“Everyone’s a little bit racist”

By Paloma Wu, Legal Fellow, ACLU of Pennsylvania

iStock_000014186302_Small

At this American civil rights impasse, we are up against a powerful and dangerous fantasy: the delusion that our intention to be race neutral makes us so, and the delusion that our intention not to discriminate means we don’t. No longer are slur-hurling city officials, police-protected lynch mobs, and smoke-filled redlining rooms the most formidable force opposing equality in America. It is all of us.

A growing body of research on implicit racial bias shows that about 75% of whites and Asians demonstrate an implicit bias in favor of whites compared to blacks, and over 200 related published studies show that implicit bias influences judgment, decisions, and behavior. An onslaught of images, lore, and language continuously tie brown and black skin in with the negative. Implicit racial bias operates powerfully but in the background, at the unconscious level, impacting our judgment and shaping our decisions such that we often act contrary to our conscious intent to behave in a race neutral way. Most insidiously, our implicit racial bias calls the shots without us registering that it has. We reason away the race biased logic that formed the basis of our decision, and we cleave to the far more flattering race-blind version of ourselves that we deeply personally identify with.

Since taking the well-validated Implicit Association Tests (“IATs”), I cannot claim to be more sturdily built. I am ashamed, but not surprised, to learn that I strongly associated black people with having weapons on the Weapons-Harmless Objects IAT, and that was just the beginning. Despite who I am, what I have done with my life, who I intend to be, and that I am neither white nor male, I am a petri dish of implicit racial and gender bias. Sharing my corner of shame: most of the eight million IAT takers, including Malcom Gladwell. Gladwell, who is half black, deftly explained in his bestselling book, “Blink,” that his “moderate automatic preference for whites” on the IAT left him “feeling creepy.” For others, the revelation of racial bias is embarrassing, deeply humbling, and disturbing.

After you take a few IATs, consider this:

  • White Americans, on average, vastly overestimate the criminality of blacks.
  • Many Americans incorrectly believe that black Americans use more drugs than whites: five times as many white than black people use drugs in this country, but black Americans are sent to prison for drug offenses at 10 times the rate as white Americans.
  • “Shooter bias” studies show that black and white shooters both show bias against blacks in both response times and errors, meaning we will shoot black people more often and faster than we will whites.
  •  In shooter bias studies, we even pick up the pace if first shown a negative media article about a black perpetrator of a crime.
  •  Americans of all races more often see blacks as perpetrators and whites as victims; in one study, 70% of viewers of a crime story who falsely recalled seeing a picture of the perpetrator believed that perpetrator had been a black man.

Then consider how a blazing color line separates blacks and whites in crime and punishment:

A select few departments are trying to incorporate racial bias training to curb the tide, but the tide is nearly as powerful as our fantasy that it does not exist. The common refrain of police officers, elected officials, district attorneys, and policy makers with skin in this game is not “We Shall Overcome,” but rather—“We Did Not Intend.” But our knowledge about implicit racial bias in this era of political correctness renders the intent issue moot. Equal protection questions can only be addressed through data and analysis—do our laws in fact discriminate and are they in fact discriminatorily enforced. There is no silver bullet, but it is a necessary step, along with our acceptance of implicit racial bias as the norm: the unintentional constant that we must build in to any algorithm we use to formulate a next step—if we want it to be forward.

Also, feel free to sing along to this Avenue Q song, for a boost with the acceptance part…

(Stay tuned for Part 2 of this post: “The Effects of Implicit Racial Bias in Law Enforcement and Lessons from the Era of Anti-Lynching Legislation.”)

This post is part of a series in honor of Black History Month.

Paloma Wu joined the ACLU as an awardee of the 2014 Simpson Thacher & Bartlett LLP Public Service Fellowship. As a Simpson litigation associate, Paloma worked on antitrust, securities, and intellectual property matters, and she represented clients in successful prisoner civil rights (Pogue v. Diep) and asylum cases.

What We Know (and Don’t Know) about Racial Profiling in Pennsylvania

By Sara Rose, Staff Attorney, ACLU of Pennsylvania

Philadelphia Police - cruiser on Ben Franklin Parkway

Almost four years after Philadelphia agreed to reform its policing practices to reduce racial profiling, little improvement has been made. Philadelphia police still stop and frisk African-American and Hispanic pedestrians at rates substantially higher than whites. Philadelphia, unfortunately, is not alone in targeting minorities for stops and pat-downs. Most cities that keep data on pedestrian stops show similar disparities. Perhaps more troubling, however, is that few police departments require their officers to record any data on pedestrian stops or pat-down searches, making it impossible to know the breadth of the problem.

