Official Blog of the Education Exchange Corps

Wednesday, January 25, 2017

School Profile: Hawthorn Leadership School for Girls

For the last several years, the Education Exchange Corps has been working in the Hyde Park neighborhood in North St. Louis City.

At the end of 2016, Clay Elementary - the public school that has been serving the area for a century - was targeted for closure. Instead of being closed, the school must show significant improvement in the next three years.

Advisory board members only have a few weeks to come up with a proposal to revamp Clay into a school that will attract more kids and improve academic performance. As part of that advisory board, I've decided to visit area schools with unique programs to see what ideas we could use to improve education for even more kids in our city.

So, Episode One: The Hawks of Hawthorn!

The Hawthorn Leadership School for Girls is a newer charter school. It started in 2015 with 6th and 7th graders. Each year, it will add a new grade until it eventually serves 6th-12th grade students. All girls.

I've passed by the school building many times in the nine years I've been working with kids in St. Louis City. The school is just off of North Kingshighway. I started my work just down the street at Lexington Elementary.

Hawthorn Leadership School for Girls
The entry lobby is a good gathering spot. To the left is the office, which, because it doesn't have any doors, feels very welcoming. To the right are glass-enclosed shelves that showcase the school community and its achievements. And the path straight ahead intersects with a narrow hallway that encircles the building, providing access to large central classrooms and others off to the opposite side. 

The tour was led by students. That's part of the college prep plan. Just like you'd see students leading tours in college, at Hawthorn, you're led by middle school kids. It's pretty great. You don't get a sterilized speech from an administrator. Instead, you hear from kids who obviously love their school, and love it enough that they aren't all too shy about saying what changes they'd like to see.

That was the most impressive part of Hawthorn for me: These kids take real ownership of their school space, and staff members support it. Students spend class time planning community engagement and ways to improve their school. The kids even got together and led a protest march around their school grounds to demonstrate their frustration about our national political climate, and their school supported their decision.

Hawthorn's leadership framework is organized around five core values: Joy, Support, Integrity, Courage, and Contribution. Kids can be nominated by other students or by staff for exhibiting these values, and they're celebrated in school-wide meetings.

These values flow through the school curriculum, which emphasizes college prep and STEM education. Students have two math periods including a "math lab" which is much more individualized to the needs of each student. Kids also participate in a lot of project-based learning, and they're given engineering problems they have to solve in teams.

Language Arts and History are combined, and the school is striving to link the topics covered back to leadership. One of the classes we visited was reading Copper Sun by Sharon Draper, which deals directly with the horrors of slavery and the slave trade.

Hawthorn has resources a lot of other schools don't. They have classrooms named for some of the major corporate and family donors in St. Louis. They receive support from Washington University. They have a social worker, a dean of students, and an assistant dean of students that help tremendously with their restorative justice discipline system. Students also are assigned a "buddy classroom" they can go to if they need to get out of their class environment and calm down, a flexibility that many schools don't have.

Hawthorn also does not provide transportation to their school. Transportation is very expensive. The lack of buses requires family members to come visit the school often, which helps build community. But it likely also limits who can attend the school. The school does offer after-school services.

I liked what I saw. 
But I LOVED what I heard.

First, the feeling of family.
At one point, our tour guide kiddos were asked what they would do if they felt they had a problem they needed to talk about. Would they just go to their teacher?
Answer: They could go to any staff member they wanted to. If they connected well with a particular teacher, then that's where they would go.
And that wasn't even a knock on other teachers. It was a realistic, natural, mature observation. It was a statement made by kids who are in an environment that trusts them to do the right thing and supports them in doing it.

Second, the buy-in.
I took an unofficial mini-tour. I was straggling toward the end of the official tour, reading stuff that was on the hallway walls. A fourth kid we had met in her classroom came out into the hallway and said hi. As a joke, I asked her if she drew all of the pictures on the wall. She said, "No, but I did make this one." She pointed to a rainbow "Black Lives Matter" poster.

I asked her why she made it. She told me about the protest march the kids led, how she wanted to be valued too. We got to talking, and we soon realized that when she was a little kid years ago, she was at one of the Education Exchange Corps' partner schools. She'd bounced around a lot from one school to the next when she was a kid.

I asked her if she really liked Hawthorn. She did. A lot. A lot a lot. She liked her teachers. She liked having a voice in how her school was run. She even liked the concept of having to wear a uniform.

