Introduction

Legislators should rewrite state codes to reduce Virginia’s high rate of arresting young students, child legal-rights advocates argue in a new report.

Staff at the Virginia Legal Aid Justice Center contend that the commonwealth’s existing statutes allow police to easily intervene in school discipline disputes and criminalize typical childhood misbehavior.

Many Virginia schools are “starved” for funding and lack key educational staff, yet tens of millions of dollars are spent statewide each year on school policing that’s become “a recipe for disaster,” according to the Justice Center’s report, “Protecting Childhood: A Blueprint for Developmentally Appropriate School Policing in Virginia.”

The comprehensive report — released Wednesday — was produced by the legal-aid group’s JustChildren program attorneys with the assistance of staff at the University of Virginia School of Law. JustChildren lawyers often represent special-needs students in disputes at schools, and have become increasingly concerned that school policing has turned routine behavior problems into crimes.

Last year, the report notes, Virginia “more fully began to join the nationwide movement for school discipline reform” after a Center for Public Integrity investigation found that Virginia was the nation’s leader in the rate of school referrals of students to local law-enforcement agencies.

Virginia’s statewide rate of referral was nearly 16 students for every 1,000, compared to the national rate of about six students per 1,000, according to the Center’s analysis of 2011-2012 national data. Moreover, the rates at which disabled students and African-American pupils were arrested and sent to court — both nationally and in Virginia — were disproportionately higher than their overall percentages of the school population.

Local Virginia police data gathered by the Center showed that the vast majority of student arrests were for misdemeanor allegations of disorderly conduct and “simple assault.” Some 12-year-olds were charged with “obstruction of justice” and resisting arrest if they clenched a fist during interactions with school police.

In one case, in Henrico County, a 12-year-old 6th grader with autism who had torn down some posters was subsequently pushed down by several officers, handcuffed and arrested for felony assault on an cop because he touched an officer.

The boy’s mother, Ali Nelson, told the Center: “The school resource officer said that as soon as he (her son) put his hands on him it was a felony and he had to arrest him.”

The school district declined to comment on the case. But in August, after the Center published Nelson’s story, Henrico County Police Chief Doug Middleton announced new policies limiting his officers’ involvement at schools and told the Center that educators had become too “dependent” on calling cops for minor discipline problems.

In another case the Center revealed, 11-year-old Kayleb Moon-Robinson, who also has autism, was charged with felony assault on a police officer after he walked out of 6th grade class without permission.

A school cop grabbed him and Kayleb struggled to break free. Just days before, Kayleb had been charged with disorderly conduct after the same school police officer saw him kick a trash can at his school in Lynchburg, Virginia.

Kayleb has been forced to go to court multiple times over the last year — with jailing a distinct possibility — and his mother said he’s been stigmatized and shunned by kids who called him a “criminal.”

One of the “Protecting Childhood” report’s recommendations is for Virginia’s General Assembly to eliminate school-based “disorderly conduct” as a predicate for charging students with a crime on campuses.

Another recommendation is to remove misdemeanors and “non-crimes,” such as cyberbullying, from a list of 40 types of school-based acts that state code currently requires educators to report to law enforcement officials. Once the acts are reported, arrests and charges often follow.

“School and law enforcement personnel report that this requirement (to report acts) is incredibly burdensome, undercuts the exercise of their professional judgment in handling minor offenses, and can be distracting from the work of maintaining safety and order in the schools,” the new report argues.

The report also calls for a state requirement that school resource officers receive specialized training for working with children. Only if a position is funded through a state grants program does an officer currently have to receive a course that includes some training for working with children.

Legislators, the report’s authors also argue, should also rewrite a statute that currently paves the way for police to get pulled into typical behavior problems.

School police, the statute says, “shall be employed to help ensure safety, to prevent truancy and violence in schools, and to enforce school board rules and codes of student conduct.” The language authorizing intervention to enforce rules and codes of conduct should be eliminated, the authors of the report argue.

By giving police responsibility to enforce discipline, the report’s authors point out, Virginia’s statute conflicts with recommendations from the National Association of School Resource Officers — a professional group — and the U.S. Departments of Education and Justice, which both recommend that school police not be involved in enforcing school rules.

Jason Langberg, one of the report’s authors and a JustChildren program education advocate, said he believes advocates can find bipartisan support for reforms in the legislature. In fact, a new bipartisan coalition in Virginia issued a report last fall calling for school-policing and juvenile-justice reforms.

“We anticipate some success because much of what we’re proposing are common sense solutions,” Langberg said. “Both (political) sides realize that unnecessarily funneling children from schools to the justice system not only hurts children and school climate, but also is fiscally irresponsible.”

After the Center’s report came out in April, along with a Reveal national radio segment, Virginia Gov. Terry McAuliffe, a Democrat, asked members of his cabinet to recommend policy changes in response to the Center’s findings.

“Virginia parents send their children to school to learn, not to end up in the juvenile justice system.” Brian Coy, McAuliffe’s spokesman, told the Center.

As cabinet members subsequently told the Center, McAuliffe started a “Classrooms, Not Courtrooms” initiative that is offering school districts free retraining for school police and educators, as well as financial support for discipline methods considered effective alternatives to suspensions and calling in police.

The initiative also is urging school districts to adopt updated school-police agreements, or memoranda of understanding, that formally limit police involvement on campuses to serious crimes.

In response to the Center report, scattered communities, from Lynchburg to Richmond, have also voluntarily adopted their own reforms aimed at eliminating unnecessary arrests at schools, setting age limits for arrests and developing alternatives to sending kids into court.

But the JustChildren report argues that statewide standards are critical to ensuring that children are treated equitably regardless of where they live. The report has been delivered to the governor’s cabinet and to lawmakers. The report’s recommendations, the authors argue, “will help ensure that school policing laws, policies, and practices are fair to students” while “still allowing security personnel to carry out their purposes more effectively.”