Marjory Stoneman Douglas High School in Parkland, FL.

Much discussion of the Parkland, Florida school shooting has centered on how the discipline policies of the Broward County Public Schools (BCPS) may have been designed not to make the schools safer, but to make the schools’ statistics on suspensions, expulsions, and referrals to law enforcement look better. Better to whom? To a great extent, to the federal government during the Obama administration. This tragic case illustrates what tends to happen when the federal government meddles with local or state policies.

In a book Deconstructing the Administrative State: The Fight for Liberty that we co-authored with Emmett McGroarty, we detail how the federal government influences or even dictates local policies by various means, including 1) issuing “guidance” that localities are encouraged to implement as if it were legally binding; 2) creating multi-agency initiatives that leverage federal power to force local policy changes; and 3) making grants directly to local entities.

Deeper scrutiny is needed to uncover how all this played out in Broward. But what we do know suggests substantial – and ultimately harmful – efforts to appease the federal government with respect to school discipline.

Federal Influence on State and Local School-Discipline Policies

To identify troubled students and avoid a Columbine-type crime, the Florida legislature adopted a strict “zero-tolerance” law in 2002. The law required schools to report felonies and violent misdemeanors committed by students to law enforcement. During the Obama Administration, the law was amended to reflect new discipline programs and policies encouraged by the U.S. Department of Education (USED). Reporting requirements for student misdemeanors were loosened.  Unfortunately, had these changes not been made, the Florida shooter would have been arrested long before the tragedy on Valentine’s Day.

Instead of accomplishing what the bill was originally intended to accomplish — keep schools safe by removing criminal students — it appears these amendments did the opposite. They shielded the Florida shooter from law enforcement’s radar screen.

As discussed below, the changes made to Florida’s “zero-tolerance” were most likely prompted by federal policies intended to encourage and incentivize the reduction of suspensions, expulsions, and arrests of troublesome students (especially minority and disabled students). An early signal of the new federal policies appeared in the infamous Race to the Top program, which “included a program requirement that districts with students of color or students with disabilities overly represented in the district’s discipline rates must conduct a root cause analysis and develop a plan to address these root causes.”

But the ball really got rolling in July 2011, when two federal departments – USED and the Department of Justice (DOJ) — announced a “collaborative project” called the Supportive School Discipline Initiative. The goal was “to coordinate federal actions to provide schools with effective alternatives to exclusionary discipline [read: suspensions, expulsions, and arrests] while encouraging a new emphasis on reducing disproportionality for students of color and students with disabilities.”

As part of the Initiative, DOJ awarded $840,000 to the Council of State Governments to launch the School Discipline Consensus Project. This sum was matched by private foundations including the NoVo Foundation which, by the way, is a major player in the Social Emotional Learning scheme (teaching attitudes rather than academic content). The goal: “dismantle what is commonly named the ‘school-to-prison pipeline.’” In other words, do everything possible to keep criminal students in school and out of jail.

Education Secretary Arne Duncan and Attorney General Eric Holder also announced efforts to incentivize states and local school districts to demolish the pipeline. One such effort was upgrading data collection to shame school districts with statistics showing their “disproportionate” suspensions/expulsions/arrests of minority students.

USED’s Office for Civil Rights issued The Transformed Civil Rights Data Collection in March 2012. This report showed that black students in BCPS were suspended at a far greater rate than their percentage of the school population (no analysis of why that might be). Shaming accomplished.

The years 2012 and 2013 saw a flurry of federal activity designed to reduce exclusionary discipline and law-enforcement involvement. Projects included federally funded research on the topic, a National Leadership Summit, a webinar series, and creation of a Supportive School Discipline Community of Practice for state leaders. Meanwhile, DOJ funded the National Council of Juvenile and Family Court Judges “to replicate successful school-court partnerships working to reduce referrals to court of students for non-serious behavior.”

In April 2013 the Obama administration released its FY 2014 budget. Included was $50 million for USED to fund a School Climate Transformation Grant, and $20 million for DOJ to fund Juvenile Justice and Education Collaboration Assistance Grants. Also included was $55 million to the Department of Health and Human Services to implement Project AWARE (Advancing Wellness and Resilience in Education). So three federal departments were being leveraged to pressure schools and courts to work together to create systems for keeping students, including (repeat offenders), in school and out of the juvenile-justice system.

