Why the Teacher’s Protection Act is Deadly to Students

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This blog was written by R&R’s Spring Legal Fellow Dominik Taylor. He will be writing more articles about issues of criminal justice over the next few months. In May 2015, Dominik will be leaving us to begin a two-year Fellowship with the incredible Equal Justice Initiative in Montgomery, Alabama.

In Texas, teachers are permitted to carry guns in the classroom. This has been the case since 2012, when, in the wake of the Sandy Hook Elementary shootings, Texas passed a law allowing for school employees to carry firearms on campus.[1] But the recently proposed Texas H.B. 868, entitled the Teacher’s Protection Act,[2] would go one step further and allow Texas teachers to use deadly force to kill a “threating” student.[3] H.B. 868, proposed by Rep Dan Flynn (R), would provide educators with civil immunity and “a defense to prosecution” should they use force or deadly force to protect themselves, students of their school, or even school property.[4] If enacted, H.B. 868, could lead to a variety of frightening consequences (i.e. sending the message that school property is more valuable than the lives of the school’s students). Given the biases and prejudices of the world we live in, the existence of “zero tolerance” policies in many schools across the country, combined with the chances of human error, this bill could prove deadly for students, especially students of color.

What are the different factors that could come together to prove deadly here?

(1) The school to prison-pipeline.

The school-to-prison pipeline refers to policies and practices that push schoolchildren—especially poor students of color—out of the classroom and into the juvenile and criminal justice system.[5] Underfunded and underperforming schools who face budget cuts,[6] the pressure of standardized testing,[7] and public concern following several highly-publicized school shootings,[8] have resorted to “zero-tolerance polices” that automatically impose severe punishment regardless of the circumstances. A 2014 study from the Department of Education observed that black students are expelled at a rate three times higher than that of white students.[9] Black students account for 46% of students suspended more than one time.[10] While black students only represent 16% of students enrolled in American public schools, they represent 27% of students referred to law enforcement, and 31% of students subjected to school-related arrests.[11] According to the American Academy of Pediatrics and the ACLU, “Overly harsh disciplinary policies push students down the pipeline and into the juvenile justice system. Suspended and expelled children are often left unsupervised and without constructive activities; they also can easily fall behind in their coursework, leading to a greater likelihood of disengagement and drop-outs. All of these factors increase the likelihood of court involvement.”[12]

(2) Zero Tolerance Policies

Students of color are disproportionately impacted by zero-tolerance policies, policies that dictate that schools expel any student who is perceived to cause trouble. The result of these policies is that these “troubled students”—disproportionately students of color (more on that below)—are sent straight into the criminal justice system—so that they are no longer a burden to the school. This happens every day in our country, even though many intermediary and more holistic steps could be taken to help these students.[13]

(3) Implicit Bias

“Implicit bias” is defined as the mental process that causes us to have negative feelings and attitudes about people based off characteristic like, race, ethnicity, age, and appearance.[14] As noted by Ohio State University’s Kirwan Institute for the Study of Race and Ethnicity, “In the general population, implicit racial bias often supports the stereotypical caricature of Black youth—especially males—as irresponsible, dishonest, and dangerous. In an ideal world, teachers and school administrators would be immune to these unconscious negative attitudes and predispositions about race. But, of course, they are not.”[15]

(4) H.B. 868.

Back to H.B. 868. When you take this bill, allowing for the use of deadly force and leaving much to a teacher’s discretion, and combine it with zero tolerance policies and implicit bias, it is clear that it puts students of color at risk of punishment by physical violence or death. Instead of school-to-prison pipeline, you might see one that is school-to-grave.

To demonstrate the devastating, and potentially deadly, consequences that H.B. 868 would have if enacted, let’s consider the recent vandalism of a Texas high school. On the evening of September 6, 2014, Lake Travis High, in Lake Travis, Texas was vandalized.[16] According to the local news, offensive words and pictures were spray-painted on the school’s entrance and windows were broken.[17] At the time of the vandalism, the Lake Travis High administration believed the culprits to be “two young men and a young woman.”[18]

Now, if H.B. 868 was the law on September 6, 2014, then one of Travis High’s teachers would legally be allowed to use reasonable force to defend the school from vandalism.

