What About the Children Who Need Public Benefits?

In my last article I discussed some of the ways marijuana convictions can prevent older “children” from getting financial aid. Financial aid is just one of many public benefits that take marijuana convictions into account. Conveniently, at least for discussion purposes, the guidelines for financial aid are spelled out, and it is relatively easy to look up how a marijuana conviction affects a student receiving aid.

There are many other public benefits that are less clear. Federal housing subsidies, like Section 8 housing, is complicated enough that one of my Drug Law and Policy colleagues, Ruby Renteria, is working on only that issue. Today, I am going to focus on two public benefits that affect children most directly: the foster care system and public school access.

Foster care in the state of California is a fairly difficult thing to discuss as far as across-the-board policies, since counties share and move children around depending on where beds are available. To be compatible with the system, foster assistance programs are often area-based. The one that I am most familiar with—and which I will use for purposes of this brief discussion—is the Court Appointed Special Advocates, or CASA, program. CASA appoints individuals to be constant advocates for youth in the foster system. Since lawyers and child protective services agents may change, the idea behind CASA is to give a child someone who will be more constant and not have any agenda other than supporting the child.

Programs like CASA are, perhaps unsurprisingly, sparsely funded and difficult to implement where there is need. It takes time to train advocates to understand the needs and concerns of the average foster child. Children with exceptional needs, like those with criminal records, tend to be harder to place with a CASA, and given the number of children without special needs who are awaiting a CASA, those youth with criminal records become less of a priority. In some instances, it may even disqualify the youth from receiving benefits.[1] So, if a child has a criminal record, or even a permanent non-criminal record of some kind, involving marijuana offenses, it will likely be a challenge for them to receive equal or optimal treatment in the foster system.

A public benefit that affects far more youth in California, however, is public school access. The data I gathered focuses on high schools, since high-school-aged children are probably using marijuana most. I also focus on high school because it, as an American institution, is held up on an alarmingly high pedestal. Homecomings, proms, and grandiose graduation ceremonies are featured in just about every “classic American” teen movie I care to think of. Being expelled from high school, or suspended and excluded from such traditional markers of acceptance, is therefore exceptionally disruptive.

To understand what happens if a child is caught with marijuana at school, it is perhaps best to have a bit of a primer in the California public education system and its disciplinary practices. Unlike foster care and its auxiliary programs, California education data is fairly accessible, and be forewarned: this is a bit of a downer.

Thousands of children are expelled from high school each year, and hundreds of thousands are suspended. California has been criticized over the last several years for its high rates of school discipline, so there has been significant effort to reign in overzealous districts, and the numbers have been dropping. And certainly, many students are expelled for meritorious reasons, like bringing weapons to school or sexual assault. However, the California Education Code’s grant of broad discretion to school administrators allows many children accused of lesser offenses to be uprooted and booted from their home school districts. Being forced to move away from their home school districts means that, among the confusion and general disarray that is caused administratively, students are also being removed from their peer groups. If they are not outright expelled, students with prior suspensions are often the first to be prevented from attending social activities like school dances and even graduation.

The California Education Code section 48915 outlines expulsion guidelines in detail for both violent and substance-related offenses. Regarding violent offenses, the Education Code requires explusion for students accused of bringing a firearm, brandishing a knife, possessing explosives, or sexual assault. The Education Code “expects” students accused of lesser violent crimes, including assault and battery, robbery, and possessing a knife, to be expelled. Finally, the Education Code allows discretionary expulsion of students who damage property, inflict mild physical injury, and possess “dangerous objects,” among other offenses. For the most part, these are guidelines that reflect the importance of keeping our youth safe while they are at school.

The Education Code’s take on drug offenses, however, is a little more difficult to swallow. The Education Code requires expulsion of any student who unlawfully sells a controlled substance. It expects expulsion for possession of any controlled substance, with an exception carved out for students who are caught for the first time possessing less than an ounce of marijuana. Finally, the Education Code allows discretionary expulsion for possessing any “drugs or alcohol,” selling substances that look like drugs or alcohol, and selling drug paraphernalia.

There are a number of things I find bizarre and concerning about these outlines. First, selling drugs at school is statutorily punishable in the same way as bringing firearms and explosives to school. This may be appropriate, though I am still concerned about foolish children getting caught up in a code section intended for hardened drug dealers and violent offenders. Recall from my last article how easy it was for Luis to be convicted of “giving a gift of less than ounce” for giving his friend a joint; had his friend handed him a dollar at that exchange, he likely would have been guilty of “sale” as defined by this Education Code section. More alarming is that in the “expulsion expected” category of offenses, possessing any drug is equated to violent robberies and causing serious injuries. Finally, “discretionary expulsions,” just like every kind of discretion, can be abused.

So, what are kids actually getting expelled for? As it turns out, students get expelled and suspended from schools for a veritable menu of offenses. The three largest groups of expulsions for the 2013-2014 school year were “Caused, Attempted, or Threatened Physical Injury,” “Possession, Use, Sale, or Furnishing a Controlled Substance, Alcohol, Intoxicant,” and “Disruption, Defiance.” Notably, all these expulsions were made under section 48900, which outlines the suspension and expulsion procedures for school administrators; a far smaller number of incidences cited section 48915, which outlines expulsions only (as discussed above).

I dug through significantly more data from the California Department of Education DataQuest site to try and figure out if there was a way to determine how often kids are disciplined for marijuana possession. It turns out it’s pretty much impossible to determine. The construction of the Education Code means that marijuana offenses are lumped together with alcohol and other drugs for reporting purposes. When considering how these numbers may change if marijuana is legalized for adult use, it would be useful to look at the alcohol and tobacco school discipline rates. Unfortunately, even alcohol is lumped together with other intoxicants and can’t be pulled apart to examine. Tobacco is not, and it may be a small beacon of hope to highlight that, although over 10,000 students were suspended for tobacco use in the 2013-2014 school year, only 110 were suspended.

While it may not be possible to try and predict the effect legalizing marijuana for adult use will have on school expulsion and suspension policies, I believe we nonetheless need legalization to impact school disciplinary policies. Why? To begin, anecdotal stories from across the country demonstrating strict policies on marijuana possession are becoming all the more frequent. Secondly, there is mounting evidence suggesting the zero-tolerance attitude towards marijuana is having the exact opposite effect desired, and actually makes students more likely to use marijuana. Finally, we know suspensions and expulsions disproportionally adversely affect students of color.

It is perhaps unsurprising at this point that foster youth in California are also disproportionately children of color. Next time in What About the Children, I plan on discussing the issue of race, as well as why talking about children of color is so important.

Clare McKendry for Drug Law and Policy – Follow us on Twitter @DrugLawPolicy

[1] Due to so many of these programs having differing policies from county to county, I had trouble finding a valid citation for this fact. The best, anecdotal citation, I can provide is that I have several friends who are CASAs who have described their chapter’s policy, or de facto policy, as excluding youth with criminal records.

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