Racial profiling refers to the practice of targeting people for stops, interrogations and searches without evidence of criminal activity and based on individuals’ perceived race, ethnicity, nationality or religion. The U.S. Supreme Court has held that stopping an individual on account of his or her race, even if there is another legitimate reason for the stop, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

Twenty years ago, much of the focus on racial profiling was on traffic stops following the I-95 “turnpike” studies, which showed huge disparities in the number of African-American drivers stopped by police compared to whites. Many law enforcement agencies, including the Pennsylvania State Police, now require officers to record data, including the race of drivers, when they conduct traffic stops. But there is no federal or Pennsylvania law that requires local police departments to keep data on traffic or pedestrian stops, even when police search the vehicle or person.

This lack of data leads to the perception that racial profiling is an urban myth. At a recent community forum in Pittsburgh, a police commander actually responded to a question about racial profiling by stating that “racial profiling does not exist.” But he had no way of knowing whether his officers engaged in racial profiling because Pittsburgh does not require its officers to record data on pedestrian stops.

Statewide legislation is needed to ensure that police departments track the race or ethnicity of individuals stopped by police and the reasons for those stops. The Fourth Amendment requires police officers to have reasonable suspicion that crime is afoot and that the individual stopped is involved in it before detaining that person on the street. To frisk the person, the police officer must have reasonable suspicion to believe that he or she has a weapon.

Our review of pedestrian stops in Philadelphia shows that 37 percent of the over 200,000 pedestrian stops in 2014 were made without reasonable suspicion to believe that the individual was involved in a crime, and only 47 percent of the frisks were made based on reasonable suspicion that the individual was armed. In 95 percent of all frisks, no evidence was seized.

These stops and frisks also disproportionately targeted minorities. Although Philadelphia’s population is 42.26 percent white, 43.22 percent black, and 8.5 percent Hispanic, 80.23 percent of stops were of minorities. The disparity was even greater for frisks, with minority residents accounting for 89.15 percent of frisks.

It is highly likely that similar rates of racial disparities and suspicionless stops would be found in other Pennsylvania cities if the data were available. A 2002 study that looked at vehicle and pedestrian stops by the Erie police over a six-month period found a significant racial disparity in vehicle stops, pedestrian stops, and searches. Indeed, essentially all studies of racial profiling find evidence of racial disparity. This had led to requirements that police departments collect and analyze data on stops. Seventeen states require police to collect data on traffic stops and thousands of police departments across the country collect pedestrian-stop data, including Chicago, Cincinnati, Dallas, Los Angeles, Miami, Milwaukee, New York, and San Francisco.

In addition to mandating that police departments collect and analyze data on stops, the Pennsylvania legislature can require police departments to implement practices that promote fair and impartial policing, including:

  • Having a detailed written policy that prohibits racial profiling and clearly defines acts constituting racial profiling;
  • Informing individuals that they have the right not to consent to a search; and
  • Barring the use of agency funds, equipment or personnel for the purpose of detecting noncitizens who are in violation of immigration laws and prohibiting officers from asking individuals about their immigration status.

The state can also mandate police officer training on racial profiling, both as part of officers’ initial training and their mandatory in-service training.

While these steps will not eliminate racial profiling, they will reveal where it is occurring and counter the “racial profiling does not exist” mindset of many in law enforcement. After all, choosing who to stop or search based on race or ethnicity is not an effective law-enforcement strategy. Although African Americans and Latinos are more likely to be stopped and searched by police than whites, they are less like to have weapons or contraband than whites who are searched. Law enforcement should be based on best practices, not stereotypes. Thirty other states have adopted laws addressing racial profiling. Pennsylvania should join them.

This blog post is part of a series for Black History Month.

Sara J. Rose is a staff attorney in the organization’s Pittsburgh office. Before joining the ACLU of Pennsylvania, she was a legal fellow with Americans United for Separation of Church and State.

It’s Time to Get Real About Race and the Death Penalty

By Andy Hoover, Legislative Director, ACLU of Pennsylvania

SQ Lethal Injection Room

Two weeks ago, Governor Wolf announced a moratorium on executions in Pennsylvania and granted a reprieve from execution to Terrance Williams, who was scheduled to be executed on March 4. Wolf will continue granting reprieves- a power he is granted by law – until an analysis commissioned by the state Senate returns with its recommendations and “all concerns are addressed satisfactorily.”

In his announcement of the moratorium, Wolf referred to capital punishment as “unjust” and cited several reasons for using the word. In his memorandum that explained the moratorium, he spent several paragraphs discussing the role of race in capital punishment.

