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Patrick S. Metze

excerpted from: Patrick S. Metze, Plugging the School-to-prison Pipeline by Improving Behavior and Protecting Core Judicial Functions: a Constitutional Crisis Looms, 45 Saint Mary's Law Journal 37 - 72 (2013)(203 Footnotes)

In 2009, the Texas Legislature dictated that PBIS must be implemented in Texas Youth Commission TYC schools, and in response, the TYC directed all of its facilities with schools to comply. In September 2010, TYC had ten schools within which to implement PBIS; but by July 2011, only six schools remained open. Patrick MetzeUnder the new policies, children leaving TYC had to show that they possessed the "behavioral skills necessary," or that "appropriate transition supports" existed for the child to successfully "transition" to future placements. Stage progression, earning privileges, and consideration for parole were also tied to participation in PBIS.

Periodic evaluations to test the effectiveness of implementing PBIS within the TYC school system were also established. The Texas Legislature ordered a report on the effectiveness of the reading plan and the implementation of positive behavior supports by December 1, 2010. As to the implementation of PBIS, limited findings were reported, and no specific data was forthcoming except for an anecdotal comment about the improvement in attendance during the 2010-2011 school year. By January 21, 2011, the Executive Director of TYC reported to the Board that PBIS was implemented at all TYC educational facilities.

In compliance with the legislative order, the final report on the effectiveness of PBIS was filed on December 2, 2012. This "exhaustive" twenty-three-page report included a three-page introduction giving a generic summary of the PBIS framework, structure, purposes, historical ties to its cousin--Response to Intervention, and a three-page restatement of the December 2010 report. The only new development during the implementation period was the selection of an instrument to monitor, assess, set goals, evaluate, and revise procedures "toward effective implementation" of PBIS. The data in the report was evaluated using an advanced method of comparing data per student, per *45 month, and per facility with "(1) [m] ajor incidents[,] (2) [r]eferrals to security[, and] (3) [a]dmissions to security."

The Executive Summary of the report summarized TJJD's conclusions on the effectiveness of PBIS implementation. The following section of this paper analyzes the major findings of the report; a look at each finding is revealing. First, TJJD stated, "PBIS appears to be having an impact on the behavior and academic outcomes of youth in secure facilities."

Tex. Juvenile Justice Dep't, Effectiveness of Positive Behavioral Interventions and Supports, A Report to the Texas Legislature 8 (Dec. 2012). TJJD asserted that "[t]he number of incidents, both minor and major, are four times higher in non-school settings than in school, where PBIS has been implemented." PBIS was implemented in the second quarter of fiscal year 2011, which includes December 2010, January 2011, and February 2011. At that time, the number of major incidents--reflecting injury or use of force--in non-school settings was six times higher than major incidents in school settings. During the first fifteen months of *46 PBIS implementation, non-school incidents were ten and eleven times higher, indicating a significant reduction in the number of incidents requiring a written citation. The first year saw a 37% reduction in major incident reports in the school setting and a 17% increase in reports in the non-school environments. Admittedly, these calculations do not take into account any increase or decrease in youth population, or other variables such as staff training and ratio. Nevertheless, to see these trends going in the right direction should encourage TJJD to implement PBIS in non-school settings as soon as possible.E

*47 The fact that the TJJD stopped providing specific numbers and used ill-defined bar graphs makes specific analysis difficult. However, a few assumptions can be made with reasonable certainty. As to the total incidents reflected in the graph on page nine of the report, it is apparent that for each quarter following implementation, the total number of incidents, major and minor, decreased in both non-school and school settings.

Between mid-2011 and mid-2012, four of six TYC schools showed marked reductions in the average school disciplinary referrals per student.

Of the six types of school infractions during this same period, there were discernible decreases in at least two types of infractions, namely disruption of program and self-referral to security. The size of the graph and the lack of specifics provided make it difficult to evaluate any progress in the other types of infractions, which include presence in an unauthorized area, refusing instructions, threatening others, and assault without injury.

TJJD found it significant that the percentage of special education students receiving disciplinary referrals dropped from 53.3% of the total referrals to 50.4% during the implementation period.

*49 In the glass is half-full category, TJJD also found it significant that fewer Hispanic and Anglo students received disciplinary referrals. However, the number of disciplinary referrals for African-American students increased considerably.

On a positive note, the use of aversive control measures decreased during the implementation period, which is encouraging.

TJJD was proud of the increase in the average daily attendance (ADA), as well as academic performance "in all categories of measured outcomes."

Two final areas were encouraging as far as the effectiveness of PBIS. *51 During the implementation period, "[five] of [six] schools . . . saw a reduction of time per student outside the regular classroom for disciplinary reasons." Almost immediately upon implementation of PBIS, four of those five schools saw a significant drop in absences due to discipline.

From the 2009-2010 school year until the end of the 2011-2012 school year, there was improvement in the percentage of students making one-month reading and math gains per month of instruction.

During this same period, "41.43[%] of youth aged [sixteen] or older earned a high school diploma or GED within [ninety] days of release from *52 a TJJD institution." Finally, the percentage of students with grade level reading ability upon release from a TYC facility increased from 12.7% in the 2009-2010 school year to 16.27% in the 2011-2012 school year.

Unfortunately, TJJD did not provide more specific data in its report. Nonetheless, I hope PBIS will continue to improve the behavior of juveniles in its facilities. While the future of TJJD and its role in all aspects of juvenile justice remains unclear, TJJD's recent history makes its institutional history less than impressive. The history of how Texas deals with the juvenile delinquent, or a juvenile on his or her way to delinquency, is a dichotomy of treatment and punishment. With the implementation of PBIS, Texas has correctly shifted its focus to the treatment function. However, our modern approach has been long coming, and if recent constitutional issues are not addressed, I fear we will choose punishment over enlightenment once again.

 Professor of Law, Director, Criminal Clinics at Texas Tech University School of Law. B.A. Texas Tech University 1970; J.D., The University of Houston 1973.