Judge Steve Teske: A Perfect Storm, An Imperfect System Equals Injustice

We moved to Clayton County, GA in 1974.  I was 14 years old.  I had lived in nine different cities from California to New York, and back to our southern roots when my father was transferred to the Centers for Disease Control and Prevention (CDC) in Atlanta.

My childhood took me many places.  I met a lot of kids of all physical, emotional, spiritual, and social shapes and sizes.  Benjamin Disraeli once said that “Travel teaches toleration.”  In hindsight I must agree with the former British Prime Minister.  My travels have introduced me to different religious beliefs, political and social thoughts, and people of all colors and cultural backgrounds.  My childhood friends were white, black, red, yellow, and brown.  They were Jewish, Buddhist, Hindu, Islamic, Christian of all denominations, atheist, and agnostic.  They came from families of varying political persuasions from conservative to liberal, from Republican to Democrat to Independent, and with economic tastes from capitalism to socialism in varying degrees. 

My many childhood friends from coast to coast in a thirteen year time span expanded my understanding of diversity and taught me to be tolerant of those with different cultures and beliefs.  However, toleration, I have learned, is a double edge sword.  In the words of Edmund Burke, “Toleration is good for all, or it is good for none.”  The determinative question when the tolerant sword is cutting is “Which side of the sword is doing the cutting?”  Is it the cutting edge that promotes the acceptance of people regardless of their differing beliefs or the edge that promotes the acquiescence of conduct hurtful toward others?  The former is good for al l, the latter is good for none.

This concept of toleration raises an interesting paradox when applied to the arrest of kids on school campuses.  I think we can all agree that there should be no toleration of student disruption of any kind.  I helped to raise three children. They are now adults and doing quite well.  All my kids attended public schools. We wanted them to be exposed to a diverse population - to be exposed to different ideas, beliefs, and socio-economic and political peers, and to experience conflict and learn to resolve it peaceably. Still, I expected the school my children attended to be safe and provide educational instruction without disruption.  They deserved to go to school and not be bullied. They deserved a quality education, which cannot happen if other students are disrupting the classroom.  Disruptive students must be held accountable and I, too, expected a zero tolerance attitude toward students with disruptive conduct, including my own.

On the other hand, and this is the paradox, although I am intolerant of disruptive behavior in school, I am also intolerant of consequences that are harmful to the student.  Or, stated another way, I have zero tolerance for adults and systems that arrest kids for disruptive behavior thinking it will change the behavior, but instead makes matters worse.  I will not repeat the research and evidence in my previous writings that makes clear that arresting kids and referring them to juvenile court for minor offenses on school campus is contrary to our educational goals to graduate our youth, or our juvenile justice goals to rehabilitate high risk youth.  I think most of us can agree that horse is dead and it makes no sense to ride it.  The sum of this evidence is that a zero tolerance attitude toward disruptive school behavior is necessary, but the response to minor school offenses must be crafted with an attitude of tolerance - or stated another way, understanding adolescent behavior.

We have created a paradox by how we apply zero tolerance policies.  The policy that all disruptive conduct must be addressed, which is zero tolerance, is not the problem - it is the disproportionate and harsh consequences employed.  We have taken many disruptions customarily handled by teachers and school administrators and made them crimes, from mouthing off to using vulgar and offensive words to school fights.  Consequently, and this is the paradox, the practical and common sense inherent in zero tolerance is eliminated by the harsh consequences that decrease graduation rates and compromise school safety.

Take the case of 12-year old Bryson Donaldson. He was horsing around at his school mimicking the cops-and-robbers scenario that is as American as apple pie and Al Pacino.  By the way, I was Bryson’s age when “Serpico” came out.  I snuck out with my friends to see it.  I idolized Al Pacino as Detective Frank Serpico.  He not only went after the robbers, but he was the good cop who went after the bad cops.  He was the quintessential cop.  The point is that I recall pulling stunts like Bryson, much of it motivated by television and movie media.  Sometimes acting out or mimicking scenes and gestures at inappropriate times and places. Bryson, for example, pointed his finger as if it was a gun at a classmate. He was instantly hit with a five-day suspension. The principal singled out Bryson, the only African-American in his grade, for punishment. He was patted down and his small sixth-grader's frame scanned with a metal detector. He was placed in an alternative school program for chronically disruptive students.  Fortunately, Bryson had a parent well equipped to take action and contacted the NAACP.  The school officials quickly changed their decision and removed Bryson from the alternative school. Bryson was a straight-A student until this event.  According to his mother, Bryson has nightmares, sees a psychiatrist, and doesn’t want to go to school.  His mother stated, “It is to the point where we have to struggle to go to school every day." (Fuentes, “Discipline and Punishment, 2003).

