23 December 2021

Kevin Sutton Interviewed for Detroit News Article on Possibility of Return to Zero-Tolerance in MI Schools

***On December 22, 2021, Kevin Sutton was interviewed for a Detroit News article authored by Jennifer Chambers.*** (subscription required)

Michigan moved away from zero- tolerance discipline in schools. Has Oxford changed that?

Correction: A 2017 state law amended Michigan school discipline rules, mandating expulsions to three offenses, possessing a dangerous weapon, arson or criminal sexual conduct. That information has been corrected.

The tragedy at Oxford High School and the staggering rise in threats against Michigan schools that followed have triggered a return to a zero-tolerance approach in student discipline and a hard-line response to student misbehavior by legal authorities.

Suspensions and expulsions from Michigan schools and the arrest of adolescents for making false school threats spiked after the Nov. 30 deadly rampage at the Oakland County school that killed four students.

Children as young as 12 are being criminally charged in connection with making school threats. Wayne County has 42 cases against juveniles. One Metro Detroit school district suspended 13 students in a two-week period in response to threats at their schools.

While pushing troubled students out of school may seem like a solution to preventing another tragedy, legal experts and student advocates warn it could do more harm than good— to both students and the community — and trigger legal ramifications for school districts if state laws aren’t followed.

“It’s not as if you kick a kid out and everyone is safe. In other cases and in Parkland (Florida), that student had been removed and came back,” said Peri Stone-Palmquist, executive director of the Student Advocacy Center of Michigan. “It’s really important for the school to stay involved.”

Staying connected with students who face suspension or expulsion as well as kids whose behavior raises red flags but does not violate the law is key to addressing the students’ need for help, she said. And that connection is best maintained through a team approach by adults in mental health, law enforcement and a school staffer who personally knows the student.

“The broader community context is if you kick a kid out, the kid is just out in the community,” Stone-Palmquist said. “What are they going to do out in the community? We have a responsibility to figure this out.”

A return by schools to a zero-tolerance policy has the potential to be problematic because state law requires other considerations before a student can be expelled or suspended, said Kevin Sutton, the managing member of law firm Miller Johnson’s Detroit office and chair of the firm’s education practice group.

Since 2017, when Michigan updated its student discipline laws, school districts are required to consider restorative practices in punishments. That includes analyzing seven factors, including a student’s age, disability status, disciplinary history and the seriousness of the violation, before suspending or expelling a student.

“They can take a hard line, but they can’t do that at the expense of due process concerns and ignore what the Michigan Legislature told us with the seven factors,” Sutton said.

Michigan Attorney General Dana Nessel stressed that point in an Oct. 13 letter to Michigan’s public school principals and superintendents that said the law requires educators to consider all options before suspending or expelling a student.

School districts do have some flexibility, as there are lesser legal protections for students for suspensions of 10 days or less, Sutton said. The process becomes much more formal if a suspension is going to exceed 10 days, he said.

“The line in the sand is 10 days,” Sutton added.

Setting thresholds
The Wayne Regional Educational Service Agency published a new guide in December called the Comprehensive School Threat Assessment Resource Guide.

It calls for every district in the county to create a violence prevention plan that includes an organized multidisciplinary threat assessment team, definitions for concerning and prohibited student behaviors, a central reporting mechanism and setting a threshold for law enforcement intervention.

The guide says “the threshold for intervention should be relatively low so that Teams can identify students in distress before their behavior escalates to the point that classmates, teachers, or parents are concerned about their safety or the safety of others.”

Student behaviors involving weapons, threats of violence, physical violence or concerns about an individual’s safety should immediately be reported to local law enforcement, the guide reminds school officials.

Staff at Oxford High Schol did not notify the school resource officer when they met with accused shooter Ethan Crumbley and his parents in the hours before the shooting over a teacher’s concerns about a drawing that included the words “the thoughts won’t stop, help me” and a drawing of a bullet and the phrase: “blood everywhere.”

If a school resource officer is not available to serve on the team, schools should set a clear threshold for times and situations when law enforcement will be asked to support or take over an assessment, according to the Wayne County guide.

“For example, might be necessary to have law enforcement speak with a student’s parent or guardian, search a student’s person or possessions, or collect additional information about the student or situation outside the school community during the assessment,” the guide says.

Wayne RESA Superintendent Daveda Colbert said recent events have reminded school leaders and staff to revisit these plans and elevate the importance of reporting concerning behaviors, particularly given the amount of time that was spent during 2020 in virtual settings.

While the information, which brings together guidance and resources previously published by national experts including the U.S. Secret Service and the University of Virginia, is not new, school officials in Wayne County and elsewhere wanted to revisit their plans after the Oxford shooting.

“Although there is no way to guarantee eliminating school violence, a comprehensive interventions-based approach can greatly minimize the risk to both the potential victims and perpetrators,” Colbert said in an email.

Mike DeVault, superintendent of Macomb Intermediate School District, said after the Oxford shooting county officials held emergency meetings with school superintendents, county sheriff staff, prosecutors and others to share information and discuss responses to local threats.

