Judge Judith S. Kaye: Juvenile Justice Reform: Now is Really the Moment

 

Judge Judith S. Kaye delivered these remarks at the CityLaw Breakfast on October 18, 2013.

A little more than three years ago—on August 27, 2010, to be precise—I had the privilege of standing before you as part of the CityLaw Breakfast Series. I began by complimenting all of you, as I do today, for arriving at the crack of dawn to chew on the subject of justice for breakfast.

On that beautiful summer day, I was at the time a not-long-retired Chief Judge of the State of New York, a position I call Lawyer Heaven, having moved into a pretty terrific “After-Life” as Of Counsel at Skadden Arps. Skadden not only invited but also encouraged the pursuit of my passion for juvenile justice.

My August 2010 remarks, entitled “Juvenile Justice Reform: Now is the Moment,” along with questions from the audience, were published in the New York Law School Law Review. 56 N.Y. L. Sch. L. Rev. 1299 (2011/12). So I warn you: be careful what questions you ask. And—guess what—the title of the remarks I am about to deliver is “Juvenile Justice: Now is Really the Moment.”

Recent years unquestionably have seen significant movement in juvenile justice in New York City and throughout the nation, and surely Mayor Michael Bloomberg and his administration deserve great credit for their attention to children and education. We have seen all sorts of wonderful programs—reduction in the number of children living in foster care, better graduation rates, and on and on. Who would have thought 20 years ago, in the wake of the myth of super-predator teens, that “Close to Home” would be the name of a new City-wide program designed to work with young juvenile delinquents differently, keeping them in their City, in their school system – not sending them away to be “fixed.” New York City listened to people like Commissioner Glayds Carrion of the New York State Office of Children & Family Services and Commissioner Vincent H. Shiraldi, Commissioner of the Department of Probation, who urged collaborative programs to close deplorable youth detention facilities, to realign State dollars, and to reallocate savings to local governments so that they can create meaningful programs to improve youth outcomes. Not an easy task, as Commissioner Ronald E. Richter of the Administration of Children’s Services can tell you.

Regrettably, however, the sunshine of the many laudatory efforts has put into even sharper focus the shadow of thousands upon thousands of New York City school children still struggling—suspended, arrested, dropping out of school, on their way to a life of despair, violent crime and imprisonment. As we all know so well, getting through school is hardly the end. Not getting through school, however, often is.

So what have I learned in the years since our last breakfast together? For me, a defining moment was the creation of an utterly astounding New York City Task Force that I chair, aimed at keeping children in school and out of court. Between June 2011 and the release of our report two years later, on May 30, 2013, we convened literally dozens of times, mostly at Skadden Arps. When I was asked recently under whose auspices the Task Force operated, my answer was simply “our own.” No official authority directed or compelled any of the 44 members to be there—but we diligently showed up at meeting after meeting, intensely centered not on the sunshine, but on the shadow population: the children being suspended, arrested, dropped out, the potential school-to-prison pipeline population.

The magic, the key, was that we were a unique group of collaborators—representing every imaginable interest related to keeping kids in school and out of court – – people who in our silo-ed society do not usually sit around a table together to discuss these subjects. And I can tell you we each learned an enormous amount from one another during the process, and we actually integrated those lessons into our ongoing work. What a great model for reform!

During this same time, a groundbreaking study was released by the Council of State Governments–”Breaking Schools’ Rules: A Statewide Study of How School Discipline Relates To Students’ Success And Juvenile Justice Involvement.”  The report details a study of more than 900,000 students in Texas for six years, covering their middle and high school careers. It establishes once and for all what common sense could have told us anyway.

Amply supported by statistics, the Texas study concluded that suspension and expulsion from school significantly increase the likelihood of students repeating a grade, dropping out of school entirely, and becoming involved in the juvenile justice system. The Texas study concluded that black students and students receiving special education services are disproportionately being suspended for discretionary offenses—what one might think of as typical adolescent misbehavior.

Simultaneously, at the federal level, there has been growing recognition of the need to change our national paradigm of incarceration, of which the school-to-prison pipeline is a vital part. American’s distinction as a land of mass incarceration has long been a subject of concern—even more so in these days of budget crisis. In the summer of 2011, Attorney General Eric Holder and Education Secretary Arne Duncan announced the Supportive School Discipline Initiative, a collaborative project between the Departments of Justice and Education to address the school-to-prison pipeline and the disciplinary policies and practices that can push students out of school and into the justice system. The initiative aims to support good discipline practices to foster safe and productive learning environments in every classroom.

In March 2012, in New York City we convened the first National Leadership Summit on “School Justice Partnerships: Keeping Kids in School and Out of Court.” The Summit opened with top state judicial and education officials focusing on current juvenile justice and school discipline trends, and closing two days later with Marian Wright Edelman, founder of the Children’s Defense Fund reciting the devastating statistics on what is in fact not the dream, but the nightmare for far too many parents and children today—children suspended, expelled, arrested, dropping out of school. Again the message was clear: we need to reroute those kids and rekindle the American dream.

Happily, I can report that the Summit drew teams from 45 states, the District of Columbia, Puerto Rico and the Virgin Islands, including top state court judges and educators. Judges are great conveners—they can bring people together; they can contribute to problem-solving initiatives. Their dedication to this collaboration underscores their recognition of the devastating connection between school discipline policies and the juvenile and the criminal justice systems, and the opportunity we have—working together—to effect change.

