Breaking Schools’ Rules: Watching for Potential Litigation

By Mark Whitburn
Senior Staff Attorney

In its July 2011 report, Breaking Schools’ Rules, the Council of State Governments Justice Center paints a bleak picture of the disciplinary and juvenile justice trends developing in Texas schools.  As detailed in the report, Texas secondary school students—and particularly minority students—face disciplinary action with such a degree of frequency and severity that approximately 15 percent find themselves at least once in a disciplinary alternative education program and approximately eight percent end up at least once in a juvenile justice alternative education program.  Such programs offer so few educational services and opportunities in comparison with regular schools that students forced to participate in them necessarily suffer severe setbacks in their progress, to say nothing of the damage done to their views of themselves and their futures.  Numbers such as those presented in the report point to a critical problem confronting not only the affected youth but the society which depends on the healthy development of its young people.

The ACLU of Texas has identified numerous grounds for potential litigation in connection with these trends in Texas schools.  First, as the report reveals, minority students in Texas suffer the consequences of discretionary disciplinary action to such a disproportionate degree that concerns about violations of these students’ Fourteenth Amendment right to equal protection of the laws must necessarily arise.  After all, the report could not account for these disparities by pointing to any factors other than race.  Second, students so dramatically impacted by school discipline deserve at a minimum for the relevant authorities to employ fair procedures in applying that discipline.  If these authorities fail in this regard, they may violate the Due Process Clause of the Fourteenth Amendment.  Third, many of the programs at issue appear to offer so little in the way of educational services to the students assigned to them that they may well violate the Texas Education Code and relevant regulations.  In light of these three and still more sources of possible litigation, the ACLU of Texas is keeping a watchful eye on Texas schools.

Breaking Schools’ Rules: Some progress, but still lots to do at the Capitol

By Frank Knaack
Associate Director of Public Policy and Advocacy

The 82nd Texas Legislature was a turning point for our efforts to seal the school-to-prison pipeline.  Working with our coalition partners and allies at the Capitol, we successfully lobbied for bills that will reduce the number of children issued criminal tickets for engaging in childish misbehavior at school or for truancy. We modified the definition of an expulsion offense that has been used to disproportionately punish students of color and special education students.  As the new school year begins, we are excited about the progress that has been made.  But, as the Breaking Schools Rules report shows, there is still a lot of work to do!

In addition to highlighting the use of harsh school disciplinary models that have seen the majority of Texas’ almost five million students subjected to suspension or expulsion, Breaking Schools’ Rules is also telling for what it does not include – the use of law enforcement at school and the issuing of criminal tickets to students.  This is not because of any unintentional omission in the report, but because the state of Texas does not require school districts to report this information.  As the report stated, “[t]he number of Misdemeanor C tickets issued annually, and the extent to which students are disciplined pursuant to a school’s code of conduct, is unclear because information about Misdemeanor C tickets is not captured in a student’s record within the TEA database.”

In addition to undermining the ability of districts and the state to ensure that law enforcement personnel are operating in the most cost-effective manner possible, the lack of data collection also undermines basic government accountability/transparency and student/staff safety.  As the report found, this lack of data collection “makes it very difficult to get a clear picture of the level of crime that takes place on Texas’s school campuses, or the impact that school-based ticketing and arrest may have on students.”  Parents, staff, and other taxpayers have a right to know how law enforcement is deployed on their school campuses, especially as districts have seen their limited funding subjected to unprecedented cuts.

As we move toward the 83rd Legislative Session in January, 2013, we will be working diligently to educate legislators and their staff about the need to ensure this basic government transparency and accountability mechanism.  Want to help?  Visit our Educate, Don’t Incarcerate website to learn how.

A Statewide Review of Conditions for Pregnant Inmates in County Jails

Matt Simpson
Policy Strategist

 In 2009, the ACLU of Texas and the Texas Jail Project (TJP) worked with state legislators to pass laws protecting pregnant inmates and babies born to incarcerated mothers.  Our follow-up research shows those reforms have failed in several respects.

In a previous blog, the ACLU of Texas discussed challenges facing jails seeking to implement the Shackling Ban passed into state law in 2009.  Along with reforms to the use of restraints on pregnant inmates during transport, labor and delivery, in 2009 the Texas legislature passed laws requiring standardized procedures for jail policies relevant to pregnant inmates.  Texas jails are now required to create specific policies for pregnant inmates ensuring appropriate medical care, mental health care, nutritional standards, and housing and work assignments.  The Texas Commission on Jail Standards (TCJS) is to maintain records of these policies and ensure county jails comply with their internal policies.