Hawthorn is an impressive school that can do great things for St. Louis kids. Even schools with less resources can consider adopting some aspects of their curriculum and disciplinary approach. 

But the most important lessons Hawthorn teaches are why it's so important to work together, what cooperation looks like, and how to trust others to be in positions of responsibility.

That's how kids become leaders.

Elad Gross, J.D.
President and CEO
Education Exchange Corps

Sunday, January 8, 2017

Missouri Harassment Law Has Changed, But with Little Likely Impact for Kids

So far, we've only discussed the changes to the laws about school fights. Kids in Missouri are not more susceptible to prosecution for school fights.

Some news outlets appear to have gotten that message. But now, some reports claim that Missouri's new harassment law threatens to criminalize student behavior. Those reports are overblown too. 

The confusion with the assault laws, as we discussed, appeared to have come from folks not fully comparing the old laws to the new and seeing that they were virtually the same, just numbered differently.

The confusion with the harassment laws, however, is much trickier for non-lawyers. The new law seems to use new language, but, in reality, it's using the exact same language that courts have used for years in published court opinions to describe harassment.

In this post, we'll compare the new harassment law to the old one (including with another handy chart), talk about the important difference between statutory law and case law, compare Missouri's laws to what other states are doing, and talk about the implications for schools and families.

How Has the Harassment Law Changed?

On the surface, the harassment law's language has changed quite a bit. But, because of Missouri courts' interpretations over the past decades, the law hasn't changed much at all. The big change is the potential penalty. Harassment can now be a felony in Missouri.

Before 2017, there was one harassment crime. It was a misdemeanor (it could have been elevated to a felony for a repeat offender or for someone 21 or older harassing someone younger than 18). Now, there are two levels of harassment: one is a misdemeanor, and one is a low-level felony.

New Harassment Law

The new law reads:
A person commits the offense of harassment in the first degree if he or she, without good cause, engages in any act with the purpose to cause emotional distress to another person, and such act does cause such person to suffer emotional distress.
This is the felony version. Misdemeanor harassment is the exact same except for the end: the victim does not have to actually suffer emotional distress.

To convict a defendant of felony harassment, a prosecutor must prove:
1) The defendant acted without good cause;
2) The defendant acted with the purpose to cause emotional distress to someone else; and
3) The defendant caused that other person to suffer emotional distress.

If the prosecutor cannot prove any one of those elements beyond a reasonable doubt, then the defendant cannot be convicted of felony harassment.

Emotional distress!? That's it!!? You may be thinking, "I'm getting harassed all the time under this new law!"

There are two terms in the law that could use some defining: "good cause" and "emotional distress." What counts?

"Good cause" is not defined in the statute, but "emotional distress" is defined in another law.

[Emotional distress is] something markedly greater than the level of uneasiness, nervousness, unhappiness, or the like which are commonly experienced in day-to-day living.
This definition seems to leave quite a bit unanswered. It appears that uneasiness, nervousness, and unhappiness could qualify as emotional distress, but they need to "markedly" exceed the level commonly experienced in day-to-day living. So what level of emotional distress is considered normal? How much is "markedly"? Does that depend on the victim or on a typical reasonable person? It sounds like we're supposed to look at the typical, common, reasonable person and how she would feel, but that's not explicitly stated.

Here's the catch, folks: In America, we have case law. Case law is the collection of court interpretations that define what the law is.

After a rule becomes a law, people get prosecuted, and they may disagree that what they did fits within the law. So courts have to figure out what the law means. And, oftentimes, the courts write down their opinions, and these writings form case law, which is used to further define the law.

This definition of emotional distress - the "markedly greater" language above - actually comes from Missouri courts' interpretation of the old law.

This "new" definition of emotional distress has been used by Missouri courts for many years. Take a look at this 2008 Missouri case that actually cites a 1998 case for the same definition.

And that definition comes with a reasonable person standard. Using this definition, the courts in Missouri held that, when deciding whether something is emotionally distressing, we have to look at how the reasonable person would respond, not at how the particular victim with his unique character responded.

So, although the new law doesn't appear to be super clear, it has actually been updated to be in line with old and current Missouri case law, and the case law does provide at least a bit more clarity.

The new harassment law is actually just the old one, now using the language Missouri courts were already using.

