The Talking Cure: Keeping Kids Out of the Juvenile Justice System


Two decades of “zero-tolerance” school discipline policies may have done more harm than good. Is there a better alternative?

On December 9, Lissedia Batista, a 27-year-old New York City public high school teacher, tried to break up a fight between two students. According to news reports, Batista, who was four months pregnant, was kicked in the stomach during the struggle. She fell to the ground and was later taken to the hospital, where she lost her baby.

But instead of lashing out at the students whose behavior had forced a miscarriage, Batista reportedly did something unexpected: she declined to press charges.

In an educational system where gun-toting “school safety officers” and “zero tolerance” of misbehavior are the norm, Batista's refusal to subject her students to the criminal justice system stands out.

Since the New York Police Department (NYPD) took over school safety from the city's Department of Education in 1998, punishment for violent or misbehaving students is often severe. Just last February, a 12-year-old girl was hauled out of school in handcuffs and taken to the local precinct for the “offense” of writing on her desk.

There were so many incidents of this type that in 2010 the New York Civil Liberties Union, after producing a devastating report detailing dozens of instances of officer harassment (including the macing of a young man who was reportedly arrested for being late to class), filed a lawsuit against the city alleging widespread abuse of power by school safety officers.

The case is ongoing, but last month the New York City Council approved the Student Safety Act, which mandates that the police and education departments produce quarterly reports on school-based arrests and suspensions.

The quarterly reports will likely be thick. According to another NYCLU report released in January, the number of student suspensions in the city has nearly doubled since the 1990s, and the number of behaviors that subject a student to suspension grew by 200 percent. Students with disabilities were four times more likely than their peers to receive a suspension, and black students served longer suspensions, often for “subjective” infractions like misconduct and insubordination.

New York isn't the only place where the so-called “school to prison pipeline” is swift and well-oiled. in Texas, school police officers routinely issue Class C misdemeanor tickets—which can stay on a child's record—to students for such non-violent infractions as leaving school grounds and disrupting class, according to a December 2010 report by the non-profit Texas Appleseed Project.

Johanna Miller of the NYCLU traces “zero-tolerance” polices to the 1994 federal Gun-Free Schools Act, which resulted in most states implementing mandatory one-year suspensions for a students who brings a firearm to school.

One-Strike Sentences

“These 'one strike and you're out' sentences started to trickle down to less serious offenses and we saw more long-term suspensions for things like fights,” Miller told The Crime Report.

Suspended students, especially those who come from poor and crime-riddled neighborhoods, are likely to get into trouble without a place to go every day. And kids given long-term suspensions, especially high school students, often turn into drop-outs, which not only severely limits their ability to get decent employment, but, according to a paper published in the Journal of School Psychology in 1998, makes them 26 percent more likely to become involved in the criminal justice system that their peers.

It also “significantly” increased the likelihood that the student will engage in antisocial behavior in the future, according to a 2006 study printed in the Journal of Adolescent Health.

“Teachers have been capable of handing these situations for generations, but now these policies just remove the kid,” Miller explains. “And the situation is exacerbated when there are eight or 10 police officers in school. It's hard to resist getting the school safety officers to handle discipline—and their only tool is a criminal justice tool. If you extract any school mischief enough, it can become a crime. Writing on your desk? That's vandalism.”

Being charged for a “crime” committed in school ushers a child into the juvenile justice system, which experts say usually offers little rehabilitation, and more often then not graduates them into a criminal career.

According to a 2006 report by the Justice Policy Institute, a liberal advocacy group, the number-one predictor of youth recidivism was not gang affiliation, problems at home or carrying a weapon—but having been locked up as a juvenile.

To make matters even worse, according to Ken Trump, the president of National School Security and Security Services, a private corporation that consults with schools on safety issues, neither the federal Department of Education nor the Department of Justice has an accurate picture of whether 20 years of zero tolerance to school crime has actually made kids and teachers safer.

“There is no federal mandate for reporting school-based crime – much less what people are doing about it,” says Trump.

Educators' increasing unease with such polices has paved the way for a more constructive—some say age-appropriate—method of addressing wrongdoing in an educational setting.