While researching the implementation of this state law in the six largest county jails in Texas, we found a host of concerns remain, including:

  • A lack of consistency, specificity and expertise in Texas’ most populous jails;
  • A failure to address mental health care needs of pregnant inmates;
  • Widely varying standards for prenatal nutrition;
  • Inattention to special housing needs; and
  • A lack of clarity regarding work assignments for pregnant inmates.

The lack of consistency, specificity and expertise in county jails breaks down to 5 specific areas of jail policy.  First, jails in Bexar County and El Paso County conduct immediate pregnancy screening at intake for female inmates, a practice other jails should consider adopting.  Second, some jails do not have clear policies regarding how long a pregnant inmate must wait to receive obstetric care following initial booking and intake into the jail.  Third, some jails do not have policies related to follow-up prenatal care.  Fourth, there is wide variation in policies addressing high risk pregnancies. Fifth, the El Paso jail has a few simple measures in place for dealing with emergency pregnancy care that should be considered by other jails.


The ACLU of Texas recommends empowering TCJS to assist county jails in creating strong and specific policies that ensure consistently appropriate care for pregnant inmates across the state.  TCJS should be encouraged to review internal jail policies relevant to pregnant inmates, conduct interviews of pregnant inmates during jail inspections, and generally review the quality of medical care available to pregnant inmates.  Jails should be required to set specific timelines for screening, provide for ongoing care, and enact measures to ensure staff know how to handle emergency situations and high-risk pregnancies.  TCJS should work with jails to ensure appropriate mental health care is available to pregnant inmates.  And, finally, nutritional, housing and work assignment policies should be standardized in jails across the state.

These common sense updates to current jail policies would ensure the health of women and children incarcerated in Texas jails and would reduce the legal liability such jails currently face because of weak or unclear policies related to pregnant inmates.  Wanna help?  Tell the Texas Commission on Jail Standards to implement the ACLU of Texas’ recommendations.

Breaking Schools’ Rules: The Economic Impact of Dropping Out of School

Kirsten Bokenkamp
Communications Coordinator

When a teenager drops out of high school, it is a personal and family tragedy. It is also a community tragedy that affects all Texans. Last week’s blog on the Breaking Schools’ Rules report reminded us that students who are disproportionately disciplined at school for relatively minor infractions are more likely to drop out of school, and are also more likely to be in contact with the juvenile justice system or incarcerated as an adult later in life.  Children of color and special needs students have a greater risk of ending up in one or all of the above situations. 

We learned last week that dropping out of school leads to higher incarceration rates. The economic and social impacts are substantial.  Under- and unemployed people contribute little to the economy or, worse, end up in prison, costing Texans an estimated  $50.19 per inmate per day.  In fact, a recent study by the Texas A&M Bush School of Government and Public Service estimated that dropouts from the senior class of 2012 will cost Texas between $6 and $10.7 billion, over their lifetimes. 

And, dropouts who don’t end up in prison still end up contributing much less to the economy.  In a recent Northeastern University report, the authors found that “[s]lightly less than 46 percent of the nation’s young high school dropouts were employed on average during 2008.” This unemployment rate is “22 percentage points below that of high school graduates.” In terms of earnings, the high unemployment rate for dropouts translates to mean annual earnings of just $8,358 in 2007, compared to $14,600 for high school graduates with no post-secondary schooling and $24,800 for those with a bachelor’s degree.

This should be a wake-up call to all Texans. For the sake of our future, we must work to keep youth in school.  School discipline, over-reliant on ticketing and suspension for relatively minor misbehavior, is pushing far too many kids out of school and into the juvenile justice system.  The ACLU of Texas will continue to work with legislators and with local advocates to address the disproportionate and counterproductive impacts of school discipline.  If you are interested in working with us as we seek to change local and statewide discipline practices, join the ACLU of Texas Community Action Network  (CAN) and get involved in our efforts to reform school disciplinary practices.

Shackling Female Inmates During Labor And Childbirth Must Stop

Matt Simpson
Policy Strategist

In 2009, the ACLU of Texas and the Texas Jail Project (TJP) worked with state legislators to pass laws protecting pregnant inmates and babies born to incarcerated mothers.  Our follow-up research shows those reforms have failed in several respects.

