Student Arrested For Classroom Texting

When you put cops in schools, school discipline issues become police issues.

According to the The Smoking Gun "A 14-year-old Wisconsin girl who refused to stop texting during a high school math class was arrested and charged with disorderly conduct ..." Read the rest of the story, including the 5 page police report here.

See also SchooltoPrison.org "Challenging the School to Prison Pipeline".

Gender discrimination in sexual abuse cases?

On February 6, 2009, in the case of Commonwealth v. Bernardo B., a juvenile, the Massachusetts Supreme Judicial Court ordered the Plymouth County District Attorney to provide discovery to defense counsel so that the defendant might be able to make out a case of discriminatory selective enforcement of statutory rape laws against male juveniles.

Bernardo was the eldest (having "just entered his teens") and only male amongst a group of four playmates (the other three were females "on the cusp of their teenage years") who engaged in various kinds of sexual touching at Bernardo's request. Bernardo's father found a text on Bernardo's cell phone from one of the girls talking about a sex act she would have performed on him if one of the other girls had not been present. Mr. B. called the girl's mother with his concern. The girl's parents called the police. After investigation and sexual abuse interviews in which the girls described Bernardo "pressuring" them to touch him in various ways Bernardo was charged with delinquency for three counts of statutory rape, amongst other charges.

Bernardo's defense attorney tried to get the District Attorney to prosecute the girls for their sex acts on, the also under aged, Bernardo but the DA declined. Bernardo filed applications for criminal complaints against the girls but the Clerk-Magistrate declined to issue complaints.

Chief Justice Marshall, in a 3-2 decision, ruled that "[T]he single justice [who refused to vacate the juvenile court judge's order granting the defendant's discovery requests] did not abuse her discretion in declining to vacate the ruling of the motion judge that the boy has made a threshold showing based on credible evidence that he is entitled to discovery for the purpose of investigating and, if warranted, raising a claim of selective prosecution."

Press reports of the case imply that the SJC ruled that there was selective prosecution. The case really only says that the defendant has raised enough of a question about selective prosecution that he is entitled to force the DA to produce statistics that may help him show that he was discriminatorily prosecuted on the basis of being male. Once the information is provided, the defendant will still have a heavy burden to meet in attempting to overcome the presumption of validity granted to prosecutorial discretion.

Also of interest in the case was a brief history of statutory rape. Chief Justice Marshall wrote:

Statutory rape is an offense of ancient origins. "First codified into English law in 1275, statutory rape criminalized sexual relations with females under the age of twelve." Oberman, Regulating Consensual Sex with Minors: Defining a Role for Statutory Rape, 48 Buff. L.Rev. 703, 754 (2000). The aim of this gender-specific statute was not the protection of young females but the protection of fathers' property interests in their young daughters, whose loss of virginity would severely depress the value of the dowry the father would receive on his daughter's marriage. Id. at 754-755. By the late Sixteenth Century, the aim of the law evolved to a statute designed to protect men from charges of illegal sex with young girls. The age of consent was lowered to ten years and so it stood when the American colonies, including Massachusetts, absorbed English common law and adopted the English law of statutory rape. General Laws of Massachusetts Colony at 15 (1672), reprinted in Colonial Laws of Massachusetts 1672-1686 (1887) ("whosoever he be shall commit or have Carnal Copulation with any such [woman] Childe under ten years old ... he shall be put to death"); Province Laws 1692-1693, c. 19, § 11 (capital offense for any man to "unlawfully and carnally know and abuse any woman child under the age of ten years"). See generally Note, No Child Left Behind Bars: The Need to Combat Cruel and Unusual Punishment of State Statutory Rape Laws, 16 J.L. & Pol'y 717, 725-726 (2008). In the late Nineteenth Century, in response to the widespread sexual exploitation of young girls in factories and urban centers, temperance organizations and other reform groups launched a nationwide effort to raise the age of consent. In Massachusetts, between 1886 and 1898, the age of consent rose from ten to thirteen, then fourteen, then sixteen years of age. See Commonwealth v. Hackett, 170 Mass. 194, 195-196 (1898) (summarizing statutory amendments to age of consent). As in Elizabethan times, however, only females could be the victims of statutory rape.

