on laws requiring expulsion. Black students were 31 percent more likely than students of other ethnicities to receive discretionary discipline when the researchers controlled for variables other than race.
A separate report released in October by the National Education Policy Center at the University of Colorado, Boulder, highlighted evidence of racially disproportionate discipline elsewhere.
According to the policy center’s report, discipline data collected in 2010 in North Carolina showed that of all black students cited for a first-time cell phone violation in schools, 32 percent were given out-of-school suspension. But less than 15 percent of white students received the same punishment for the same violation.
Cases handled by the Northern California branch of the American Civil Liberties Union reflect similar themes. In one such case, the ACLU represented a Native American eighth-grader in the California mountain city of Bishop who was handcuffed by a school police officer in 2005 after the boy refused to give up a bandanna that was a family gift. The officer said the bandanna violated school dress codes, and the boy was suspended, along with other children who had gathered to protest.
Accused of disproportionately suspending Native American children for defiance, the boy’s district reached a settlement in 2007 to incorporate diversity and conflict-resolution training into staff development.
Persuaded that harsh discipline has become counterproductive, a growing cohort of reformers are searching for a different approach. One of the most prominent among them is Judge Steven Teske of Georgia’s Clayton County Juvenile Court. He testified in 2010 before the U.S. House Committee on Education and Labor that more than 90 percent of referrals from schools to courts in his county stemmed “from minor school disciplinary matters that should have been handled in schools.”
Teske helped spearhead policies to send more students in trouble to conflict-skills classes and mediation. He credits the changes — which began in 2004 — with helping Clayton County increase graduation rates by 21 percent and decrease juvenile felony rates by 51 percent. In California’s San Francisco County, where district board trustees have adopted a policy to reduce suspensions and expulsions, not a single pupil was expelled last year for disruption or defiance.
In Southern California, the board of trustees of the Los Angeles Unified School District in 2007 adopted a “positive behavior support” policy to switch gears and reward good behavior, while providing more counseling support for students who are acting out. Parents had complained about students in elementary school being suspended for failing to complete work and for “defiant” speech.
“We really don’t want to expel for defiance,” said Isabel Villalobos, the Los Angeles school district’s coordinator of student discipline and expulsion support services. “If you ask adults to define defiance, they all have a different answer.”
The Children’s Defense Fund and various foundations are also working on projects to urge the adoption of alternative discipline. They warn that removing students from classrooms at high rates creates a “pipeline to prison” for those most at risk of dropping out and getting involved in crime.
The Obama Administration has also joined the debate. In July, the administration announced the Supportive School Discipline Initiative, which is supposed to develop guidelines to help schools change disciplinary and behavior-management methods, and more judiciously apply suspensions and expulsions.
The National Council of Juvenile and Family Court Judges is involved, and the administration awarded the Council for State Governments $400,000 to oversee a two-year “consensus-building” project to get local and state educators collaborating on ways to reform disciplinary procedures. The U.S. Department of Education and the U.S. Department of Justice’s Office of Juvenile Justice and Delinquency Prevention are lead agencies in this initiative, which also aims to improve data collection from schools to measure discipline and student profiles.
“Ensuring that our educational system is a doorway to opportunity — and not a point of entry to our criminal justice system — is a critical, and achievable, goal,” said Attorney General Eric Holder.
The administration has more aggressive approaches as well. The Department of Education will not discuss details, but Secretary of Education Arne Duncan and other education officials confirmed in October 2010 that the department was reviewing possible disproportionate discipline in districts in Wilmington, Del., Salamanca, N.Y., Winston-Salem, N.C., San Juan, Utah, and Rochester Minn.
Earlier this fall, the department’s civil rights division struck an agreement with the Los Angeles Unified School District requiring that the district take additional steps to “report disparate discipline rates” for black students and “eliminate inequitable and disproportionate discipline practices.”
A logical process?
Kern officials say their intent is not to simply be punitive, but to implement a process that follows a series of logical steps.
“We don’t have an agenda for how many kids we need to have disciplined, or how many kids you can’t discipline,” said Michael Zulfa, the Kern High School district’s assistant superintendent of instruction. “We try to find that appropriate ground,” Zulfa said, “where student behavior really dictates what we’re doing in our disciplinary policies.”
