On Jan. 20, a federal court in Birmingham began hearing arguments in a class-action lawsuit alleging that school-based police officers used excessive force in spraying disabling chemicals on teenagers.
The eight lead plaintiffs, all former Birmingham high school students, are represented by the Southern Poverty Law Center (SPLC). Incident reports show that Birmingham school officers have used a pepper spray/tear gas combination product on over 300 students since 2006, in 110 separate incidents at eight of the city’s nine high schools, according to SPLC attorney Ebony Howard. (The only school where chemical spray was not used requires high test scores for admission.) The lawsuit seeks to curtail the practice and win damages for several of the plaintiffs, all of whom are black -- like 96 percent of Birmingham public school students.
SPLC’s complaint describes officers spraying students to break up fights, spraying bystanders who were watching other students fight, and spraying students who talked back to teachers, administrators, or other students, but who did not become violent. One of the students allegedly sprayed was pregnant. According to the complaint, she was one of several students arrested after being sprayed and brought by police from school to a juvenile detention center, where they waited in holding cells for parents to pick them up, still wearing clothes coated in the chemical. No charges were filed against any of the defendants.
The spray in question is Freeze + P, whose manufacturer boasts that it causes “severe pain.” It can lead to coughing, burning, blindness, skin peeling, and difficulty breathing.
“We have not been able to locate a school district anywhere that uses chemical spray in the way that Birmingham does, meaning on a routine basis,” Howard says. The federal government does not track the use of chemical spray in schools. Yet such practices are not unheard of. In two separate December incidents, school-based officers in Virginia sprayed a girl accused of trespassing on school property and a group of students fighting in a school cafeteria. In November, the Boston schools superintendent halted a plan to arm school-based officers with chemical spray, saying that doing so would seed distrust between officers and the community; unlike school-based police in Birmingham and most other cities, the Boston officers are employed directly by the school district and carry no weapons.
The Birmingham suit is the latest in a series of legal challenges to the practices of police based in schools, all alleging excessive use of force and unnecessary interrogations and arrests. The largest such case, brought by the New York Civil Liberties Union against the New York Police Department, is expected to end in a settlement, with Mayor Bill de Blasio’s administration planning widespread changes in school discipline practices.
The Birmingham case is unusual in that it has gone to trial. In a Jan. 18 statement, Michael Cody, an attorney for the Birmingham Police Department, said the plaintiffs were engaged in “disorderly conduct, which ranged from fighting and coming close to starting a riot in a high school cafeteria to repeatedly hitting an assistant principal. … if the plaintiff students were tending to their reading, writing and arithmetic and behaving in an orderly fashion, they would not have been maced.”
Previously Cody had suggested, seemingly facetiously, that given the presence of “thugs and bullies” in the Birmingham public schools, the lawsuit could only be resolved by “by the Police Chief removing all Birmingham police officers from the Birmingham public schools.” Cody noted that administrators had requested a police presence in the city’s schools, a practice that dates back to 1996. Which raises the question: Are students safer when police officers are regularly stationed at school?
School-based policing exploded after the infamous school shootings of the 1990s, which prompted Congress to create new federal funding streams for school officers1. In 2008, 21 percent of K-12 public schools reported a police officer working on campus, compared to just 1 percent of schools in 1978. Kevin Quinn is a school-based officer in Arizona and an executive board member of the National Association of School Resource Officers (NASRO), an advocacy and training organization. School policing provides “that layer of prevention,” he says. “If an emergency or something happens, the police are already there. There is a general sense of school safety.”
NASRO’s 40-hour training teaches officers how to counsel troubled kids, lecture in front of a classroom, and work with disabled students. According to Quinn, the program does not cover appropriate use of force because that is considered a matter for local police departments. But Quinn says school-based officers should be responding to crimes, not routine misbehavior.
“If a kid is in a hallway screaming and cursing out a principal, I’m going to go down the hallway and see that nobody is getting hurt,” he says. “As far as what’s going to happen, the school is going to take the disciplinary action. We’re not going to take any legal action on anything that’s not a crime.”
NASRO has sought to draw a connection between the expansion of school-based policing and declining rates of violence on school grounds. Yet as the Congressional Research Service pointed out in a 2013 report written in response to the Newtown elementary school shooting, the decline in school violence may have little to do with the presence of officers on campuses; the trend echoes declining youth crime rates in all settings since the early 1990s, which is in turn part of an unprecedented national drop in crimes committed by both juveniles and adults.
There is little hard evidence showing that school policing has a positive -- or negative -- impact on children’s safety. One study found that metal detectors were more effective than police officers in reducing students’ fear of violence, and that the presence of police in school did not decrease students’ likelihood of being victimized. Yet the data was drawn primarily from rural Kentucky, where student demographics are starkly different from the high-poverty, largely non-white urban schools where police officers more commonly work.
Other research on school-based policing focuses more on students’ self-reported perceptions than on measurable indicators of school safety such as the number of violent incidents per year. A National Institute of Justice studyfound -- unsurprisingly -- that students who held positive opinions of the police officers who worked at their schools were more likely to report a crime and less likely to feel unsafe.
There is, however, evidence that the presence of police officers in schools leads to more arrests of students for non-serious crimes. Chongmin Na of the University of Houston and Denise Gottfredson of the University of Maryland found that schools with police officers reported 12 percentage points more non-serious violent incidents (such as student fights) to law enforcement, compared to demographically similar schools without police officers on duty.
The Birmingham schools are referring fewer students to law enforcement than they did before the chemical spray lawsuit was first filed in 2010. In 2009, 250 students were referred to police or courts, compared to 69 students in 2011, the last year for which federal data is available.
Though he is a named defendant in the lawsuit, Birmingham police chief A.C. Roper acknowledged last year that the school system was “over-relying” on police officers to provide discipline. "Too many of these kids have been criminalized, and that's not the goal," he said. “The current system is dysfunctional, and that's putting it mildly.”