No. A14-1587 State of Minnesota

In Supreme Court

In the Matter of the Expulsion of A.D. from United South Central Public Schools United South Central ISD No. 2134,

Appellant, vs.

A.D., Respondent,

Brenda Cassellius, Commissioner, Minnesota Department of Education, Respondent.

BRIEF OF AMICUS CURIAE IN SUPPORT OF RESPONDENT

Children’s Defense Fund, Children’s Law Center of Minnesota, Council of Parent Attorneys and Advocates, Council on Crime and Justice, ISAIAH, Legal Rights Center,

Mid-Minnesota Legal Aid, Professor Jason P. Nance, National Association for the Advancement of Colored People, Saint Paul branch, Southern Minnesota Regional Legal

Services _______________________________________________________________________ Selene Almazan Legal Director Council of Parent Attorneys and Advocates PO Box 6767 Towson, MD 21285 (844) 426-7224 Counsel for Amici Curiae/ Pro hac vice

Christopher E. Crutchfield (#299716) 1016 Hyacinth Avenue East Saint Paul, MN 55106 (612) 245-3745 Counsel for Amici Curiae

RUPP, ANDERSON, SQUIRES & WALDSPURGER, PA Trevor S. Helmers (#387785) Elizabeth J. Vierra (#392521) 527 Marquette Ave. S., Suite 1200 Minneapolis, MN 55402 612-436-4300 Attorneys for Appellant United South Central ISD No. 2134 KNUTSON, FLYNN & DEANS, PA Michelle D. Kenney (#236615) 1155 Centre Pointe Boulevard Mendota Heights, MN 55120 Attorney for Amicus Curiae Minnesota School Boards Association on behalf of Appellant BRIGGS AND MORGAN, PA Neal T. Buethe (#166030) 80 S. 8th Street, Suite 2200 Minneapolis, MN 55402 Attorney for Amicus Curiae Minnesota Association of School Administrators on behalf of Appellant Roger Aronson (#3220) PO Box 19350 Diamond Lake Station Minneapolis, MN 55419 Attorney for Amicus Curiae Minnesota Association of Secondary School Principals on behalf of Appellant

SCHOOL LAW CENTER, LLC Andrea L. Jepsen (#386781) Amy J. Goetz (#214711) 452 Selby Avenue, Suite 2E Saint Paul, MN 55102 651-222-6288 FREDRIKSON & BYRON, PA Nicole M. Moen (#329435) Timothy W. Billion (#0395272) 200 South Sixth Street, Suite 4000 Minneapolis, MN 55402-1425 Telephone: 612-492-7000 Attorneys for Respondent A.D. OFFICE OF THE MINNESOTA ATTORNEY GENERAL Martha J. Casserly (#128271) 1200 Bremer Tower 445 Minnesota Street Saint Paul, MN 55101 651-297-5919 Attorney for Respondent Brenda Casselius, Commissioner, Minnesota Department of Education ISAIAH Lawrence Moloney (#165876) 2356 University Avenue, Suite 405 Saint Paul, MN 55114 651-333-1260 Attorney for Amicus Curiae ISAIAH on behalf of Respondent A.D. MID-MINNESOTA LEGAL AID Catharine Haukedahl (#42432)

430 1st Avenue North, Suite 300 Minneapolis, MN 55401 612-746-3702 Attorney for Amicus Curiae Mid-Minnesota Legal Aid on behalf of Respondent A.D. COUNCIL ON CRIME AND JUSTICE Joshua Esmay (#390197) 822 South 3rd Street, Suite 100 Minneapolis, MN 55415 612-353-3091 Attorney for Amicus Curiae Council on Crime and Justice on behalf of Respondent A.D. CHILDREN’S LAW CENTER OF MINNESOTA Anne Tyler Gueinzius (#233377) 450 North Syndicate Street, Suite 315 Saint Paul, MN 55104 651-644-4438 Attorney for Amicus Curiae Children’s Law Center of Minnesota on behalf of Respondent A.D. LEGAL RIGHTS CENTER Sarah E. Davis (#390655) 1611 Park Avenue South Minneapolis, MN 55404 612-677-2124 Attorney for Amicus Curiae Legal Rights Center on behalf of Respondent A.D. SAINT PAUL BRANCH OF THE NAACP Jeffry Martin (#336257)

270 North Kent Street St. Paul, MN 55102 651-343-2695 Attorney for Amicus Curiae Saint Paul Branch of the NAACP on behalf of Respondent A.D. CHILDREN’S DEFENSE FUND Artika Tyner (#387080) College of Education, Leadership & Counseling University of St. Thomas MOH 337 | Opus Hall 1000 LaSalle Avenue Minneapolis, MN 55403 651-962-4386 Marian Wright Edelman (Mississippi, Inactive) 25 E Street NW Washington, DC 20001-2109 202-628-8787 Attorneys for Amicus Curiae Children’s Defense Fund on behalf of Respondent A.D. SOUTHERN MINNESOTA REGIONAL LEGAL SERVICES (SMRLS) Laura K. Jelinek (#258659) 55 E 5th Street, Suite 400 St. Paul, Minnesota 55101 651-222-5863 Attorney for Amicus Curiae SMRLS on behalf of Respondent A.D.

