Demerits and deputies: When school discipline moves from class to courts, minorities most affected

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Last year, the Williamsburg Police Department was called to Berkeley Middle School for 26 separate incidents with students and two incidents were referred to the criminal justice system. (Steve Roberts, Jr./WYDaily)
Last year, the Williamsburg Police Department was called to Berkeley Middle School for 26 separate incidents with students and two incidents were referred to the criminal justice system. (Steve Roberts, Jr./WYDaily)

A 15-year-old Grafton High student became a statistic on Jan. 12, when he was arrested after allegedly throwing poppers, a type of small, novelty firework.

While school officials searched the teen for the noise-making fireworks, they discovered a switchblade knife. The boy was charged with disorderly conduct and possession of a weapon on school property, according to Lt. Dennis Ivey with the York-Poquoson Sheriff’s Office.

The teenager is one of more than 500 students referred to law enforcement in York County’s school division during the past five years. According to Lt. Ivey, there were 73 arrests made in York County schools during the 2015-2016 school year, and the rate that students are referred to law enforcement has increased since Sept. 1, 2014, according to state and federal data.

While there has been a significant downward trend statewide in the number of student offenders over the past five years — as well as incidents reported to law enforcement and students referred to law enforcement by school divisions — there has been an increase in the number of law enforcement referrals in York County.

This story is about more than numbers, it’s about increased interaction between local school children and the criminal justice system, as discipline is taken out of the hands of principals and administrators. When students are “referred” to law enforcement, they are seldom arrested or sent to jail, but through one call, disciplinary power is transferred from educators to police. And in local schools, minority students make up the majority of children referred from classrooms to courts.



The above graph shows the significant downward trend in the number of students referred to law enforcement across the Commonwealth of Virginia.

Taking a “temperature test” on school policing

For one local lawmaker, the state’s efforts have not gone far enough in remedying what he sees as a “vicious cycle.”

Last month, Del. Mike Mullin proposed legislation to lower the number of classroom incidents referred to law enforcement by changing state code to reflect policy the Virginia Department of Education says they already support: giving more control to principals and school administrators.

In Mullin’s day job as an Assistant Commonwealth’s Attorney for the city of Suffolk, he has seen hundreds of cases of students being referred to the criminal justice system for often minor offenses.

The freshman delegate prosecuted a case that would later inspire his proposed legislation. The case was against a 14-year-old student, who was asked to leave the classroom by his teacher. The boy kicked a trash can on his way out of the classroom and he ended up being charged with a criminal offense, Mullin said.

Mullin could not disclose which school or school district in which the incident occurred, citing privacy rules, but said the boy did not fare well in probation and found himself in a “vicious cycle.” Mullin suggested if the principal and school administrators had more discretion in the disciplinary process, the boy may never have fallen into the cycle.

Mullin, a representative for the 93rd District of the House of Delegates, proposed adding a single sentence to amend existing Virginia code relating to school principals, student discipline, and appropriate alternatives to referring incidents, according to the bill’s abstract.

The proposed change would have required principals and administrators to first consider alternatives before contacting law enforcement when a student requires disciplinary action.

“No one asked me to do it, I saw it in the courtroom on a daily basis,” Mullin said. “What I saw was children who would otherwise have been disciplined in the classroom referred to the courtroom.”


In the above video, no delegate on the House Courts of Justice Sub-Committee on Criminal Law indicated they were inclined to support House Bill 1843. Watch at 02:32:01. (Courtesy ProgressVA)

His proposed House Bill 1843 was killed by a voice vote in the House Courts of Justice Sub-Committee on Criminal Law in Richmond on Feb. 1.

The delegates on the House Courts of Justice Sub-Committee on Criminal Law tabled Mullin’s bill after a member of the sub-committee said he did not want to spend 20 minutes debating its merits. The delegate suggested a “temperature test,” or an informal opinion poll, because it “might certainly be faster.”

The “temperature test” was administered by Sub-Committee Chairman Del. Rob Bell of the 58th district and not a single delegate indicated they were “inclined” to support the measure. House Bill 1843 died when Bell proposed to “table the bill,” which was promptly passed with a voice vote.

Bell, Chairman of the House of Delegates Court of Justice Criminal Law Subcommittee, did not return multiple requests for comment on the subcommittee’s decision to kill House Bill 1843.

According to Mullin, the toll referrals take on state education remains hidden, because Virginia residents don’t know the sheer number of students ending up in the criminal justice system.

“I think we need to do more to educate people about the problem of children being sent from the classroom to the courthouse for things that used to send you to the principal’s office,” Mullin said.

