MMSD’s New Phoenix Program: a Welcome Palliative to Our Unfortunate Zero-Tolerance Approach to Expulsion

On December 17, the State Journal ran an article by Matt DeFour on the School District’s new Phoenix abeyance initiative for students recommended for expulsion.  I’ve been surprised by the begrudging approach my fellow School Board members seem to have adopted to what I view as a welcome new program.  My different take is probably related to my dislike for the zero tolerance approach reflected in our Code of Conduct and my willingness to entrust our school officials with perhaps more discretion in their approach to disciplinary matters than other members of the Board feel comfortable with.

The Phoenix Program was born out of recognition that expelling students is basically a terrible policy from the perspective of the expelled student’s well-being.  Expelled students who do not qualify for special education services are essentially barred from their schools for the period of their expulsion and receive no services.  Banning a student from any contact with his or her school undermines the student’s engagement, relationships and learning, the three cornerstones of academic success.

Expulsion is a great policy if we’re in the business of promoting future prison inmates.  If we want to produce productive, competent and engaged citizens, the policy leaves a lot to be desired.

The Phoenix Program provides an alternative for most students who commit expellable offenses.  Rather than proceed to an expulsion hearing, the students are offered the opportunity to participate instead in a half-day program housed at the Doyle building that provides academic opportunities (including on-line classes) and group sessions to help the students work on the issues that got them into trouble.  Students are typically enrolled in the program for as long as they would be out of school following an expulsion and early re-admittance process.  If the student successfully completes the program, the expulsion recommendation is rescinded and the student returns to his or her home school.

The program was approved by the School Board last June and commenced with the beginning of the school year.  Program staff consist of a teacher, special education assistant and counselor.  There are currently 10 high school and 6 middle school students enrolled in the program.

Not everyone can avoid expulsion by signing up for the Phoenix Program.  There are four offenses that disqualify a student from consideration for the program:  (1) serious sexual assault, (2) possession or use of a firearm, (3) possession of any weapon combined with any threat to use, attempt to use or actual use to cause harm, and (4) possession of a bomb or other explosive device combined with the actual or attempted detonation of the bomb or device.

In addition, the administration may choose not to offer the Phoenix option to students who are charged with particularly serious conduct violations that fall outside of the four established disqualifying offenses.  But that option has apparently not yet been used.  So far this year, every student who has committed an expellable offense other than the four non-qualifiers has been offered the option to participate in the program.

The Phoenix Program has proven surprisingly controversial at the School Board level.  Last June, the Board could not agree to modify the Code of Conduct to include references to the program, even though the program itself was approved.  Earlier this month, the Board’s operations committee heard a presentation on the progress of the program so far, and Board members asked a number of pointed questions.

I confess to some puzzlement at the degree of controversy the program has stirred up among the Board.  Part of my confusion derives from the fact that discussion of the program frequently seems to become entwined with discussion of the grounds for expulsion that are specified in our Code of Conduct.  There is a distinction between what conduct should be cause for expulsion and what should happen to students after they have been recommended for expulsion, but that distinction occasionally seems to get muddled in our discussions.

There has also been discussion of what offenses should disqualify a student from eligibility for the Phoenix Program.  Board members have expressed the view that the list of disqualifying offenses should be expanded from the current four.

For the most part, I don’t get this.  I do understand that if there are Code of Conduct violations that strike us as just as serious as the four current disqualifiers, we may want to add them to the list so that students engaging in comparably blameworthy behavior are treated comparably.  The offense of possession of drugs with intent to distribute may fall into this category.

But at a more fundamental level, I don’t understand the interest in increasing the number of students who cannot qualify for the Phoenix Program and hence increasing the number of students whom we will expel.  As far as problems go, the concern that we’re not expelling enough students ranks mighty far down my list.

I learned in my first-year criminal law class long ago that there are four traditional justifications for criminal sanctions:  (1) retribution; (2) protection of the community; (3) deterrence; and (4) rehabilitation.  The same four considerations can be offered in support of expulsion, with protection of the community understood as protection of the students and staff at the expelled student’s school.

Expulsion serves the first three of these interests, but not the rehabilitation interest.  Participation in the Phoenix Program as an alternative to expulsion adds a rehabilitation component while maintaining the interest in the protection of the students and staff at the student’s school.  I suspect that that the availability of the Phoenix Program alternative probably has about the same deterrent effect as the threat of expulsion, since both amount to a banishment from the student’s current school.

The Phoenix alternative does not serve a punitive or retributive function as well as expulsion does.  But there are a couple of points to be borne in mind.

First, punishment for its own sake isn’t much of a social good.

Second, a number of the students who are recommended for expulsion don’t fit the mold of the swaggering young delinquents many folks wouldn’t mind seeing tossed out of our schools.  There are expellable offenses under our Code of Conduct – notably, the use of any force against a teacher or staff member – that can sweep within their reach a number of students who are guilty of nothing more sinister than a temporary lack of impulse control.

Third, the criminal process operates in parallel with the student disciplinary process.  If a student commits an act that amounts to criminal conduct as well as a violation of the Code of Conduct, the student is likely to be arrested and prosecuted in addition to whatever school consequences he or she suffers.  It is not as if the community looks to the schools as the sole enforcer of our social norms of behavior.  (An irony here is that a student who is arrested and sent to Dane County Jail is eligible for services from the School District.  We have two teachers assigned to the jail.  But expelled students get nothing.)

To my mind, the Phoenix abeyance alternative is much preferable to traditional expulsion.  The student is typically barred from his or her home school for about the same length of time under either option, so it doesn’t seem as if principals have cause to be concerned that the student would be back sooner.  The Phoenix approach is much better for the student and may well make the difference between the student dropping out and staying enrolled.  Like any of our alternative programs, Phoenix costs more than if the option were not offered, but this doesn’t seem to explain the concerns about the program that some have expressed.