Jason P. Nance (Delaware #4894) Professor at Law Levin College of Law University of Florida Box #117625 Gainesville, FL 32611 352-273-0992 Amicus Curiae on behalf of Respondent A.D.

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .............................................................................................ii

STATEMENT OF INTERESTS OF AMICI CURIAE ................................................... 1

SUMMARY OF THE ARGUMENT .................................................................................. 6

STATEMENT OF FACTS .................................................................................................... 6

ARGUMENT .......................................................................................................................... 7

A. The Minnesota Constitution Establishes Education As A Fundamental Rights ................................................................................................................................ 8

B. The School District’s Proposed Interpretation of PFDA Endangers Students’ Educational Access and Increases Educational Inequality ..................... 9

1. Exclusionary School Discipline Jeopardizes Students’ Long-Term Fundamental Rights to an Education ........................................................................ 10

2. Exclusionary Practices Disproportionately Burden Students of Color and with Disabilities .......................................................................................... 13

C. Disciplinary Exclusion in this Type of Case is Educationally Indefensible .................................................................................................................... 16

CONCLUSION ................................................................................................................... 20

CERTIFICATE OF COMPLIANCE ............................................................................. 22

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TABLE OF AUTHORITIES

Cases

Associated Sch. of Indep. Dist. No. 63 of Hector, Renville Cty. v. Sch. Dist. No. 83 of Renville Cty., 142 N.W. 325 (1913) ............................................................................. 7, 8

Cathe A. v. Doddridge County Bd. of Educ, 490 S.E. 2d 340 (W.Va. 1997) ...................... 9

Goss v. Lopez,419 U.S. 565 (1975) ......................................................................... 8, 10, 11

In re Expulsion of E.J.W., 632 N.W.2d 775 (Minn. Ct. App. 2001) ................................... 8

In the Matter of the Expulsion of A.D., 2015 WL 4393395 (Minn. Ct. of App. July 20, 2015)................................................................................................................................. 6

Skeen v. State, 505 N.W.2d 299 (Minn. 1993) ................................................................ 7, 8

Statutes

42 U.S.C. § 15041 ............................................................................................................... 4

Minn. Stat. § 121A.49 (2014) .............................................................................................. 6

Minn. Stat. § 14.69 .............................................................................................................. 6

Minn. Stat. §120A.03 .......................................................................................................... 7

Other Authorities

Advancement Project, Test, Punish and Push Out: How “Zero Tolerance” and High Stakes Testing Funnel Youth Into the School-to-Prison Pipeline 9 (Mar. 2010) ........... 17

Alexandra Bonazoli, Human Rights Frames in Grassroots Organizing: Cadre and the Effort to Stop School Pushout, 4 NE. U.L.J. 483 (2012) ................................................. 9

American Psychological Association, Zero Tolerance Task Force, Are Zero Tolerance Policies Effective in Schools? An Evidentiary Review and Recommendations 45 (2006) ............................................................................................................................. 12

Anne Gregory, Russell J. Skiba, Pedro A. Noguera, The Achievement Gap and the Discipline Gap, Two Sides of the Same Coin? 39 Educ. Researcher 59 (2010) ............ 18

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Barbara J. McMorris, Kara J. Beckman, Glynis Shea, Jenna Baumgartner, and Rachel C. Eggert, Applying Restorative Practices to Minneapolis Public Schools Students Recommended for Possible Expulsion 39 (2013) .......................................................... 20

Daniel J. Losen and Tia Elena Martinez, Out of School and Off Track: The Overuse of Suspensions in American Middle and High Schools (2013) .......................................... 10

Daniel Losen, Cheri Hodson, Michael A. Keith II, Katrina Morrison, and Shakti Belway, Are We Closing the School Discipline Gap? Center for Civil Rights Remedies (2015) ........................................................................................................................................ 14

Erik J. Girvan, On Using the Psychological Science of Implicit Bias to Advance Anti-Discrimination Law, 26 Geo. Mason U. C.R. L.J. 1 (2015) .......................................... 13

Janel A. George, Stereotype and School Pushout: Race, Gender, and Discipline Disparities, 68 Ark. L. Rev. 101 (2015) .................................................................. 13, 15

Joseph B. Tulman & Douglas M. Weck, Shutting Off the School-to-Prison Pipeline for Status Offenders with Education-Related Disabilities, 54 N.Y.L. Sch. L. Rev. 875 (2010) ............................................................................................................................. 16

Justice Policy Institute, Education Under Arrest: The Case Against Police in Schools 1 (Nov. 2011) .................................................................................................................... 16

Linda M. Raffaele Mendez & Howard M. Knoff, Who Gets Suspended from School and Why: A Demographic Analysis of Schools and Disciplinary Infractions in a Large School District, 26 Educ. & Treatment Child (2003) .................................................... 17

Robert W. Blum and Peggy Mann Rinehart, Reducing the Risk: Connections that Make a Difference in the Lives of Youth (2001) ........................................................................ 12

Ronald K. Lospennato, Multifaceted Strategies to STOP the School-to-Prison Pipeline, 42 Clearinghouse Rev. 528 (2009)................................................................................. 16

Russell J. Skiba & M. Karega Rausch, Zero Tolerance, Suspension, and Expulsion: Questions of Equity and Effectiveness, in Handbook for Classroom Management: Research, Practice, and Contemporary Issues 1063 (C. M. Evertson, & C. S. Weinstein eds., 2006) ...................................................................................................................... 18