This brings us back to Broward specifically. A few months after the federal budget including all these grants was released, BCPS announced that it was replacing its zero-tolerance policy and developing guidelines more in line with what the federal government wanted. These guidelines evolved into a “Collaborative Agreement on School Discipline” signed by various judicial and law-enforcement authorities – including the now-disgraced Broward County Sheriff Scott Israel – and other interest groups such as the Ft. Lauderdale Branch of the NAACP. The agreement outlined the guidelines designed to minimize involvement of law enforcement in school discipline incidents.

This November 2013 agreement supposedly excluded felonious conduct but included a raft of misdemeanor offenses among those that would be handled by the school: fights, theft, vandalism, criminal mischief, harassment, drug possession, and threats, to name just a few. Only after a fifth offense during a school year would a student be referred to law enforcement.

Two months later, USED’s Duncan and DOJ’s Holder issued a School Discipline Guidance Package to lecture states and school districts about the administration’s preferred practices. As we detail in our book, such guidance usually doesn’t carry the force of law – but its intimidation value can be immense.

BCPS officials probably were confident that with their collaborative agreement, the district was complying with federal instructions. And when Obama’s USED and HHS announced the School Climate Transformation grant program for school districts in early 2014, BCPS was thus strategically positioned to get a chunk of the money.

In its grant application, BCPS bragged about its actions to introduce programs such as Positive Behavioral Interventions and Support (PBIS) and other efforts to improve school discipline without punitive measures, as well as its 50% reduction in student arrests. It also touted the Preventing Recidivism through Opportunities, Mentors, Interventions, Supports & Education (PROMISE) program, designed to “address the unique needs of students . . . who commit specific non-violent misdemeanors that might normally lead to juvenile delinquency arrest and, therefore, entry into the juvenile justice system.”

In a guidelines tweak by the Broward County Board of Education in April 2014, the Board delineated the following misdemeanor offenses as “PROMISE eligible”: disruption on campus – major; trespassing; alcohol-use/possession/under the influence; alcohol sale/attempted sale/transmittal; drug-use/possession/under the influence; drug paraphernalia-possession; bullying; harassment; fighting – mutual combat; false accusation against school staff; assault/threat medium (no harm or injury); theft – petty < $300; vandalism/damage to property < $1,000. Students committing these offenses would avoid arrest by completing the school’s PROMISE program, including counseling sessions, instruction on how to develop coping skills and pro-social behaviors, and, if necessary, referrals to social services for treatment.

What about the unlucky victims of these “PROMISE” offenders, who were allowed to stay in school and continue to wreak havoc? There was a program for them too. It’s called “restorative justice,” which offers victims and their offenders opportunities for face-to-face-dialogue to establish “consensus-based plans that meet victim-identified needs in the wake of a crime.“

PROMISE was specifically referenced in the November 2013 collaborative agreement and, notably, defended by Sheriff Israel in a February 25 interview with Jake Tapper of CNN. But not every sheriff in town shares Israel’s praise for the program. The president of the Broward County Sheriff Union, Jeff Bell, told Fox News that the PROMISE program was partly to blame for the failure to arrest the shooter for prior offenses: “[It] took all discretion away from the law enforcement officers to effect an arrest if we chose to.”

BCPS’s School Climate grant application dwelled at length on the need to reduce office disciplinary referrals, suspensions, expulsions, and arrests. To force the numbers down, BCPS reported, it would use multi-tiered systems of supports such as PBIS as well as something called Elimination of School House to Jail House, a “collaborative made up of . . . administrators, teachers, students, parents, and community members advising the District on promoting culturally responsive and non-discriminatory strategies. . . .” In other words, BCPS committed to greatly reduce penalties for criminal behavior.