There have been more recent efforts to reform our American statutory rape law. Statute 1974, c. 474, § 3, struck the word "female" from G.L. c. 265, § 23. Compare St.1974, c. 474, § 3, with St.1966, c. 291. See also note 3, supra. As we noted in Commonwealth v. Hackett, 383 Mass. 888, 888 (1981): "In general, the 1974 amendment eliminated prior language which defined the victims of rape as female or female children. Instead, the victims are now defined as persons or children and the generic masculine pronoun is substituted throughout. Both males and females are protected from sexual assault by this same statute, which is neutral as to the gender of the victim. Nor does the statute define the various crimes with reference to the gender of the offender. The result is that the penalties for sexual intercourse and unnatural sexual intercourse are the same without regard to the gender of the victim."

Modern amendments leave no doubt about the Legislature's intent to protect all children under sixteen years old from sexual abuse. The statutory rape law, as well, makes clear that perpetrators of statutory rape may be either male or female. Statutory rape in Massachusetts is a strict liability felony. Only two elements are needed to support a conviction under G.L. c. 265, § 23: "(1) sexual intercourse or unnatural sexual intercourse with (2) a child under sixteen years of age." Commonwealth v. Miller, 385 Mass. 521, 522 (1982). See id. at 525 (noting that mistake as to age is not defense to statutory rape in Massachusetts). Force is not a necessary element of the crime. Moreover, conviction of statutory rape has weighty consequence beyond incarceration. Those convicted enter the Commonwealth's sex offender registry and are required to abide by all of the obligations and restrictions contained therein. See G.L. c. 6, §§ 178C-178Q.

It remains to be seen whether Bernardo will be able to make out his selective prosecution case and thereby get the complaint against him dismissed. His motion "to dismiss the statutory rape claim on the ground that the law was unconstitutional as applied to him ... remains undecided, [and was] not before [the SJC]. The decision noted also that "As a result of the arrest and charges, the boy has been suspended from school and removed from its football team. He is being tutored at home."

Alternatives for promoting school safety

Scholastic Adminstr@tor magazine (November / December 2008 edition) reported on restorative practices as a means of promoting school safety and an alternative to zero tolerance policies.

The Talk It Out Solution
How can you promote safety? Try getting rid of the metal detectors.
By Caralee Adams | November/December 2008

What makes for a safe school? Security guards patrolling the hallways? Metal detectors? Zero-tolerance policies? The answer may be none of the above: Educators are searching for new solutions to achieving harmony in the classroom and, surprisingly, they’re increasingly holistic. “There aren’t enough bars, metal detectors, or police to make a school safe if there is a culture of violence in a school,” says Ted Wachtel, founder of the International Institute for Restorative Practices (IIRP) in Bethlehem, Pennsylvania. “You need to strike at the heart of the culture.”

Trying restorative practices
One safer schools initiative making its way across the nation is the implementation of “restorative practices.” Rather than meting out punishments, restorative practices employs a talk-it-out approach to foster dialogue between aggrieved students. Students are taught basic social skills to problem-solve and lower the tension in schools. One premise of the strategy is that kids feel safe when there is cooperation instead of hostility; another is that kids who feel valued and connected at school are less likely to act out. Many administrators around the country are investing in restorative practices programs to build a healthy school climate in hopes of fending off violence and improving academic performance.

Restorative practices places responsibility on the students themselves rather than relying on zero tolerance and authoritarian control from above. It uses a collaborative response to wrongdoing, which is intended to be supportive, not demeaning.

Read the rest of the article here.