Ironically, one of the most promising of these approaches, called “restorative justice,” comes straight from the place child advocates are trying to keep kids out of: the criminal justice system.

Repairing Harm

Our modern criminal justice system is built on the theory of “retributive” justice: commit a crime, receive a punishment. What this system ignores, say restorative justice proponents, is the harm a crime causes, both to victim and community. It thus also makes it nearly impossible for a perpetrator to meaningfully repair the harm done.

“If someone violates a rule, it's an indicator that people have been affected in a negative way,” explains Prof. Ron Claassen, founder of the Center for Peacemaking and Conflict studies at California's Fresno Pacific University. “Restorative justice is a process of inviting the person to accept responsibility, to recognize the victim and restore equity.”

“In schools,” says Claassen, “the discipline structure is similar [to the courts]: you violate a rule, you are punished, but this does very little to change behavior. Restorative justice gives a structure that helps kids become accountable for making things right and changing what led to the problem in the first place.”

Restorative justice techniques first found acceptance not by educators but by reformers looking for ways to keep kids out of juvenile justice system. Colorado offers one interesting example.

In 1998, Tom Cavanagh, a former court reporter who earned a PhD at Colorado State University for his dissertation on developing a “culture of care” in schools, brought together representatives from the Colorado legislature, the judicial branch and the attorney general's office to explore why growing numbers of kids, especially from minority backgrounds, were landing in the justice system.

The group found that youths typically got there one of two ways: shoplifting, or getting kicked out of school. Cavanagh and several colleagues convinced local authorities to divert young shoplifters away from the court system by applying some of the methods of the “restorative justice” canon, such as mediated discussions between victim and offender, with both parties agreeing to a course of action that will set the situation right.

Instead of facing a judge, young shoplifters took part in two sessions with the merchants from whom they stole, listening to their victims talk about the impact of shoplifting on their business, discussing their crime, and finally singing a contract compelling them to perform some sort of community service to “restore” the harm they had done.

Eventually, the state of Colorado signed on to the program.

Next, Cavanagh and his colleagues had to address the second part of the problem: school suspension and expulsions. But it hasn't been easy.

“There was more push-back from the schools than I expected,” says Cavanagh.

To gain more insight into how restorative justice could work in schools, Cavanagh took a Fulbright in 2003 to travel to New Zealand and spend a year observing a school program that applied restorative justice principles to divert troubled Maori youth from the criminal justice system.

Although New Zealand was able to bring down the number of Maori youth who had to go before a judge by 75 percent, and cut the number of incarcerated Maori youth in half, Cavanagh realized that simply taking the restorative tactics that work in the juvenile justice system and trying to force them into an educational setting wouldn't work.

In schools, says Cavanagh, mending relationships between teachers and misbehaving students is paramount, but most of the discipline takes place outside the classroom.

“Disruptions are a learning opportunity for students and teachers,” he explains. “We are losing almost half our teachers in the first five years and classroom management is a big part of that.”

But Cavanagh says that school administrators and teachers' unions are often unwilling to listen to criminal justice reformers who don’t have a background in education.

“The dominant paradigm is to protect the status quo,” says Cavanagh, who is currently seeking funding for a pilot program at two Colorado schools. “I tell schools don't invite me unless you want to change your school in a profound way.”

Peer Peacemaking

In the fall of 2009, Riverdale High School in Fort Myers, Florida established it own restorative justice approach: involving fellow students in disciplining their peers.

When a Riverdale teacher or staff member reports a student with discipline problems, such as chronic tardiness, walking out of class, disrespecting a teacher, and forgery, the case is reported to Renee Smith, the school's Assistant Principal of Discipline. But rather than dealing with it herself, Smith refers it a board comprising twelve students of various grades, genders and races who have been selected sit on a Student Advisory Board.

“The board brainstorms to come up with questions they'd like to ask the student,” says Smith. “Then I bring the student in.”

At the session, everyone sits in a circle to discuss the problem, so it doesn't seem like an inquisition. The student is advised that he or she has a right not to answer his peers' questions, but usually the kids open up, says Smith.

“It's amazing to me how much more comfortable they are with their peers than with adults,” she observes.

