A week after the Trump administration revoked guidance to schools promoting alternatives to suspensions and expulsions in a regressive move, the non-profit non-partisan RAND Corporation reported that schools pursuing alternatives improved their climate, reduced bullying and raised teacher assessments of the learning environment.[1]  

Despite the revocation, schools and school district policies can nonetheless still pursue alternatives, commonly proceeding through a restorative justice process that affords victims the chance to narrate their experiences and offering offenders opportunities to take responsibility for their actions.[2]  The victim and offender each describe their experiences and feelings about the incident (theft, hateful graffiti, a physical or verbal assault) and often express strong emotions. The session might also include other members of the community who would take their turn describing the impact of the offense on them. The leader—often a student peer—de-escalates conflicts, and orchestrates a conversation about what the offender could do that would help the victim. Together they come to an agreement about how to move forward, what the wrongdoer can do to repair injury and what all can do better to avoid future conflicts.

Contrasting with restorative approaches are “zero-tolerance” policies that produced automatic suspensions even for minor offenses. These are disproportionately applied to poor students of color and students in special education programs, and fuel the “school-to-prison pipeline.” Such policies have fallen out of favor, and it would be wise for schools to proceed with policies that build communities and prevent violations.[3]

One teacher observed that restorative justice efforts help young people take ownership of the justice issues. She reported, “we’ve seen this process help students understand the wide net their actions cast. This process allows students to accept responsibility and gives students an action plan to move forward productively instead of continuing to repeat the cycle of misbehavior and punitive response from administration.”[4]

To hold real promise of working, restorative justice efforts call for attention to strengthening trust and communication throughout the school and focusing on social and emotional learning of students, with meaningful training and support for teachers, administrators, and peer counselors.[5]  Restorative justice draws upon traditional justice practices around the world,[6] and typically

1.     identify and take steps to repair wrongs and harms;  

2.     involve all stakeholders;

3.     and transform the traditional relationship between communities and governments in responding to crime.  

Restorative justice approaches, emphasizing repair of relationships, restitution, community harmony, and the future more than the past, make clear that adversarial, formal procedures that focus on the rights of individual defendants, evidentiary records, ouster from school, and referrals to police is one choice among others.  The federal government may not be pressing for restorative justice, but local communities can and should do so.

NOTES:

[1] Lauren Camera, Study Contradicts Betsy Devos Reason for Eliminating School Discipline Guidance, US New & world Report (Jan 4, 2019), shttps://www.usnews.com/news/education-news/articles/2019-01-04/study-contradicts-betsy-devos-reason-for-eliminating-school-discipline-guidance; Augustine, Catherine H., John Engberg, Geoffrey E. Grimm, Emma Lee, Elaine Lin Wang, Karen Christianson, and Andrea A. Joseph, Can Restorative Practices Improve School Climate and Curb Suspensions? An Evaluation of the Impact of Restorative Practices in a Mid-Sized Urban School District. Santa Monica, CA: RAND Corporation, 2018. https://www.rand.org/pubs/research_reports/RR2840.html.

[2] Martha Minow, Do Alternative Justice Mechanisms Deserve Recognition in International Criminal Law?: Truth Commissions, Amnesties, and Complementarity at the International Criminal Court, 60 Harv. Int”l L. J.1 (2019)

[3] Catherine Winter, Spare the Rod, American Public Media (Aug. 25, 2016); https://www.apmreports.org/story/2016/08/25/reforming-school-discipline; Russel J. Skiba, The Failure of Zero Tolerance, 22 Reclaiming Children and Youth 27 (2014),  file:///C:/Users/minow/AppData/Local/Temp/22_4_Skiba.pdf.

[4] See Larry Ferlazzo, Response: How to Practice Restorative Justice in Schools, Educ. Week Tchr. (Feb. 6, 2016), ; (quoting Jen Adkins). https://perma.cc/78PZ-FAA8.

[5] Patrick O’Donnell, The Ins and Outs of ‘Restorative Justice’ in Schools What is it? Does it work as an alternative to traditional student discipline?, Educated Reporter (April 12, 2018), https://www.ewa.org/blog-educated-reporter/ins-and-outs-restorative-justice-schools.

[6] See John Braithwaite, Crime, shame and reintegration  (1989); Howard Zehr, Changing Lenses: A New Focus for Crime and Justice (1990); Harley Eagle, Restorative justice in native cultures. State of Justice 3: A periodic publication of Friends Committee on Restorative Justice (2001); Buyi Mbambo, and Ann Skelton,  Preparing the South African community for implementing a new restorative child justice system., in Lode Walgrave 271 , Repositioning Restorative Justice (2003); Laura Mirsky,  Restorative justice practices of Native American, First Nation and other indigenous people of North America (2004),  http://www.iirp.edu/pdf/natjust1.pdf.

Martha Minow is the 300th Anniversary University Professor at Harvard University, where she previously served as the Dean of the Law School between 2009 and 2017. Her new book, When Should Law Forgive?, considers the normative weight of punishment and forgiveness in legal systems, arguing that some contexts (including those in which juveniles act) may deserve additionally nuanced attention.