Kern County has high schools in other districts, but Zulfa’s is the biggest entity schooling teens here. Some of its schools are beginning to use “positive behavioral intervention and support,” but the overarching policy is “progressive discipline,” said Otis Jennings, who oversees discipline in the district. Batey, the Kern High school district board president, said most expulsions are “the icing on the cake” delivered after a student has already gotten into trouble and received detention, suspension or Saturday work detail.
Kern school officials say they try to help troubled students, but argue they can do only so much, especially given the state’s fiscal crisis.
John Teves, Kern High School District spokesman, said that since campuses typically have five or fewer staff counselors, “the bulk of their work has to be devoted to a student’s academic progress.”
Ten school psychologists for the whole 37,500-population district, Teves said, are focused on the needs of about 3,500 special education students scattered on various campuses.
As of last year, the Kern County Mental Health Department is trying to address misbehavior among young children by tapping into California’s Proposition 63 mental-health fund, which voters approved in 2004 and comes from a tax on millionaires. Counties are given a share of the money, and Kern is now using some of its share to pay for therapists to be posted at 10 elementary and middle-schools.
With the program’s placement of a full-time therapist and a case manager last year at the Almond Tree Middle School in the Kern County town of Delano, The Bakersfield Californian reported that expulsions dropped in one year at that school from 25 to 14 and suspensions from 643 to 228.
Deanna Cloud, children’s care coordinator for the Kern County Mental Health Department, said there are no plans at this point to expand the Proposition 63 program to secondary schools. “We’ve had a struggle getting onto high school campuses, generally,” she said. “Many do not want mental-health treatment on campuses because it takes away from educational time.”
The expulsion track
In the Kern High School District, the board usually reviews recommendations for expulsions in bulk, Batey said, sometimes a few dozen at a time. Board members are given summary reports of each student’s history. It’s not often that a parent appears before the board to protest because so few expulsions are ever appealed in Kern.
The district is required to notify parents about their rights, and gives parents forms in Spanish and English explaining that they can ask for a hearing, or that they can relinquish that right. Batey said he realizes that in this area where immigrant parents often don’t know English well, “parents not familiar with the culture might not even know to ask” for a chance to weigh evidence.
Only six appeals out of a total of 2,578 expulsions last year were taken by parents all the way to the Kern County Board of Education. That’s the final procedural tier outside court that begins with an appeals panel of impartial educators, followed by the local school board.
Zulfa acknowledged that expulsion can stain a record in the final years of school, especially if a student is preparing for college or to enter the military, unless a student serves punishment and it is expunged.
But, ultimately, he said, expulsion can also prove to be a positive experience because it means students are separated from the negative influence of others or threats from other students and get a chance to receive more counseling and reform their behavior.
Teachers, of course, have their own unique perspective. Brad Barnes, president of the Bakersfield Elementary Teachers Association, didn’t claim to have a definitive analysis of Kern County’s expulsions, but noted that as class size had increased, “the teachers reported discipline was going down and down.”
Sometimes removal of a disruptive child or a student who strikes others is the only answer, he said.
Teachers with no classroom aides now are under daily pressure to improve Bakersfield’s relatively low test scores, Barnes said. Instructors need stability to instruct others effectively in classes that have swollen to more than 45 students.
Years of layoffs — five counselors were let go last year — have decimated staff at 42 primary and middle schools in the Bakersfield City Elementary School district, Barnes said. That leaves only three schools with a single counselor each, and nine others who handle a variety of chores in school offices, counseling among them. For 27,490 students, there are only five behavioral outreach specialists and 11 traveling psychologists, according to the district.
Vickie Shoenhair, president of the Kern High School Teachers Association, said the power to expel is necessary, but she believes it can push some vulnerable students into dropping out. “Lots of the families of the migrant kids,” she said, “just have them go to work the fields.”
Teachers no longer have time to get to know students in crowded classrooms, Shoenhair said, and to privately coax them into talking about troubles. “There needs to be an individual on the campus who can take the time to find out what the behavioral issue is coming from,” she said. “There is not a safety net.”
She said kids “have baggage like I’ve never seen,” with pressure to join gangs, get involved in drugs, and work to earn money for their families or stay home to take care of younger siblings.
