As if there isn’t enough to worry about with our children returning to school this fall, a new law in Virginia has many parents worried and upset. This law can give primary and secondary school students rap sheets for misconduct at school. Decades of research have shown such zero tolerance laws harm students. Despite this, Virginia passed a law in 2022 that requires that even small infractions be reported to law enforcement. The zero tolerance strategies in this law were used previously in Virginia but were legally abandoned in 2020 as ineffective at improving student safety and damaging to too many students and their families.
Gone are the days when principals had discretion over whether to report a student’s conduct to the police. Now, school principals are required to report to the police acts that may qualify as misdemeanors, and penalties for not reporting those incidents are severe. School superintendents and principals who do not report potential misdemeanors are subject to demotion or dismissal. Previously principals had discretion to work with a child and their family as they felt best for the child, family and community, as the law required only felonies committed on school grounds to be reported to law enforcement.
Zero tolerance laws similar to the one recently passed in Virginia gained popularity in the 1990’s when there was a perceived need to protect students from other violent students. In 1994, a federal law, the Improving America’s Schools Act, initiated the use of tough punishment for even low-level offenses. Since then, the impact of those laws have been studied and researchers have concluded that subjecting students to severe forms of discipline for misdemeanors is ineffective in stopping unwanted behavior and does little to enhance student safety. The strategy was denounced by psychologists, physicians, and teachers’ unions because severe discipline harms students socially and academically. Also, the policy was found to be disproportionately applied, with the greatest impact being on students who had disabilities, or were black or Latino.
The damage to students does not stop with an arrest. Children who enter the legal system may graduate to more serious ‘crimes’ – in part from meeting other criminals as they navigate the legal system. The phenomenon associated with criminalizing children is referred to as the school-to-prison pipeline.
In 2013 an alternative form of discipline was shown to be more effective. Schools initiated Restorative justice as an alternative to zero tolerance. It required students to repair the harm they caused with their action. Because this practice had such encouraging results, by 2014 states began to reexamine their discipline policies and many ended their damaging and ineffective discipline methods. However, Virginia continued to keep zero tolerance laws in effect. As a result, in 2015, Virginia had the dubious honor of being the top state in the nation for referring students to law enforcement at about three times the national rate. Black students and those with disabilities were referred at the highest rates.
In 2016, Virginia Senator Jennifer McClellan introduced a bill that would give school administrators and resource officers more flexibility as to whether to involve police when school rules are violated. That bill didn’t pass, but in 2020, a similar bill by Senator McClellan was signed into law after passing with bipartisan support. That law prohibited schools from charging students with criminal disorderly conduct on public school property and restored the ability of school principals to practice discretion regarding contacting police. Under that law only felonies were required to be reported to law enforcement. Senator McClellan’s law was in effect only two years before the Virginia General Assembly reversed it, enacting the law that again criminalizes our children, as of July 1, 2022.
Parents who believe in a fair and equitable society understand that children are not capable of recognizing “criminal” behavior in the same way as an adult. Neuroscience supports that adolescent developing brains do not have the same ability as adults to judge repercussions, risks, and consequences of their actions due to developmental limits and impulse control. Children will make mistakes and they need an opportunity to learn from those mistakes. Zero tolerance involves immediate punishment, even for minor offenses, which may create a situation where a child may never learn and never recover from the consequences of an impulsive ill-thought-out mistake.
Understandably, parents are looking for guidance on how to prepare their child for this new law. On August 17, 2022, 4 Public Education appealed to the Virginia Board of Education to ameliorate the potential harm this law can cause students. Meanwhile, parents may want to be sure their children understand that the law has changed and that now students may be referred to law enforcement for small infractions and at a very young age. In addition, parents should insist that schools (administrators and law enforcement) never question students about violations without a parent's presence or permission.
At the same time, Virginia law enforcement has the discretion to make informed decisions on how and to what extent it chooses to enforce laws when it comes to minors. We ask that law enforcement and the Commonwealth Attorney offices throughout the Commonwealth listen to our trained school professionals when making decisions about whether to criminalize our children.