All the hoops BCPS jumped through to impress the federal government apparently worked. On September 30, 2014, BCPS announced that it had received a $3.7 million grant ($750,000 a year for five years, the largest possible award) to improve school climate. USED announced that some of this grant money would be used to “address the school-to-prison pipeline – the unfortunate and often unintended policies and practices that push our nation’s schoolchildren . . . out of classrooms and into the juvenile and criminal justice systems.”

It’s possible that BCPS would have implemented such policies on their own merits anyway, regardless of federal incentives or veiled intimidation. But a presentation on PROMISE, offered (presumably by BCPS administrators) to the local Board in March 2015, makes clear that federal considerations were paramount. In that presentation, the Board was told in detail about USED’s school-climate and discipline guidelines, including the “guiding principles” that included using suspension, expulsion, and referral to law enforcement only as a last resort, and that warned about possible civil-rights liability for disproportionate disciplinary numbers.

But is any of this connected to the Parkland shooter? At this point, we don’t have a definitive answer. The shooter’s school record, however, is reported to have shown the shooter was classified as disabled, with a diagnosis of autism and other mental disorders. Considering the shooter’s history and the fact that he was enrolled for a period of time at an alternative school, this is most likely true.  Being disabled would have placed him into one of two categories of students (minority and disabled) for which suspensions, expulsions, and arrests were expected to decline under the federal grant programs. As evidence begins to surface showing BCPS and the Broward Sheriff’s Office relied on school-centered options rather than arrest to handle the shooter’s multiple crimes, a connection seems likely.

Failures of the Broward County Public School System

Reports show that BCPS failed to have the shooter arrested despite his involvement in at least 41 disciplinary incidents between 2012 and 2017, including insubordination, profanity, disruption, fighting, and assault. As detailed below, several student accounts detail the shooter’s involvement in more serious incidents (many of them felonies) than what has been reported by BCPS. Despite all this, Broward law enforcement confirmed that the shooter had no criminal record.

In September 2016, two BCPS students who were friends with the shooter’s ex-girlfriend reported to Stoneman Douglas High School Security Specialist Kelvin Greenleaf that he had sent them multiple Instagram posts threatening to kill them (a Class 3 felony). One such post read, “I’m going to get you and I’m going to kill you because you took this person [the ex-girlfriend] away from me. I’m going to kill your family.” No arrest was made. A math teacher who had the shooter in class last year confirmed that the school was well aware of these threats and sent an email to teachers warning that he wasn’t allowed on campus with a backpack.

Fears that the shooter might bring a weapon to school, however, were nothing new to BCPS administrators. A former teacher said that the boy was barred from bringing a backpack to school as far back as middle school and that security personnel had to search him to ensure he didn’t have weapons (a Class 3 felony).

In September 2016, a “peer counselor” reported to Stoneman Douglas High School Resource Officer Scott Peterson (the school officer who failed to enter the school during the shooting) that the shooter told her he engaged in self-harm (cutting his arms and attempting suicide by drinking gasoline) and stated he wanted to purchase a gun. Peterson notified the Sheriff’s Office and social workers about the incident. The shooter’s suicide threat allowed any one of these parties to have him committed under the Baker Act (a law permitting authorities to hospitalize people for mental evaluation). That option, which would have flagged his mental illness on a background check, was rejected. Instead, school officials called a mobile crisis unit to the school, where clinicians determined he was not a threat and advised against hospitalization.

The Department of Children and Families (DCF) also investigated the shooter’s cutting incident and plans to purchase a gun (noticing during the investigation the Nazi insignias drawn on his bookbag). The shooter’s mother told the investigators that the he didn’t have guns and that a mobile crisis unit at the school had determined he wasn’t at risk to harm himself or others. The DCF investigator reported that he contacted Peterson regarding the incident, but declined to share information about the incident outside of confirming the shooter was assessed and that hospitalization was not recommended. Based on this information, DCF decided against invoking the Baker Act option.

Had any of these parties used their authority under the Baker Act to have the shooter hospitalized, there is little chance he would have been allowed to purchase a gun.

While the school won’t provide details on why the shooter was expelled last year, citing only “disciplinary reasons,” some students have reported it was because he brought knives to school, while others claim it was for bringing bullets and fighting (bringing a weapon to school is a Class 3 felony). Bear in mind that under the collaborative agreement, he had to have committed multiple serious offenses to be expelled.