“We want to make sure our learning environments aren’t disrupted and our students are safe,” he added. “But we also want to make sure we’re keeping our students in the classroom whenever possible.”

A look at local schools

Five year averages for the rate of student offenders per thousand students offer the clearest way to compare state trends with local districts. Statewide, 8.53 students were referred to law enforcement per thousand students between 2011 and 2016. The Williamsburg-James City County School Division referred 7.86 students per thousand students, and the York County School Division referred 8.14 students per thousand students.

Fast forward to 2016, the most recent school year for which there is data. Last year, state and Williamsburg-James City County Schools saw a decrease in the number of students it refers to law enforcement compared to the past five years — 12.25 percent and 18.83 percent respectively — but York County remains an outlier. The county has increased the number of law enforcement referrals by 8.3 percent, according to the Civil Rights Data Collection unit of the U.S. Department of Education.

Katherine Goff, Coordinator of Community and Public Relations for the York County School Division, said the division is committed to keeping students in school and in class, citing programs throughout the division which promote positive relationships between students, such as conflict resolution training and other support programs.

“These strategies are used as a proactive approach to minimize student infractions and, as a result, reduce the required referrals to law enforcement,” Goff wrote in an email.

According to the Civil Rights Data Collection, 17,863 Virginia public school students were referred to law enforcement during the 2011-2012 school year, giving the commonwealth the highest rate of school-based referrals to law enforcement in the nation.

Between the 2011-12 and 2013-14 school years, 42,573 students in Virginia were taken from the classroom and placed into the criminal justice system. The number of law enforcement officers — known as school resource officers — charged with preventing crime in Virginia’s schools has more than doubled, from 427 SROs in 2000 to 935 in 2013, according to a 2016 Legal Aid Justice Center report.

In the same period, there has been a push by area school divisions for greater due process when a student is disciplined. York County School Division’s student handbook states that due process is a student right and offers an appeals process to determine whether or not an action was the fault of the student. The Williamsburg-James City County School division has a hearing officer to assist in due process procedures in cases of suspensions and expulsions, according to the school division’s student handbook.

The Williamsburg-James City County School Division has six school resource officers, according to police. The York County School Division has four school resource officers, managed by a lieutenant, according to the York-Poquoson Sheriff’s Department.

For the 2015-16 school year, there were more than 540 disciplinary incidents with students reported by the York County School Division. There were more than 440 incidents with students reported to the Virginia Department of Education by the Williamsburg-James City County School Division.



The graph above compares the number of students offenders between York County School Division and Williamsburg-James City County School Division.

Williamsburg-James City County School Division’s rate of referral has seen a marked decrease during the past five years. The division’s rate of referral decreased nearly 50 percent faster than the rest of the state.

Yet, inside those numbers is a hidden effect. While the rate of referral has gone down, minority students are being referred at a higher rate than their peers, according to the most recently available federal data and state documents. Minorities make up the majority of students referred to law enforcement. In both divisions, minorities are 56 percent of referrals in York and 54 percent in WJCC, according to the latest federal data from 2013 and 2014.

Although black and hispanic students make up 27.1 percent of the student body in Williamsburg-James City County schools, they are 50.5 percent of referrals. In York County schools, black, hispanic and mixed-race students make up 53.1 percent of referrals to law enforcement, despite being 29.8 percent of the student body, according to the most recently released federal data.

Last year, the Williamsburg Police Department was called to Berkeley Middle School for 26 separate incidents with students and two incidents were referred to the criminal justice system. In 2015, there were 27 incidents with students reported to Williamsburg Police, and three incidents resulted in a referral or criminal charges, according to data from the Williamsburg Police Department.

According to the most recently available federal data, black and hispanic children make up 35.6 percent of the students at Berkeley Middle School, but represent 77 percent of student referrals to law enforcement.

“We agree this is a significant issue here in Virginia,” former Virginia Secretary of Education Anne Holton told the Center for Public Integrity. “The law enforcement referrals are clearly excessive. The gaps, the disproportionate impact on minorities…is unacceptable.”

Not all juvenile arrests result in a child being taken into custody. According to Virginia code, officers are required take custody of any juvenile who commits an offense that would result in felony charges for an adult — as well as if a deputy suspects a child is a runaway or in need of social services.  

Stephanie Bourgeois, Senior Director for Student Services for the WJCC School Division, said once the police are involved in an incident, it becomes the decision of the officers whether or not a student is referred to juvenile intake.

“What law enforcement decides to do, is up to them,” Bourgeois said. “And, as those numbers show you, the majority of times [law enforcement] are going to look for other opportunities. They’re working within their resources. Whether or not charges are ultimately filed becomes part of their process. Our requirement is notification.”