A position paper issued in March 2011 by the Education Law Center and the Juvenile Law Center argued that the federal No Child Left Behind Act creates a “perverse incentive” to encourage the removal of lower-performing students from schools. Schools can be declared failing if test scores among all students do not improve.
Asked if she agreed with the opinion in this position paper, Shoenhair said she did agree, and that it is “is sad” to rely so heavily on this type of testing to measure success.
Teves, the Kern High district spokesman, strongly disputed any connection. “I have heard of other school districts employing this tactic,” Teves said in an email. “I can assure you, the ‘ethic’ of the KHSD is such that no student would be disciplined for the purposes of an advantage on a test score.”
Since California requires that expelled students still be offered some type of public education, Kern County fulfills that commitment in a couple of different ways.
Last year, the Kern High School District estimates, about 600 of its 2,040 expelled students were kept within the district and sent to other regular high schools or to district “continuation” schools. Continuation schools provide fewer hours of class time and fewer academically advanced classes, but they are designed to help students who have been truant, are pregnant or are teen parents, or who otherwise are at risk of dropping out.
But the majority of kids expelled in Kern County — including about 400 elementary and junior high-age children — are referred to county-run “community” schools. These schools — and additional county schools for juveniles in detention or probation — saw their combined enrollments soar by more than 30 percent in Kern between 2003 and 2008.
Community school classes are smaller than regular schools, but there are few college prep opportunities or extracurricular activities. Basic expenditures per pupil in 2008-2009 were estimated at about $5,954, about $300 more than the state’s basic spending per student.
Schools officials say there are benefits to the community schools. Jeanne Hughes, principal for the community schools, said that if an expelled student hasn’t had a psychological assessment in a regular school, he or she will get one at the county-run school.
“Sometimes you have to hit rock bottom,” Hughes said, “before you get the resources and help you need.”
Frazier said her teachers work hard to help many kids turn lives around and graduate from their home schools, or from a community school if they are seniors and her school is their last chance. Her office website notes that since the opening of community schools in 1987 Kern County’s overall dropout rate has been reduced by half, from about 41 percent in 1986, the highest in the state.
But no one doubts that the obstacles to success for some expelled students are daunting. Frazier and Hughes agree that about 50 percent of the expelled students who go through their institutions and then return to their home schools end up coming back again after another expulsion.
In a 2009-10 school accountability report card, which schools are required to file with the state, the nine Kern community school sites reported that only 2 percent of its black students were proficient or advanced in English language arts, math or science. Only 6 percent of Latinos and 10 percent of white students were proficient or advanced in English language arts.
Probation officers regularly visit Kern’s community schools, where minors on juvenile justice probation — about 1,000 of them last year — can also be enrolled. Despite requisite “rehabilitation” plans for expelled students, critics question whether kids expelled for relatively minor offenses should be mixed in with youngsters who have been in more serious trouble.
“For some of these kids,” McKinley added, “that’s like being sent in to learn ‘How to Hotwire a Car 101.’”
Tracking what ultimately happens to expelled kids appears to be more art than science. The Kern High School district forwards a list of students sent to community schools to the county superintendent’s office, but doesn’t keep track of whether the expelled show up.
If an expelled student does attend a community school and finishes the expulsion period, the county’s standard procedure is to reciprocate by sending the district a list of names of students eligible to return. If they don’t return, Zulfa said, the Kern High School district contacts their last known address to invite them back.
Zulfa asserted that most expelled students do return and graduate on time from regular schools. But he acknowledged that the district can’t document how many, and the claim cannot be verified because it wasn’t until 2006 that California assigned ID numbers to students for the purposes of database tracking.
This year, in a count considered improved if not perfect, California used the student ID numbers for the first time to estimate 2009-2010 dropout rates. Kern overall was on par with California’s 74 percent rate of graduation for seniors who were tracked, and an 18 percent dropout rate. Another 7 percent hadn’t obtained degrees and were still enrolled, or were seeking a General Education Development certificate.
In a county with high rates of poverty, large numbers of foster children and English language learners, Frazier said, “We are doing many things right to be so close to the state average.”
Countywide, however, Latinos’ graduation rate was only 71 percent and black students’ rate was even lower, at 66 percent.
