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By Brandon Shillingford and Anya Sczerzenie

Capital News Service

The near future of in-person schooling is uncertain due to the COVID-19 pandemic, but Virginia students will return to a system where several penalties for misbehavior have been taken off the table.

Two new laws seek to stop criminal punishments in elementary, middle and secondary schools. Sen. Jennifer McClellan, D-Richmond, sponsored two measures that passed the Virginia General Assembly earlier this year. The bills went into effect in July but have not yet been widely implemented due to the COVID-19 pandemic.

Senate Bill 3 prevents students from being charged with disorderly conduct during school, on buses, or at school-sponsored events. SB 729 removes a requirement that school principals report student acts that constitute a misdemeanor to law enforcement. These are acts that may be considered misdemeanors, such as assault on school property, including on a bus or at a school-sponsored event.

McClellan’s bills are a victory, said Valerie Slater, executive director of RISE For Youth, a group that seeks to end youth incarceration in Virginia.

“It gives the control back to principals in their own schools about what actions have to be taken further,” versus which actions can be handled within the school, Slater said.

Suspension and expulsion are used disproportionately against Black students, other students of color and those with disabilities, according to the U.S. Department of Education. Those punishments, along with arrests at school, often lead to students having a criminal record, according to the NAACP. The trend is known as the school-to-prison pipeline.

McClellan said she was compelled to introduce these bills after looking at data released by the Center for Public Integrity in 2015 and seeing that Virginia led the nation in nearly three times the rate of referral of students to law enforcement. She then worked with the Legal Aid Justice Center to find trends in what kind of behaviors were being punished and whether there were discrepancies involving which students were being charged.

“When we started sort of digging into some of the cases that they had had, one of the biggest things kids were referred for was disorderly conduct,” McClellan said. “It was things like a kid on a bus in Henrico County was charged for singing a rap song and a kid in Lynchburg was sent to the principal’s office and kicked this trash can on the way out of class.”

McClellan was the co-patron of bills in 2016 which addressed these issues, including a failed bill which would prevent students from being found guilty of disorderly conduct if the action occurred on school property, a school bus or at a school-sponsored activity.

Lawmakers also passed McClellan’s measure that relieved school resource officers from the obligation to enforce school board rules and codes of student conduct as a condition of their employment. Now that the Virginia General Assembly has a Democratic majority, House Democrats felt that they could pass other legislation to curb the school-to-prison pipeline, according to McClellan.

“The thing that happened in between is we had started making progress on the discipline side with things like suspensions and expulsions,” McClellan said. “And once you saw we could make progress on that, that gave us the confidence to try again with a new Democratic majority.”

A statewide analysis by Virginia Commonwealth University Capital News Service found that Norfolk City Public Schools in the Tidewater district had the most out-of-school suspensions in the state over the past five school years. This includes short-term and long-term suspensions. The data is from the Virginia Department of Education. A student is not allowed to attend school for up to 10 days during a short-term suspension, according to Virginia law. Long-term suspensions last 11 to 45 school days. Virginia students suspended from school are more likely to fail academically, drop out of school and become involved in the justice system, said a 2018 Legal Aid Justice Center report.

Norfolk’s school district issued 21,223 out-of-school suspensions in the past five years. Norfolk school officials did not respond to a request for a statement by the time of publication. Richmond City Public Schools was the second-highest district with the most out-of-school suspensions (19,768). Virginia Beach, Newport News and Fairfax County public schools were also in the top five. The majority of students in Norfolk, Richmond and Newport News public schools are Black, according to VDOE 2020 fall enrollment data. Almost half of students in Virginia Beach are white and about a quarter are Black. Nearly 40% of students in Fairfax County Public Schools are white and almost 30% are Hispanic. Black students face out-of-school suspension at higher rates at a higher rate than white students in schools throughout the Central Virginia region. Even in districts such as Henrico and New Kent counties that are a majority white student population, often Black students were issued suspensions at a higher rate. Black students in Henrico faced out-of-school suspension almost five times the rate of white students in the 2015-2016 school year. Such racial disparity was presented to the Henrico County School Board as far back as 2012, in a published report analyzing the disproportionate suspension rate.

Aside from incidents involving weapons, Slater said that instances of misbehavior in school should not be handled by law enforcement.

“We should not be so quick to involve children in the justice system,” Slater said. “We know that after that first contact, the likelihood that there will be continued engagement exponentially goes up. Once a child has been engaged with the juvenile justice system, they’re more likely to be involved with the adult justice system.”

Slater praised McClellan’s legislation for taking away schools’ ability to charge students with disorderly conduct, saying that the criteria for being charged with that crime is too vague.

“It basically says that ‘you have caused a disruption.’” Slater said. “Is wiggling in my seat causing a disruption? Is asking to go to the restroom, repeatedly, causing a disruption? Is clicking my pen a disruption? It’s so vague that it’s become a catch all for whatever a particular officer wants to say a student has done.”

David Coogan, a Virginia Commonwealth University English professor and author of the book “Writing Our Way Out,” teaches a writing workshop at the Richmond City Justice Center He said he has worked closely with incarcerated people whose criminal records stemmed from childhood.

“Most broadly, it starts in the structure of society, before you even get to school,” Coogan said.

Coogan said that he sees a pattern in the people he works with at the jail. Children who grow up with few resources and who experience trauma and violence in the school setting later develop addictions or become incarcerated—often both.

“We all do stupid things as kids, as teenagers,” Coogan said. “When you’re Black and traumatized and living in poverty, the stupid thing you do, to fight back at a school resource officer, is going to land you in a juvenile detention center and it’s not fair.”

Though Coogan says McClellan’s bills are steps in the right direction, he believes more still needs to be done.

“If you think about all the money and time spent on school resource officers—who are like cops—we need to stop thinking about having cops in school,” Coogan said. “What if we had five times as many guidance counselors — people with training to intervene? What if we had five times as many programs to keep kids engaged after school?”

McClellan agreed with Coogan, and said it starts with how adults in school treat kids. She pointed to cases in which kids with autism or other disabilities are treated unfairly or disciplined by adults who have no idea how to interact with them.

“Everyone in the school building that interacts with kids, but especially school resource officers and school board members who ultimately make decisions about the code of conduct and discipline, need to have basic training on child brain development,” McClellan said.