When the board and the student feel they've said all they need to, Smith brings the student outside for a debriefing, asking whether he or she felt attacked or uncomfortable and answering any questions. Then they re-enter the room and the board tosses out ideas for sanctions.

If a teacher has been the object of disrespect, perhaps the student will be asked to work for that teacher after school for a period of time, and write a letter of apology for his behavior. Other times, the board suggests Saturday school, or other more traditional “punishments.” Everyone agrees on the outcome and the student signs a contract, committing to a deadline for completing the sanction. If they miss the deadline, the student returns to the board but Smith says that's happened only rarely.

“Usually, the student will say to me, 'Yeah, I deserve that – I think that's something I can do,” Smith says.

Riverdale has approximately 1,625 students and serves a rural community with both socio-economic and racial diversity. So far, says Smith, the restorative process has been a great success at Riverdale – both for the “good” kids and the students with discipline problems.

“I've had students on the board tell me, 'I never noticed that student [who'd broken the rules] in the hall before, now I say hi.' And then that student, who maybe has been having trouble at home and is feeling like nobody cares, he feels acknowledged,.” she says.

What the Research Tells Us

But does it work? Thus far, there has been little quantitative research on the outcomes of school-based restorative justice in the U.S. However, a December 2010 report by researchers at the University of California, Berkeley School of Law, which examined a restorative justice program at Cole Middle School in West Oakland, California, provides both insight and encouragement.

According to the report, after implementing an intense regimen of restorative justice techniques—including an elective class on the subject and the establishment of daily “circles” (complete with “talking sticks”) to discuss interpersonal problems—the school saw an 87 percent decrease in suspensions and a complete halt in expulsions.

Although there were mitigating circumstances—Cole Middle School was scheduled to close and contained only one grade in the year the Berkeley students did their observation—the city was so impressed with the results of the pilot program that in 2009 the Oakland Unified School District's Board of Directors passed a resolution officially sanctioning restorative justice as an alternative to the district's zero tolerance discipline policy.

Cavanagh and Claassen say they are hearing more and more from school districts interested in exploring restorative justice. Cavanagh recently traveled to industrial Troy, New York to consult with their schools, and has been invited to another district on Long Island.

According to Claassen, as more educators learn about the possibilities of this kind of discipline, the more widespread it will become.

“It improves the climate of the school, and reduces the likelihood of seriously violent responses,” he says. “It also reduces teacher stress, teacher turnover, and increases student cooperation.”

These statements are borne out in the Berkeley study on Cole Middle: students there reported that the talking circles allowed them to learn about their teachers and see them as human beings with feelings. They also reported that discussing their anger and frustration with fellow students before the problems escalated to a fight was useful both in and outside school.

The Jena 6

In a 2009 article for the Harvard Civil Rights-Civil Liberties Law Review, Cara Suvall, who is now an attorney in New York with the Bronx Defenders, examined how restorative justice could have helped prevent one of the most egregious examples of a breakdown in a school's ability to keep its students safe: the case of the “Jena 6,.”

In 2006, white students hung three nooses on a tree in the yard of Jena High School in Jena, Louisiana. Over the next few months, racial tensions at the school rose; and finally in December, a fight ensued, resulting in attempted murder and conspiracy charges being filed against a number of African American students.

The case became a national story—with charges of racism being lodged at everyone from the prosecutor to the school principal. But to Suvall, the untold story was the failure of school's staff and administration to properly deal with the issues in the months before the situation turned violent.

“By providing an opportunity for community members [and students] to express the extent of the harm caused, the restorative processes would have turned the offense into an educational experience,” wrote Suvall.

Possible solutions might have included group conferences so that the black students and families who felt attacked and frightened by the nooses to explain to their white peers the history of lynching in the south; a conference like this could also have included community members who have been the victim of bias attacks.

“There are a number of flashpoints where school violence became prominent,” says Suvall, who now works as a public defender in the Bronx. “Columbine is one, but Jena was more nuanced. It wasn't just one bad guy, but there was a strong sense that something went wrong. When school discipline breaks down, that's a real problem.”

Julia Dahl is a contributing editor to The Crime Report.

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