The Kern High School District’s 80 percent graduation rate was better than the county’s or the state’s, which, Zulfa said, shows that his district’s attempts to engage kids in school is working better than in some places. Graduation rates for Latinos were 77 percent and for blacks 78 percent.
Batey, the high school district board president, said some expelled kids, especially those with a long history of trouble, probably do drop out. “Do we lose some? Yes, probably,” he said, but there are many reasons a student might drop out. And absent the sort of hard data that was used in Texas, it’s impossible to know how many of those who didn’t get diplomas in Kern had a history of suspensions and expulsion.
A complex case
Many of the thorny issues in the expulsion debate are on display in the case of the sixth-grade boy whom McKinley, the pro bono lawyer, has represented in a series of hearings.
It is far from the youngster’s first spot of trouble. He was expelled in third grade for “flipping off a teacher,” a school report says, and for “hitting the thigh of an activity leader” and swinging his backpack in anger. The boy was charged that time with “assault or battery, as defined in the [state] Penal Code, upon a school employee,” and threatening to cause injury to another person. His mother, Teresa Arredondo, says one incident began when her son, in third grade, took a tumble at school, and a teacher laughed and he became upset. Arredondo said the teacher later apologized for her reaction.
In fourth grade, the boy was suspended for two days for “poor achievement” and failure to do assigned work. In fifth grade, he was charged with “disobedience, defiance of authority, fails to do assigned work, poor attitude,” and he received one day of at-home suspension. Earlier this year, the boy was given another day of suspension for disobedience, defiance of authority and disrespect toward an adult.
The school district says the boy has received counseling but McKinley, his lawyer, contends that records show that the school’s approach has been almost exclusively punitive. “I have a feeling,” he said, “that counseling means, ‘Don’t do that again.’”
Before his initial appeal hearing in October, the boy had already been referred to the community school, where he was placed with other expelled elementary school students. He recalled a prior stint there in third grade, when he was too afraid to talk to anyone for a week. “I felt,” he said, “like I was going to jail.”
Arredondo, a farm labor supervisor, said that she has repeatedly asked for her son to be tested at school for special needs. Testing for special needs is a school’s obligation if a parent requests it or if a staff member notices that a student is struggling. Arredondo finally took her son on her own to a psychologist who said he might have an attention-deficit problem. The boy was prescribed some pills but they made him sleepy, so the family decided that he should stop taking them, she said.
The youngster has never had a psychological assessment at his school, a staff person at the school acknowledged, under questioning by McKinley, at the boy’s October hearing.
While she didn’t defend her son’s alleged prank — swatting a girl’s buttocks — Arredondo called the charges of sexual battery and obscenity against him “crazy.”
She wonders if some lesser punishment might be appropriate, and because she feels that most teachers have expressed disdain for him for years, she wants to voluntarily transfer her son to another school within the district so he can get a fresh start.
“My son is not a sexual deviant,” she said in Spanish, her first language. “Children are not sexual deviants or criminals. But with the way the schools treat them, they’re going to turn them into that.”
At the boy’s first October appeal hearing, McKinley ran through his arguments before a panel of educators.
The boy is prepubescent. He turned 11 one day before he and another boy ran up to a female classmate and swatted her on the rear, laughing and saying, “Want to see what football players do?”
The girl testified that she felt uncomfortable and embarrassed by the prank. McKinley told the panel that his client wanted to apologize, which the boy did. McKinley then explained, quoting from statutes, his position that the boy’s behavior, while unquestionably wrong, did not rise to the legal definition of sexual battery at his age.
For a student to be guilty of sexual battery, McKinley said, the school’s burden is to prove the pupil acted out in a “lewd and lascivious” manner to obtain sexual gratification or to commit sexual abuse.
Randall Ranes, director of instructional support services at the Bakersfield City School District, said with a younger student, the district doesn’t think intent to obtain gratification or arousal applies. Proving that a student was sexually abusive should be enough to pursue an expulsion, he said. Arredondo signed a waiver to allow district officials to discuss her son’s case with the Center. But officials declined, saying it was not in the boy’s best interests.
