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Excerpted From: Michael Heise and Jason P. Nance, To Report or Not to Report: Data on School Law Enforcement, Student Discipline, Race, and the “School-to-Prison Pipeline”, 55 U.C. Davis Law Review 209 (November 2021) (259 Footnotes) (Full Document)

HeiseAndNanceThe eventual full resumption of in-person school instruction will inevitably lead to a resumption of in-school student disciplinary incidents. A resumption of in-school student disciplinary incidents will renew public focus on, and a growing unease with, how schools address student disciplinary matters, especially non-violent student incidents. At the heart of this debate resides a question of whether and, if so, when school administrators should engage law enforcement agencies. Indeed, George Floyd's tragic death has precipitated a nationwide debate focused on, among many other important national issues, what role police officers should have in schools or whether they belong in schools at all.

Schools addressing a student discipline incident that does not trigger any mandatory reporting obligations to law enforcement agencies--but nonetheless plausibly falls within the school's discretion to report--confront a critical question: to report or not to report the student incident to law enforcement agencies. How school administrators resolve this question potentially poses enormous consequences for a student's future, as well as the school's reputation for safety, crime, and discipline.

A growing empirical “school-to-prison pipeline” literature assessing the consequences of schools' increasingly legalized approach to student discipline typically--and understandably--focuses on school reports of student discipline incidents to law enforcement agencies. Given the potentially severe implications for individual students and their futures, the focus on school reports to law enforcement agencies is as predictable as it is warranted. This is especially so if schools' motivations to engage law enforcement include a desire to functionally outsource responsibility for student discipline to law enforcement agencies. Making matters arguably worse is that school referrals of student incidents--particularly “lower-level” non-violent student incidents that historically were handled internally by school officials--often set into motion a series of legal events that can culminate in ways that negatively impact students' lives going forward, as well as schools' reputations (real or perceived) for safety and control. Adding to these troubling outcomes is the reality that students of color often suffer disproportionately from the tightened intersection between schools and the criminal justice system, further exacerbating racial inequalities in our nation.

When it comes to the growing student resource officer and police officer (“SRO/police”) presence and influence in public schools, two general claims dominate the current research literature. One claim is that as a school's SRO/police presence increases, so too does the probability that the school will report student discipline incidents to enforcement agencies. A second claim asserts that school reports to law enforcement distribute unevenly across various student groups, with particularly deleterious consequences for students of color, boys, students from low-income households, and other student sub-groups.

In our prior research, we found generally mixed empirical support when these two general claims are subject to data from the nation's leading cross-sectional dataset on public school crime and safety, the 2016 U.S. Department of Education's 2015-16 School Survey on Crime and Safety (“SSOCS”). With respect to the first claim, we found evidence that a school's SRO/police presence corresponds with an increased probability that the school will report student disciplinary incidents to law enforcement agencies. This finding troubles because of the severe consequences that flow into the lives of students when they become involved in the criminal justice system.

On the other hand, we did not find persuasive empirical support, at least direct support, for the second claim. Specifically, at the school level, student incidents reported to law enforcement systematically did not distribute unevenly across various student sub-groups, including students of color (e.g., the overall concentration of minority students in a school did not influence the rate at which schools report students to law enforcement). It is important to emphasize, however, that the SSOCS data set does not contain demographic data (e.g., race/ethnicity, gender, socio-economic status) on the individual students whose conduct triggered a school referral to law enforcement agencies. Thus, at one level, the persistent claims that school reports to law enforcement agencies systematically distribute unevenly across various student subgroups certainly remain viable--indeed, supportive anecdotal and related evidence exists. Our narrower point, however, is that as it relates to the specific claim that referrals to law enforcement raises troubling distributional issues at the school level, such an assertion does not--and cannot-- find direct empirical support from the nation's leading school safety and violence data set. Moreover, if anything, the weight of existing indirect school-level evidence does not generally hint at any troubling distributional outcomes.

Our finding that the overall concentration of students of color in a school largely does not influence the rate at which schools report students to law enforcement may surprise many, especially because racial inequalities are pervasive in our public school system, criminal justice system, and in many other areas of our society. Yet this finding actually comports with our general understanding of how implicit racial bias influences decision-making, especially in the school disciplinary context. Specifically, when disciplinary incidents require school authorities to subjectively characterize behavior (e.g., defiance, disrespect, disruption), the effects of implicit racial bias are more pronounced, often resulting in significant inequitable outcomes. But when less characterization is required (e.g., possession of drugs, fighting, theft), which is the basis of the vast majority of referrals to law enforcement, the effects of implicit bias often are muted, resulting in fewer racial equity concerns.

