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• Makiah Lyons, J.D.: Welcome to the IDRA Classnotes podcast. I am Makiah Lyons, a legal fellow here at IDRA. Today we're diving into something that affects millions of students and families across the country: school discipline policies. Today we're joined by Erin Einhorn, an award-winning investigative reporter. Erin's NBC News article exposed the variations in how states handle school discipline, and it inspired IDRA to launch their own study examining school discipline policies across all 50 states. Now Erin is working on her upcoming book, Dismissed: The Children We've Lost to School Punishment, and the Urgent Need for Change. It's set to be published soon. Erin brings incredible depth to education journalism. She's reported on some of the country's most prestigious outlets, including NBC News and The New York Daily News. Erin has won the National Education Beat Reporting Prizes twice, and her work has been recognized by the Webbys, the Online News Association, and the Collier Prize, just to name a few. In addition, Erin's also covered the nation's largest public school system as an education reporter. Thank you so much for being here, Erin.

• Makiah Lyons, J.D.: Before we get started, I really do want to provide our listeners with a brief background of how we got here, really some of the legal background. School discipline cases haven't made it to the Supreme Court often at all. States and local government often leave education issues, including school discipline, to the states to decide.

  Our starting point here is the Supreme Court's 1975 ruling in Goss v. Lopez. Nine students in Ohio were given 10-day suspensions from school. But here's the problem: the school's principals didn't provide hearings for the students before ordering the suspensions. But Ohio law at the time only required that parents be notified of the school's decision within 24 hours and required them to explain the reasons their students were suspended. So they went to court challenging these actions. The Supreme Court essentially said that students' rights were violated by this disciplinary action. The Supreme Court said Ohio provided a right to education to its citizens and could not deprive them of the right without first providing the students and their families with some sort of process to be heard, to hear the allegations, to challenge them.

  These are the basic concepts enshrined in the due process clause of the 14th Amendment to the US Constitution. It's really this idea that some things are so important that before the government, here, state actors can take these things away from you. They owe you something first: a fair process. At minimum, a notice of the action, what the state wants to do, what the school wants to do, and why they're doing it, and an opportunity to be heard, to present your side of the story. This was significant. The court said students have such an important interest in education. The 14th Amendment requires schools to provide them with a fair process, even for temporary removals.

  So under Goss v. Lopez, schools are not able to suspend students for longer than 10 days without notice and some sort of hearing process. This is the minimum standard. But here's the thing: that decision recognizes that students have this important interest. And in that sense, this is wonderful. But notice and hearing is a pretty low bar. It doesn't actually require much from states. And some states have stronger rights for students. Others have weaker rights. Even district to district within a state, the processes followed in handling school discipline can be really different. So that's enough yapping for me. The star of the show is really Erin. So I'd love to start off by asking you, Erin, what inspired you to investigate school discipline? You've published a lot of journalism about education broadly also. And I know you have a book coming out. Where did this all start for you?

• Erin Einhorn: Yeah. This was a few years ago at NBC News. I was just working on a story about-- it was right after COVID, and kids were coming back, and we were hearing about-- there were sort of spikes in difficult behavior and spikes in suspensions and expulsions. And I said, "Well, okay, let me--" I was just doing kind of just an ordinary, routine story about that, and I wanted to include a family, how their lives had been affected by a school discipline issue.

  And I was connected with a family, a 10-year-old boy who'd gotten in trouble at school. He was being bullied. It was a fifth grader. And these two kids were kind of picking on him, and he told them to back off. And they're like, "Well, we're going to beat you up on the playground at recess." And he was scared. And so he brought a pair of scissors. He grabbed scissors. They were actually elementary school child safety scissors. Brings them to the playground, and the bullies come around, and he waves these scissors in the air just to scare them off. And they go running and screaming, and they tell a teacher. And the school looks at the video, and they see video of this little boy waving these scissors in the air. And they expel him for a year.