Death penalty abolitionists don’t use race as one of their top tier messages, and who can blame them? A 2007 survey found that support for capital punishment actually goes up when white respondents hear messages of racial disparity. White America is still sticking its collective fingers in its ears when it comes to race and the criminal justice system.

Pennsylvania has consistently shown a penchant for sentencing black defendants to death. According to the Death Penalty Information Center, of the 188 people on death row in the commonwealth, 120 of them, or 64 percent, are people of color, as of October 1, 2014. Over the 15 years that I have been involved in death penalty repeal work, that number has been as high as 70 percent.

A study by Professor David Baldus and his colleagues at the University of Iowa found that a black defendant in Philadelphia was 3.9 times more likely to receive a death sentence than a white defendant in a similar case.

The Baldus study was 17 years ago and was based on data from 1983 to 1993. As part of the Senate-supported analysis, researchers are trying to update the question of race and the death penalty in Pennsylvania. Unfortunately, according to one of my sources, at least one high-profile district attorney stymied that work for months by refusing to release data from his county on race in capital cases. He was ultimately persuaded but only after much cajoling. Some public officials just don’t want to talk about facts in the death penalty debate.

The race of the victim may play an even greater role in deciding who lives and who dies. Homicide victims are white in about 50 percent cases. But since the Supreme Court reinstated the death penalty in 1976, the victims were white in 76 percent of cases that ended in execution.

There are many reasons why capital punishment is slowly being swept into the dustbin of history. Since 2007, six states have repealed their death penalty statutes, bringing the total of non-death states to 18. In 2014, only seven states carried out executions, and 80 percent of those were in three states. Governor Wolf did the right thing in bringing a halt to the machinery of death, and he used the right word to describe it- unjust.

To learn more about the debate over Pennsylvania’s moratorium on executions, check out the discussion on WITF-FM’s Smart Talk, which featured Spero Lappas, who is a member of the ACLU of PA’s South Central Chapter board, a retired criminal defense attorney, and former cooperating counsel with ACLU-PA.

Andy Hoover is the legislative director of the ACLU of Pennsylvania and is the former chair of the board of Pennsylvanians for Alternatives to the Death Penalty.

This blog post is part of a series for Black History Month.

Ferguson Is Everywhere

By Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania

Ferguson Protest, NYC 25th Nov 2014 (15693825550)

You already know an unarmed black teenager, Michael Brown, was gunned down by a white officer, Darren Wilson, after the officer stopped Brown for jaywalking. You know the Ferguson Police Department is mostly white, in a mostly non-white community.

You certainly know about the outcome of Officer Wilson’s grand jury hearing, after an unusual process in which the prosecutor didn’t ask the grand jury to indict Officer Darren Wilson—and it didn’t.

And you also know about Eric Garner. That NYPD arrested him for selling untaxed cigarettes (“loosies”). That the police wrestled the unarmed man to the ground, and placed him in a chokehold that had been outlawed by the NYPD. You know that Garner repeatedly gasped “I can’t breathe” as he struggled to take in air, and was pronounced dead an hour later.

You know the incident was captured on videotape, and the officer who killed him was still not indicted.

You know all that. But to understand why these events resonated so strongly in the public consciousness and sparked protests all across the country, we need to talk not only about Michael Brown, and Eric Garner—and Akai Gurley, and Tamir Rice, and many thousands of other unarmed men of color killed by police. We need to talk about why most of the people killed by police in recent years have been people of color.

Ferguson is everywhere because all across the country, communities of color are disproportionately the target of police scrutiny and violence. “I can’t breathe” became a rallying cry for people throughout the nation who live every day under the oppressive weight of police practices and a criminal justice system that cast men of color as threats.

Over the past few decades, police departments across the country have turned to “preventive” policing strategies. Broken windows theory, order-maintenance policing, zero tolerance—these strategies have many names, but share an emphasis on pouring law enforcement resources into poor communities of color (so-called “high-crime” neighborhoods) to aggressively stop, frisk, and arrest lots of people for minor, non-violent, “quality-of-life” infractions. This means arresting people for offenses like curfew violations, open containers, littering, graffiti, and sleeping or urinating in public.

Data-driven police management—where police are judged by their COMPSTAT statistics, and how many stops and arrests they perform—creates further incentives for aggressive policing of minor offenses.

The result is that, throughout the United States, people of color are several times more likely to be stopped by police, frisked by police, and arrested by police than white people. Not because they’re more likely to commit crimes, but because of policing strategies that pit the police against communities of color.

Because black and Latino men are disproportionately likely to have an encounter with the police, police come to stereotype people of color as criminals—unconsciously or consciously. This bias then reinforces the decision to concentrate police resources in communities of color.

