Restorative Justice And Our Understanding Of Mental Health

On March 14, 2023, Assembly Bill 285 was introduced by Assemblywomen Taylor, Torres, Anderson, and Hansen. After an initial amendment and several re-reads, the bill was passed by the Assembly on April 25. It was read into the Senate on the following day and is currently under review by the Committee on Education.  

Of the various opinions submitted, 36% have been in support of the bill, 55% have opposed its passage, and 8% remain neutral. As introduced, AB 285 was very direct in its removal of any and all mandates placed upon the State that would require the use of restorative justice. However, those in opposition voiced their dissatisfaction with the lack of protection for marginalized pupils, and an amendment was introduced in an attempt to compromise. Although no school would be required to institute a plan of action prior to their removal, such pupils would have the opportunity to be referred for services and support through outside social programs. 

Restorative justice practices were adopted by the Nevada Legislature in 2019, and at that time, the State’s Department of Education discussed the reason for their implementation. “It is important for districts and schools to be aware of explicit bias and implicit bias and how biases may affect discipline decisions…  ‘Despite a documented history of inequality and disparate student outcomes, rates of discipline disproportionality have continued to increase over time, primarily for African American students. In 2012, African American students were over 3.5 times more likely to be suspended than their white peers, with disparities beginning at the preschool level…  Racial differences in exclusionary discipline are seen even when controlling for socioeconomic status…  Furthermore, some policies, such as zero-tolerance, are intended to be race-neutral but can exacerbate disparities…”

Under current restorative justice practices, schools are required to assess certain factors prior to their suspension or expulsion of a pupil. If the offending pupil belongs to one or more subgroups which have been found to be disproportionately affected by disciplinary practices, the school must first develop a plan of action that provides the pupil with positive behavioral intervention and multi-tiered support. This caveat applies specifically to (i) pupils who are economically disadvantaged, (ii) pupils from major racial and ethnic groups, (iii) pupils with disabilities, (iv) pupils who are English learners, (v) pupils who are migratory children, (vi) gender, (vii) pupils who are homeless, (viii) pupils in foster care, and (ix) pupils whose parent or guardian are a member of the Armed Forces or National Guard.

While the law is clear that each pupil must be held accountable for their behavior, and victims must be provided relief, the school must work to remedy the behavior of the offending pupil without the use of punitive discipline. As part of these practices, teachers, staff, and administrators must undergo training in positive behavioral intervention and multi-tiered systems of support, social and emotional learning, child and adolescent development, the effect of trauma and chronic stress on pupils while learning, conflict resolution, and de-escalation techniques.

While the program is still in its infancy, the new administration has made the removal of such practices one of the first items to be tackled in its “changing of the guards.”  While testifying for AB 285, Governor Lombardo stated, “It handcuffs teachers and administrators, leaving them powerless to address habitually misbehaving and violent students.”

Indeed, Governor Lombardo has also introduced his own bill, in an effort to do precisely the same thing as AB 285, only through significantly more stringent standards.

On March 17, Assembly Bill 330 was introduced and immediately referred to the Committee on Education. It too was amended, re-read, and then passed as such by the Assembly on April 25 – the same day as AB 285. What is interesting to note, however, is that the Governor’s bill has received far more support than AB 285, with 83% of opinions in support of the bill, 16% in opposition, and the remaining 1% as neutral.

If successfully passed by the Senate, both AB 285 and AB 330 will remove mandatory action plans and will instead make their use both optional and discretionary.  Teachers, staff, and administration would still be required to undergo training, but schools – and in particular, their principals and superintendent – would be granted the authority to suspend or expel these pupils as they deem fit… and not just regarding those within these subgroups.

Nevada law currently prevents schools from suspending or expelling pupils under the age of 11. AB 285, however, would lower that age to 6, and in some in some instances within provisions of the Governor’s bill, it would remove age restrictions altogether.  

Both bills remove authority and oversight from a district’s board of trustees and place it in the hands of a superintendent and in those of a school’s administrative team. The Governor’s bill would allow each superintendent to use the disciplinary data it receives to establish its own disciplinary plans, where progressive discipline would be re-established and “restorative discipline” may be considered.

Those in favor of such local discretion believe that superintendents and administrators, not boards of trustees, know what is best for their school and what problems they face; they hold that having a board make such decisions only leads to political debates and inefficiencies. Conversely, those adverse to local control hold that such unbridled discretion leaves room for discriminatory practices and further disparate effects carried out on protected classes of pupils.  