• Erin Einhorn: And when I met this family, actually, they were trying to find another school, but it turns out in Michigan, as in, I think, well, many states, if you're expelled from one school, you're essentially expelled from all of them. No other school. This was a tiny charter school, but that child's home district wouldn't take him. None of the neighboring districts. And he lived in the Detroit area where there are hundreds of charter schools. So much school choice, but nobody would take this little boy.

  I was so shaken by this because this was this one school's decision. A lot of schools would have handled this situation very differently. But this one school made the decision to expel him. And I was just, what is going to happen to this little kid? When he does return to school, how changed will he be from this experience? Because this was right after COVID. He'd just missed a year for-- he was out because of COVID, and now he's going to miss another year. He could only find an online school that would take him.

  And I was like, how many kids are there who've been through something like this? And I started looking for other families to talk to and ended up getting a fellowship. And within a year, I talked to 60 families from all over the country who'd had all kinds of really stunning stories. And I knew that they needed to be a book. And that is kind of how I got started on it.

• Makiah Lyons, J.D.: That's amazing. It is odd to say positive things about such negative stories, but it is phenomenal that you were able to kind of make such contact with so many families that have so many things in common but might not even really know. That's incredible. So kind of broadly, there's a lot going on in the education landscape right now. Why do you think it's important we turn our attention to school discipline at this moment?

• Erin Einhorn: I'd always known that, okay, suspension was damaging or something like that. But actually, in my mind, I always thought it was the bad kids. You hear from teachers about, "Oh, I feel unsafe," or, "The kids are feeling unsafe." Yeah, I always thought this was kids who are being really violent, and we need to keep our schools safe, and we need to have strict standards. But in fact, as you look into it, most suspensions go for minor things, right, like disruption and defiance and whatever, right? And it's not dealing drugs in the bathroom or threatening your classmates with knives, right? It's often kids who are having difficulty or whatever.

  And if they're suspended, even a one-day suspension, we have decades of research showing how harmful even a one-day suspension can be to a child, right? Suspension over and over in peer-reviewed research, has been shown to increase the risk of dropping out, reduce graduation rates. It's been shown to increase the odds of a child getting in criminal trouble and then ultimately lifelong consequences, including lower wages and less likely to own a home and even health issues, right? You're more likely to have health difficulties if you were suspended. So we have decades of research showing it's harmful. We have decades of research showing that it's grossly inequitable, right?

  So kids of color, kids with disabilities, homeless kids, foster youth, LGBTQ kids are more likely to be disciplined at school than their White, more affluent, [inaudible] so poor kids are also. They're more likely to get in trouble, even though there's no evidence that they're more likely to offend. So there's tons of research showing that two kids commit the same offense. If the child is Black, if the child has a disability, they're more likely to get a more severe punishment.

• Erin Einhorn: So we have tons of research, decades of research showing it's harmful. Decades of research showing it's inequitable. And the most shocking thing for me, as I kind of got into this, is we have decades of research showing it doesn't work. It's ineffective. Suspensions do not make schools safer. They do not make learning easier. In fact, they erode relationships in schools. They make schools less safe. They make schools less effective. So we have this inequitable, harmful, ineffective tool, and our schools have been using it consistently for decades, so I don't know that now is, I mean, really, the time to be having this conversation was decades ago.

  And we probably a decade ago, did start having those conversations in the Obama administration. There was a Dear Colleague letter that the president's agencies had issued, and schools started reducing, and rates have come down a little bit. But as behaviors spiked after COVID and as people kind of got exhausted by some ineffective reforms, the instinct has been, well, we've got to crack down. We've got to do it more, punish more. We need to be-- we need to be strict. And so, this conversation needs to happen a lot more often than it does because people think they understand it, and really, they might not.