This dynamic is particularly troubling when combined with the lack of sufficient legal restrictions on when the police are allowed to use force, and the increasing militarization of police departments around the country.

Police are empowered to use violence—tasers, chokeholds, and even guns—when they interact with the community on the street. And around the country, para-military SWAT teams raid people’s homes in the dead of night, often just to search for drugs. These SWAT teams are deployed disproportionately in black and Latino neighborhoods.

In a system that treats police like the military and people of color as the enemy, it’s no wonder that police encounters with people of color too often turn deadly.

Unfortunately, officers who kill people of color are rarely indicted, and virtually never convicted of excessive use of force.

It should be a basic, uncontroversial truth that “Black Lives Matter.” But every day, the American criminal justice system is at odds with that proposition.

On February 7, 2015, Staff Attorney Molly Tack-Hooper moderated a panel at the Pennsylvania Progressive Summit in Harrisburg called “Ferguson Is Everywhere.” This is adapted from her introductory remarks.

This post is part of a series in honor of Black History Month.

On “My Grandfather’s ACLU”

By Andy Hoover, Legislative Director, ACLU of Pennsylvania

Court Room Jury Chairs

One of the more entertaining aspects of my job as legislative director, aka lobbyist, for the ACLU of Pennsylvania is that I attract all manner of fascinating conversations on a typical day at the state capitol. On a given day, the topics can range from prisons and who’s lying about them to prescription drug monitoring and its potential to be used for political payback to shooting down drones over private property. There is never a dull moment.

Recently, I had a conversation with a law enforcement official I consider a friend, or at least a friendly work acquaintance. (He shall remain safely anonymous.) This person is a civil libertarian in most ways- voting rights, reproductive rights, LGBT equality- but doesn’t get the civil liberties argument for criminal justice. He told me that “my grandfather’s ACLU” would be all about voter ID, reproductive rights, etc. but not criminal justice.

Never mind that the ACLU was involved in the appeals of the Scottsboro Boys in the 1930s (https://www.aclu.org/criminal-law-reform/aclu-history-scottsboro-boys), which led to two landmark Supreme Court decisions and which national ACLU describes as “a milestone in the emergence of a national civil rights movement.”

National ACLU notes:

From its very beginnings, the ACLU was at the forefront of the movement to establish constitutional standards in the criminal justice system and to safeguard against abuses of power by those in law enforcement.

To give you a little peek behind the curtain, “what’s the civil liberties issue” is a familiar mantra for our staff. When we consider taking up an issue, either we ask ourselves that question or one of our board members asks. So why is criminal justice a civil liberties issue? It’s hard to list every reason, but here are a few:

Because the constitution has clear protections and boundaries for the criminal justice system, including a right to an attorney, a right to due process of law, the right to be considered “innocent until proven guilty,” the right to be free from unreasonable searches and seizures, and the right to equal protection under the law.

Because “stop-and-frisk” policies by police are disproportionately used against innocent black people, particularly young men. Even if they were not, the police have no right to search someone without cause.

Because stationing police officers in schools inevitably leads to more children funneled into the criminal justice system, particularly young people of color and young people with disabilities.

Because black people in Pennsylvania are five times more likely than white people to be arrested for marijuana offenses while survey data shows that usage is virtually the same across all races.

Because black people are far more likely to be incarcerated for drug offenses, despite using and selling drugs at essentially the same rate as whites.

Because Pennsylvania has consistently had one of the highest rates of minorities sentenced to death in the country. As of last year, 61 percent of inmates on death row in the commonwealth were people of color, mostly black men. At its peak in the last decade, that number rose as high as 70 percent. Even without racial disparities, execution at the government’s hand is the ultimate deprivation of liberty.

Because collecting DNA from people who have not been convicted of a crime without a search warrant violates the fundamental right to be free from unreasonable searches and seizures. With arrest rates disproportionately impacting minorities, this expansion of DNA collection will inevitably lead to a new pool of permanent, mostly minority suspects. (Note: As of this writing, the ACLU of Pennsylvania has successfully stopped this legislation. Expect it to be considered in the state House this spring.)

I could go on, but this is already too long for a typical blog post. You get the point. For a wide array of reasons, criminal justice is a civil liberties issue. If your grandfather was a member of the ACLU, I hope that he would appreciate our stance for liberty, wherever it needs defended.

This post is part of a series in honor of Black History Month.

