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Time to Stop Criminalizing Mere Misconduct

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Why does Virginia have the highest rate of referring school children to police?

A report last April by the Center on Public Integrity, using U.S. Department of Education data, demonstrated that Virginia schools referred students to law enforcement at a rate nearly three times higher than the national average.

And the stories attached to the figures are legendary – from the 11-year-old boy with autism charged with disorderly conduct for kicking a trashcan, to the 12-year-old girl charged with four misdemeanors, including “obstruction of justice” for “clenching her fist” at a police officer.

While there may be sides to these stories we’ll never know, the statistics are without doubt: More than any other state, Virginia is quickest in the country to put children at the start of a pipeline that too frequently leads to, accelerates, and reinforces further entanglements with the criminal justice system.

To be clear: Referring such cases to law enforcement is not the same as filing formal charges. But we know that every negative contact with law enforcement – particularly if that child is acaemically marginal to begin with – contributes to poor outcomes for students.

One reason for the high referrals may be uneven training. Well-trained police officers in schools (School Resource Officers, or SROs) can be instrumental in building relationships with teenagers, often anticipating drug or gang activity before it took place and avoiding escalating issues.

But there is no requirement that SROs receive the kind of focused training we demand for other specialized police placements. Nor is there a requirement to utilize a well-researched curriculum like the one provided by the Department of Criminal Justice Services.

Training for school personnel isn’t required either. While the state Department of Education offers training that emphasizes teaching students appropriate behavior, school divisions can’t be required to send personnel or to engage in training at the school level. And that training can have a profound impact on avoiding unnecessary referrals to law enforcement agencies.

In reality, however, Virginia school officials often aren’t given a choice.

Virginia law requires schools to report more than 45 student actions to law enforcement – regardless of the facts and circumstances of the case and including two offenses that are not even a violation of the law! By mandating such referrals, Virginia creates a requirement that is incredibly burdensome, undercuts the exercise of professional judgment in handling minor offenses, and generates paperwork distracting from the real work of maintaining safety and order in schools.

Worse, Virginia blurs the line between a criminal offense and school disciplinary matters, essentially criminalizing normal teen-age behavior. Under Virginia Code, a student commits disorderly conduct by willfully disrupting the operation of a school with the intent to cause public inconvenience, annoyance, or alarm. The result is that “disorderly conduct” has become one of the biggest reasons students are sent to the juvenile justice system, even though it is not a part of the mandatory reporting statute – because, in our litigious world, when school officials are in doubt they are now likely to err on the side of caution.

One Virginia city police chief has expressed concern about this statute and fears that officers are charging kids with disorderly conduct for things like refusing to stay in their seats or stop talking.

Finally, School Resource Officers funded under the state’s SRO grant program are given additional duties: “to enforce school board rules and student codes of conduct.” Do we really need to call in police for discipline issues that is better handled between school administrators, parents and students?

There are many things that would reduce the criminalization of school-based misconduct. Most require additional resources. But there are some simple things the General Assembly can do that will allow police to repurpose resources more effectively — Remove misdemeanors and non-crimes from the list of offenses that require mandatory reporting to law enforcement. A 2013 bill to do that was watered down to meaninglessness. In light of April’s report, it’s time to look at it again.

Exempt students from provisions of the disorderly conduct statute, or make the provision apply only to repeated acts of disorderly conduct by students. Bring student discipline back into the domain of school principals, not law enforcement.

Finally, remove language from the SRO fund putting police officers into the middle of school discipline and requiring them to “enforce school board rules.”

The two of us disagree on many things, but on this issue there should be a consensus across the political spectrum. Much has been written lately about the “school to prison pipeine.” Shutting it down will require much more, but these three common-sense measures will chip away at the most counter-productive features of our current system.
(This was originally published in the Richmond Times Dispatch on December 25, 2015)

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Christian Braunlich is vice president of the Thomas Jefferson Institute for Public Policy.  The views expressed here are his own and do not necessary reflect the opinions of the Institute or its Board of Directors.  He may be reached at

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Angela Ciolfi is the legal director of JustChildren, a program of the Legal Aid Justice Center that advocates for vulnerable children to receive the services and supports they need to lead successful lives in their community.

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