• Makiah Lyons, J.D.: I also find that as well. We even know down to the kind of grade levels, right, a suspension in eighth grade is a lot more impactful than a suspension in seventh. Same thing for ninth. Ninth is a pretty impactful year, but it's more likely to happen in ninth because students are often getting used to a new kind of high school. And so I agree with you. There's so much data that we could be using, so much understanding we could be operationalizing, and we're not. And that's got to be frustrating for, of course, ourselves and our professional endeavors. Myself as an attorney, and I'm sure as you're collecting these stories, it feels a bit ridiculous that these stories just keep coming in. But I'm sure these concepts, right, of kind of due process or the students' rights come up a lot when you talk about school discipline policies, especially with students and their families. And a lot of people might not really know what it even means. What do you think families need to know about due process?

• Erin Einhorn: Well, one of the things, so I talked to 60 families from 28 states, and obviously, there's 14,000 school districts. There are a million different circumstances out there. And some kids who get punished are completely guilty. Some kids are completely-- I mean, I was surprised by the number of stories I heard from kids who were provably innocent, right? Of my 60 families, there were four separate cases of kids accused of using marijuana who took drug tests that showed that they were clean. They were actually innocent, but they were punished anyway. And actually, three of those kids were star athletes who were headed to college on sports scholarships. And just the accusation completely changed the trajectory of their lives. And ultimately, in some of those cases, they were able to get lawyers and ultimately get those allegations resolved. But the college scouts were gone by then, or they missed their basketball season or their baseball season, and that was it. That opportunity is gone. And there were kids who were defending themselves in fights, and there were kids who did something accidentally.

  One of the boys that I write about in my book, his mother lent him a book bag, and he was rooting around in the bag and found sort of a personal protection device, sort of a taser thing. And anyway, he was like, "Oh, what is this?" And he takes it out of his bag. The school expels him or essentially expels him for a year. And then it was just kids doing stupid kid stuff. I had an 11-year-old boy who lit a piece of toilet paper on fire over the toilet in the bathroom and dropped it in, and the fire went out. And they not only sent that kid to an alternative school for four months, they charged him with felony arson. I mean, there was a kid who was playing with a toy gun at his house, right? And he wasn't even at school. And then they're charging-- that kid was expelled for four months and also charged with brandishing a toy gun. So you get just-- and all of these families were just so surprised because you kind of feel like if you're accused of something, you're going to have a right to defend yourself like you do in court.

  You get a lawyer. You can come in, and you can make your case. You can defend yourself. But over and over and over again and again, from stories all over the country, kids, little kids, big kids, Black, White, everything, rich, poor, we're finding that they actually didn't-- either they didn't have rights, they didn't know their rights. Or they would ask the school. The school would say, "Oh, we're going to have a meeting." They wouldn't call it a disciplinary hearing. They'd say, "Well, just come to the school. We're going to have a meeting." And they say, "Well, do I need to bring a lawyer?" "Oh, no, this is just us meeting." And they go to that meeting, and in the meeting, they're told, "Oh, well, we're going to transfer you to this alternative school," or, "We're going to expel you," or, "You're going to get this long suspension." And then they're like, "Wait, but--" and so it's almost like, do they have due process? Do they know their due process? I mean, some of the stories, the people tried to bring lawyers, and the school wouldn't let their lawyer accompany them. It's, "Oh, no. Well, the school district's lawyer is not here. You can't bring your lawyer." And, oh, are they-- the school will have a witness statement. It'll say, "Student A claims this." And you say, "Well, who's student A?" "Oh, well, we can't tell you because of privacy." So you can't cross-examine a witness. You don't even know who the witness is. And the schools got their version of events, and the kids come in and discover they can't even dispute the school's assertions. They actually don't have rights.

  And if they had a lawyer, maybe it would be different. But some states don't let you bring a lawyer if you have one. None of the states that I'm aware of will provide you with a lawyer. So if you can't afford a lawyer, you're completely out of luck. And so it's just really-- it's confusing. And families just feel really powerless when they go through this situation because it happens really quickly. And a lot of them are just completely flabbergasted by it because they didn't know what was coming. And then they feel like there's nothing they can do about it. And there often is nothing they can do about it, short of filing a lawsuit, which is going to take years. And if you're a junior in high school or a senior in high school, you don't have years.