The Point of Reparations

By Ryan Very, Legal Fellow, ACLU of Pennsylvania

Justice

In the past, the American Civil Liberties Union has supported proposed federal legislation that would recommend methods of monetary redress to African-Americans for slavery. Opponents of these ‘reparations’ commonly argue against them on the grounds that no person alive today was alive during slavery. A contemporary obligation to pay reparations would attribute “inherited guilt” to descendants of slaveholders, or so opponents maintain, and that would be preposterous.

These opponents mistakenly assume that reparations claims are derivative claims (i.e. designed to address wrongs that happened to other people long ago) that address private wrongs (i.e. wrongs between individuals). Reparations claims should not be viewed as derivative claims that address private wrongs but as claims that address the government’s continuing failure, as a matter of policy, to rectify slavery’s inequitable systemic legacy.

American racial subjugation hardly ended with ratification of the 13th, 14th, and 15th Amendments. President Lincoln’s successor, Andrew Johnson, was an open white supremacist who supported state governments’ establishment of “Black Codes” that coerced blacks back onto plantations. Jim Crow was sanctified by Plessy v. Ferguson in 1896 and was not dismantled until the latter half of the 20th century, which means that many African-Americans alive today lived under it. It was not until the Brown v. Board of Education decision of 1954 and the civil rights legislation of the 1960s that the federal government contemplated enforcing its “official” support of civil rights for blacks. After enduring 300 years of slavery and Jim Crow, an income gap continues to exist between African-Americans and their white counterparts, the wealth gap continues to expand, and federal agencies such as the Home Owners Loan Corporation and the Federal Housing Administration have “redlined” black neighborhoods by singling them out in order to deny them purchase loans and inflate their interest rates.

These wrongs are recent and have allowed the federal government to “reconfigure” racial subjugation so that it could survive the abolition of slavery. This is why reparations are not a matter of honoring debts incurred in the past, but a matter of holding the government accountable for its continuing perpetuation of racial inequality through its own policies. Arguments in favor of reparations need not hold descendants of slaveholders accountable for their ancestors, but may appeal to a principle that plays a basic role in American political thought and the ACLU’s mission to extend rights to segments of our population to which they have been traditionally denied.

This post is part of a series in honor of Black History Month.

This is a short version of an argument presented by my graduate school adviser and intellectual hero David Lyons in his new book Confronting Injustice: Moral History and Political Theory (Oxford, U.K.: Oxford University Press, 2013). See also his essay “Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow,” Boston University Law Review 84 (2004) 1375-1404.

How a School System Led Me to Advocate for Civil Rights

By Joy Miller, co-founder of the Education and Juvenile Justice Advocacy Network

(credit: aclupa)

(credit: aclupa)

I thought that having your civil rights violated in schools was something that you only heard about in the days of Dr. Martin Luther King, Jr. Never in my wildest dreams could I have ever imagined that I would face the day when my child would be criminalized and have his rights violated by his school. I always thought of school as a place where caring people cultivate relationships with the youth and assist in enhancing their academic and emotional development. My son’s experience in the school district where we will live has been eye opening to say the least.

When my son was in 6th grade, he was arrested for showing another student a miniature Swiss army knife that he found on school grounds. Before this incident, my son was a safety officer and had just made honor roll a month before being handcuffed and hauled off the school grounds into a police car. Despite having a positive performance record, no considerations were taken into account by school district officials when levying heavy consequences.

I learned the hard way that when it comes down to the logistics of handling school discipline matters that it’s about knowing your rights, documentation, and legalities. I was shocked when I received a copy of my son’s written statement, which contradicted what school officials told me initially when they notified me about the incident. My son’s statement read that he wanted to bring a knife to school for protection, which couldn’t have been further from the truth! I asked my son what made him write such a thing, when he had found it on the school grounds and had shown it to a friend in the bathroom. He informed me that the first statement that he wrote said that he found the knife outside the school and had only shown it to a friend. However, he said that the statement was thrown in the trash by the assistant principal. She had instructed him to write it over and said that he hadn’t written the statement truthfully as it happened. My son told me that he had explained to her that he didn’t know what else to write, because he had written what happened the first time, which was the truth. He then informed me that he was told by the assistant principal that it was okay if he wanted to write that he really brought the knife to school for protection and that he wouldn’t be in trouble. So he figured that he would write exactly as she said, since he was told that he wouldn’t be in trouble, or so he thought.

In my eyes, I call this abuse of authority, subliminal persuasion, and pressure. I knew that the statement I was reading was untrue, because I was personally informed by the school staff that my son located the miniature Swiss army knife on the school premises, and there was never any mention of him having it for protection. What was I to do at that point? Too much time had passed, the statement was already written, and the consequences had already been determined. I was outraged that my son had been persuaded into writing other than what had actually occurred and made to incriminate himself to look like he had intentions to hurt someone with a weapon. By this time the damage was already done.