McKinley and his client lost before the panel, and lost again later, by 3-2 votes, before the boy’s local school board at a subsequent hearing. Arredondo broke down in tears at that last hearing in late October, McKinley said. In interviews at her home in Bakersfield, she said she knows her son can learn. He builds things at home. He has done well on some parts of tests. He can go on the Internet and discover information and follow instructions.
Now, she said, he has no option but to go to the school for “bad kids.”
McKinley’s next step is an appeal to the County Board of Education. If that appeal is rejected, federal court could be the next step.
A drawn-out process
Another one of McKinley’s cases raises further questions about whether schools have grown “trigger happy” about expelling students.
In Bakersfield, a 10th-grade African-American girl’s parents wonder if she was ordered expelled from school last year in part because of snap judgments about black students.
“I know there is prejudice and stereotypes here, especially of blacks and Hispanics,” said the girl’s mother. “I’m from here.”
The parents, who sought pro bono help from McKinley, do not want their identities revealed. Their daughter was accused of engaging in a fight, and was told she was being expelled and would likely have to attend a community school.
The girl entered high school last year with college aspirations and a GPA of 3.54. But her older sister had been picked on by a group of girls, and the mother asked if her younger daughter could transfer to another school to avoid problems. The transfer request was turned down.
When a girl later physically attacked the woman’s daughter in a silent reading class held in a gym, the daughter swung back in self-defense, the mother said. The girl who attacked her daughter also struck a teacher who tried to intervene. But it was McKinley’s client who was blamed as an “assailant,” suspended at home for five days and told she would be expelled for a year for injuring another person and defiance of authority.
The girl’s mother protested, telling administrators she had heard that the teacher’s version of events would help exonerate her daughter.
At the girl’s appeal hearing, a recording of which was made available to the Center, the school administrator, under questioning, gave her version of the fight. She said the teacher was “hit in the jaw by the two young ladies” as they fought. Yet the teacher, when subsequently questioned at the same hearing, said McKinley’s client had not struck him. The teacher faulted McKinley’s client for defying him because she and another girl ignored an order to remain quiet after an argument erupted. But the teacher confirmed that she had not swung first and had stepped back when he stood in between the girls.
McKinley, using the California Public Records Act, had obtained a copy of an email from this teacher to the administrator shortly after the incident. In it, the teacher clearly stated that the other girl swung first and was the one who hit him. McKinley confronted the administrator with the email at the hearing, and asked if she had thought to include these details in her own reports. She said she had not.
Still, the administrator stuck to her recommendation for an expulsion.
“They both had an opportunity to stop when the teacher asked them,” the administrator said. “And they both continued to challenge each other.”
McKinley’s client also deserved expulsion, the administrator said, because she had already been suspended for a previous fight, had received a lunch-time detention and been offered “conflict mediation.”
But the girl, when she spoke before the panel, said she had not instigated either of these fights, and that in the first one, no blows were ever exchanged. “I was getting attacked in both of them,” she said. She also said the conflict mediation she received was only a meeting, alone, with a staff person, that didn’t include any other girls.
In the official document recommending expulsion, which was read at the hearing, McKinley’s client was described as “potentially harmful” to students and staff. The document went to say that there were “no other means of correction” available other than expulsion.
In the end, McKinley told the panel that his client may have failed to exercise good judgment by arguing with the girl who provoked her or reacting physically to being attacked. “But it was the judgment of a 14-year-old,” he said, and it was “self-defense.”
At the hearing, McKinley also called another student to testify that she had been in three fights at school, and had not been expelled. “The only difference between that girl and my client was that the other girl was white and [my client] was black,” McKinley said.
The panel reversed McKinley’s client’s expulsion. District officials declined to discuss the case, citing privacy concerns, although the girl’s parents signed a waiver allowing officials to talk about what happened.
While she and her parents fought her expulsion last year, McKinley’s client was out of regular school for nearly two months. She fell behind, and her grades declined. She has struggled to catch up this year and is hoping to transfer to a new school.
The girl’s parents were astounded that they had to get a lawyer to help them obtain information from the school and interrogate administrators to make their case that their daughter should not be expelled.
“This is a child’s life,” the girl’s father said. “Their education is so serious, and they seem ready to so easily throw that all away. They are turning good kids into bad kids.”
Data editor David Donald contributed to this story.