• Makiah Lyons, J.D.: You don't have years and you touched on such an important issue, is the issue of access to justice. If you have, you're given maybe a handful of days before your hearing, it's very difficult to get an attorney if you think you need one. It's even more difficult to get one you can afford, and it's even more difficult to get one that might be free, if you actually do need a free attorney. And so I think in many ways, you have a lot of issues with access to justice, particularly in education, right?

  These are kind of not issues are not particularly lucrative for a lot of attorneys. And so and a lot of families just don't have the money to throw at issues like this. And so, we see over and over again that families really do need assistance here, and it is very difficult to kind of coordinate all of that even with legal aid organizations. It's only so fast these organizations can work to get pro bono attorneys, to get people trained, to get them on the ground. And then, as you said, right, if the district is unprepared, they may deny the attorney access to those hearings because their own lawyers aren’t in the vicinity at that time. And so there's a lot of issues here, I think, that you were able to touch on. It is extremely inequitable. And so, yeah, I would love to talk about just briefly kind of our research here at IDEA.

  We're really inspired by the work that you were doing to research the due process laws in all 50 states and DC. We found that state laws outlining student rights were, shockingly, incredibly different from state to state, even where we might not really expect it. For example, it sounds really straightforward to say that schools owe students and their families notice and a hearing, right? And before you kind of might research, you might be like, okay, that makes sense. I have a pretty clear understanding of what notice and a hearing might mean. And that's really what the Supreme Court said in GOS, notice and a hearing.

• Makiah Lyons, J.D.: But, that standard is the floor here. It's not the ceiling. That is to say, GOS really only provided what's called the minimum standard. And so states can kind of take that and run with it and require more of their districts or maybe not, right? And so we see some states have kind of aligned their state laws with GOS, and other states do require their schools to do more. For example, some outline that notice is required to be in writing. Others don't really say anything about that. They'll simply say that verbal notice would suffice. Other states don't necessarily make that clear. And in that case, notice might really just be up to the district or the school to interpret what exactly they think that means.

  The timing of these issues, as you kind of touched on very widely, some states mandate that students and their families get at least five days' notice before their hearing, and some require only what might be a reasonable time, while other state statutes seem, again, to be silent and leave it up to districts to make their own policies. Additionally, while GOS kind of establishes that schools need to provide students and their families with a notice and a hearing in the spirit of fairness, it is interesting that most state codes don't necessarily require that hearing officers in these hearings be impartial people. I know in my own kind of experience that sometimes the hearing officers are former employees of the district, right? They might be current employees.

• Makiah Lyons, J.D.: --community members, right, or current employees, right, possibly even current administrators, right? And so you're talking about-- especially in small districts, right, we're talking about going up and having decision makers who have known and do know the school and their administration and have relationships. What does fairness mean in that instance, right? I can't imagine that it means much. And on the other hand, there are some states that have entire policies outlining their requirements of impartiality. And when you can't have an impartial hearing officer in those kind of tribunals and in those hearings, what do you need to do? And so, it's just so different from place to place. But I'm curious, what does this variance mean for the landscape of students' rights in the United States? And from your perspective, what opportunities do you see to strengthen students' rights?

• Erin Einhorn: Yeah. I mean, for me, one of the great injustices is that some kids just have more rights than others, right? Which is sort of like, "That doesn't make sense," depending on what state you live in, what district you live in, what school you go to. And even in places where they have, like, robust rules on the books, the school might not be fully aware of it, especially, like, some districts are tiny at one or two schools. And there's, like, the superintendent is also the music teacher [laughter] in some of these small rural districts, right?

