The passage of legislation mandating consideration of Restorative Justice in schools marks a movement away from "zero tolerance" by requiring schools to consider a number of mitigating factors or alternatives before suspending or expelling students. We describe the bills themselves and their requirements in a previous e-alert, which may be accessed here. We will also host a webinar with Restorative Justice expert Nancy Schertzing on January 4, 2017 from 12 PM to 12:45 PM. Click here to register for this complimentary webinar.

Put simply, Restorative Justice is a philosophy and disciplinary practice that defines accountability as healing the harm rather than taking the punishment. It brings together those who cause harm with those they've hurt in facilitated interventions designed to acknowledge the harm and identify appropriate actions to make things right as much as possible. This makes Restorative Justice a developmental tool for addressing conflict and misconduct by fostering empathy, personal responsibility and community-building. Schools that have integrated Restorative Justice philosophy and practices into their cultures have experienced precipitous drops in discipline referrals and significant improvements in safety.

Any time a specific approach to discipline is legislated, the first step toward compliance is a change in the prevailing thoughts on implementation of compliance measures. School communities should familiarize themselves with the considerations this legislation mandates before disciplining a student, whether through exclusion or Restorative Practices. The time and effort schools invest in integrating Restorative Justice principles will yield safer, more unified learning communities and inoculate them from challenges invited by the bills, which are discussed below. 

One such challenge is a collateral attack on the discipline itself. While previously the only check on disciplinary action was that the fundamentals of due process be applied, the Restorative Justice bills require that, in addition to simply providing due process, the school (and, therefore, the administrator) must consider mitigating factors, including whether to apply Restorative Justice principles. This fundamental shift from zero tolerance might seem daunting, but it can be implemented with fidelity if several best practices are undertaken. 

First, it is important to understand what is required. The bills make it a "rebuttable presumption" that suspension of more than 10 days or expulsion is not justified unless the disciplinary officer or tribunal considered the following mitigating factors related to the pupil: age, disciplinary history, disability, seriousness of the behavior, whether the behavior threatened the safety of students or staff, whether Restorative Practices will be used and whether a lesser intervention would be appropriate. The term "rebuttable presumption" means a "presumption which may be rebutted by evidence." Blacks Law Dictionary. Thus, before invoking long-term suspension or expulsion, a school district must demonstrate that it considered the mitigating factors or it risks creating a situation where its decision could be questioned or deemed unjustified. While the bills speak in terms of granting discretion to the local board or administrator, some might say they actually circumscribe the discretion already possessed. 

If they wish to avoid challenges to their discipline, boards and administrators must create an environment where the Restorative Justice philosophy embodied in the bills can be fostered. To implement a Restorative Justice program, experts and the MDE suggest that school leadership:

• Adopt a restorative philosophy toward educating and disciplining students;
• Train administrators, counselors and safety officers in the Restorative Justice philosophy and practices for resolving conflict and addressing misconduct;
• Establish a method of data collection to demonstrate fidelity and measure changes in student conduct;
• Obtain staff buy in on the restorative philosophy and systemic approach;
• Identify a core team to help integrate the process and ensure fidelity in implementation;
• Train staff on Restorative Justice philosophy and general practices; and
• Gather and review quantitative and qualitative data to constantly assess and improve.

To maintain a program demonstrably faithful to Restorative Justice principles, a robust professional development program should be considered. The program should include training from experts in the Restorative Justice process, development of procedures for consideration in disciplinary infractions (such as referral sheets that include documented consideration of the mitigating factors set forth in the bills), re-drafting of student handbooks to align with the bills, and implementing staff-wide in-services to introduce Restorative Justice and explain the new legal requirements.

These bills take effect August 1, 2017, allowing plenty of time to plan for the smooth implementation of the mandates and the Restorative Justice principles they envision. Clark Hill and our partners stand ready to help in this process. Future e-alerts will detail specific best practices drawn from the MDE. Again, on January 4, 2017, we will offer a webinar outlining this legislation and the basics of Restorative Justice. We hope you will join us to learn more.