Russell J. Skiba, Robert S. Michael, Abra Carroll Nardo, The Color of Discipline: Sources of Racial and Gender Disproportionality in School Punishment, 34 Urban Rev. Vol. 34 No. 4, 317 (2002) ......................................................................................... 13,14

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S. David Mitchell, Zero Tolerance Policies: Criminalizing Childhood and Disenfranchising the Next Generation of Citizens, 92 Wash. U.L. Rev. 271 (2014)…………………………………...…………………………………….…………9

United Nations Convention on the Rights of the Child, Article 29(1), Appendix 110 (Nov. 20, 1989) .............................................................................................................. 18

Rules

Minn. R. Civ. App. P. 132.01 .............................................................................................. 1

Minn. R. of Civ. App. 129.03 .............................................................................................. 1

Constitutional Provisions

Minn. Const. Art. XIII, § 1 .................................................................................................. 7

STATEMENT OF INTERESTS OF AMICI CURIAE1

Children’s Defense Fund (CDF) is a national leader for the rights of children who

cannot vote, lobby, or speak for themselves. CDF’s Leave No Child Behind Mission is to

ensure every child a Healthy Start, a Head Start, a Fair Start, a Safe Start and a Moral

Start in life and successful passage to adulthood with the help of caring families and

communities.2 The organization pays particular attention to the needs of poor children,

children of color, and those with disabilities. CDF educates the nation about the needs of

children and encourages preventive investments before children get sick, drop out of

school, get into trouble, or suffer family breakdown. Children’s Defense Fund-Minnesota

is a state office of CDF committed to raising awareness specifically about the needs of

Minnesota children, connecting children and families to resources, providing data and

research on the well-being of children, and working with partners statewide to coordinate

broad support for legislative action on behalf of Minnesota children.

Children’s Law Center of Minnesota (CLC) opened in 1995. It is a nonprofit

organization whose mission is to promote the rights and interests of all children in the

1 Pursuant to Minnesota Rule of Civil Appeals 129.03, Amici state that the undersigned counsel authored this brief in toto, and nobody other than those affiliated with the Amici’s organizations made any monetary contributions to the preparation or submission of this brief. 2 CDF was founded in 1973 by Marian Wright Edelman, the first African American woman admitted to practice law in Mississippi and the former director of the NAACP Legal Defense and Educational Fund’s Office in Jackson, Mississippi; counsel for Dr. Martin Luther King’s Poor People's Campaign; Director of the Center for Law and Education at Harvard University; and a recipient of the Presidential Medal of Freedom.

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judicial, child welfare, health care, and education systems. CLC provides direct

representation for children. It advocates for and participates in statewide efforts to

reform and improve child welfare, juvenile justice, and education systems. CLC has

trained over 700 volunteer attorneys. With their help, CLC has represented more than

2,500 foster children, and helped to promote systemic change and advocacy for

vulnerable youth throughout Minnesota.

Council of Parent Attorneys and Advocates (COPAA) is a national network of

attorneys, advocates, parents, and related professionals dedicated to protecting and

enforcing the legal and civil rights of students with disabilities and their families.

COPAA was founded on the belief that all children have the right to an equal opportunity

to achieve their full academic potential and a high-quality education that prepares them

for work, college, and participation in their chosen communities.

Council on Crime and Justice (CCJ) has been a leader in the field of social and

criminal justice in Minnesota since it was founded in 1957 as the Prisoners Aid Society.

Since that time, CCJ has been at the forefront of developing new concepts and programs

in alternative sanctions, offender services, victims’ rights, restorative justice and systems

change. CCJ advocates for fair and forward-looking methods to reduce and prevent

crime, while ensuring equal justice and improved public safety, informed by rigorous

research and evaluation.

ISAIAH is a coalition of over 100 congregations from various faith traditions

working in the Twin Cities, St. Cloud and greater Minnesota to achieve racial, economic,

and educational equity. ISAIAH was founded in 2000 by the merger of the Great River

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Interfaith Partnership in the St. Cloud area, Interfaith Action in Greater Minneapolis, and

St. Paul Ecumenical Alliance of Congregations in Greater St. Paul. ISAIAH believes that

all children are sacred and have the right to be welcomed and treated fairly in their

schools. It fights to create schools that are safe and supportive places for all children

regardless of their race or socio-economic class.

Legal Rights Center (LRC) was established in 1970 through the efforts of Doug

Hall, Gwen and Syl Davis, Peggy and Clyde Bellecourt, Peter Dorsey of the Dorsey &

Whitney law firm, leaders in the American Indian movement, and leaders of The Way (a

North Minneapolis African American youth-serving organization) to create a partnership

between legal and minority communities and to promote African American, American

Indian, and Hispanic community advocacy. LRC operates two programs: the Community

Defense Program, and Youth: Education, Advocacy & Restorative Services which

together contribute to LRC’s mission of improving the experience of the justice system

for communities of color and proactively solving problems that prevent involvement in

the justice system in the first place. Through its Youth: Education, Advocacy &

Restorative Services program, LRC provides restorative conferencing for students facing

expulsion or administrative transfer to help them take accountability for their behavior

and, along with family and school personnel, plan for success in their current or

subsequent school placement.