• Erin Einhorn: In my experience with educators, they are, by and large, trying to do right by their kids. This isn't like they're not trying to be mean. They're not trying to be cruel. They're not trying to be exclusive. They're just trying to keep their school safe. They've got this allegation against this kid. They're trying to do what's fair. And they're like, "Hey, we're going to have a meeting. We're going to figure it out." But it's like families don't necessarily know their rights. The school they give them notice. "Okay, we're going to have a meeting." But do they realize that at that meeting, your child might be expelled, and that you're not really going to have an opportunity to appeal?

• Erin Einhorn: In most of the districts where I've seen, the superintendent or the principal can make the decision, and then you can appeal to the school board. But how many school boards aren't going to side with their own staff? These are the people they hired. And then after that, your only recourse might be to sue, and you may not have a lawyer. And then even when you-- you can't really sue for damages. It's all I don't want to go into the weeds on it.

• Erin Einhorn: But also, if you have rights and you don't know your rights, do you even really have rights? So it's like, I wonder if there were even something standard that schools were required to hand out to every student who's facing a potential expulsion that was a simple Q&A. And, like, "If you would like a lawyer, here's a hotline you could call." It doesn't even have to be legal representation. It could just be-- you don't really want to burden schools with a whole bunch of-- if you made a whole bunch of new rules, that's another unfunded mandate. A lot of our schools are terribly underfunded. And they have a lot of priorities that we all would like them to be able to focus on. And we don't really want our schools to have to spend millions of dollars and hours of time on each kid who got in a fight in the cafeteria.

• Erin Einhorn: But even just having better information and resources so that families that do feel like they're not getting a fair shake have an opportunity to understand their rights and a mechanism to appeal and appeal quickly. One of the kids who I'm writing about got in a fight at school. Actually, she got jumped by a classmate. And she gets in a little hallway skirmish. And I think it was an administrator tries to break it up. The administrator gets hit somehow in the fight in a state, I think it was Nevada, that has an automatic expulsion for assaulting a school staff member. And this kid's facing an automatic expulsion.

• Erin Einhorn: And she appeals it to it was Las Vegas. So they actually have an appellate system. She appeals it and gets a hearing. And at the hearing, they said, "Actually, she wasn't the one who hit the administrator. It was the other girl. And her expulsion's canceled. She can go back to class." But meanwhile, she missed two months of school. So we're talking about notice requirements. We're also talking about the need for swift justice. And she was completely innocent. The school ultimately admits she's innocent. But there was an error. There was a mistake. And who's looking out for this kid? Parents who feel or students who feel trapped, like, you have nothing to do, need something to do, right? It can't be sit at home and wait two months for justice to happen.

• Makiah Lyons, J.D.: Absolutely not. And to that credit, there's also a conversation that also happens, and people think about it a lot less, is once you're, particularly in the case of an expulsion, right what rights do you have to come back to school? How do we get you back to school from maybe alternative placements at alternative schools? Once you've just been removed kind of broadly, what rights do you have to not only come back? But there's also a lot of learning loss that happens and things like that that you have to consider.

  There's also this kind of questionable gap that happens when the criminal legal system interacts, right, with maybe something that a student has done in school or maybe has done outside of school. So when you have that pending at the same time as you have the school removal pending, there's a lot of ambiguity around kind of what your rights are. These are kind of interdependent systems, and it leaves a lot of students kind of and their families out cold and this kind of feeling of powerlessness, right, where your hands are tied.

  And ultimately, a lot of discretion is kind of in the hands of people who might not even know what your rights are supposed to be, right? And you could know, and you could be well aware if you're not able to kind of put some sort of action into place that effectuates your rights, right? Like you said, do you even have them? This is such a great conversation. But in your experience, I know you've talked to so many families, and I know you've written about-- I'm very excited to read your book. But what types of stories still need to be told?