To be sure, the Governor’s bill would remove any and all safeguards that occur prior to a pupil being suspended or expelled and implements procedural processes only after the pupil has been removed. Teachers would be authorized to remove disruptive pupils from their classrooms and principals authorized to place pupils in another school – and not even within the same district.  

The Governor’s bill repeals in its entirety the mandate for a statewide framework of restorative justice and moves closer to the progressive disciplinary approach found within the criminal justice system.

Proponents of the repeal hold that this is the point: disruptive pupils only hinder the ability of non-disruptive pupils to learn, and therefore they must be removed from the classroom when necessary. Proponents of restorative justice respond that this only leads to further disparity of treatment; once we understand that most of our “disruptive pupils” are children of color, children with disabilities, and children who are homeless or are in foster care, the issue becomes more complicated.

The Balanced and Restorative Justice Project started in 1993 as a national initiative under the Federal Government’s Office of Juvenile Justice and Delinquency Prevention, and thirty years later it remains a contested topic.

“The debate over the future of the juvenile court and the juvenile justice system has historically been between proponents of a retributive, punitive philosophy, and advocates of the traditional individual treatment mission. Both approaches have failed to satisfy the basic needs of individual crime victims, the community, and juvenile offenders. The Balanced and Restorative Justice (BARJ) Model outlines an alternative philosophy, restorative justice, and a new mission, ‘the balanced approach,’ which requires juvenile justice professionals to devote attention to: 

• Enabling offenders to make amends to their victims and community.
• Increasing offender competencies.
• Protecting the public through processes in which individual victims, the community, and offenders are all active participants.

Juvenile justice professionals, including probation and parole officers, prosecutors, judges, case managers, and victim advocates, recognize the need for juvenile justice system reform. People who work on the front lines of the system are faced daily with the frustration of seeing growing numbers of young people involved in criminal behavior, youth who leave the system with little hope for real change, and countless crime victims and community members who are left out of the process. That frustration has inspired many of these professionals to work toward changing organizational culture, values, and programs to reflect a more balanced and restorative approach to juvenile justice.”

There was another initiative put in place just over thirty years ago by the Federal Government–the Individuals with Disabilities Education Act (IDEA). In its reauthorization of the Education for All Handicapped Children Act, the Federal Government determined that disability is a natural part of the human experience, and in no way diminishes the right of individuals to participate in or contribute to society. Congress found that improving educational results for children with disabilities is an essential element of our national policy for ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.  

Prior to its enactment, children were excluded entirely from the public school system and undiagnosed disabilities prevented children from having a successful educational experience. 

Through billions of dollars of funding, the Federal Government has sought to make special education “a service for such children, rather than a place where children are sent.” As programs have grown, and further research has been conducted, they came to understand the correlation between the Country’s rapidly changing ethnic profile and the prevalence of disability.

More minority children are in special education than would be expected from their percentage in the general school population, and specifically, African-American children are identified as having intellectual disabilities and emotional disturbance at rates greater than their white counterparts. Greater efforts are needed to prevent the intensification of problems connected with mislabeling and high dropout rates among minority children with disabilities. Likewise, many pupils within the subgroups that are protected by restorative justice, are either labeled as disabled, or have not been identified as having a disability, despite their demonstrated social, emotional, and behavioral disorders.

Nevada’s Child Count for pupils who receive federal funding under the Individuals with Disabilities Education Act, age 3 -21, was 61,639 pupils, and specifically where 1,853 of those pupils were designated as having emotional disturbance. Emotional disturbance is a qualified disability and means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance: (a) an inability to learn that cannot be explained by intellectual, sensory, or health factors; (b) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (c) inappropriate types of behavior or feelings under normal circumstances; (d) a general pervasive mood of unhappiness or depression; (e) a tendency to develop physical symptoms or fears associated with personal or school problems; and (f) schizophrenia.

On July 1, 2021, the U.S. Department of Education released more than $3 billion in funds specifically to support pupils with disabilities, and Nevada alone received $20,454,662. Curiosity would ask where this money has gone, and whether or not it has been used to provide services and supportive measures for such pupils who are found to be “disruptive” within the learning environment.

“Children with mental health disorders and other disabilities may have difficulty regulating their emotions while at school. Sometimes school staff may discipline a child who has an Individualized Education Program (IEP) related to their mental health, behavioral disorders, or other disabilities. This discipline may include being sent home early from school, in-school or out-of-school suspension, or other consequences that align with the school district’s discipline policy.”