A Challenge to Mass. Special Ed Due Process system

Attorney Robert Crabtree wrote:

Over the last couple of days we learned that Mitchell Chester, Ed.D., our new Commissioner of the Department of Elementary and Secondary Education ("DESE"), chose as one of his first acts in Massachusetts to invite the federal office that oversees implementation of IDEA in the states (the Office of Special Education and Rehabilitative Services in the U.S. Department of Education) to rule that our due process system - the Bureau of Special Education Appeals - violates IDEA because the hearing officers are employees of the DESE. OSEP gave him the opinion he asked for and requested that the Department submit a plan within 90 days to set out steps to remove the BSEA from its auspices. See the attached for a copy of the memo Commissioner Chester posted yesterday.

This is an issue that was addressed early in the process in Massachusetts; a bureaucratic wall was built around the agency; and for many years we have had a very workable and very professional unit of hearing officers dealing only with special education disputes. In short, the system works, and there is no practical reason to "fix it," as advocates on both sides of these cases generally agree. What the actual motivation for the new commissioner having taken this action - and so quickly in his regime - remains to be seen, but the objective is clear - he wants the BSEA out of his agency.

What the enforcement system for students' and parents' rights under IDEA will look like after this is over is far from certain. From the perspective of most practitioners at this juncture the best result would be for the current BSEA to be reconstituted as it is but in a different location, under different auspices and with sufficient funding to continue to do its work independently and professionally. There is a long and deep base of experiential and intellectual capital in the BSEA and it would be absurd and expensive to throw that away. The prospect of having to educate fresh hearing officers in each case to the complexities of special education law and substance from the ground up looms as an economic nightmare. (And, as usual, it would be those who can least afford that incremental cost who would suffer the most.) We expect that the worst of imaginable options may be what we know some other states have lived with - namely the use of independent contractors (including some who represent school districts in their practices) to hear cases.

The Commissioner has promised a collaborative process as the DESE develops a plan for the next steps over the next three months. He has also promised a "seamless" transition plan with no disruption of the resolution of special education disputes and with the needs of all parties continuing to be met. Let's hope . . .

Bob

And here is the text of the Commissioner's Memo (also supplied by Bob Crabtree):

MEMORANDUM

To: Superintendents, Charter School Leaders and Special Education Directors
From: Mitchell D. Chester, Ed.D., Commissioner
Date: January 22, 2009
Subject: U.S. Department of Education Ruling on Bureau of Special Education Appeals

In October 2008, after becoming Commissioner and reviewing the operations of the Department of Elementary and Secondary Education, I had questions about the structure for special education hearings and mediations in Massachusetts. My questions were based on my experience and knowledge of how these procedures are conducted in other states. I wrote to the United States Department of Education (USED) and asked them to evaluate our current structure in relation to the requirements of the Individuals with Disabilities Education Act (IDEA). The Office of Special Education and Rehabilitative Services of the USED responded last week and informed me that the structure for the Bureau of Special Education Appeals (BSEA) is not consistent with the IDEA and its regulations.

The letter we received from the USED, dated January 15, 2009, states that the IDEA unambiguously requires that hearing officers and mediators not be employees of the state education agency. Currently, the 18 members of the BSEA staff are all employees of the state education agency, the Department of Elementary and Secondary Education.

To be clear, the finding challenges our current structure, but does not call into question the impartiality or integrity of any of the decisions the BSEA has made. Our system for due process hearings and mediations has been and is operating in an impartial manner. No one in this Department, outside of the BSEA staff, reviews or tries to influence decisions of individual
hearing officers or mediators in ongoing cases.

The USED has given us 90 days from the date of their letter to respond with a plan that will bring us into full compliance with the IDEA. We are determined to develop a seamless transition plan for the BSEA so that the resolution of special education matters is not disrupted and the needs of students, parents, and the special education community continue to be met.

Over the next three months we will gather information about how this work is done in other states, seek input from key constituent and stakeholder groups, consider our options, and present a plan to USED. Until a final decision is made, the BSEA will continue to operate as it has, issuing valid and impartial hearing decisions and assisting parties in resolving their disputes.