Let's look at the old law to fully compare.

Old Harassment Law

Here's the old law:
A person commits the crime of harassment if for the purpose of frightening or disturbing another person, he
(1) Communicates in writing or by telephone a threat to commit any felony; or
(2) Makes a telephone call or communicates in writing and uses coarse language offensive to one of average sensibility; or
(3) Makes a telephone call anonymously; or
(4) Makes repeated telephone calls; or
(5) Knowingly makes repeated unwanted communication to another person; or
(6) Without good cause engages in any other act with the purpose to frighten, intimidate, or cause emotional distress to another person, cause such person to be frightened, intimidated, or emotionally distressed, and such person's response to the act is one of a person of average sensibilities considering the age of such person.
The old law's first four options were very specific. But take a look at that fifth option: "Knowingly makes repeated unwanted communication to another person." Sounds like a presidential election!

We do have a process in Missouri to challenge bad state laws through the courts. In 2012, the Missouri Supreme Court found option 5 in the old harassment law to be unconstitutional because it was overbroad. That means the crime covered too much conduct that was protected free speech. So option 5 was no longer a crime.

Now check out old option 6. It looks pretty similar to the new harassment law. Just take away a few words and it's almost identical. In that same 2012 court case, the Missouri Supreme Court considered option 6 too.

Remember the term "good cause" from the new law that was left undefined? It appears in this old law too.

The Missouri Supreme Court found that the "good cause" language limited the old harassment law enough to protect people. One of the examples the Supreme Court used was a kid in a Halloween costume scaring others. Apparently, that kid would have "good cause" to cause someone emotional distress and would not be in violation of the law.

The Court stated that the words "good cause" required the emotional distress to be "substantial."

The Court provided a definition for "good cause": "a cause that would motivate a reasonable person of like age under the circumstances under which the act occurred."
This definition takes into account the age of the actor.

So, when we take case law into account, the old law is almost the exact same as the new law, other than the potential penalty.

And, just to make things more complicated, there was another old law that included harassment in it (this disorganization happened in the old criminal code, which is one of the big reasons why it was revised and updated).
The other old law was for stalking.

A person commits the crime of stalking if he or she purposely, through his or her course of conduct, harasses or follows with the intent of harassing another person.
And harassment had its own definition here because WHY NOT!?
[Harass:] to engage in a course of conduct directed at a specific person that serves no legitimate purpose, that would cause a reasonable person to suffer substantial emotional distress, and that actually causes substantial emotional distress to that person.
Again, this law used the "reasonable person" standard. And this language is also very similar to the new harassment language.

The revised stalking law no longer includes harassment, in case you were worried. 

So... Has the Harassment Law Changed?

Other than the increase in the potential penalty, no. 

On the surface, the harassment law has changed. But, when we look at what courts have said in the past about Missouri's harassment law, the new changes made to the harassment language just put the written law in line with the court's previous interpretation.

The fact that the new harassment law does not explicitly include a reasonable person standard is confusing. The law could be read as eliminating that reasonable person standard. And maybe someone will eventually challenge the law on that ground. But, given Missouri courts' recent and historic interpretation of the same language used in the old law, the reasonable person standard very likely still exists.

Here's the big change: Harassment that causes emotional distress is now a felony regardless of who is involved (although keep reading to see how that is limited by the "good cause" language).

Does This Change Anything For Kids?

Not realistically, but there are some changes.

The law could potentially change things for kids 17 and older because they do not have the protection of the juvenile justice system, but even that is really unlikely.

Because the words "good cause" have been defined by the Missouri Supreme Court to take into account the age of the harasser, prosecutors who choose to go after older kids for behavior typical of kids their age will have an enormously hard time doing so.

And remember the juvenile justice system?
A kid under the age of 12 cannot be certified as an adult to stand trial for criminal harassment.

For a kid older than 12 and under 17 to end up in criminal court facing a felony charge for school behavior, the kid would have to:
1) Criminally harass someone;
2) Go through the school discipline system;
3) Be referred by the school to law enforcement;
4) Be determined by law enforcement to have broken the law and be referred to a juvenile officer;
5) Have a juvenile officer think that informal or formal options in the juvenile system would not work and recommend the kid be tried as an adult;
6) Have a juvenile judge certify the child as an adult; and
7) Have a prosecutor also agree and charge the child with felony harassment.