Mid-Minnesota Legal Aid (MMLA) has provided free legal services in civil

matters to low-income Minnesotans in 20 counties across central Minnesota since 1913.

MMLA’s representation and advocacy focus on the legal problems of low-income

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families and individuals, and MMLA has represented many low-income youth in school

discipline cases. Additionally, MMLA is designated by the Governor of Minnesota,

pursuant to federal statutes, including the Developmental Disabilities Assistance and Bill

of Rights Act (DD Act), 42 U.S.C. § 15041, et seq., to serve as the Protection and

Advocacy System for persons with disabilities in Minnesota. MMLA performs this

function through its Minnesota Disability Law Center (MDLC), a statewide project.

MDLC has represented many students with disabilities who have faced expulsion from

schools. Because of its experience, mission, and constituency, MMLA/MDLC brings a

unique and valuable perspective about practical and legal consequences that might not be

apparent from the party-specific issues raised in this case.

Jason P. Nance is an Associate Professor of Law and the Associate Director for

Education Law and Policy at the Center on Children and Families at the University of

Florida Levin College of Law, where he teaches, among other subjects, Education Law. 3

Saint Paul branch of the National Association for the Advancement of Colored

People (NAACP) serves all individuals who may experience discrimination based on

race, gender, religion, age, disability or culture, and works to ensure the political,

3 Mr. Nance focuses his research and writing on racial inequalities in the public education system, school discipline, the school-to-prison pipeline, students’ rights, and other issues in education law. His scholarship has been or will soon be published in the Washington University Law Review, Wisconsin Law Review, Emory Law Journal, Arizona State Law Journal, Colorado Law Review, and Connecticut Law Review among several other journals. Professor Nance currently serves as the reporter for the ABA's Joint Task Force on Reversing the School-to-Prison Pipeline, where he is authoring a report and recommendations and proposing resolutions for the ABA to adopt to help dismantle the school-to-prison pipeline nationwide. For an explanation for School-to-Prison Pipeline see note 4, infra.

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educational, social, and economic equality of all persons. The Saint Paul branch of the

NAACP was founded in 1913 by Frederick L. McGhee, the first African American to be

admitted to practice before the Minnesota Supreme Court.

Southern Minnesota Regional Legal Services (SMRLS) is the oldest legal services

provider in the state of Minnesota, and provides legal advice and representation to low-

income people in 33 counties in southern Minnesota, and to farm workers throughout the

states of Minnesota and North Dakota. SMRLS’ mission is to provide a full range of

high quality services to low-income people, enabling them to obtain effective access to

the courts and to maintain freedom from hunger, homelessness, sickness and abuse; and

to empower persons and assure equal opportunity, thus, helping people to help

themselves and become economically self-reliant, to the extent their individual abilities

and circumstances permit.

The primary objective of SMRLS’ special Education Law Advocacy Project

(ELAP) is to help minority students and students with disabilities secure equal education

opportunities by helping these students stay in school and improve their educational

outcomes. The large majority of students represented by ELAP in expulsion matters are

minority students who will be impacted by the Supreme Court’s decision in this case.

Amici Curiae are advocates and researchers with a wealth of experience working

with, and on behalf of, youth whose educational opportunities are jeopardized by the use

of the exclusionary disciplinary practices at issue in this case. Their perspective will

assist the Court in determining this case. Amici respectfully submit this brief in support of

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Respondent. The Court granted the filing of this brief in an Order dated November 5,

2015.

SUMMARY OF THE ARGUMENT

The United South Central School District (School Board) has appealed the

decision in In the Matter of the Expulsion of A.D., 2015 WL 4393395 (Minn. Ct. of App.

July 20, 2015) (unpublished). The Court of Appeals overturned the decision of the

School Board and the Commissioner of Education (Commissioner) to suspend A.D. when

she inadvertently left in her purse and brought to school a three-inch-hunting knife she

had used to do farm work over the weekend. (Respondent’s Br., at 3). This brief focuses

on the harms caused by harsh disciplinary measures. Amici also assert that the Court of

Appeals correctly interpreted Minnesota’s Pupil Fair Dismissal Act (PFDA), see Minn.

Stat. § 121A.49 (2014), when it found that the school board had no evidentiary basis to

find that A.D. willfully violated the school district’s weapons policy or that she engaged

in willful conduct that endangered herself or others. The Court of Appeals’ finding was

the only viable outcome in light of the criteria set out in Minnesota Statute § 14.69.

Accordingly, Amici respectfully submit that this Court should uphold the

underlying decision and order that A.D.'s expulsion be vacated and deleted from her

educational record.

STATEMENT OF FACTS

Amici adopt the Respondent’s Statement of Facts, Resp. Br., at 1-3.

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ARGUMENT

A. The Minnesota Constitution Establishes Education As A Fundamental Right

Minnesota’s constitution establishes the right to a free public education for all

children in the state. Minn. Const. Art. XIII, § 1. Minnesota’s public education’s mission

is to have “a system of lifelong learning to ensure individual academic achievement, an

informed citizenry, and a highly productive work force. This system focuses on the

learner, promotes and values diversity, provides participatory decision making, ensures

accountability, models democratic principles, creates and sustains a climate for change,

provides personalized learning environments, encourages learners to reach their

maximum potential, and integrates and coordinates human services for learners.” Minn.