If you have any questions, please contact Associate Commissioner Jeffrey Wulfson at 781-338- 6500

Supreme Court to hear school strip search case

As reported here, the U.S. Supreme Court has agreed to hear Safford (AZ) Unified School District's appeal of the Ninth Circuit's reversal of the dismissal of Savana Redding's suit against it for strip searching her to look for ibuprofen when she was a 13-year-old honor student with no history of discipline issues at her middle school.

I hope SCOTUS isn't taking the case in order to overturn the Ninth Circuit. The July 11, 2008, Opinion of nine of the eleven appeals court judges who heard the case details the Constitutional basis for holding the school personnel responsible for their unreasonable violation of the privacy and person of the 13-year-old student.

The Ninth Circuit held that

[T]he public school officials who strip searched Savana acted contrary to all reason and common sense as they trampled over her legitimate and substantial interests in privacy and security of her person.

It would be a shame if parents had to worry more about schools abusing their children than the "evils" that Safford U.S.D.'s officials say they want to protect our children from.

Whom is this law supposed to benefit?

The Associated Press reported on September 26, 2008, that on September 24th in Nebraska, 11 children (9 of them siblings) were abandoned at two different hospitals under the state's so-called "Safe Haven" law. (See the full Boston Globe story here.)

According to the article,

Todd Landry, director of Health and Human Services' division of Children and Family Services, said that in nearly every case, the parents who left their children felt overwhelmed and had decided they didn't want to be parents anymore.

In my opinion it is disastrous to let children be dumped like so much not-worthy-of-my-time-to-repair-but-too-good-for-the-trash "Free-cycle" material, especially when states can achieve the same goal by just making it clear that they do not intend to prosecute troubled parents who seek help when they are overwhelmed with child-rearing.

Massachusetts has a "Baby Safe Haven Law" but it only applies to babies 7 days old or less. It is still problematic, though, because it permits the voluntarily-abandoning-parent to do so without providing any information about him/herself or the child. There is then no ability to notify the other parent nor any other family member who might be interested. The babies so abandoned are turned into complete foundlings without any birth-family history, medical history or sense of place in the world that can be difficult to overcome even in the most caring of adoptive homes.

As a society we should be able to help struggling parents and their children without the need to say "Children Wanted - No Question Asked."

WHAT?@@!??

A young mother's apparently disturbed young friend steals her baby Thursday night so on Friday

the Department of Social Services took custody of the baby and his 16-month-old sister, and Sterrett's third child, a 2-year-old boy, was placed with relatives, according to a spokeswoman for the agency.

DSS previously investigated Sterrett for alleged neglect involving one of her other children. That case was closed last year, according to Alison Goodwin, a spokeswoman for DSS, who gave no details.

Does DSS not realize, like the Texas authorities in the FLDS case didn't realize, that they need specific, articulable "reasonable cause to believe that the removal of the child is necessary to protect him from further abuse or neglect"? See Mass. General Laws chapter 119, section 51B (emphasis added). Doesn't "further" imply that there had to have been some abuse or neglect in the first place?

Nothing in the Globe article about poor Ms. Sterrett's troubles indicates that there was any evidence of

reasonable cause to believe that a child under the age of eighteen years is suffering physical or emotional injury resulting from abuse inflicted upon him which causes harm or substantial risk of harm to the child’s health or welfare including sexual abuse, or from neglect, including malnutrition, or who is determined to be physically dependent upon an addictive drug at birth

which is the applicable statutory definition from the infamous section 51A.

It's hard to tell for sure from the Globe article, but it seems as if this is another case of DSS breaking up a family in the name of protecting children from a parent they don't need protection from. Will the Globe report on Tuesday, after Ms. Sterrett's 72-hour hearing , if she gets her children back from the juvenile court judge? Will DSS apologize or even have its spokesperson report that they were wrong if Ms. Sterrett does get her children back?

The Fourth Amendment to the U.S. Constitution gives even young mothers the right not to have their children seized by the state without probable cause.