Seeing how the school district blindsided me with their questionable tactics, how they ignored my son’s long-standing efforts to maintain a positive record and labeled him a criminal, has been both challenging and motivating. The lesson learned in dealing with our school district has given me a new life journey and has taken me in a direction that has encouraged me to focus on educating and advocating for the civil rights of parents and youth. The challenges I faced during my personal experience has empowered me to follow in the footsteps of the many people that have stood for the rights of others. I want to ensure that other parents and youth are educated about their rights when it comes to the education and juvenile justice system, so that they don’t end up blindsided like I once was. The journey of educating parents and youth about their civil rights was a mission that I took on knowing that I would have a long obstacle filled road ahead.

I felt compelled to focus my first call of action on creating a parent advocacy support network that provides resources and services to parents and youth. As co-founder of the Education and Juvenile Justice Advocacy Network, our goal is to equip parents with the education and tools needed to effectively address school matters using an informed approach. The idea to create an advocacy network for parents was not only inspired by my personal story, but also by the many similar school district stories that other parents have shared as well.

Since dealing with my personal school district matters and being empowered to advocate for the rights of other parents and youth, I have a deeper understanding for those before me who fought for the liberties of others. The civil rights leaders and social reform pioneers are the people who paved the way for organizations like the Education and Juvenile Justice Advocacy Network to exist. So as I walk in the purpose of those who fought for our civil rights, I honor humanitarians and social justice reformers past and present who dedicate their lives to the crusade.

This post is part of a series in honor of Black History Month.

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Joy Miller is the co-founder of the Education and Juvenile Justice Advocacy Network and a volunteer for the ACLU of Pennsylvania.

Zero Tolerance: A Student’s Perspective

By Mykal Washington, Intern, ACLU of Pennsylvania

Mykal Washington, sophomore at Mastery Charter School, Lenfest Campus

Mykal Washington, sophomore at Mastery Charter School, Lenfest Campus

In my fifteen years of living, it is only now that I realize that I and countless others are being victimized by a policy known as “zero tolerance.” Zero tolerance policies use predetermined punishments for specific violations and dishes out those punishments, completely disregarding the severity of the offense. A student could have politely disagreed with a teacher or said “no” in response to something a teacher instructed him to do. But it matters not because under zero tolerance policy, any challenge to a teacher is to be met with an automatic suspension.

A teen’s education is nothing to be trifled with. Minor offenses should not cause a student to miss school because it interferes with something precious – their education. The system of predetermined punishment, a.k.a. zero tolerance, does exactly this. Does this contribute to the learning process? School is supposed to be a place where children from all walks of life come to learn and further their knowledge. Mistakes allow us to recognize our faults and wrongdoings, thus bettering us as people and individuals. To punish us for every little mistake we make is to prevent us from growing. Children need to learn from their mistakes, rather than be removed from a learning environment.

This constant feeling of being watched for every move you make becomes stressful rather fast. It makes me, and I’m pretty sure a great deal of other students, feel as though school is our enemy, thus not encouraging us to be enthusiastic about attending. Is this the true purpose of the school system? At my school, Mastery Charter School Lenfest Campus, there are a number of different methods to mete out punishments, with the most prominent being the demerit system. Students at my school are required to carry around a demerit card with our school ID badges. The card lists categories of trivial and minor violations ranging from chewing gum, improper uniform (like having your shirt untucked), disruption, lateness, body language, language, disrespect, environment (e.g. leaving a workspace unkempt), integrity, and being unprepared. This long list puts students in a constant state of high alert, making us wary of every single thing we do. In my opinion offenses as trivial as simply saying “no” to teachers or disagreeing with them are not offenses worthy of a missed day of education. To my peers and me, this situation is absolutely unacceptable. It is sending a message to the world that education takes a back seat to talking back, that education takes a back seat to throwing a paper ball across the room, that education takes a back seat to an untucked shirt.

Besides these categories there is a wide range of offenses that “warrant” even greater punishment, like suspension, and I would know, considering I committed one. I was in 9th grade, and a fellow student and I were heatedly debating something when he suddenly threw a paper plate at me (we were at lunch). My first instinct was to throw the plate back, which I did. In the following moments I was swiftly suspended and missed a total of two days from my education due to throwing a harmless piece of styrofoam which traveled less than a foot across the table. The point of this anecdote is to illustrate the negative effect zero tolerance is having on students: while attempting to get an education we are being deprived of it for trivial reasons. Zero tolerance instills in us a fear of being suspended or expelled, which leads to us growing even greater disdain for school.