Stat. §120A.03. Education is a fundamental right under Minnesota’s not only because of

its overall importance to the state but also because of the explicit language used to

describe this educational mandate in the state’s constitution. Minn. Const. Art. XIII, § 1;

see also Skeen v. State, 505 N.W.2d 299, 301 (Minn. 1993) (language of the Education

Clause demonstrated a legislative intent for education to be an affirmative mandate and

not simply a grant of power); Associated Sch. of Indep. Dist. No. 63 of Hector, Renville

Cty. v. Sch. Dist. No. 83 of Renville Cty., 142 N.W. 325, 327 (1913) (“The object of these

provisions is to insure a regular method throughout the state, whereby all may be enabled

to acquire an education which will fit them to discharge intelligently their duties as

citizens of the republic.”) (internal citations omitted).

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Associated Sch.. is a powerful statement of the need to protect every child's

opportunities to fulfill her potential and become an engaged citizen. However, the

widespread use of exclusionary discipline measures, such as the expulsion in this case

undermines the constitutional mandate for education. Skeen, 505 N.W. 2d v. State, at

313 education is a fundamental right under the constitution). Further, the United States

Supreme Court has held that a student's legitimate entitlement to a public education is a

property interest which is protected by the Due Process Clause and which may not be

taken away for misconduct without adherence to the minimum procedures required by

that Clause. Goss v. Lopez, 419 U.S. 565, 574 (1975). Minnesota recognizes this right

as well. In re Expulsion of E.J.W., 632 N.W.2d 775, 780 (Minn. Ct. App. 2001) (relying

on Goss). Thus, there is a need to protect every child's opportunities to fulfill her

potential and become an engaged citizen. However, the widespread use of exclusionary

discipline measures, such as the expulsion in this case, strips Minnesota’s youth of those

opportunities every year.

School Board and its amici assert, correctly, that educators must have sufficient

discretion to keep schools safe and orderly. See Appellant’s Br., at 35-36; Br. of Amicus

Curiae Minnesota Sch. Bd. Assoc., at 3-4; Br. of Amicus Curiae Minnesota Association

of Secondary Sch. Principals, at 2-3. However, they fail to recognize that too many

school officials have based their disciplinary policies and practices on the fallacious

notion that keeping schools safe and protecting students' opportunities to learn are

irreconcilable principles. Indeed, there is ample evidence that schools across the country

over-rely upon exclusionary discipline practices that undermine students' educational

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opportunities, put them at greater risk for involvement with the juvenile or criminal

justice systems, and fail to demonstrate improvements in school safety or the quality of

the learning environment. S. David Mitchell, Zero Tolerance Policies: Criminalizing

Childhood and Disenfranchising the Next Generation of Citizens, 92 Wash. U.L. Rev.

271 (2014). Moreover, these harsh punishments are often meted out for relatively minor

misbehaviors that do not threaten the safety of the school community. Alexandra

Bonazoli, Human Rights Frames in Grassroots Organizing: Cadre and the Effort to Stop

School Pushout, 4 NE. U.L.J. 483 (2012).

B. The School District’s Proposed Interpretation of PFDA Endangers Students’ Educational Access and Increases Educational Inequality

Amici do not suggest that school officials have ill intent when they make these

difficult decisions. Rather, they must balance a number of competing considerations,

some of which may substantially outweigh any concern (or knowledge) they might have

about a student's fundamental right to an education. This Court need not ask that school

officials ignore those considerations. However, it is necessary to shift the balancing

calculus in favor of protecting that fundamental right from unnecessary infringement.

See, e.g., Cathe A. v. Doddridge County Bd. of Educ, 490 S.E. 2d 340, 349 (W.Va. 1997)

(“A child's constitutional, fundamental right to an education includes the right to be

provided with educational opportunities and services (which may be restricted or limited

by narrowly tailored restrictions necessary to achieve a compelling state interest) at

public expense,…”). Otherwise, the fundamental right vested in each child by the

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Minnesota Constitution would essentially be rendered a nullity for those students being

needlessly deprived of their opportunities to learn by exclusionary discipline.

1. Exclusionary School Discipline Jeopardizes Students’ Long-Term Fundamental Rights to an Education

Over thirty years ago, the United States Supreme Court acknowledged that "total

exclusion from the educational process for more than a trivial period, and certainly if the

suspension is for 10 days, is a serious event in the life of the suspended child." Goss, 419

U.S. at 576. Suspensions are so detrimental to long-term educational outcomes in the

public education system that state and federal governments track and report suspension

statistics. See, e.g. United States Dep’t of Education, Civil Rights Data Collection,

(available at http://ocrdata.ed.gov/StateNationalEstimations) (last visited Dec. 20, 2015).

In 2013 federal civil rights officials in the U.S. Department of Education launched

an investigation into Minneapolis Public Schools’ suspension policies after they audited

records for 11 district schools. In Daniel J. Losen and Tia Elena Martinez, Out of School

and Off Track: The Overuse of Suspensions in American Middle and High Schools (2013)

(available at http://civilrightsproject.ucla.edu/resources/projects/center-for-civil-rights-

remedies/school-to-prison-folder/summary-reports/out-of-school-off-track-reports-by-

district ) (last visited December 22, 2015), the authors examine the statistics related to St.

Paul Public Schools. St. Paul suspended about 9.2% of its students in the 2009-2010

school year, so roughly one out of every ten Minneapolis students were being deprived

access to their fundamental educational rights.

