BAKERSFIELD, Calif. — As he waited for a disciplinary appeal hearing to begin this fall, the sixth-grade student began sobbing.
He was barely 11 years old. He was slated to be expelled again — for a year — from his elementary school district, this time for alleged sexual battery and obscenity.
The offense: "Slapping a girl on the buttock and running away laughing."
For the local school board, the punishment fit the crime.
The boy's pro bono attorney, Tim McKinley, was appalled.
"This, on his record, puts him right up there next to the kid who raped somebody behind the backstop," said McKinley, who spent 26 years as an FBI agent.
Having lost twice at the local level, McKinley will now appeal the boy's expulsion on Dec. 13 before the Kern County Board of Education.
These days disagreements over discipline are common. And Kern County schools — 48 districts in all — are at the leading edge of a contentious debate. Teachers and parents want a safe environment, and school districts are ousting students for a range of reasons.
Meanwhile, a national reform movement is growing, fueled by reports that suspension and expulsion policies are disproportionately targeting minorities, and putting many students on a fast track to failure.
A FOCUS ON DISCIPLINE
Since the 1970s, expulsions have been on the rise, many of them not for violence, but for lesser violations like insubordination, according to research by associates of the Civil Rights Project of the University of California at Los Angeles.
The "zero tolerance" phenomenon accelerated after the 1999 shooting spree at Colorado's Columbine High School. School boards and administrators began exercising discretion more broadly in deciding how tough to be in interpreting behavior codes.
A vast expanse of 8,000 square miles, Kern County produces 10 percent of U.S. oil and has the third highest farm earnings of any county nationwide. But about 22 percent of residents lived below the poverty line in 2009. Latinos have grown to become the largest ethnic group in schools, at 61 percent.
Last year, Kern County was home to about 173,360 students, or fewer than 3 percent of all of California's pupils. But 14 percent of the state's total of 18,648 expulsions took place here, according to data reported to California Department of Education. Bakersfield High School, in Kern's biggest city, reported ejecting 232 of its 2,755 pupils.
Christine Lizardi Frazier, Kern County's superintendent of schools, defends the policies. "They are not being expelled for pushing and shoving," Frazier said. "It is really hard to look away when they're bringing a gun or a knife or selling drugs."
But the statistics tell a more complicated story.
A Center for Public Integrity analysis shows that few of Kern's 2,578 expelled students were accused of serious violations — brandishing a knife or gun — that actually require expulsion. Instead, most expulsions encompassed a range of allegations for which administrators have discretion to recommend some other punishment to school boards, which have the ultimate authority.
Some 522 Kern students were ousted for "causing, attempting or threatening to cause physical injury ..." Another common reason for expulsions: using intoxicants, from beer to illegal street drugs to prescription drugs. Schools expelled 843 students for this violation.
Expulsions here were also driven up by two other alleged infractions: disruption or defiance of authority, and obscenity, profanity or vulgarity.
More Kern students — 232 — were expelled last year for disruption or defiance of authority than for possession of dangerous objects. In Los Angeles County, with nine times the number of students as Kern, only 89 kids were expelled for disruption or defiance.
Some disciplinary specialists consider accusations of defiance and profanity to be subjective, and argue they should rarely be grounds for expulsion. Others worry about expulsions being assessed in a discriminatory manner.
According to the Kern High School District, Latino students, who are 55 percent of district enrollment, were roughly 60 percent of those expelled over a five-year period; whites were 32 percent of enrollment, and 22 percent of the expelled; blacks were less than 8 percent of enrollment but about 15 percent of expelled pupils.
Authorities here say their community supports tough discipline.
"No one is running for the board on a platform of keeping obscenity-spewing or drug-selling kids in (regular) school," said Bryan Batey, a parent and president of the board of trustees for the Kern High School District.
But for McKinley, now with Greater Bakersfield Legal Assistance, Inc., the evidence is troubling.
"Those statistical anomalies ... show there is something seriously wrong going on here," the former G-man said. "You can't tell me kids here are any worse than in Los Angeles or other places."
McKinley's complaints dovetail with recent studies.
In July, the Council of State Governments released a study tracking all Texas 7th graders through their senior year. About 60 percent had been suspended or expelled at least once, but on average, eight times.
A separate report released in October by the National Education Policy Center at the University of Colorado highlighted troubling racial disparities. Data collected in 2010 in North Carolina showed that among black students cited for a first-time cell phone violation in schools, 32 percent were given suspension. Less than 15 percent of white students received the same punishment for the same violation.
Reformers are searching for a different approach.