Within a week of the shooter’s being expelled, and with no disqualifying record of mental illness, he purchased the AR 15 he used in the shooting.

Failures of the Broward Sheriff’s Office and FBI

By the time the shooting at Stoneman Douglas High School occurred, the Broward Sheriff’s Office had received 45 calls regarding the shooter, including at least two warnings that he had threatened to shoot up the school. As The Hill reported, the Sheriff’s Office failed to enter any of this information into the National Instant Criminal Background Check System (NICS).  It is unclear whether the collaborative agreement with Sheriff Israel and his cohorts and the assurances made to end the school-to-prison pipeline were considered in the sheriff’s decision not to take action.

Though he had long been a student in the BCPS system, the shooter enrolled in Stoneman Douglas High School in January 2016. Within a few weeks, on February 5, the Sheriff’s Office received a tip from the son of a neighbor of the shooter that the shooter had threatened to “shoot up the school” (a Class 2 felony). That tip was accompanied by Instagram pictures of the shooter with guns. According to press reports, that tip prompted a visit from a Sheriff’s deputy. But instead of making an arrest, the deputy reported his findings to Peterson at BPCS.

The next tips to the Sheriff’s Office came in the fall of 2017. In September, a Mississippi blogger reported to the FBI that someone by the shooter’s name had posted on social media, “I’m going to be a professional school shooter.” Three reports came in November: the Sheriff’s Office was told that the shooter, whose mother had died, had rifles, and was requested to take possession of the weapons; the Palm Beach County woman who took the shooter in after his mother’s death called 911 to report that the shooter had weapons, was supposedly on his way to a store to buy more, and had been in a fight with her son; the shooter himself called 911 and reported the same fight; and a Massachusetts caller told the Broward Sheriff’s Office that the shooter was collecting guns and knives and “could be a school shooter in the making.”

It’s not known whether any of these tips were transmitted to BCPS. In any event, the shooter was not arrested.

The final tip came in January 2018, when a “person close to [the shooter]” left a message on the FBI’s tip line expressing concern about his possession of guns. The FBI has recently admitted that it failed to follow procedure and notify local law enforcement agencies.

The massacre occurred about five weeks later.

From the first tip to the school in February 2016 until his expulsion in February 2017, the school and Sheriff’s Office were aware of serious concerns about this boy’s stability. What was done about it during that time? Until full access is granted to all of the shooter’s school records, it’s impossible to say. Given the voluminous documentation about BCPS’s federal-friendly policies – don’t suspend, don’t expel, don’t involve law enforcement – it seems plausible that the shooter was undergoing PROMISE or some other “positive behavior” system at the school.

What is to be concluded from this sorry tale? It’s always dangerous to jump into such a dispute when emotions are so raw, but a few conclusions can be drawn.

One: The federal government established a policy to dismantle the school-to-prison pipeline by keeping troublesome students in school and out of jail. Two: Several federal agencies collaborated to leverage educational efforts, formal guidance, and federal money to incentivize states and local districts to implement this policy. Three: BCPS took bold steps – including entering into an agreement with law-enforcement and judicial authorities – to implement the policy, as a result of which it was awarded several million dollars in federal funding. Four: BCPS was proud of its reduction in contacts with law enforcement after implementing the collaborative agreement and had committed to USED through the School Climate grant to keep those numbers down.

Five: A boy with a long history of disturbing behavior throughout his time at the school murdered 17 students.

Federal interference in state and local policy is harmful and unacceptable in all circumstances, usually for reasons of polity and liberty. But in this case, it appears it contributed to something even worse. If Florida’s 2002 “zero-tolerance” laws hadn’t been amended to adopt preferred federal policies, BCPS would have been compelled to refer the shooter to law enforcement years before the murders. If BCPS hadn’t been angling for federal money, it might have been less tolerant of his criminal misconduct.

But the bottom line is this: These policies allowed the shooter to avoid arrest or commitment, and to retain the clean record he needed to purchase a gun.

School districts with similar policies should take notice. And they should retake control over their discipline policies – even if it means defying the federal government.

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