Sadly, there are too many stories similar to Bryson’s.  Suffice it to say that every year, more than 3 million students like Bryson are suspended and nearly 100,000 more are expelled, from kindergarten through twelfth grade. Thousands like him are arrested and referred to juvenile court for disciplinary problems that were previously handled in school. Most are boys.  Most are African-Americans.  Together this is the a sum of an imperfect system created by a “Perfect Storm” of social, legal, and political circumstances.

These circumstances, all coming together like a “Perfect Storm,” have perpetuated systemic changes resulting in these harsh and no-common sense responses to disruptive behavior.  Some of these circumstances include a combination of violent acts such as Columbine, introduction of police on campus, school administrators abdicating their disciplinary role to campus police and the courts, increase in social and family problems, and some, like myself, would also include the unintended effects of the “No Child Left Behind” law that changed the way discipline is handled in schools. 

For example, since the inception of the “No Child Left Behind,” states are motivated by federal money to measure achievement by annual testing of students in reading and math.  Like zero tolerance, the concept makes sense, but in application it makes no sense.  Schools that fail to increase achievement are sanctioned. During my cross-country travels, teachers and administrators told me they have been threatened with losing their jobs if the scores go down.  The campus culture for educators now revolves around testing, and it doesn’t take long for educators to think creatively to secure good scores, especially when their jobs are on the line.  Educators have tactically targeted students at-risk of doing poorly on testing to improve their scores.  Researchers have found that suspensions increase at testing time.  They have also found that schools gave low-scoring students longer suspensions than high scoring students who committed similar infractions (Figlio, 2003). Zero tolerance policies are convenient for removing students from school using out-of-school suspension and arrests.

When it’s personal, the educational values of educators are at risk of taking second seat.  What before was a student-driven educational system - how can we help you improve your grades? - is now a teacher-driven educational system - how can I improve the test scores to keep my job?  If we place any merit in Maslow’s hierarchy of needs theory, educators shouldn’t be faulted.  They are doing what comes naturally to survive.  They are acting out Darwin’s theory of evolution in that sense of survival.

Speaking of Darwin’s “Survival of the Fittest” concept, children are the most vulnerable among us, and the most likely to lose out when weighing any competing interests between teachers and students.  I might as well say it - children are easy to ignore, and sometimes are abused emotionally, if not physically, by a system controlled by adults.

Paradoxically, we give ourselves a lot of credit for passing laws that protect children from abuse and neglect at the hands of their own parents and guardians while simultaneously making laws and policies that harm children.   It appears that our treatment of children in this country is replete with contradictions.  Why is this  the case? Have we forgotten we were kids once?  It was Goethe who said “Tolerance comes of age. I see no fault committed that I myself could not have committed at some time or other.”

There can be no solution absent an understanding of the problem.  The “Perfect Storm” of circumstances described earlier explains what led policy-makers to create zero tolerance policies, but circumstances are not to blame.  People develop policies in response to circumstances.  And the decisions we make are often influenced by our system of governance - how we make decisions to navigate through our social problems, and how children are affected.  Indulge me for a moment, for what I am about to share is basic, but often overlooked

In the beginning, our forefathers came together and entered a social contract to create a society.  The experiences of monarchial tyranny caused them to pursue a democracy.  Political leaders and laws would be decided by the concept of “majority rule” with one exception - no law could be passed that violates certain rights provided for in the Constitution.   Our Founding Fathers, and those that followed from de Tocqueville to Abraham Lincoln, have made clear that the only thing worse than a tyrannical monarch or dictator is a tyrannical majority.  It’s bad enough to be abused by one person, its worse to be abused by many.  Give people the right to vote, and they will find those like themselves, and together rule over the minority.  I believe in that concept until the majority is intolerant of the minority, and that intolerant attitude manifests harmful conduct and consequences. 

