THE SCHOOL-TO-PRISON PIPELINE'S LEGAL ARCHITECTURE: LESSONS FROM THE SPRING VALLEY INCIDENT AND ITS AFTERMATH.

• Author: Gupta-Kagan, Josh

Introduction 84 I. Case Study: The Spring Valley Incident and the School-to-Prison Pipeline in South Carolina 91 A. The October 26, 2015 Spring Valley High School Incident 92 B. The Incident's Aftermath 94 C. Why Focus on Spring Valley and South Carolina? 97 1. Spring Valley and South Carolina Illustrate the Pipeline's Legal Architecture 97 2. Intensive Advocacy in South Carolina for Reform 99 II. Spring Valley Incident Reveals the Pipeline's Legal Architecture 101 A. Wide Criminal Law: Disturbing Schools Statutes and Their Disparate Impact 102 1. Statutory Terms Criminalizing Ordinary School Misbehavior 102 2. Disparities by Race, Sex, and Disability 107 B. Legal Instruments' Failure to Prevent Law Enforcement Involvement in School Discipline 111 C. Diversion Programs Available Through Law Enforcement, Not School 117 D. Prosecutorial Discretion 120 III. Reform Efforts After Spring Valley and Why Comprehensive Reform Is Needed 122 A. Narrowing Criminal Law 123 1. Disturbing Schools Legislation and Kenny v. Wilson 123 2. South Carolina Experience Demonstrates that Narrowing the Criminal Law Is an Important but Insufficient Reform 125 B. Governing the Role of SROs 132 1. Local SRO Reforms in Richland County 135 a. Voluntary Agreement with the DOJ 136 b. Renegotiated Memoranda of Agreement 137 2. South Carolina Department of Education Regulations 140 C. Other Pillars of the Pipeline 142 1. Reporting Statutes 142 2. Absence of School-Based Diversion Programs 142 3. Prosecutorial Discretion 143 Conclusion 145 INTRODUCTION

In October 2015, a Black teenager at Spring Valley High School in Columbia, South Carolina had her cell phone out in her math class. (1) Her teacher told her repeatedly to put it away. Repeatedly she refused. The teacher then called a school administrator, who similarly instructed her to put away her phone. The student continued to refuse. The administrator then called the school resource officer ("SRO"), the uniformed, armed deputy sheriff assigned to the school. (2) The SRO came and informed the student that she had to put away her cell phone. (3) When the student again refused, the officer arrested her for the crime of "disturbing schools." (4) Other students in the classroom recorded the arrest on their cell phones. (5) The video footage captured the SRO pulling the teenager out of her desk and appearing to throw her across the classroom floor. The officer also arrested a second student who encouraged her classmates to record the arrest and vocally objected to it. Students posted their videos, which soon went viral. The incident quickly joined a long list of other incidents involving questionable use of force by SROs. It also contributed to the larger debate about policing tactics, especially those tactics directed at Black individuals and communities.

The incident initially garnered national attention due to the SRO's use of excessive force. But the Spring Valley High School incident also illustrates how specific incidents of relatively minor school misbehavior lead to arrest and prosecution rather than school-based intervention. (6) This incident was a product of a series of choices: by educators who asked an SRO to become involved in a classroom management situation, and by the SRO who agreed to do so and who chose to make two arrests. These kinds of decisions are replicated in a range of cases which have been dubbed the school-to-prison pipeline. (7) The result--children charged with criminal or delinquent acts for school misbehavior--is strongly criticized for imposing an overly punitive and harmful law enforcement response on situations that would be better handled through school discipline. (8)

The decisions that lead to school-based arrests, like those at the center of the Spring Valley incident, do not happen in a vacuum. This Article will use that incident and South Carolina's broader experience to analyze the laws, policies, and legal practices that create the legal architecture of the school-to-prison pipeline--and also identify promising, but incomplete reforms that have taken root in South Carolina. Reforming individual elements of that architecture will help limit this problem, but the problem can only be completely solved by reforming all elements. The legal architecture involves several interlocking legal elements that together cause school discipline issues to become law enforcement issues.