One of the 2009 laws banned the use of shackles on pregnant inmates during transport, labor, and delivery.  Our review of the six largest county jails in Texas indicated three main problems facing jails implementing this law.  First, correctional officers often fail to recognize labor or they believe inmates are faking the symptoms, leading to the use of shackles in violation of state law.  Second, there is confusion over what types of restraints are not permitted.  For example, the law bars any restraints but jails often use handcuffs in violation of the law because of this misunderstanding.  Third, the exception to the total bar on restraints allows for use of restraints to, “ensure the safety of the woman and her infant, jail or medical personnel, or any member of the public,” or to “prevent a substantial risk that the woman will attempt escape.”  This exception provides no guidance as to what is and is not a permissible basis to use restraints, leaving individual correctional officers to make snap decisions throughout the 245 jails across the state.

This information was gathered by TJP and the ACLU of Texas the following year after the law was enacted. We contacted six major jails in Texas and identified ongoing challenges with full implementation of the new laws.  The Implementation of Laws Regarding Treatment of Pregnant Women in Texas County Jails report offers a review of current policies and identifies opportunities for creating stronger policies that will ensure the safety of women and children in Texas jails.

To address these issues, the ACLU of Texas recommends the following actions:

  •  Correctional officers should be trained to recognize labor.
  • Legislators should define the term “restraint” in state law to include handcuffs, leg irons, belly chains, or other mechanical devices. 
  •  The Texas Commission on Jail Standards should create a standard (through agency rules) requiring reporting any time the public safety exception to the bar on shackling is used and restraints are used on a pregnant inmate during transport, labor, or delivery.

These three fairly simple solutions would make women and children safer and would encourage county jail compliance with state law thereby reducing potential legal liability.

Help turn our recommendations into policy: Tell the Texas Commission on Jail Standards to implement the ACLU of Texas’ recommendations.

Breaking Schools’ Rules: Does school discipline correct misbehavior or is it a short-cut to jail?

Kirsten Bokenkamp
Communications Coordinator

The Breaking Schools’ Rules report shows that students of color are more likely to be disciplined in school, and that those who are disciplined are more likely to dropout.  Taking it one step further, this blog will focus on the “School to Prison Pipeline,” the connection between school discipline, students’ contact with the juvenile justice system, and ultimately, adult prisons.  Isn’t the goal of school discipline to correct student behavior? Well, then why are such a high percentage of disciplined students ending up in the juvenile justice system or worse?

 The report found that about 15 percent of students in Texas were in contact with the juvenile justice system between 7th and 12th grades.  In comparison, almost 50 percent of students who were disciplined 11 or more times were in contact with the juvenile justice system.  And, only 2 percent of students never disciplined at school had contact with the juvenile justice system.  

 The more times a student is disciplined, the more likely that student will have contact with the juvenile justice system and the more likely that student will be to drop out of school altogether.  High school dropouts face a much higher rate of imprisonment than non-dropouts.  A study in 2009 found that 1 in every 10 young male dropouts is in jail or juvenile detention, compared with 1 in 35 young male high school graduates.  It is worse for African-Americans – nearly one in four young black male dropouts is incarcerated or otherwise institutionalized. 

 This report has shown that the current school discipline model is counterproductive.  Instead of preventing youth from dropping out, it has led to an unacceptable number of dropouts.  These dropouts, in turn, are much more likely to end up in Texas’ juvenile or adult justice system.  This result is not good for the children, or Texas’ economy.

 Next week we will discuss the impact that this high incarceration rate has on the economy.

The Texas District & County Attorney Association and ACLU of Texas Agree …

By Frank Knaack
Associate Director of Public Policy and Advocacy

Yesterday, the Star-Telegram reported that the Texas District & County Attorney Association is advising its prosecutors to largely ignore the “sexting” law passed by the legislature a few months ago.  Shannon Edmonds, the group’s legislative representative, stated: “[i]t’s a bill written by people who don’t understand the criminal-justice system, … [p]rosecutors and police officers are going to have to use their discretion and ignore the absurdity that was written into the law.”  The association’s decision is music to our ears. 

 As we argued throughout the last legislative session, the bill was well-meaning legislation, but offered the wrong response.  It is conservatively estimated that 20 percent of youth have engaged in “sexting.”  Sending these youth into the criminal justice system will fail to address the root behavior and also saddle them with the short- and long-term consequences of a criminal record.  Instead, we should focus on real solutions, such as educating youth about the lasting impact of sharing private images over the Internet.  Furthermore, in many circumstances “sexting” is constitutionally protected speech.  Laws are already available to prosecute individuals for committing crimes against youth, including harassment, bullying, and child pornography.  We commend the Texas District & County Attorney Association for their strong stand. 

 Want to help?  Please contact your state legislators and demand that they repeal this legislation during the next legislative session! 