For example, it took a Civil War and the passage of the 14^th Amendment to end the evil institution of slavery in this country.  Nearly another century passed before the U.S. Supreme Court in Brown v. Topeka Board of Education made clear that this same Amendment prohibits the evils of segregation.  Despite this landmark decision, more legal action combined with a civil rights movement was necessary   to enforce the Brown decision. Why? Risking oversimplification, and without going into the ridiculous and archaic beliefs that African Americans were deemed property, and less than human, as the reason  they were not entitled to constitutional protection, it is because African Americans held a minority status.  Although slavery ended, the majority in various states (whites) passed laws to separate the races and disenfranchise people of color from their fundamental right to “Life, liberty, and the pursuit of happiness.”

How are children any different?  In fact, children are at a greater disadvantage, and understandably so, because they are viewed as persons of “diminished capacity” due to their minor status.  They cannot contract, vote, and participate in our society like adults.  They are great in number, but have no political, social, or economic influence.  It took nearly two centuries for African American adults to break the chains of slavery and then segregation, and yet they had the protection of the Constitution!  What do children have when the system - the majority - apply harmful policies such as zero tolerance?   They have no power to effect change.  They are citizens with “diminished capacity.”   Worse, they do not possess any fundamental right sufficient to claim protection from the harmful effects of such policies, although I have pondered the racial implications of zero tolerance policies,  knowing that youth of color are dramatically overrepresented in our juvenile detention facilities in Georgia and across America.  Query this:  Is there a viable cause of action in the courts against local governments and agencies who detain youth of color at alarming rates?  Maybe so, but that topic is for another day.

Short of using the courts to force local communities to take action to reverse the harmful trend of zero tolerance policies, who will stand up for these vulnerable children?  More pointedly, it is a local community problem that will require its leaders to reverse the trend.  But who among them will step up to initiate system change?  Educators, for the most part, are unlikely to be the heroes.  They have, for now, lost their vision thanks to the unintended consequences of “No Child Left Behind.”  And unless the system changes that takes heat off arresting kids on campus, law enforcement will not be their savior.  That leaves the judges.  

Many local communities have changed the way they do business with kids because judges stepped up and out to convene stakeholders to confront problems and improve outcomes.   Juvenile judges are skilled at identifying issues, finding solutions, and approaching conflict and disagreements with frank but diplomatic tactics.  Most important of all, judges intersect with all the stakeholders that touch children in the community.  They are strategically situated in the system to call on stakeholders to come to the table, and that is the most important characteristic of the judge in system reform. 

The next issue of Juvenile and Family Justice Today, published by the National Council of Juvenile and Family Court Judges (NCJFCJ) will include an article written by myself and Judge Brian Huff, Presiding Judge of the Family Court of Jefferson County, AL (Birmingham), titled “Making Adults Mad, When Did That Become A Crime?: The Court’s Role In Dismantling The School To Prison Pipeline.”  This article describes the judge’s role in system reform specific to reversing the ill effects of zero tolerance policies.

I cannot underestimate the role of the juvenile judge in system reform to improve the lives of children, and ultimately the safety and quality of life in our respective communities.  This situation is not going to change unless someone steps up - someone with the skill and influence to engage community stakeholders to develop better systems for addressing discipline in schools, and not to dump the minor offenses, which make up the bulk of the arrests, on police and the courts.

This is not about tolerating student misconduct, but developing a rational disciplinary approach that modifies behavior to do right.  If anything, we need to develop a zero tolerance attitude toward policies that harm youth.  The more we tolerate the harsh and disproportionate treatment of students for minor offenses, the more kids we condemn to fail in school and send to prison.

Zero tolerance policies are a product of policy-makers responding to a “Perfect Storm” - the convergence of multiple aggravating circumstances.  Instead, our response to this storm has created an imperfect system, and it’s a problem for our kids, schools, and communities. Einstein said that “No problem can be solved from the same level of consciousness that created it.”  I think it’s time we move to another level of consciousness - one more understanding of adolescent development and less tolerant of harmful punishments.

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The Hon. Steven Teske has been a judge at the Clayton County Juvenile Court for more than 10 years. He represents Georgia on the Federal Advisory Committee on Juvenile Justice. Judge Teske also chairs the Board of the Governor’s Office for Children and Families, and serves on the Judicial Advisory Council to the Board of the State Department of Juvenile Justice.  He's a leader in the Annie E. Casey Foundation Detention Reform Initiative and a nationally recognized speaker on juvenile justice issues.