The above graph shows the past five years of data on the rate of referrals per thousand students for the state (in blue), the York County School Division (in yellow), and the Williamsburg-James City County School Division (in red) as well as five-year moving-averages.

According to York County School Division’s Student Handbook, school authorities are required to report any incidents which may “constitute a criminal offense” to local law enforcement. Such acts include threats against school personnel, possession of weapons or drugs, cyber bullying, and theft of property belonging to the school, staff or a student.

Offenses are reported to a sworn York‐Poquoson deputy sheriff assigned to the school, known as a School Resource Officer. The officer can then charge the student, meaning file a petition or warrant against the student. After the student is charged and arrested, they are placed in the custody of their parents or local law enforcement, depending on the nature of the crime.

Dennis D. Parker, Director of the Racial Justice Program for the American Civil Liberties Union, said schools throughout the nation have a tendency to criminalize behavior common in classrooms full of teenagers, such as disrespecting a teacher.

“There’s a danger that the kind of behavior that I would describe as typical adolescent behavior, such as a student talking back, can escalate to a student being arrested,” Parker said. “And that’s not helpful for anyone. The idea should be to keep kids out of the criminal justice system as much as possible.”

Unreliable data

It’s not always about what the numbers show, often it’s about what they don’t. According to a report by the Legal Aid Justice Center, “no state agency collects and publishes data about school-based searches, interrogations, uses of force, arrests, or court referrals.”

WJCC School Division Director of Public Relations Betsy Overkamp-Smith said in an email that the school division does not keep data on the number of incidents reported to law enforcement and local law enforcement is responsible for keeping that data.

Spokespersons for area law enforcement departments suggested there could be discrepancies in the data they provide due to reporting errors or the circumstances of the report, for example a student reports his or her cellphone was stolen in school once they arrive home.

James City County Police Department Spokesperson Stephanie Williams provided data from reports only submitted by the school resource officers at Warhill, Lafayette, and Jamestown High Schools, and Hornsby and Toano Middle Schools. Williams could not provide data from other WJCC schools.

The number of offenses reportable to the state is much higher than the number of incidents referred to law enforcement. There are offenses in both the WJCC School Division student code of conduct and the law which must be reported to police, said Overkamp-Smith.

“Again, it is important to differentiate reporting from action: we are required by the state to report certain offenses, regardless of the circumstances,” Overkamp-Smith wrote. “These reports do not necessarily lead to any action on the part of law enforcement.”

While data on the number of students referred to law enforcement can be hard to find, it can be even harder to trust.

The reasons why police officers investigate incidents are varying. Berkeley Middle School’s 26 separate incidents with students were mostly for “Officer Information” which is a catch-all term for general reports of incidents that do not have an already specifically identified crime associated with them, according to Maj. Greg Riley of the Williamsburg Police Department.

The next three most common reasons Williamsburg Police investigated at Berkeley Middle School were for simple assaults, mental subjects, and suspicious incidents.

Jo Ann Burkholder, Director of the Office of Student Services for the Virginia Department of Education, said the state is currently working with school divisions across the state to implement data-driven programs to promote the academic, behavioral, and social-emotional supports students “need to succeed in school.”

Looking ahead

In 2015, after a Center for Public Integrity report highlighted Virginia’s national lead in student referrals to law enforcement, Governor Terry McAuliffe announced the creation of a cross-secretariat working group of state cabinet members called the “Children’s Cabinet” with the purpose of reducing student suspensions, expulsions, referrals to law enforcement, and the impact of school disciplinary actions on minorities and students with disabilities.

The Children’s Cabinet’s three priorities have remained constant since its founding: pushing the “Classrooms not Courtrooms” initiative, pushing the “Challenged Schools” initiative, and advancing policy in the General Assembly to increase access to prevention and social services and other community supports.

The cabinet’s push has had some success in advancing its policies, with nine of twelve initiatives partially or fully funded by the General Assembly. The group has been pushing on its “Challenged Schools” initiative with increased school-break programming. In 2016, the “Classrooms not Courtrooms” initiative moved forward on updating the program guide for school resource officers.

According to the Virginia Governor’s Children’s Cabinet 2016 report, the group will continue to expand its “Challenged Schools” and “Classrooms not Courtrooms” initiatives in the final year of McAuliffe’s tenure.

Steve Roberts, Jr can be contacted at steve@localvoicemedia.com or at 757-565-1079 ext. 213

The fifth paragraph in this article was added post-publication for clarity.