Judge Steven Teske of Georgia's Clayton County Juvenile Court testified in 2010 before the House Committee on Education and Labor that he pushed for changes after discovering that more than 90 percent of referrals to juvenile court stemmed from minor disciplinary matters "that should have been handled in schools."
In California's San Francisco County, where district board trustees have taken a different approach, not a single pupil was expelled last year for disruption or defiance. The Los Angeles Unified School District board adopted a "positive behavior support" policy in 2007 to reward good behavior and provide more counseling.
"We really don't want to expel for defiance," said Isabel Villalobos, the district's coordinator of student discipline.
The Obama Administration, in July, announced the Supportive School Discipline Initiative, which aims to help schools more judiciously apply expulsions. The administration is also reviewing allegations of racially disproportionate discipline in districts in Delaware, New York, North Carolina, Utah and Minnesota.
THE EXPULSION TRACK
Kern officials say their process follows a series of logical steps.
While some schools are beginning to use "positive behavioral intervention and support," the overarching policy is "progressive discipline," said Otis Jennings, who oversees discipline in the large Kern High School district. Expulsion would only follow steps like suspension. Kern school officials say they try to help troubled students, but those efforts are limited by the state's fiscal crisis.
John Teves, the district spokesman, said that since campuses typically have only five or fewer staff counselors, their work must focus on academic progress. Ten school psychologists, he said, concentrate on the needs of 3,500 special education students.
Michael Zulfa, the Kern High School district's assistant superintendent of instruction, acknowledged that expulsion can stain a record, but said it can also be positive by separating students from negative influences and giving them a chance to change behavior.
California does require that expelled students be offered some type of public education. Last year about 600 of Kern High School district's 2,040 expelled students were sent to other regular schools or to district "continuation" schools for low-performing students.
But the majority of Kern's expelled kids were referred to county-run "community" schools. These schools, along with juvenile court schools, saw their combined enrollments soar by 30 percent in Kern between 2003 and 2008. Community school basic expenditures per pupil in 2008-2009 were estimated at about $5,954, which was about $300 more than the state's basic spending per student.
Jeanne Hughes, the community schools principal, said that if an expelled student hasn't had a psychological assessment previously, he or she will get one at the county-run school.
"Sometimes you have to hit rock bottom," Hughes said, "before you get the resources and help you need."
Probation officers regularly visit Kern's community schools, where minors on juvenile justice probation — more than 1,000 of them last year — can also be enrolled. Critics question whether students ousted for minor offenses should be mixed with kids on probation.
"For some of these kids," McKinley added, "that's like being sent in to learn 'How to Hotwire a Car 101.' "
Zulfa asserted that most expelled students do return and graduate on time from regular schools, but there is no hard data on the issue. Kern's overall graduation rate was on par with California's 74 percent graduation and 18 percent dropout rate.
Batey said some expelled kids with a history of trouble no doubt drop out. "Do we lose some? Yes, probably," he said, but there are multiple reasons why students leave early.
A COMPLEX CASE
Many of the issues are on display in the case of the youngster McKinley is representing.
The boy was expelled in 3rd grade, records say, for "flipping off a teacher," and hitting "the thigh of an activity leader." His mother, Teresa Arredondo, says the boy got upset after he fell and a teacher laughed at him.
In 4th grade, he was suspended for two days for "poor achievement," and in 5th grade, he was suspended for a day in part for "defiance of authority."
Before his initial hearing in October, the boy had already been referred to the community school. He compared it to "going to jail."
Arredondo, a farm labor supervisor, said she has repeatedly asked for her son to be tested at school for special needs. A staff person at the boy's hearing said the boy had received some counseling, but, under questioning by McKinley, acknowledged that he'd never had a psychological assessment at school.
While she didn't defend her son's prank, Arredondo called the charges against him "crazy." "Children are not sexual deviants or criminals," she said. "But with the way the schools treat them, they're going to turn them into that."
At the boy's first hearing, McKinley argued his client is prepubescent. Under the law, McKinley argued, for a student to be guilty of sexual battery, the school must prove the pupil acted in a "lewd and lascivious" manner to obtain sexual gratification or commit sexual abuse.
Randall Ranes, director of instructional support services at the Bakersfield City School District, said proving a younger student was sexually abusive was enough for expulsion. He declined to comment specifically on the boy's case.
McKinley and his client lost, and lost again later, in 3-2 votes, before the local school board. Arredondo said she knows her son can learn because he has done well on some tests. Now, she said, he has no option but to go to the school for "bad kids."
If McKinley's appeal before the County Board of Education fails, federal court could be his next step.
(Center for Public Integrity Data editor David Donald contributed to this story. The Center for Public Integrity is a Washington, D.C.-based nonprofit organization focused on investigative journalism.)
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