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The effect of these policies on students' learning opportunities is dramatic. In the

2011-12 school year alone, 1,609 students in Minnesota were subjected to out of school

expulsions with and without education; 145 of these expulsions were due to the type of

“Zero Tolerance” policies at issue in the instant appeal.

http://ocrdata.ed.gov/StateNationalEstimations/Estimations_2011_12 (last visited

December 21, 2015). Appellants have never adequately addressed how the punishment

in A.D.’s case fit the offense, particularly in light of her lack of willfulness and that there

was no actual threat posed by her inadvertence. Zero tolerance policies impose harsh

consequences upon students without regard to the circumstances of their behavior. Here,

the school district expelled A.D. from her school community without making adequate

findings that her inadvertent conduct posed an actual threat. The Court of Appeals

appropriately found that the PFDA does not permit this kind of disproportionate and

draconian result.

Appellants contend that the harm caused by exclusionary discipline practices lasts

only for the duration of the exclusion. (Appellant’s Br., at 4). This contention ignores the

broader life implications that accompany the punitive and exclusionary discipline practice

at issue in this case. See, e.g. Goss, 419 U.S. at 575. On the contrary, expulsions and

out-of-school suspensions, especially those lasting for long periods of time such as the

one the school board handed to A.D., can significantly hinder the educational progress of

affected students both from a learning and a psychological standpoint. Id.

As extensive empirical research has made clear, limitation of opportunities to learn

compromise educational outcomes. For example, suspension and expulsion are

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associated with poorer academic outcomes and higher likelihood of school dropout and

failure to graduate on time. American Psychological Association, Zero Tolerance Task

Force, Are Zero Tolerance Policies Effective in Schools? An Evidentiary Review and

Recommendations 45-49 (2006) available at https://www.apa.org/pubs/info/reports/zero-

tolerance.pdf (last visited December 21, 2015). In fact, students suspended three or more

times by the end of their sophomore year of high school are five times more likely to

drop out or graduate late than students who have never been suspended. National Center

for Education Statistics, The conditions of education 2006, Table 27-2 available at

http://nces.ed.gov/pubs2006/2006071.pdf (last visited December 21, 2015). The use of

exclusionary discipline also increases the likelihood that affected youth will become

involved with the juvenile or criminal justice systems. Additionally, exclusionary school

discipline is associated with students feeling less "connected" to school. This, in turn,

increases the likelihood of engaging in risky behaviors, violence, and alcohol or

substance abuse. Robert W. Blum and Peggy Mann Rinehart, Reducing the Risk:

Connections that Make a Difference in the Lives of Youth (2001) available at

http://www.cpc.unc.edu/projects/addhealth/faqs/addhealth/Reducing-the-risk.pdf (last

visited December 23, 2015).

In light of this extensive data, it is clear that exclusionary discipline is not merely a

“temporary” delay in a student's education. Rather, the consequences of the type of

discipline practice can be, and often are, wide-ranging and long-lasting, negatively

affecting not only individual students but also entire families and communities. As a

result, these practices jeopardize the ability of thousands of Minnesota students to obtain

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an education that allows them to "participate fully in society.” In order to overcome the

PFDA standards and criteria, courts must seriously consider the scope of the infraction,

and require significant evidentiary proof requirements in order to deny students these

rights. Janel A. George, Stereotype and School Pushout: Race, Gender, and Discipline

Disparities, 68 Ark. L. Rev. 101 (2015).

2. Exclusionary Practices Disproportionately Burden Students of Color and with Disabilities

Exclusionary discipline not only puts educational opportunities of all Minnesota

students at risk, it also contributes to racial and other inequalities in education. Statewide,

Black, Latino, and American Indian students are all more likely to have their education

interrupted by exclusionary school discipline than White students. See

http://ocrdata.ed.gov/StateNationalEstimations/Estimations_2011_12 (last visited

December 21, 2015). In fact, in 2011-12, Black students were more than 3.3 times more

likely to be given long-term suspensions than their White peers. Troublingly, these

disparities continue to worsen over time: for example, Black students were only 2.4 times

more likely to be suspended for more than 10 days in 1999-00. Id.

In considering these statistics, it must be stressed that investigations of student

behavior, race, and discipline around the country have yielded no evidence that the over-

representation of students of color among suspended students is due to higher rates of

misbehavior. Erik J. Girvan, On Using the Psychological Science of Implicit Bias to

Advance Anti-Discrimination Law, 26 Geo. Mason U. C.R. L.J. 1, 5 (2015); see also

Russell J. Skiba, Robert S. Michael, Abra Carroll Nardo, The Color of Discipline:

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Sources of Racial and Gender Disproportionality in School Punishment, 34 Urban Rev.

Vol. 34 No. 4, 317, 334 (2002). On the contrary, studies show that students of color are

punished more severely for less serious or more subjective infractions. Id., at 6. This

Court, in evaluating the appropriate application of the PFDA, must consider the disparate

treatment and outcome inherent in the exclusionary discipline system.

It is the consistent and unwavering experience of Amici that schools with large

populations of students of color frequently tend to rely more on exclusionary discipline

than predominantly White schools. Further, it is the Amici’s observation and experience

that the same behavior that triggers little-to-no response in many predominantly White

communities frequently results in severe consequences in communities of color, with all

of the long-term consequences that tend to follow.