“The disciplinary exclusion of children with behavioral health conditions is rampant in public schools in the United States. The practice of suspending and expelling students with behavioral challenges, caused in part by a lack of understanding of the causes of children’s behavioral challenges and failures by schools to implement appropriate behavioral supports and interventions, results in the isolation and segregation of some of the most vulnerable students.  Research has clearly established that these exclusionary practices are ineffective both in addressing behavioral challenges and in keeping schools safer.  In fact, disciplinary removals result in lost educational opportunities, increased dropout risk, criminal justice involvement, increased public expense, and lost opportunities for economic self-sufficiency in life.  Yet, while we know that exclusionary disciplinary practices destroy the lives and opportunities of young people, public schools persist in suspending nearly three million students per year, including nearly 700,000 students with disabilities.  A disproportionate number of these suspended students are students with behavioral health conditions and particularly students of color with behavioral health conditions.”

Such information begs the question:  If the Governor, or rather, the Legislature, removes the State’s restorative justice practices so that schools can “adequately discipline” their “disruptive pupils,” should it not also require the same of its teachers, staff, and administrators, who have failed to provide such pupils with the Federally mandated (and funded) services and support programs that would help them to be “less” disruptive?  And not just for those pupils with identified disabilities, but for those whose disruption manifests from other antagonists of their mental health?

On September 13, 2021, the U.S. Department of Education approved Nevada’s American Rescue Plan and distributed $358 million dollars to the State’s Department of Education.  

“I am excited to announce approval of Nevada’s plan,” said U.S. Secretary of Education Miguel Cardona.  “The approval of these plans enables states to receive vital, additional American Rescue Plan (ARP) funds to quickly and safely reopen schools for full-time, in person learning; meet students’ academic, social, emotional, and mental health needs; and address disparities in access to educational opportunity that were exacerbated by the coronavirus epidemic.”

Nevada Superintendent of Public Instruction Jhone Ebert told the Federal Government that its ARP plan would “prioritiz[e] supporting the social, emotional, and mental well-being of [its] students, educators, and staff…”  

Senator Catherine Cortez Masto stated that “[a]ddressing the mental health crisis affecting our kids has been a top priority…, and Nevada’s plans demonstrate the state’s commitment to supporting students in and outside of the classroom…, so that these dollars can get into our communities and support our students.”  

Representative Steve Horsford proclaimed that “Nevada’s ESSER III allocation will help us keep students safe and address the learning loss of the past year, which has taken a disproportionate toll on students of color, students with special education needs, English language learners, and those in rural and low-income communities.”

In its plan for use of these funds, the Nevada Department of Education promised the Federal Government that it would allocate $7.5 million to support hiring 100 additional school-based mental health professionals, including school counselors, school social workers, school psychologists, and school mental health workers.  Who would these mental health professionals be hired for, if not for those with disruptive social and emotional behavior?

This highlights an interesting issue that hasn’t yet been addressed by the Governor: Do we only support the mental health of pupils who can actively manage their disorders, and not those whose declining mental health has manifested into disruptive behavior? Do we only care when our well-behaved (and mostly Caucasian) children are affected by a pandemic, and only protest when they are removed from their schools?  If the answer is no, then should we not be advocating for the mental health of disadvantaged pupils who have been disproportionately affected by our institutions, sans a pandemic.

The Governor stated that from August 2021 to February 2022, more than 6,800 violent incidents were reported at Clark County School District, and since 2019, there has been a 46% increase in violence and sexual assaults reported within the school district.  He made this statement in support of eliminating restorative justice, inferring that the cause of such violence was an inability to discipline pupils. Yet, no mention was made in relation to the pandemic, and the toll it took on all children’s mental health – especially those who already struggle with disruptive behavior. 

As the Senate Committee on Education reviews both AB 285 and AB 330, it will be interesting to see if they will address these questions. Will they work to compromise by accepting AB 285 or hold strong to passing AB 330? Or, will stay gridlocked in indecision and wait to put the hot topic back on the chopping block in another two years? Only time will tell.

The real question is, if either of these bills are passed, has the Governor taken into account what is likely to come after?

Many of the students who are currently protected by the provisions of restorative justice are children who belong to Constitutionally protected classes. As all Federal funding received by the State is conditioned upon one golden rule (prohibiting discrimination), it remains to be seen whether the passage of such bills will come under fire from the Federal Government for disparate impact and/or disparate treatment.