We are on high alert all the time – it’s not like we’re on a submarine in wartime – we’re kids going to school. It feels like the school is against us, that we’re in an adversarial relationship, which is the opposite of what school should be. How can we be inspired in this environment? How can we give our best? How can we believe that schools and staff wish great things for us? It is my belief that we learn better when we make mistakes.

Education is an opportunity to learn new things and to better one’s self as an individual. Education is an opportunity to advance in life and to broaden one’s horizons. School is supposed to be an environment where this opportunity is cultivated to its fullest potential. School is supposed to be an institution where the opportunity of education is pushed beyond its limits to constantly set new ones. So why is it that schools are attempting to deprive children, well deserving children of an education? The zero tolerance policies must be stopped for the sake of our children – our future. If not, disastrous results await us,. It will be far too late to repair the underlying problem.

This post is part of a series in honor of Black History Month.

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Mykal Washington is a sophomore at Mastery Charter School, Lenfest Campus and aspires to a career in writing. He is interning this semester at the ACLU of Pennsylvania.

Since When is it Criminal to be a Kid?

By Maheen Kaleem, Stoneleigh Emerging Leader Fellow, ACLU of Pennsylvania

Classroom

Imagine yourself as an adolescent. A fellow classmate who has been annoying you the whole year finally goes too far—he talks about your girlfriend. As a response, you use profanity, and you and the classmate start yelling at each other. Are you disrupting the classroom? Of course. The teacher hears the two of you. Instead of pulling both of you aside to have a conversation, or sending you to the principal’s office, he summons a police officer from the hallway.

That police officer has three options. He can take you to school authorities and assist the principal in determining what school discipline consequences you will face. He can arrest you and charge you with a misdemeanor or a felony. If your actions are too minor to fit within the definition of a misdemeanor or felony under the Pennsylvania Criminal Code, the police officer can issue you a citation for “disorderly conduct.”

In Pennsylvania, “disorderly conduct” is a summary offense. It is the lowest grade of crime, and if you are a minor, you cannot be imprisoned for a summary offense. Sounds like it’s not that a big deal, right? Until you find out that in addition to being suspended, you have to go to court and you have to pay a fine. You aren’t going to juvenile court because summary offenses are heard in adult court. You don’t have an automatic right to an attorney. It is just you, a teenager, your parent, and the judge in adult court. And it is your word against a police officer’s. You and your family can be ordered to pay fines as high as $300. If you are found guilty, the incident will stay on your record as an adult criminal conviction.

The ACLU of Pennsylvania recently issued a report, “Beyond Zero Tolerance: Discipline and Policing in Pennsylvania Public Schools,” which shows that black and Latino youth are at a disproportionate risk of being removed from school through suspension, expulsion and contact with law enforcement. Once students have one contact with the criminal justice system, they are likely to have further contact. They become alienated from school because of the stigma that comes with being system-involved, some drop out altogether. Convictions for summary offenses create an adult criminal record that later becomes a barrier to accessing higher education and obtaining employment.

Law enforcement officers throughout the commonwealth are issuing citations to students for catchall summary offenses such as disorderly conduct, harassment, and criminal mischief. Study upon study show that these low-level, non-violent acts are characteristic of normal adolescent behavior. Some examples of summary citations include a female student who was cited for telling a fellow student to “f-off” after he had been making inappropriate comments to her, and a student who was running in the hallway and accidentally ran into a teacher. Should this behavior be tolerated in a classroom or school setting? Maybe not. Does this mean that the student deserves an adult criminal conviction on their record? Absolutely not.

A magisterial judge in Pittsburgh recently spoke out against a new Pittsburgh Public Schools policy requiring that all summary citations be approved by the chief of school police before being issued. The judge claimed that sending students to his courtroom was a way to preserve school safety, because appearing in criminal court might “scare” students into compliance. This is the wrong approach. Summary citations are not issued for behaviors that pose a threat to school safety, and they are not issued in any consistent manner. Policies like the one in Pittsburgh decrease the number of citations issued for minor behaviors—they do not prevent school officials or law enforcement from taking all necessary measures to protect the school community.

School is where we learn how to interact with the rest of the world. Children make mistakes. Our first reaction should not be to push certain students out of school and into the justice system. If our goal is to keep our communities safe, we should work harder to keep our youth in school, and to teach all of our students how to resolve conflicts peacefully.

This post is part of a series in honor of Black History Month.

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Maheen Kaleem joined the ACLU-PA in August of 2013. Maheen recently received her J.D. from Georgetown University Law Center in May of 2013 and her undergraduate degree from Georgetown University’s Edmund A. Walsh School of Foreign Service. She has worked on a number of issues related to the women’s rights and racial justice, with a particular emphasis on the rights of incarcerated women and children, and a special focus on the needs of girls in the juvenile justice system.

