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Realizing Restorative Justice: Legal Rules and Standards for School Discipline Reform

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Realizing Restorative Justice: Legal Rules and Standards for School Discipline Reform Scholarly Commons @ UNLV Boyd Law Scholarly Works Faculty Scholarship 2018 Realizing Restorative Justice: Legal Rules and Standards for School Discipline Reform Lydia Nussbaum University of Nevada, Las Vegas -- William S. Boyd School of Law Follow this and additional works at: https://scholars.law.unlv.edu/facpub Part of the Dispute Resolution and Arbitration Commons, Education Law Commons, and the Law and Society Commons Recommended Citation Nussbaum, Lydia, "Realizing Restorative Justice: Legal Rules and Standards for School Discipline Reform" (2018). Scholarly Works. 1087. https://scholars.law.unlv.edu/facpub/1087 This Article is brought to you by the Scholarly Commons @ UNLV Boyd Law, an institutional repository administered by the Wiener-Rogers Law Library at the William S. Boyd School of Law. For more information, please contact [email protected]. Realizing Restorative Justice: Legal Rules and Standards for School Discipline Reform LYDIA NUSSBAUM* Zero-tolerance school disciplinarypolicies stunt the future of school children across the United States. These policies, enshrined in state law, prescribe automatic and mandatory suspension, expulsion, and arrestfor infractions rangingfrom minor to serious. Researchers find that zero-tolerance policies disproportionately affect low-income, minority children and correlate with poor academic achievement, high drop-out rates, disaffection and alienation, and greater contact with the criminal justice system, a phenomenon christened the "School-to-PrisonPipeline." A promising replacement for this punitive disciplinary regime derives from restorativejustice theory and, using a variety of different legal interventions,reform advocates and lawmakers have tried to institute restorativejustice as a disciplinary alternative. But, as this Article argues, the resulting legal directives areflawed and, therefore, unlikely to roll back the damage caused by zero-tolerance disciplinary practices. They fail both to accountfor the ambiguity inherent to restorativejustice and to provide clear instructionson how to "build"a restorativeschool. With the aim of advancing school discipline reform and ending the School-to-PrisonPipeline, this Article employs jurisprudentialtheory to propose a collection of legal rules and standards that formalize school-based restorative justice and translate it into actionablepolicy. * Associate Professor of Law and Associate Director of the Saltman Center for Conflict Resolution, William S. Boyd School of Law, University of Nevada, Las Vegas. I sincerely thank Jean Sternlight, Deborah Thompson Eisenberg, Eve Hanan, Jonathan Scharrer, Kay Pranis, David McClure, and the members of the 2015 AALS Dispute Resolution Section Works-in-Progress Conference; all errors are my own. I am grateful to the UNLV William S. Boyd School of Law for supporting my research and to the library faculty at the Weiner-Rogers Law Library for their assistance. [5831 584 HASTINGS LAWJOURNAL [Vol. 69:583 TABLE OF CONTENTS INTRODUCTION ...................................... ...... 584 I. THE PROBLEM WITH ZERO-TOLERANCE SCHOOL DISCIPLINE .............. 589 A. HISTORY AND LEGAL STRUCTURE ............ ......... 592 B. IMPACT ON CHILDREN, SCHOOLS, AND COMMUNITIES............597 C. LESSONS FOR REFORMERS ....................... 602 II. THE POTENTIAL OF A RESTORATIVE SCHOOL.............. ..... 604 A. THEORY AND PRACTICE OF SCHOOL-BASED RESTORATIVE JUSTICE......................................... 605 B. PROMISING EVIDENCE FROM PILOT PROGRAMS ...... ..... 611 III. LEGAL INTERVENTIONS TO INSTITUTE RESTORATIVE JUSTICE AND THEIR SHORTCOMINGS ......................... ........ 614 A. LEGAL ACTION TAKEN THUS FAR............... .......... 615 1. Legislative Reform...........................616 2. Rule Change. ....................... ........ 618 3. InstitutionalReform Litigation................ 620 B. FAILURE TO ACCOUNT FOR A CONTESTED, INHERENTLY AMBIGUOUS CONCEPT ......................... ..... 623 C. FAILURE TO FORESTALL OBSTACLES TO SUCCESSFUL IMPLEMENTATION ................................. 629 IV. FORMALIZING RESTORATIVE SCHOOL DISCIPLINE INTO LAW............ 634 A. JURISPRUDENCE OF RULES ..................... 635 B. RULES AND STANDARDS TO FORMALIZE RESTORATIVE JUSTICE......................................... 639 1. Promote Whole School Integration ofRestorative Philosophy ........................ ........ 640 2. Enumerate or Require Adherence to Core Principles and Best Practices .......................... 642 CONCLUSION .......................................................... 