First, the Spring Valley incident illustrates how criminal law broadly encompasses many incidents at schools that would be better handled as school discipline matters than as juvenile delinquency matters. It is a crime in South Carolina to disturb a school "in any way." (9) This statute was used to charge both girls in the Spring Valley incident--and more than 1300 other South Carolina children that same year, making it the second most frequent delinquency charge in the state that year. (10) The racial disparities for this charge are tremendous, even when compared to the already large disparities in the juvenile justice system as a whole." (11) Although South Carolina's criminal law is particularly broad--perhaps the broadest in the nation--other states are not far behind. (12)

Second, the Spring Valley incident reveals how legal instruments direct SROs' involvement in situations that school officials should handle on their own. SROs are usually uniformed, armed officers employed by local police departments and assigned to schools. (13) There has been a significant national focus on encouraging school districts to enter into memoranda of agreement with law enforcement agencies to establish shared understandings between schools and law enforcement agencies regarding SROs' roles, and to limit those roles. (14) The Spring Valley school district had a memorandum of agreement with the local sheriff's department that both placed SROs at middle and high schools in the district and required school officials to refer any criminal action to those SROs. (15) Consistent with the memorandum of agreement, the Spring Valley High School administrator called in an SRO to assist with a disobedient but nonviolent student. The Spring Valley experience thus demonstrates the importance of creating such memoranda of agreement with provisions to prevent school discipline matters from becoming matters for law enforcement.

The Spring Valley experience also demonstrates the need for statutory reform. In addition to the requirements under the memorandum of agreement, a South Carolina statute requires schools to refer certain other behavior--such as some schoolyard fights--to law enforcement. (16) That state statute requiring reporting was enacted at the height of tough-on-crime reforms of a generation ago. (17) This statute serves to transform school disciplinary incidents into law enforcement incidents unnecessarily. Like other legislation of that era, it is now ripe for reform.

Third, South Carolina illustrates a problem with the structure of diversion programs. (18) Diversion programs are often excellent alternatives to prosecuting children, but they are too often operated by law enforcement, thus requiring law enforcement involvement. (19) Moreover, frequently used programs require a child to first be charged so that law enforcement or prosecutors can admit them to the program. (20) In contrast, many schools do not operate their own diversion programs. (21) This can lead school officials and police officers to charge children criminally with a goal of directing them to a law enforcement-operated diversion program. (22) Such actions can sometimes lead to prosecution and conviction contrary to the intent of the school officials or police officers initiating that process. (23) More broadly, locating diversion programs within law enforcement agencies rather than schools requires law enforcement involvement in incidents that school officials could handle on their own. Thus, accessing those programs requires transforming school discipline matters into law enforcement matters. Developing more diversion programs operated by schools would avoid this unnecessary involvement with law enforcement.

Fourth, the Spring Valley incident reveals concerns about the exercise of prosecutorial discretion in deciding whether to prosecute, dismiss, or divert school-based charges. In our juvenile justice system, such decisions should consider both the state's ability to prove a child guilty of a crime and whether prosecuting a child for that crime is necessary to protect the public or to rehabilitate the child. (24) Contrary to the latter principle, the local elected prosecutor in the Spring Valley incident left charges pending against the two girls for months before dismissing them. (25) The prosecutor wrote that he did not believe the publicity around the event would permit him to have a fair trial. (26) The elected prosecutor did not state any consideration of whether prosecution would serve the juvenile justice system's rehabilitative purposes, (27) illustrating a more widespread problem of how authorities exercise prosecutorial discretion without adequately considering whether rehabilitating a particular child requires prosecuting him or her. (28)

This Article will also address post-Spring Valley reform efforts in South Carolina. These reform efforts are significant, but incomplete. There are both local and statewide reforms that seek to limit arrests and charges for school misbehavior, and these reforms have had some success. In Richland County (where the Spring Valley incident occurred), reforms have reduced arrests by sheriff's department SROs by more than fifty percent, and statewide, changes in practice have cut disturbing schools charges in half. (29)

The South Carolina Senate has passed a bill dramatically narrowing the scope of the disturbing schools offense. (30) The bill's fate will depend on South Carolina House of Representatives action when it reconvenes in 2018. Passing this bill would represent...