Despite all this, some Board members do seem to be concerned that not enough Code of Conduct violations are considered automatic disqualifiers from the Phoenix program and thus too many students are being offered the Phoenix option rather proceeding directly to expulsion with no services.

I think part of what is at work here is a fundamental difference in Board members’ approaches to the exercise of discretion in the student disciplinary context.   I think the ideal admittance policy for the Phoenix program would be that all students recommended for expulsion are eligible, unless those who run the program conclude that the opportunity to participate should not be offered to a particular student because an assessment of the student’s conduct as well as his or her behavioral records indicates that he or she is not likely to benefit from the program.  It would probably make sense to establish some rebuttable presumptions that students would not be offered the abeyance option if they commit specified serious offenses, like our current four automatic disqualifiers, but even here I see no reason to foreclose any opportunity for a sensible exercise of discretion in the unusual cases where that may be called for.

This approach would never fly here, however.  Our School Board does not trust our principals and other administrators with the degree of discretion that this approach implies, with the Phoenix Program or with expulsion recommendations.  Instead, we adhere to a Code of Conduct based on a zero tolerance paradigm.  If a student behaves in a way that meets the Code of Conduct definition of an expellable act, he or she is to be recommended for expulsion, with no questions asked and no discretion exercised.

We as a Board are endlessly inclined to tinker with our very elaborate Code of Conduct out of frustration with the occasional unreasonable expulsion recommendations that are generated as the inevitable product of a rigid set of rules applied to unforeseeable and endlessly varied sets of facts.  But we seem to love those rigid rules.

I’m an outlier on this.  I dislike zero tolerance policies, including our current Code of Conduct.  I don’t understand why we would direct our principals and school officials to ignore whatever unusual circumstances there may be in a particular student’s situation and instead require that expulsion recommendations turn entirely on whether observed conduct matched a definition set forth in the Code. Perhaps because I have more confidence in our school officials, I am more willing to entrust them to exercise discretion and good judgment in deciding whether to recommend our most severe sanction of expulsion for any of their students.

The Phoenix Program is a step in the right direction.  It shouldn’t have any effect at all on what is the definition of an expellable offense and who is recommended for expulsion.  But it provides for a more humane and positive option for most students caught up in the zero tolerance expulsion machinery we’ve set up for ourselves and so mitigates to some extent the unfortunate consequences of a flawed system.

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2 Responses to MMSD’s New Phoenix Program: a Welcome Palliative to Our Unfortunate Zero-Tolerance Approach to Expulsion

  1. Larry Winkler says:

    I don’t know the current standards for criminal prosecution for some of the behaviors that would fall outside of Phoenix program, but sexual assault would seem likely to be one of those, for example. In cases like that, then concern for a student’s education would be taken care of as long as they are incarcerated. If not incarcerated, say, placed in custody of the parents, then what educational programs are available? I guess I’m really saying I don’t have a complete picture of the issues, and so I’m not persuaded one way or another regarding usefulness or availability of Phoenix or expulsion or other alternatives for serious misbehavior.

    That said, the bigger question for me is the Board’s role in enforcing and reviewing matters of discipline. Zero tolerance is a problem because of the absurd decisions which sometimes results. Codes of conduct have similar problems because of the ambiguity of language and the infinite variation of fact situations which can be categorized within one or more rules.

    So, the issue for me is not between writing rules which eliminate discretion by principals and teachers, or trusting to the discretion of the same, but whether the discretion is reviewable or unreviewable, whether contemporaneous or not, and whether similar fact situations are treated similarly.

    So, what does the Board believe its role is in these matters?

    • Larry –

      The Board reviews the record of expulsion hearings developed before an independent hearing examiner. After hearing testimony and receiving exhibits, the hearing examiner accepts, rejects or modifies the superintendent’s expulsion recommendation. If the hearing examiner finds that expulsion is not warranted, that is the end of the matter. The Board cannot review that decision. If the hearing examiner accepts the expulsion recommendation, with or without modifications, that decision comes to the Board for final action.

      I am hesitant to generalize as to what “the Board” does, since Board action represent the collective decision of at least four individual Board members, each of whom can speak for herself or himself. With that caveat, I think it is accurate to say that the Board tries hard to ensure that similarly-situated students are treated similarly in the expulsion process. Practically speaking, this consistency tends to manifest itself in the length of expulsions.

      The Board does not typically decide that a student recommended for expulsion should not in fact be expelled. The Board has only the paper record of the expulsion proceeding on which to base its decision, and the record developed typically supports the hearing examiner’s finding that the student engaged in conduct that fits within the Code of Conduct definition of an expellable offense.

      The Board does not have the type of background information on the student or the incident that the student’s principal would have. I think the Board generally feels obligated to apply the Code of Conduct as it is written and in any case would typically lack the kind of broad understanding of the student’s background and conditions at the school that would justify overriding an expulsion recommendation.

      Your first question regarding services available to a student under court supervision but not incarcerated raises an issue that is currently pending before the Wisconsin Supreme Court. The issue presented in Madison Metropolitan School District v. Circuit Court for Dane County, Appeal No. 2009AP2845-W, is whether “a circuit court, in exercising its discretion under the Juvenile Justice Code, ha[s] authority to order a school district to provide educational services to an expelled student, if the circuit court concludes that educational services are appropriate under the Code’s dispositional criteria.” Dane County Circuit Court Flanagan thought he had such authority, the School District disagreed, and the supreme court will resolve the issue.

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