Since the Summit, the majority of the State Teams have indicated an interest in either themselves conducting a State Summit or convening a Task Force as a strategy to move forward. Nearly half of the Teams at the New York Summit identified the need to provide increased accessibility to mental health services, and many are focused on seeking out ways to prevent school violence rather than the reactionary tactic of arming teachers or increasing police officers in schools.

So what are we doing as a follow-up to the National Summit? In April 2013, we convened the State Leadership Summit on School-Justice Partnerships, hosted by the Permanent Judicial Commission on Justice for Children and Hofstra Law School . The Summit brought together State leaders to focus on statutory and policy changes to encourage the development of safe, respectful, supportive learning environments while holding students accountable for their behavior and reserving the use of punitive measures—including school suspension and mandatory arrest—for the most egregious cases. The goal is for New York leaders to promote policies that not only help children succeed in school and prevent their involvement in the justice system in the first instance, but also re-engage those who do get involved.

The time is right. The whole nation is coming together around the emerging research that demonstrates the connection between school suspension and arrest and bad lifetime outcomes for our youth. It is the perfect time for the next mayoral administration to build on seeds that have been planted, take a leadership role and—along with the courts—bring New York City to the forefront of these reforms.

Which brings me directly back to the New York City Task Force Report and Recommendations that were released in May 2013.

You heard a few of the details about the Texas study, so I am not going to unduly prolong these remarks by repeating them. The similarities between our findings and theirs should come as no surprise. I will tell you only that for School Year 2012 (the latest statistics we had at the time the Report was issued) there were 70,000 New York City public school discretionary suspensions lasting from one to five days, for things like horseplay, insubordination and using profane language; nearly 900 in-school arrests, again overwhelmingly for incidents like a school fight, or for talking back to a school safety officer; and 1660 summonses that could ultimately result in a warrant. Black students are four times more likely to be suspended than white students. Students receiving special education services or who have been identified as having a disability were significantly more likely to be suspended than their peers without IEPs. I might add that these figures have been coming down a bit recently—and I cannot discount the voluminous ongoing study and press as a contributing factor. But clearly we need to do more.

Two things are most striking about the New York City statistics, just like the Texas statistics. The first is that the majority of suspensions are discretionary suspensions, and a large percentage of the arrests and summonses are for what might be considered typical adolescent misbehavior. Do we really need to arrest a kid for talking back to a school safety officer (that’s insubordination, or obstructing government authority), or for resisting arrest (when there are no underlying criminal charges), or for riding a bicycle on school premises? And second, as in Texas, these incidents are concentrated among only a small number of schools. As we now know from the data, fewer than 50 New York City schools – or just three percent of New York City schools – accounted for more than a quarter of all of the discretionary suspensions. Quite a lesson there, don’t you agree?

I could go on and on with statistics—the fact that we now even have this data, so long not public, is itself amazing, and we must be sure to squeeze every bit of the benefit out of it. But this is, after all, breakfast, and I do not want to make it thoroughly indigestible. I think you have a good sense of the problem, a good sense of how far we have come since our last CityLaw breakfast, and a good sense that we have a long distance yet to go in addressing the children in the shadow. We don’t need even more statistics to confirm what our good sense is telling us. We need to bring sunlight to the shadow.

So I want to turn from Summer 2010 to Autumn 2013, autumn being a time for picking from orchards and gardens of great ideas, a time of reaping the harvest of seeds that have been planted earlier.

Plainly, we must ensure that our schools are safe – for our students to learn and our teachers to teach effectively. We must focus our efforts on providing an education that allows the full development of each student, protects them from discrimination, uses discipline opportunities to teach students about their rights and the rights of others, and provides a quality education that prepares them to compete in today’s world.

But one of the lessons we have learned over these past few years is that unnecessarily harsh discipline, focused on certain schools and certain populations, does not make schools safer—quite the reverse. Indeed, we have no better example of the proposition that harsh penalties do not equal greater safety than New York City itself, the City proudly celebrating both a significant reduction in our correctional population and at the same time a high level of public safety. We know that we don’t need to incarcerate people, get them off the streets, in order to make New York City safe. By the same token, it is clear that suspending, arresting, ticketing children in school—the “harsher-is-better” mindset—is in need of that same serious rethinking.

The Task Force recommendations are really about Leadership, Collaboration across silos and Accountability. We need all three to ensure lasting change.

In addition to the Report’s principal message of the need for collaboration—setting shared goals to avoid suspensions and the use of law enforcement strategies to deal with school misbehavior—the Task Force urged development of a “Graduated Response Protocol” to encourage resolution of student misbehavior at the door of the school rather than the steps of the courthouse. Similarly, the Task Force recommended improvement both in educational planning for court-involved students, and in the re-enrolling youth who had been suspended or arrested. And there’s a lot more. I encourage all of you to study the Task Force Report and Recommendations, including all 99 footnotes. I am not a footnote person, but I wanted our readers to have as much of the relevant material as possible gathered in one place.

As a nation, a state, a city, a community, we can’t afford to make court involvement the default and send so many young people on the express lane to prison and oblivion. Surely we can do better and each of us has a role, and a responsibility, to change these grim outcomes.

To say it is the right time—the really, really right time—to focus a spotlight on the population that stands in the shadow of the City’s many advances in education, is an understatement. There is no time to wait. Let’s build on the good work that has already begun and find ways to improve our school culture and learning environment – teaching civics, applying restorative justice practices, using positive behavioral interventions. Let’s leave the courts with only those youth whose actions justify extreme intervention. Let’s return to our nation’s leadership in juvenile justice, not incarceration. Let’s invest in and support all of our children’s education, their hopes and aspirations. It’s a far better investment. For them, and for all of us.