Grandson of Color

By Bruce Makous, Development Director, ACLU of Pennsylvania

Matteo Flores-Makous

Matteo Flores-Makous

I remember writing an essay in my freshman year at Oberlin College, about the work of Dr. Martin Luther King from the point of view of a young white man. It was 1972. I said all the correct liberal things, making my thesis that, as a result of Dr. King’s work, racism was on the wane, and the world was becoming a beautiful place. In tone, it was a little bit like “Get Together,” the song by the Youngbloods. “C’mon people now, smile on your brother. Ev’rybody get together, try to love one another right now. Right now.” (I remind you, it was 1972.)

My professor said I was an idiot. “Just read the newspapers,” he said. “The world hasn’t changed that much. Racism in the U.S. is just as prevalent as it was before King.” In fact, he went on to say, he thought it was getting worse. I thought he was nothing but a curmudgeon, and I was absolutely convinced that my views, though possibly a bit simplistic, would be proven true in time.

Ever since my daughter Kacie gave birth last May to a son, Matteo, I have been revisiting my thinking on racism, with a much more personal focus. His father Joe is from a Salvadoran family, and I’m sure Matteo will be perceived as a Latino person of mixed race and he will be affected by residual biases against persons of color. As a result, I’ve been wondering what the world will be like for him. What kinds of problems is he going to face in twenty years, say, as a young man starting a career and a life of his own?

I tend to think that, in the age of Obama, which Martin Luther King’s work made possible, the monster of racism is being held at bay to some extent, but that isn’t true in all aspects of society and it doesn’t apply everywhere in the U.S. In some ways, in fact, I’m afraid that my professor wasn’t as far off as I thought back then. The biggest problems today, in my opinion, are related to implicit racism, present nearly everywhere, as well as deeply rooted, overt or “traditional” racism in many geographical locations throughout the U.S.

Because implicit or institutional racism – present just about everywhere in schools, employment, housing, criminal justice, and many other aspects of society – is hidden in procedures, rules, business practices, and laws, its bias is elusive and hard to identify. Its presence in such places as school discipline rules, police practices, and discrimination in business is almost certain to penalize Matteo during his lifetime. Fortunately, organizations such as the ACLU and its allies are attacking these issues, and we are raising awareness and making significant progress case by case. While permanent elimination of such biases may be difficult and elusive, I’m optimistic that we will continue to make progress.

On the other hand, when I think about geographically and culturally based racism, which I think could even more significantly hurt Matteo, I’m much less optimistic. I’m reminded of a point that anthropologist Jared Diamond makes in The World Before Yesterday, about humans having a basic “kill or be killed” instinct. He uses the example that, when traditional people (those living in primitive circumstances) are walking in the woods and they see one or more strangers, they know they must strike out or risk being killed. The key word, he explains, is “stranger.” Small tribes are familiar with only a few people, and larger tribes have longer lists of people who aren’t strangers, so fewer people in their area whom they don’t know and therefore might have to kill.

Our DNA hasn’t changed all that much. We still don’t trust strangers, and that’s the root of racism. Familiarity leads to trust. Modern metropolises are very diverse places in which we become familiar with large numbers of widely varied groups of people. We can know and learn to trust many people who may be different from us.

The concern comes when you think of the many huge homogenous ghettos of white people, covering about half the U.S., with little regular familiarity with people of color and otherwise diverse groups of individuals. This homogeneity, which frequently has been intentionally created and propagated, reinforces and perpetuates the strangeness of “the other,” the kill-or-be-killed attitude against people who are non-white or otherwise different. Watching enlightened TV shows like Modern Family, for any who happen to be so inclined, isn’t enough to create a real comfort level.

The deeply rooted racism in those regions is a long way from elimination and could even be a permanent feature of the culture in many regions. My advice to Matteo with respect to those dangerous geographical areas will be to try to avoid them if he can. Fortunately, there are many other places where Matteo can find culturally enlightened people who get along with people of all races and ethnicities. In those places, we actually do smile on our brothers and try to make the world a more beautiful place. Matteo will be much happier in those places.

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Writing this piece gave me a chance to have some meaningful personal conversations about these topics, particularly with my ACLU-PA colleague, Reggie Shuford, and Joe Flores, my son-in-law, which helped me flesh out my point-of-view. (Thankfully, their comments weren’t quite as harsh as those of my professor.) As a result, the article is much better.

This post is part of a series in honor of Black History Month.