For kids 17 and older, the same process occurs without steps 5 and 6 and with a law enforcement referral to a prosecutor.

In 2015, 0.24% of kids in the juvenile justice system for a law violation were referred for adult criminal prosecution

Before harassment was made a felony, no kid in the juvenile system could be certified to stand trial as an adult. 
Now it's legally possible that a kid between the ages of 12 and 17 could stand trial in a criminal court for harassment. But, given the need to have school staff, law enforcement, a juvenile officer, a juvenile judge, and a prosecutor all believe the kid needs to be charged as an adult, despite the availability of other options, that result is highly unlikely.

The big change that could impact kids (and adults) is that harassment has been elevated to a felony, but any impact on kids is highly unlikely.

Does This Change Anything for Schools?

No. Schools already had to report criminal harassment to law enforcement even in 2016 and still have to in 2017. The new definition is almost identical to the old when we consider not only the statutory language, but the case law too.

Even If the Law's Language Isn't Changing, Are There Problems with It?

That depends on your view about how much discretion prosecutors should have. For anyone who ends up in a criminal court charged with harassment, a lot will be up to the jury. Given the defendant's age, what is "good cause?" What is "substantial emotional distress?" Did the defendant actually have an intent to cause emotional distress?

A prosecutor has a significant amount of leeway to work with here. And because kids 17 and older are not protected by the juvenile justice system, they could quickly be on the wrong end of discretion. 

But, realistically, an elected prosecutor is not going to stretch to go after children for school harassment. 

The real issue hiding under all of this talk about laws changing is the lack of trust the American people have in their institutions, the feeling of regular folks that they don't have a voice in our system, the inequities that exist for those who have less resources or who have been historically marginalized. This particular law provides (and has provided) discretion to one of our institutions, and that's something many folks don't feel like providing much of anymore. 

Are Other States Like Missouri?

Yes. There are other states with stalking laws that use language similar to Missouri's new harassment law. 
Just based on a quick read-through of this stalking law database, here's a list of some states with similar laws to Missouri and how they treat basic stalking: 

Alabama (misdemeanor), Colorado (felony), Delaware (felony), Washington, D.C. (misdemeanor), Florida (misdemeanor), Idaho (misdemeanor), Illinois (felony), Maine (misdemeanor), Rhode Island (felony), South Carolina (felony), Tennessee (misdemeanor), Utah (misdemeanor), Washington (misdemeanor), West Virginia (misdemeanor), Wyoming (misdemeanor).

Other states other than those listed have stalking laws too, and some states may have independent harassment laws. But Missouri is not the only state that treats this type of behavior as a felony.

Does That Mean Parents, Schools, and Others Shouldn't Do Anything?

No! Absolutely do something! Talk to your kids about how to act civil. Teach them that their actions can really hurt people, that as a human being they have the choice to make their communities better homes or to trash this place for everyone. Put them in environments that challenge them, that encourage them to ask questions about the society we have built. Ask them about what's going on in that Twilight Zone social media world they spend so much time in. And be patient with them. They're learning how to be humans.

But don't do it because of some manufactured threat of prosecution. Do it because it's right.

At the bottom of all of this talk about laws changing is an unspoken understanding that all of our kids are getting screwed. Our poor kids are getting screwed out of opportunity. Even our well-off kids are getting screwed out of a fairer future because we are currently neglecting a whole bunch of kids who will grow up right alongside them.

We're building a broken foundation for the next generation to lay their society on, and a broken foundation can only bear so much potential. It's about time we address the real problems underlying our society and build an America that we know we can be.

To report a suspected issue with how the assault law is implemented, follow this link:

To support the Education Exchange Corps, you can donate at this link:

Elad Gross is a former Assistant Attorney General of Missouri. He graduated from Washington University School of Law.

This blog post is not meant to provide legal advice. If you are in need of legal assistance, please contact an attorney.

Elad Gross, J.D.
President and CEO
Education Exchange Corps

Monday, January 2, 2017

School Assault Reporting Requirements for School Districts

We've received a few questions about the new school reporting requirements and how they relate to the Missouri assault laws.

We briefly wrote about these requirements in our post about the juvenile justice system, but we want to highlight this information.