A recent meeting with counselors and social workers resulted in a decision by the Macomb ISD to contract with different agencies to have psychiatric assessments for students before decisions are made about discipline, DeVault said.

“It’s a tough call. We think a kid deserves a psychiatric (evaluation) first before law enforcement contact,” he said.

DeVault said a recent decision to suspend a male student upset the mother. DeVault would not disclose the alleged behavior or details about the child or the school.

“Mom was outraged. We said ‘Sorry. This is our position now,’ he explained.

“(The student) said something we could not tolerate, and we removed the kid from class,” DeVault said.

‘No room for discretion right now’
Oxford schools officials earlier this month announced a zero-tolerance approach for student discipline. School officials have come under scrutiny for letting Crumbley, 15, back into the school population after questioning him about the violent drawing.

Jill Lemond, an assistant superintendent in Oxford schools, said the zero-tolerance policy means any student making any violent threats or creating violent imagery in school will be immediately removed and that administrators and the school resource officer will be immediately notified.

The student could only return after a third-party mental health review is completed, Lemond said.The district does not consider the removal a suspension or expulsion, but Stone- Palmquist said removals are the same as a suspension.

“There is no room for discretion right now,” Lemond told the district’s Board of Education on Dec. 14. “Any student who provides anything remotely violent or in any way threatening is out of school. The administration gets involved, law enforcement gets involved.”

On Wednesday, district spokeswoman Danielle Stublensky said zero tolerance on threats or weapons in schools is already board policy, and that it is now being applied to violent content.

The 2017 state law that amended Michigan rules ended state-mandated school expulsions for all offenses except possessing a dangerous weapon, arson or criminal sexual conduct.

“We’ve heard loud and clear from our parents, students and staff that safety both in terms of physical and emotional safety and well-being should be our top priorities,” Stublensky said.

Doug Lloyd, Eaton County prosecutor and president of the Prosecuting Attorneys Association of Michigan, sent a letter the week of Dec. 9 to parents in his county addressing the rise in threats against schools.

“My office, law enforcement and each school district in the county want to make this abundantly clear — we take these threats seriously,” Lloyd said in the letter. “Each threat must be treated as a true and intentional threat, regardless of whether the individual was joking, did not mean to scare people, did not mean to actually carry it out, etc.”

Lloyd said the point of the letter was to get parents to talk to their children about the consequences of such threats, and how juvenile offenders may be prosecuted as adults in certain circumstances.

“It’s fair to say Oxford brought a whole new level to the need to investigate,” Lloyd told The News. “Law enforcement, school officials and prosecutors are trying to get a handle on this.”

Lloyd has five cases related to school threats in the last two weeks. In the prior 10 months, he said he had one or two.

“All of this now — it’s a whole new world,” Lloyd said. “Words matter. You just can’t say words. We need to think about our words. Do those words rise to the level you have committed a crime?”

The spike in threats against schools means Sutton, the lawyer, is doing more legal work at suspension and expulsion hearings than he normally does.

The reaction of parents in cases where their children are accused of making threats since the Oxford school shooting have ranged from devastation to anger, and led to accusations of school officials overreacting, he said.

“Students not understanding the impact of their words it can cause significant fear and a significant impact on a school community,” Sutton said, referring to lockdowns that in some cases have kept kids in schools into the evening hours.

‘A dumb mistake?’
On Tuesday and Wednesday, Dearborn police and school staff visited all 32 school buildings together to allow officers to become more familiar with the layout of each building. Superintendent Glenn Maleyko said the effort is part of the district’s long-standing work to prepare for any possible emergency.

Each school in Dearborn Public Schools has an emergency plan specific to that building, including specific doors in classrooms that are to be used to evacuate and areas where students are asked to regroup. School officials said the police visits are to help officers visualize those plans and give them a better understanding of each school’s layout.

David Mustonen, spokesman for Dearborn Schools, said the district is not feeling pressure to take a harder line in school discipline after Oxford, but it has made a conscious decision to help students understand the seriousness of posting threatening messages and making actual threats.

“There is a big difference between a high school post of ‘I’m going to light up the school and hurt some kids,’ and a third-grader including a gun or something in a school project,” Mustonen said.

In the last two weeks of classes before the holiday break, the district suspended 13 students for 10 days each over alleged threats. Each student has a discipline hearing where a decision will be made whether they face further suspension, permanent expulsion or another result.

The district heard from parents demanding that students making threats be “dragged out to the town square and stoned in public,” Mustonen said.

“We have due process we have to follow. Every situation is different,” he said.

Maleyko sent a letter to let the community to let them know that action was being taken and parents responded with words of support, Mustonen said.

“The few students who have had a hearing, the parents have been very supportive. They understand the gravity of the situation. Their response to this helps us determine our response to this,” he said.

“If parents take this seriously, if there is discipline going on at home, we take that into consideration as well and the demeanor of the students,” Mustonen said. “Was it a dumb mistake? Was the student regretful and accept the punishment we are going to give?”

Mustonen said that doesn’t mean the student won’t be punished. It just may not be permanent expulsion.

“They still have to face consequences,” Mustonen said. “No one is getting off the hook.”