Breaking Schools’ Rules: Suspensions and expulsions are the gateway to dropping out

Kirsten Bokenkamp, Communications Coordinator

 The more often a student is disciplined at school, the more likely that student will drop-out.  Seems logical, but is it true?  When controlling for other variables, the Breaking Schools’ Rules report recently found that the answer is a resounding yes.  And students of color and special education students are disproportionately disciplined. 

  • About 10 percent of students suspended or expelled at least once during the study period dropped out.  For those disciplined 11 times or more, that percentage rose to 15 percent.  In comparison, just 2 percent of students who were never disciplined dropped out.  
  • Thirty-one percent of students with one or more suspension or expulsion repeated a grade at least once compared to 5 percent of students who were never disciplined.
  • Almost 60 percent of those students disciplined 11 times or more did not graduate from high school during the study period, compared to 18 percent who were never disciplined.
  • The authors of the report point out that “not graduating” is a distinct measure from whether a student dropped out or repeated a grade.    Students in this category may have dropped out in the future, or in the very least, would have repeated a grade at least once.  As such, the true drop-out rate is likely underestimated.   

Putting these facts together with what we already know – children of color and special education students are disproportionately disciplined – paints a grim picture for the future of Texas’ youth.  We can’t help but conclude that this institutionalized discrimination plays a part at landing a disproportionate number of children of color in jail. 

 The next blog will discuss the impact of school discipline on incarceration rates.

Attorney General’s Ruling Leaves Cameron Todd Willingham’s Case Unresolved

Kirsten Bokenkamp, Communications Coordinator

Texas leads the country in executions, and Attorney General Greg Abbott’s recent decision is yet another turn in Texas’ death penalty saga.  Based on Abbott’s ruling, cases such as Cameron Todd Willingham’s will be left unresolved, with his proclaimed innocence – and the evidence to prove it – hanging just out of reach.  We can’t help but wonder how, exactly, the AG came to this convoluted decision, and we question how politically motivated it might have been. 

 Specifically, last week, Abbott issued a decision that the Texas Forensic Science Commission (TFSC) can only evaluate evidence tested or used in court after the TFSC came into existence on Sept. 1, 2005.  This excludes most of Mr. Willingham’s case from review. So, as the Corpus Christi Caller-Times explains, even though forensic science has progressed, Abbott’s decision prevents the application of today’s knowledge to correct mistakes by investigators who acted competently and in good faith but were limited by the technology of the day.   The TFSC has already said that fire science (Willingham was convicted of arson), has made huge advancements since 1991.  It was unfair that the newest and best evidence wasn’t used before Willingham was executed, and while a likely innocent life can no longer be saved, his legacy should still have that chance. 

 This ruling certainly has generated a lot of questions.  Check out more on this issue:

Breaking Schools’ Rules: Abuse of Discretionary Expulsion

By Kirsten Bokenkamp
Communications Coordinator

We learned in the previous Breaking Schools’ Rules blog that African Americans and children with special needs are disproportionately disciplined  What’s more, school administrators over-rely on suspension and expulsion though less drastic disciplinary measure are not only available to them, but also lead to better outcomes for school children.

Of course, there are some actions, such as bringing a gun to school, for which the law mandates a specific response from school authorities.  But those are very few. The researchers looked at whether youth are getting suspended and expelled for behavior for which state law mandates a particular response, or for behavior subject to school employees’ discretion.  What they found is astounding: Only 2.7percent of the violations were related to behavior for which state law mandates expulsion.  That means that 97.3percent of suspensions and expulsions result from actions where school administrators have the discretion to take less drastic measures.   The researchers found that how and when students are disciplined appears to be dependent on which school they attend. This is flat-out unfair.  And, it has dramatic consequences for those students who might not have been suspended or expelled, had they lived in a different district, gone to a different school, or had a different teacher.  For example, the study found that 31percent of students with one or more suspensions or expulsions repeated their grade level at least once. In contrast, only about 5 percent of students with no disciplinary actions were held back.

The researchers also found that schools making frequent use of suspension and expulsion do not necessarily create environments that enable students at those schools to achieve better academic outcomes.  The report points out a silver lining in all this: schools do not have to wait for a change in law to improve outcomes for misbehaving students. Administrators already have the discretion to choose evidence-based approaches to discipline that get kids back on track rather than derail them. Talk to the administrators at your child’s school and tell them you are concerned about the abuse of discretionary expulsion.  Find out other ways to get involved in stopping the school-to-prison pipeline by visiting our Educate Don’t Incarcerate website.  The next blog in this series: The impact of disciplinary action on drop-out rates.