When kids commit certain crimes at school, their behavior has to be reported to police. 
The two big statutes here are RSMo 160.261 and RSMo 167.117. Here's a chart summarizing what needs to be reported:

Teachers and Principals' Reporting Requirements
RSMo 167.117 has not changed. This law requires teachers and principals to report. Teachers are supposed to report to principals, and principals are supposed to report to police and the superintendent.

The behaviors to be reported are:
  • Assault in the First Degree
  • Assault in the Second Degree
  • Assault in the Third Degree
  • Sexual Assault
  • Deviate Sexual Assault
Thanks to comma usage, this law could be read in one of two ways. First (and the one that makes the most sense) is that all of these crimes need to happen "against a pupil or school employee, while on school property, including a school bus in service on behalf of the district, or while involved in school activities."
Another way to read the law is that these crimes could happen anywhere and need to be reported except Deviate Sexual Assault, which only needs to be reported if it involves school as described in quotes above. This reading doesn't make much sense, especially when reading the definition of Deviate Sexual Intercourse in comparison to the other behaviors, but it's possible. However, this language is not different in 2017 than it was in 2016.

Because RSMo 167.117 has not been updated, it did not change with the assault law changes. The list does not include Assault in the Fourth Degree.
Assault in the Fourth Degree is a misdemeanor assault. It's the same thing as what Assault in the Third Degree used to be. Now, Assault in the Third Degree is a low-level felony assault.

This means that, back in 2016, school staff had to report felony and misdemeanor assaults. Now, because the law was not updated, they do not have to report misdemeanor assaults anymore.

There's another wrinkle to all of this too.
The law allows Assault in the Third Degree to be reported in a special way. Superintendents can make written agreements with police to determine how assaults in the third degree are reported to police, and then staff would have to follow those policies. Based on the law, it appears that these agreements could be pretty flexible; there aren't really any restrictions on how they can work.

So this special reporting arrangement - which was previously available only for misdemeanor assaults - now applies to low-level felony assaults.

The new assault laws have actually decreased reporting requirements for schools when it comes to assaults. Now, districts can make special arrangements with police about how to report low-level felony assaults at school, and districts don't have to report misdemeanor assaults at all.

School Administrators' Reporting Requirements
But what about that other statute, RSMo 160.261?

That law places reporting requirements on school administrators to report to staff members and to law enforcement.
It requires school districts to have policies requiring "school administrators to report acts of school violence to all teachers at the attendance center and, in addition, to other school district employees with a need to know." 

Who "needs to know?" That's defined as school staff who teach or interact with the kid.

OK. But what's an "act of violence?" It means a kid needs to use "physical force" "with the intent to do serious physical injury" to someone else on school property. 
In an earlier post, we discussed the definition of "serious physical injury" and how it is used only for the highest level assaults: Assault in the First and Second Degrees. It's defined as "physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body." It's pretty bad.

In short, when it comes to assault, school administrators need to tell staff members when a kid commits Assault 1st or 2nd, not 3rd or 4th. It might be a good idea for school administrators to communicate more than that to staff members, but that's up to school districts to determine.

RSMo 160.261 also requires school administrators to have a policy to report to police. At a minimum, the policy must require administrators to report 25 different crimes to police. That list includes Assault in the First and Second degree, which were included before 2016. It does not include Assault in the Third and Fourth Degrees.

A school district can choose to include more crimes in its policy if it wishes. And, as we just discussed, Assault in the Third Degree is subject to at least a special reporting requirement under RSMo 167.117. Under the law, school administrators do not have to report Assault in the Fourth Degree to police, and they can have a special arrangement to report Assault in the Third Degree to police.

Bottom Line: In 2017, when it comes to assault, school staff and districts have less of a reporting requirement. Districts have the ability to report more crimes or change nothing. But there is no change in the law that requires them to report more assaults.

Here's the link to our story in the St. Louis American story:

Our post about the new assault laws
Our post about the juvenile justice system
Our post about the redefinition of "physical injury"
Our post about the harassment law

To report a suspected issue with how the assault law is implemented, follow this link:

To support the Education Exchange Corps, you can donate at this link:

Elad Gross is a former Assistant Attorney General of Missouri. He graduated from Washington University School of Law.

This blog post is not meant to provide legal advice. If you are in need of legal assistance, please contact an attorney.

Elad Gross, J.D.
President and CEO
Education Exchange Corps