The primary motivation for this Article flows from the reality that the empirical school-to-prison pipeline research's focus on school reports of student incidents to law enforcement agencies entirely ignores a potential outcome of equal import: school decisions to not report; that is, where school administrators exercise discretion, decide against formally engaging law enforcement, and handle a student disciplinary incident internally. Given the growing SRO/police presence in public schools and its prominence in the “school-to-prison pipeline” debate, we are especially interested in assessing the extent to which, if any, a school's SRO/police presence informs the school administrators' exercise of discretion when it comes to reporting student incidents to law enforcement agencies. In other words, this study's principal scholarly contribution emerges from expanding the analytic sweep of school-to-prison pipeline research to include an assessment of a school's probability of not referring student incidents to law enforcement agencies. Indeed, comparing how schools' reporting and non-reporting rates distribute provides helpful insights into how schools exercise institutional discretion in the student discipline context. What we find, on balance, is that schools with a comparatively greater SRO/police presence are systematically more inclined to report rather than exercise discretion and non-report student disciplinary incidents.

A second important contribution of this study is that it further illuminates the complexities associated with race and student discipline. More specifically, because nonreporting contexts invite heightened discretion, and discretion is a key condition that often triggers the effects of implicit racial bias, one might expect to find greater racial disparities relating to nonreporting decisions for various disciplinary offenses. However, similar to the school reporting context, we find that the overall concentration of students of color in a school largely does not influence when schools decide to exercise institutional discretion and not report to law enforcement. Once again, this may occur because offenses normally subject to a potential report to law enforcement typically require more objectively defined judgment (e.g., possession of weapons or drugs, fighting, theft) that is less susceptible to the influences of bias.

Our Article unfolds as follows. Part I briefly summarizes the relevant research literatures. In Part II we set out our data, research design, and empirical strategy. We present our results in Parts III and IV and consider their legal and policy implications. We conclude in Part V and discuss possible next steps for this line of research.

[. . .]

Engaging the criminal justice system in the student disciplinary context invokes an array of important consequences on both individual students and schools. Given these consequences, attention to, and focus on, rates of school reporting incidents to law enforcement agencies, as well as rates of school non-reports and how they distribute across subgroups, warrant close consideration. School non-reporting behaviors, and what they might imply about how schools exercise institutional discretion when it comes to student misconduct, are important and, until this study, were virtually ignored in the empirical scholarly literature.

When we submit two persistent and key pillars of the school-to-prison pipeline hypothesis to data, comparisons of schools' reporting and non-reporting behaviors reveal both differences and similarities. One key difference is that the salience of a school's SRO/police presence is comparatively far greater in the school reporting context than in the non-reporting context. One explanation for this potential divergence is the possibility that school officials act strategically and, perhaps, in coordination with SRO/police officers in terms of when--and under what conditions--to exercise reporting discretion.

Second, the school reporting and non-reporting contexts share a relative absence of strong empirical support for traditional distributional worries. Specifically, an increase in the percentage of various traditionally vulnerable sub-groups of students at a school does not, in general, correspond with a systematic increase in the school's likelihood of reporting student misconduct to law enforcement agencies. While our findings comport with past research using SSOCS data sets, such findings generally cut against the prominent normative literature. Even though the precise factors that account for school decisions to either report or not report student misconduct remain opaque, the distribution of these decisions' outcomes does not appear to skew in any traditionally troubling directions. As we note in prior work, direct evidence of these claims from the SSOCS data set is not possible owing to the absence of any demographic data (e.g., race/ethnicity, gender, socio-economic status) on the students whose conduct triggered a school decision to either report or not to law enforcement agencies. Despite the absence of more helpful student-level demographic data, however, our school-level findings do not raise any obvious distributional worries.

Instead, our distributional findings comport with more nuanced studies of racial disparities in the school disciplinary context. Specifically, racial disparities tend to occur and be more pronounced for offenses requiring subjectively defined judgment, such as disrespect, defiance, or disruption, than for offenses that require an objectively defined judgment, such as possession of drugs or alcohol, fighting, and, perhaps, threats of physical attack. And because most referrals to law enforcement in the school disciplinary context are for objectively-defined offenses that are more robust to the effects of implicit racial bias, it follows that we should and do observe fewer distributional concerns in this area.

Going forward, future research on these and other related school-to-prison pipeline claims would obviously benefit from more, and richer, individual-level data, especially as it relates to the individual students whose conduct triggered a possible school referral to law enforcement agencies. Another current data deficit relates to information on the criminal justice outcomes for those students whose conduct triggered a school referral to law enforcement agencies. While it is certainly plausible to assert that any adverse interaction between a student and a law enforcement agency is, on balance, negative, more granular data on the formal legal dispositions of these interactions would provide helpful information for a broader sweep of related research questions.

Finally, as Table 1 makes clear, when it comes to student misconduct, school non-reporting rates to law enforcement agencies greatly exceed school reporting rates. As such, and given the obvious and non-obvious consequences to students as they become involved in the criminal justice system, closer scholarly and public attention to the contours of school non-reporting behaviors is warranted. This attention is particularly crucial given that the student disciplinary reporting context provides helpful insights into exercises of school discretion more generally.

Michael Heise is William G. McRoberts Professor in the Empirical Study of Law, Cornell Law School.

Jason P. Nance is Professor of Law, University of Florida Levin College of Law. Author correspondence: This email address is being protected from spambots. You need JavaScript enabled to view it..

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