Exclusionary disciplinary policies also disproportionately harm students with

disabilities. A 2015 report from the Center for Civil Rights Remedies at UCLA found

that in 2011-12 both elementary and secondary students with disabilities across the

country were suspended at double the rate than their non-disabled peers. Daniel Losen,

Cheri Hodson, Michael A. Keith II, Katrina Morrison, and Shakti Belway, Are We

Closing the School Discipline Gap? 4, 21, Center for Civil Rights Remedies (2015),

available at http://civilrightsproject.ucla.edu/resources/projects/center-for-civil-rights-

remedies/school-to-prison-folder/federal-reports/are-we-closing-the-school-discipline-

gap/AreWeClosingTheSchoolDisciplineGap_FINAL221.pdf Minnesota’s students with

disabilities face even higher disparities than the national averages. The report found that

13% of Minnesota’s secondary students with disabilities were suspended in 2012-13

15

compared to 5% of students overall (that number does not exclude students with

disabilities). Id. at 23. As the report noted, such “tremendous disciplinary gaps between

students with and without disabilities” raise “serious questions as to whether schools are

denying students with disabilities a free appropriate public education (FAPE).” Id. at 21.

When students with disabilities miss school, they not only miss out on critical

instructional time but they also often miss out on services and supports that are necessary

for their overall development.

Similarly, Out of School and Off Track, supra, found that Minneapolis’ suspension

data mirrored a national trend whereby the school district suspended students with

disabilities and African Americans, especially those in later grades, at rates significantly

higher than their White and non-disabled counterparts. The report notes that one of the

most startling findings pertained to Black boys with disabilities: two-thirds of them

enrolled in St. Paul middle or high schools were suspended at least once. See also

George, supra. (discussing disparities in school discipline).

This results in a “school-to-prison pipeline.”4 This “pipeline is the product of the

policies of school districts, law enforcement agencies, and courts that criminalize in-

school behavior or otherwise push disadvantaged, underserved, and at-risk children from

mainstream educational environments into the juvenile justice system, and all too often

[into] the criminal justice system.” Ronald K. Lospennato, Multifaceted Strategies to

4 The school-to-prison pipeline is a phrase used to describe policies and practices that push schoolchildren, especially those most at-risk out of classrooms and into the juvenile and criminal justice systems. See, e.g. http://www.tolerance.org/magazine/number-43-spring-2013/school-to-prison (last visited December 21, 2015) for a description.

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STOP the School-to-Prison Pipeline, 42 Clearinghouse Rev. 528 n.4 (2009); Joseph B.

Tulman & Douglas M. Weck, Shutting Off the School-to-Prison Pipeline for Status

Offenders with Education-Related Disabilities, 54 N.Y.L. Sch. L. Rev. 875 (2010);

Advancement Project, Test, Punish and Push Out: How “Zero Tolerance” and High

Stakes Testing Funnel Youth Into the School-to-Prison Pipeline 9 (Mar. 2010) (revised).

Justice Policy Institute, Education Under Arrest: The Case Against Police in Schools 1

(Nov. 2011), available at

http://www.justicepolicy.org/uploads/justicepolicy/documents/educationunderarrest_

fullreport.pdf (last visited December 23, 2015). (“Exacerbating the problem, state and

federal legislatures have promoted “zero tolerance” policies, and local education officials

increasingly have ceded school disciplinary matters to police officers”).

C. Disciplinary Exclusion in this Type of Case is Educationally Indefensible

By excluding students like A.D., school boards not only run afoul of the PFDA.

They also create school environments and communities that are less safe. Although

Appellant claims that there were valid reasons for A.D.’s suspension and subsequent

expulsion,5 given the lack of evidentiary support in the record, the Court of Appeals

correctly rejected this assertion. In reviewing that determination, however, it is important

to understand the context of the Appellant’s practices and the broader policy implications

for the state.

5 See Resp. Br., at 21.

17

A review of disciplinary practice trends across the country reveals that the

Appellant is not alone in its approach: This reflects a nationwide trend in exclusionary

discipline which is being broadly used in response to a variety of low-level incidents.

Advancement Project, Education on Lockdown: The Schoolhouse-to-Jailhouse Track 15

(2005) available at http://b.3cdn.net/advancement/5351180e24cb166d02_mlbrqgxlh.pdf

(last visited December 21, 2015). Appellant’s assertions that such policies are necessary

to preserve school safety are misplaced. In fact, only a small percentage of suspensions

occur in response to behavior that threatens the safety or security of schools. Linda M.

Raffaele Mendez & Howard M. Knoff, Who Gets Suspended from School and Why: A

Demographic Analysis of Schools and Disciplinary Infractions in a Large School

District, 26 Educ. & Treatment Child. 30 (2003).

