Getting serious about school discipline

Public Interest, Fall, 1998 by Jackson Toby

Another effect of the civil-rights revolution was the decreased ability of schools to get help with discipline problems from the juvenile courts. Like the schools themselves, the juvenile courts have become more attentive to children's rights. More than 30 years ago, the Supreme Court ruled that children could not be sent to juvenile prisons for "rehabilitation" unless proof existed that they had done something for which imprisonment was appropriate. The 1967 Gault decision dramatically changed juvenile-court procedures. For example, formal hearings with youngsters represented by attorneys became common practice for serious offenses that might result in incarceration.

Furthermore, a number of state legislatures restricted the discretion of juvenile-court judges. In New York and New Jersey, for example, juvenile-court judges may not commit a youngster to correctional institutions for "status offenses" - that is, for behavior that would not be a crime if done by adults. For example, truancy or ungovernable behavior in school or at home are not grounds for incarceration in New York and New Jersey. The differentiation of juvenile delinquents from persons in need of supervision (PINS in New York nomenclature, JINS in New Jersey) may have been needed. However, one consequence of this reform is that the public schools can less easily persuade juvenile courts to help with discipline problems that threaten the order on which the educational process depends. In some cases, the juvenile-court judge cannot incarcerate because the behavior is a status offense rather than "delinquency." To a juvenile-court judge, the student who called his history teacher an obscenity is not a candidate for incarceration in a juvenile correctional institution. In other cases, the alleged behavior, such as slapping or punching a teacher, does indeed constitute delinquency. But many judges will not commit a youngster to a correctional institution for this kind of behavior because they have to deal with what they consider to be worse juvenile violence on the streets.

Increased attention to civil rights for students, including students accused of violence, was also an unintended consequence of compulsory-school-attendance laws. The Supreme Court held in Goss v. Lopez not only that schoolchildren were entitled to due process when accused by school authorities of misbehavior but also that greater due-process protections were required for students in danger of expulsion or suspension for more than 10 days than for students threatened with less severe disciplinary penalties. The Court held also that the state, in enacting a compulsory-school-attendance law, incurred an obligation to educate children up until the age specified in the law, which implied greater attention to due process for youngsters still subject to compulsory-attendance laws than for youngsters beyond their scope. Boards of education interpreted these requirements to mean that formal hearings were necessary in cases of youngsters in danger of losing the educational benefits the law entitled them to receive. Such hearings were to be conducted at a higher administrative level than the school itself, and the principals had to document all allegations and to produce witnesses who could be cross-examined.