Picture this: a teacher is working late grading tests, when he looks out the window of his classroom. The teacher witnesses three teenagers (likely high school students) standing outside a school window. One of the teens throws something through the window and shatters it. If H.B. 868, were the law, it would allow that teacher to approach the teens and use reasonable force to protect the school’s property (i.e. to prevent the teens from breaking a school window).

Now picture this: the teacher decides to go outside to approach the teens. As the teacher gets closer, he notices that the teens are each carrying long, dark objects in their hands. The teacher is carrying a concealed firearm, as he is allowed to do under Texas law. But the teacher still feels threatened because he is outnumbered and the kids are holding dark objects.

As the teacher approaches, one of the teens holds up the dark object. The teacher then reaches for his firearm and fatally shoots the teen. As the shot teen lays on the ground, the other two teens run away. The teacher approaches the first kid, who is now lying on the ground, shot and dying. It is then that the teacher realizes that the dark object that the kid was holding was a can of spray paint. Would H.B. 868 grant the teacher a valid legal defense to shooting and killing a kid who was armed with a can of spray paint? The answer certainly appears to be “yes.”

What’s most ironic (or maybe not ironic at all), is that support for zero-tolerance policies largely stems from the passage of the Gun Free Schools Act of 1994, a piece of federal legislation that mandated that schools expel any students found with firearms, or lose federal funding.[19] The Gun Free Schools Act was designed to decrease violence in schools. But through the proliferation of zero-tolerance policies and the silent yet damning effects of unrecognized implicit bias,[20] and now H.B. 868, Texas schoolchildren—particularly students of color—still face the spectre of gun violence. Only now it’s teachers carrying the guns. And those teachers may soon have a statutory legal defense and civil immunity from punishment or liability for killing a student.

[1] http://www.wsj.com/articles/more-texas-schools-allow-armed-employees1408986620 (paywall)

[2] http://www.rawstory.com/rs/2015/01/texas-teachers-could-be-allowed-to-gun-down-students-to-protect-school-property/

[3] http://webcache.googleusercontent.com/search?q=cache:BEJae18IIr8J:ftp://ftp.legis.state.tx.us/bills/84R/billtext/html/house_bills/HB00800_HB00899/HB00868I.htm&hl=en&gl=us&strip=1

[4] http://webcache.googleusercontent.com/search?q=cache:BEJae18IIr8J:ftp://ftp.legis.state.tx.us/bills/84R/billtext/html/house_bills/HB00800_HB00899/HB00868I.htm&hl=en&gl=us&strip=1

[5] https://www.aclu.org/racial-justice/what-school-prison-pipeline

[6] http://www.huffingtonpost.com/2013/05/26/texas-budget_n_3340949.html

[7] http://www.rawstory.com/rs/2015/02/texas-cant-change-the-nature-of-math-fox-guest-destroys-gov-abbott-for-rejecting-common-core/

[8] http://abc13.com/archive/8498652/

[9] http://ocrdata.ed.gov/Downloads/CRDC-School-Discipline-Snapshot.pdf

[10] http://www.tolerance.org/magazine/number-43-spring-2013/school-to-prison

[11] http://ocrdata.ed.gov/Downloads/CRDC-School-Discipline-Snapshot.pdf

[12] https://www.aclu.org/racial-justice/what-school-prison-pipeline citing http://www.otlcampaign.org/sites/default/files/resources/american-academy-pediatrics-suspensions-policy-statement.pdf

[13] http://kirwaninstitute.osu.edu/racial-disproportionality-in-school-discipline-implicit-bias-is-heavily-implicated/

[14] http://kirwaninstitute.osu.edu/racial-disproportionality-in-school-discipline-implicit-bias-is-heavily-implicated/

[15] http://kirwaninstitute.osu.edu/racial-disproportionality-in-school-discipline-implicit-bias-is-heavily-implicated/

[16] http://kxan.com/2014/09/08/vandals-strike-lake-travis-high-school-again/

[17] http://kxan.com/2014/09/08/vandals-strike-lake-travis-high-school-again/

[18] http://kxan.com/2014/09/08/vandals-strike-lake-travis-high-school-again/

[19] http://www.nbcnews.com/news/education/school-spirit-or-gang-signs-zero-tolerance-comes-under-fire-n41431

[20] http://www.motherjones.com/politics/2014/11/science-of-racism-prejudice