While disruptive behavior needs to be addressed by teachers or administrators to

maintain school and classroom discipline, it must also be recognized that nearly every

student will engage in such behavior during his or her time in school. For as long as

there have been schools, there have been classroom disruptions, defiant behavior, and

scuffles between students. Many school officials have failed to recognize that it is

developmentally normal to question authority, be susceptible to peer influence, and not

fully consider the consequences of one's actions. APA, at 7. Moreover, too many schools

have been slow to grasp that educators can more effectively address the behaviors

resulting in the vast majority of exclusionary measures through less restrictive sanctions

and means

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Discipline is not something that happens separate and apart from the day-to-day

operations of a school; it is deeply embedded in everything that schools do. See, e.g.,

United Nations Convention on the Rights of the Child, Article 29(1), Appendix 110

(Nov. 20, 1989) available at

http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx (last visited December

21, 2015). When one of those elements falls short and fails to protect students'

opportunities to learn - when schools are not adequately funded, when students do not

have textbooks, when there are not high-quality teachers in every classroom – then the

system fails. Likewise, just as effective and fair school discipline is a necessary

component of high-quality schools, the inverse is also true: Ineffective or overly-punitive

school discipline makes the attainment of high-quality schools impossible. In other

words, school discipline can either promote high-quality learning or serve as a barrier to

it, depending on how it is implemented.

Indeed, empirical research on the exclusionary practices indicates that they have

significant and adverse impact, bearing on the ability of schools to create safe and

effective learning environments where students can thrive and succeed. For example,

exclusionary measures appear to affect not only the academic performance of the students

being excluded from school, but also the academic performance of the entire school.

Research shows that schools with higher rates of school suspension and expulsion have

poorer achievement outcomes on standardized achievement tests, regardless of the

economic level or demographics of the school. Russell J. Skiba & M. Karega Rausch,

Zero Tolerance, Suspension, and Expulsion: Questions of Equity and Effectiveness, in

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Handbook for Classroom Management: Research, Practice, and Contemporary Issues

1063, 1063-89 (C. M. Evertson, & C. S. Weinstein eds., 2006). Additionally, while the

primary purposes of school discipline are to ensure school safety and create productive

learning environments, research suggests that exclusionary measures fail on both

accounts. While it is commonly assumed that out-of-school suspension and expulsion

deter future misbehavior, there are no data showing that the use of these practices reduces

the likelihood of future student disruption. APA, at 5. Indeed, disciplinary removal

appears to produce negative effects on future student behavior. See, e.g. Anne Gregory,

Russell J. Skiba, Pedro A. Noguera, The Achievement Gap and the Discipline Gap, Two

Sides of the Same Coin? 39 Educ. Researcher 59 (2010).

Research also establishes that exclusionary school discipline does not foster an

environment conducive to teaching and learning, an important predictor of individual and

school success. Once again the opposite appears to be true, in that schools with higher

rates of school suspension have been found to have lower ratings on school climate and

the quality of school governance. APA, at 44-48. In effect, each student's fundamental

right to an education would be conditional and subject to revocation provided a school

official could offer a rational disciplinary basis for doing so. While some level of

infringement on a student's educational rights would likely be unobjectionable in the case

of serious offenses, because minor or trivial behavior frequently results in disciplinary

measures that put students at significant risk for a variety of negative outcomes, the

granting of carte blanche to school officials in this context raises constitutional concerns.

20

Finally, researchers from the University of Minnesota have found that a restorative

practices partnership being implemented in Minneapolis Public Schools is working as an

alternative to expulsion for serious behavioral incidents. The restorative Family Group

Conference is used in response to high level behavior incidents (77% of the students were

referred for assaults or weapons). Researchers discovered that participation in this

restorative process returns “students to a parity of academic progress, as indicated by

better attendance, few suspensions, continued credit accrual, slight increases in GPA and

increases in the number of students on track to graduate.” Barbara J. McMorris, Kara J.

Beckman, Glynis Shea, Jenna Baumgartner, and Rachel C. Eggert, Applying Restorative

Practices to Minneapolis Public Schools Students Recommended for Possible Expulsion

39-40 (2013) (available at

http://www.legalrightscenter.org/uploads/2/5/7/3/25735760/lrc_umn_report-final.pdf)

(last viewed Dec. 21, 2015). The fact that Minneapolis Public Schools are using

successfully this alternative to expulsion provides proof that it is possible to protect a

student’s fundamental rights while simultaneously encouraging positive school climate

and student engagement.

CONCLUSION

Education in Minnesota is a fundamental right, not a privilege that rests

precariously in the hands of school boards. Given the heightened risk of educational

failure and personal hardship created by disciplinary exclusions, and evidence that such

exclusions are not effective educational tools, the PFDA appropriately employs searching

judicial review of disciplinary exclusions. The Court of Appeals appropriately applied

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the standards of the PFDA in reaching its decision. Amici urge the Court to uphold the

decision below.

Date: December 29, 2015 Respectfully submitted,

/s/ Selene Almazan Selene Almazan, Esquire Legal Director Council of Parent Attorneys and Advocates P.O. Box 6767 Towson, MD 21285 (844) 426-7224 Counsel for Amicus Curiae/ Pro hac vice /s/ Christopher E. Crutchfield Christopher E. Crutchfield (#299716) 1016 Hyacinth Avenue East Saint Paul, MN 55106 (612) 245-3745 Counsel for Amicus Curiae

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CERTIFICATE OF COMPLIANCE

This brief complies with the word limitations of Minn. R. Civ. App. P. 132.01,

subdiv. 3(a). This brief was prepared using Microsoft Word Version 14.0 in 13-pt. font,

which reports that the brief contains 5,773 words.

Dated this Day 29th of December, 2015.

By: /s/ Selene Almazan Selene Almazan