• Erin Einhorn: I mean, I just think that the stories that need to be told are the ones that you're not hearing about, right? Meaning the people who don't have-- I mean, if there was a celebrity's kid who was suspended at school, you would read lots about it. People who have a platform and a megaphone always get their stories out, or have a lot of followers on Instagram, they're going to get their stories out. But the stories we don't hear are the people-- like all these families. I mean, when I started this process, I kind of wrote an email, and I posted it to some loose serve saying like, "Hey, I want to interview families." And I thought I would interview five families, maybe ten if I was lucky. My inbox was inundated. I got dozens and dozens of emails and text messages and social media messages saying like, "Oh, my God, thank you for telling these stories."

  These are families who want their stories told. I mean, and what happens when a child-- especially if it's like a big-deal thing that results in an expulsion, regardless of whether you live in a big city or a small town, the world in your school is a very small place, and these are children. And kids talk, and there's a gossip, and there's this and that. And there's a scarlet letter associated with being the bad kids. And there's a lot there's shame for the parents. There's shame for the kids. They get shunned. A lot of these kids will tell me they'll come back to school and their teachers look at them funny or their teachers are suspicious of them, and then they'll be accused again. And so they just feel sort of attacked by their communities. The people that they thought they could trust all turned on them. And then they just feel, yeah, that sort of powerlessness combined with that isolation that comes from that.

  And then they just feel like they have nowhere to turn and no way to clear their name. And then you apply to college-- and there's a lot of colleges are still asking about what you have on your it's like, "Are you ever going to escape that?" I mean, our juvenile justice system is set up to allow you, when you become an adult, to start fresh. We see those cases, and we say, "That was your past. It's not your future." And yet the story I started out with, with that 10-year-old boy, he's going to have that expulsion on his record for the rest of his educational experience, and he is never going to have access to school choice in the state of Michigan where he lives because any school that sees an expulsion doesn't have to take you other than your home district. And if your home district doesn't like you or doesn't have a program that's a good fit for you, you're completely out of luck. And you're just like, "How do you ever get out from under that?" And then you apply to college, and you have to check that box that said, you did that. And it's this decision that an administrator made when you were in the fifth grade, you're never going to escape that. And I don't know how often that particular version of the story happens, but if it can happen to him, it can happen to you. It can happen to your kid. And there's nothing you can do.

• Erin Einhorn: This is sort of a side note, but I have all these stories about, like, we're so afraid about mass violence at school. And I have all these kids who made some comment like, "Oh, I hate you. I want to stab you," or something that they just say hyperbolically. And then the next thing you know, they're expelled for threat-making and all this stuff. And you have no way of saying, "No, no, it was a joke. I didn't mean it."

• Makiah Lyons, J.D.: Yeah. And I think you touched on something really important is that developmentally, there's a lot going on for young people. I remember being a teenager and a young person hitting puberty. It was a rough time, right? Emotionally, socially, mentally. A lot of these decisions don't actually readily take developmentally appropriate behavior, even challenging developmentally appropriate behavior, into consideration. And a lot of it doesn't necessarily require them to, right? And so this is just a phenomenal conversation. And I really do want to thank you so much for collecting stories because this is something that people absolutely need to know more about. And I think even educators, families, students themselves will find this work incredibly kind of illuminating. If people are interested in following your stories and following your work, where can they find you?

• Erin Einhorn: Well, I'll be honest. I've been sort of head down on this book. I feel like I need to be on social media a lot more than I am. But I think a lot of us [laughter] are taking a little social media break at the moment. But, yeah, I'm Erin Einhorn on Twitter. I'm on Blue Sky, and I have a writer page on Facebook. And as I sort of finish the book, I'm hoping to start a newsletter. So if you follow me on the social media, I'll be sort of putting stuff out there and really just trying to start a real conversation around this that can hopefully lead to at least greater knowledge, if not necessarily greater justice. [laughter]

• Makiah Lyons, J.D.: And with that, I would love to thank Erin for being here today and providing such valuable insights. I do want to remind everyone that Erin has a book coming out soon called Dismissed: The Children We've Lost to School Punishment and the Urgent Need for Change. We'll also be producing our research soon, so look out and sign up for our email alerts at idra.org. Thank you for listening, and we will see you all next time.