644 INTRODUCTION When the Los Angeles Unified School District, the second largest school district in the United States, decided to overhaul its disciplinary system and implement a new "restorative justice" regime, things did not go smoothly.' Like almost every school system in America, Los Angeles 1. See Teresa Watanabe & Howard Blume, Why Some LAUSD Teachers Are Balking at a New Approach to Discipline Problems, L.A. TIMES (Nov. 7, 2015, 10:00 AM), http://www.latimes.com/ local/education/la-me-school-discipline-2o1511o8-story.html (discussing difficulties with the transition to restorative justice alternatives by the Los Angeles Unified School District). For a listing of the largest public school districts in the United States, see also NATIONAL CENTER FOR EDUCATIONAL STATISTICs, http://nces.ed.gov/ (last visited Jan. 20, 2018). February 2018] REALIZING RESTORATIVE JUSTICE 585 had, for decades, employed a punitive "zero-tolerance" discipline policy required under state and federal law. Such zero-tolerance laws mandate automatic suspensions, expulsions, and arrests for a wide range of serious to not-so-serious infractions. Students face these harsh, exclusionary punishments for behavioral infractions such as "insubordination," "willful defiance," disrupting class, and violating school dress code.2 Bringing alcohol, controlled substances, or a potential weapon on campus, 3 even when no actual threat to campus safety exists,4 all trigger automatic expulsion and calls to police. In recent years, zero-tolerance has been roundly criticized for its harmful impact on young people, especially low-income, minority students who are disciplined at disproportionate rates.5 These criticisms center on students' loss of valuable learning time in the classroom, disaffection and alienation, and increased likelihood of dropping out of school or becoming diverted into the criminal justice system. 6 Los Angeles, and other school districts like it, aimed to change this dynamic, widely referred to as the "School-to-Prison Pipeline,"7 by instituting "restorative justice" as a disciplinary alternative. Restorative justice is a broad philosophy, a modern amalgam of ancient world views that centers on repairing harm rather than exacting retribution from rule-breakers. 8 Restorative justice ideology provides the basis for diverse legal reforms, including Truth and Reconciliation Commissions, alternative criminal prosecution and sentencing diversion programs, and victims' rights initiatives. However, when applied to the educational context, restorative justice philosophy takes yet another, specialized form. 2. See, e.g., Noah Feldman, A Belch in Gym Class, Then Handcuffs and a Lawsuit, BLOOMBERG VIEW, July 27, 2016, (discussing the case of a seventh grader who was arrested and then suspended for the remainder of the school year for continuing to make fake-burps in gym class despite having been asked to stop); A.M. v. Holmes, 830 F.3d 1123 (toth Cir. 2016) (concerning legal action brought on behalf of the seventh grader arrested for burping). 3. DEREK W. BLACK, ENDING ZERO TOLERANCE: THE CRISIS OF ABSOLUTE SCHOOL DISCIPLINE 1-6 (2016) (providing several examples of school suspensions given for harmless situations). 4. Consider the example of Ahmed Mohammed's home-made alarm clock, which was mistaken for a bomb. Ashley Fantz et al., Muslim Teen Ahmed Mohamed Creates Clock, Shows Teachers, Gets Arrested, CNN (Sept. 16, 2015, 6:03 PM), http://www.cnn.com/2o15/o9/16/ us/texas-student-ahmed-muslim-clock-bomb/. 5. U.S. DEP'T. EDUC., CIVIL RIGHTS DATA COLLECTION, http://ocrdata.ed.gov/. 6. See infra Part I.B. 7. See infra Part I. 8. Edward Sellman et al., Contextualised, Contested and Catalytic: A Thematic Introduction to the Potential of Restorative Approaches in Schools, in RESTORATIVE APPROACHES TO CONFLICT IN SCHOOLS: INTERDISCIPLINARY PERSPECTIVES 1-2 (Edward Sellman et al. eds., 2013). 9. See, e.g., HANDBOOK OF RESTORATIVE JUSTICE: A GLOBAL PERSPECTIVE (Dennis Sullivan & Larry Tifft eds., 20o6). Peruse the table of contents and note the diverse origins of restorative justice and its varied applications around the world. 586 HASTINGS LAWJOURNAL [Vol. 69:583 The most comprehensive form of school-based restorative justice, referred to by education experts as a "whole school approach," combines a proactive, conflict prevention pedagogy with specialized processes for addressing conflict when it arises.1o Restorative school communities utilize an array of non-hierarchical, consensus-based practices-dialogues, circles, conferences, and mediations-for both the preventative and responsive components of school-based restorative justice." Despite the specialized procedures, application, and demand for practitioner skills required by these different practices, they all address harmful behavior by focusing on repairing relationships. When problems or conflicts do arise, students and adults confront the consequences of their actions, explore ways to make amends, and
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